State of New South Wales v Bastian

Case •

[2016] NSWSC 331

•

30 March 2016

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: State of New South Wales v Bastian [2016] NSWSC 331
Hearing dates:18 March 2016
Decision date: 30 March 2016
Jurisdiction:Common Law
Before: Adamson J
Decision:

See paragraph 114

Catchwords: CRIMINAL LAW – high-risk sex offender - application by State for second extended supervision order – order made for maximum period – consideration of content of conditions – access to pornography prohibited
Legislation Cited: Crimes Act 1900 (NSW), ss 61O(2), 66A, 66B, 66C, 66D, 66EB, 78Q(2), 91H(2), 91K
Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 5, 5B, 5C, 5H, 5I, 7, 9, 10, 11, 12, 13, 21
Cases Cited: Lynn v State of New South Wales [2016] NSWCA 57
Category:Principal judgment
Parties: State of New South Wales (Plaintiff)
Raymond Bastian (Defendant)
Representation:

Counsel:
N Sharp (Plaintiff)
K Averre (Defendant)

  Solicitors:
Crown Solicitor for NSW (Plaintiff)
Legal Aid NSW (Defendant)
File Number(s):2015/329196

Judgment

Introduction

  1. By summons filed on 9 November 2015, the State of New South Wales (the plaintiff) seeks a five-year extended supervision order (ESO) in respect of Raymond Bastian (the defendant) pursuant to s 9 of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act).

  2. On 9 December 2015, Fagan J made an interim supervision order (ISO) against the defendant pursuant to s 10A of the Act, which commenced on 28 December 2015. On 29 December 2015 the defendant was arrested and taken into custody for breaching his ISO. On 20 January 2016, following a plea of guilty, he was convicted and sentenced to a term of imprisonment which will expire on 28 September 2016. Accordingly, the plaintiff seeks an ESO from that date.

The applicable law

The Act

  1. Section 3 of the Act provides:

“Objects of Act

(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 this Act is to encourage high-risk sex offenders and high-risk violent offenders to undertake rehabilitation.”

  1. The legislative purpose of the Act is protective, not punitive. As appears from the terms of s 3, the protective purpose is fundamental.

  2. Section 5(1) of the Act relevantly defines “serious sex offence” as an offence under Division 10 of Part 3 of the Crimes Act 1900 (NSW) which is punishable by a sentence of seven years or more. Such offences include, relevantly, the following:

Section of Crimes Act

Offence

66A

Sexual intercourse with a child under 10 years of age.

66B

Attempting to have sexual intercourse with a child under 10 years of age.

66C

Sexual intercourse with a child between 10 to 16 years of age.

66D

Attempting to have sexual intercourse with a child between 10 to 16 years of age.

66EB

Procuring or grooming a child under 16 years for unlawful sexual activity.

61O(2)

Acts of indecency towards a person under 10 years of age.

61O(2)

Inciting a person under 10 years of age to commit acts of indecency on the person inciting or another person.

  1. Section 5B provides:

“High risk sex offender

(1)  An offender can be made the subject of a high risk sex offender extended supervision order or a high risk sex offender continuing detention order as provided for by this Act if and only if the offender is a high risk sex offender.

(2)  An offender is a high risk sex offender if the offender is a sex offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision.

(3)  The Supreme Court is not required to determine that the risk of a person committing a serious sex offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious sex offence.”

  1. Section 5C confers power on this Court to make an ESO in respect of a high risk sex offender. Implicit in s 5C is that the supervision imposed by an ESO is sufficient to counter what would otherwise be an “unacceptable risk”. Supervision can only be regarded as “adequate” if it is effective to reduce the risk such that the offender no longer poses an unacceptable risk.

  2. Section 5H entitles the plaintiff to apply to this Court for an ESO. Section 5I(1) provides that an application for a high risk sex offender ESO may be made only in respect of a supervised sex offender. A person who is under supervision (under an ESO) is, relevantly, a supervised sex offender: s 5I(2).

  3. Section 7 provides for pre-trial procedures. Of present relevance, s 7(4) provides:

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

(a) appointing:

(i) 2 qualified psychiatrists, or

(ii) 2 registered psychologists, or

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

(iv) 2 qualified psychiatrists and 2 registered psychologists,

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

(b) directing the offender to attend those examinations.”

  1. Section 9(3) provides that the following are to be taken into account in determining whether to make an ESO:

“(a)  the safety of the community,

(b) the reports received from the persons appointed under section 7 (4) [court-appointed experts] 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 relevant 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 relevant offence,

. . .

(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,

(f)  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,

. . .

(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 in future commit offences of a sexual nature (in the case of an application for a high risk sex offender extended supervision order) or serious violence offences (in the case of an application for a high risk violent offender extended supervision order).

  1. Section 10 provides that an ESO can be made for a total of five years. Section 10A provides for an ISO to be made in certain circumstances. The decision whether to make an ISO is to be made by reference to the same considerations as apply to an ESO. Section 10A provides:

“Interim supervision order—high risk sex offender

The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, it appears to the Court:

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

(b) that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk sex offender extended supervision order.”

  1. Section 11 provides for the conditions that may be imposed on an ESO. A breach of ESO conditions is an offence under s 12 of the Act.

  2. Section 13 of the Act relevantly provides:

“Supervision order may be varied or revoked

(1) The Supreme Court may at any time vary or revoke an extended supervision order or interim supervision order on the application of the State or the offender.

. . .

(1B) Without limiting the grounds for revoking an extended supervision order or interim supervision order, the Supreme Court may revoke an extended supervision order or interim supervision order if satisfied that circumstances have changed sufficiently to render the order unnecessary.

(2) For the purpose of ascertaining whether to make such an application in relation to an extended supervision order, the Commissioner of Corrective Services must provide the Attorney General with a report on the offender at intervals of not more than 12 months.

(3) The report must indicate whether the Commissioner considers the continuation of the extended supervision order to be necessary and appropriate.”

  1. These proceedings are to be conducted as civil proceedings: s 21.

This Court’s jurisdiction

  1. On 29 June 2011, Hoeben J made an ESO in respect of the defendant for a period of three years and six months commencing on that date (First ESO). However, the First ESO was suspended for six months (from 16 August 2011 to 15 February 2012) during which the defendant served a sentence of imprisonment for a breach of the ESO (the First Breach). He was convicted of breaching the ESO again (the Second Breach) as a result of which he was imprisoned for another six months from 8 January 2013 to 7 July 2013, during which time the First ESO was suspended for a further period of six months. The result of these suspensions is that the First ESO expired four and a half years after it commenced, on 28 December 2015.

  2. Section 6(2) prohibits the making of an application for an ESO until the last six months of the offender’s current custody or supervision. As the summons was filed on 9 November 2015, and the First ESO was due to expire on 28 December 2015, it was filed within time.

Background facts

  1. Before addressing whether an order ought be made, I propose to set out a narrative derived from the evidence adduced by the plaintiff.

The plaintiff’s background, upbringing and employment

  1. The defendant was born in Broken Hill in 1946. He was a ward of the State and spent much of his childhood either in institutions or in foster care. He alleged that he was sexually assaulted between the ages of 10 and 18 by residents and staff of these institutions. When he was in his early twenties, he suffered a mental breakdown, as a result of which he was admitted to Bloomfield Psychiatric Hospital in Orange where he remained for several months.

  2. He worked in irregular casual jobs, including (on his own report) as a sex worker between the ages of 18 and 25. Since the late 1960’s he has been in receipt of Government benefits: first, the disability pension and, in more recent years, the aged pension. The defendant reported that he regularly consumed significant quantities of alcohol prior to his first term of imprisonment in 2003.

The November 1987 offence: act of indecency by person in authority

  1. As at November 1987 the defendant (then aged 41) lived with his step-brother, his step-brother’s wife and their two children. One of the children’s friends, a 10-year old boy, knew the defendant as “Uncle Ray”. The defendant took the boy to his home to help him move rocks. After becoming dirty, they showered. According to the boy’s statement, he watched the defendant having a shower and then had a shower himself. The defendant would not let the boy get dressed and instructed him to lie on the floor. The defendant lay beside the boy and sucked his penis and masturbated himself to the point of ejaculation.

  2. On 27 November 1987, as a result of this conduct, the defendant was charged with one count of homosexual intercourse with a male aged between 10 and 18 years; one count of sexual assault and one count of act of indecency by a person in authority. The defendant made full admissions when interviewed by police.

  3. He pleaded guilty to the charge of act of indecency by a person in authority and, on 9 March 1989, he was sentenced and placed on a three-year recognizance bond of $3,000 and ordered to place himself under the supervision of the Probation and Parole Service.

The October 1996 offence: incite male under the age of 18 years to commit an act of homosexual intercourse with a male person

  1. On 25 October 1996 handwritten notes which contained sexually explicit material and which identified a twelve-year old boy (who was a ward of the State) were handed to the Moss Vale Police Station. One of the notes read:

“I love you and I think you have a sexy body. I would pay you $25 each pension day just to suck your cock off and your nice little arsehole. All you would have to do to me is fuck my arsehole.”

  1. When the victim, who was twelve years old, was interviewed by police he said that on one occasion between 1 January 1995 and 28 March 1996 when he was living on the streets, the defendant had offered to pay him for sex. Later, between 28 March 1996 and 12 November 1996, when the victim was in foster care, the defendant approached him outside a supermarket and offered him money for sex.

  2. On 12 November 1996 the defendant was arrested, interviewed and charged with two counts of incite act of gross indecency (contrary to s 78Q(2) of the Crimes Act 1900 (NSW)). In a recorded interview on 12 November 1996, the defendant admitted the notes but denied that he had offered the victim money for sex. The defendant did, however, admit that he had offered to have the victim stay with him rather than sleeping in a clothes bin or out on the streets. Prior to the interview, the defendant admitted that he had spoken with the victim about having sex.

  3. In December 1996 the defendant was convicted of these offences and sentenced to a three-year recognizance on payment of $2,000 on condition that he accept the supervision and guidance of the Probation and Parole Service.

1997 complaint (which did not result in charges being laid)

  1. While the defendant was subject to the recognizance referred to above, a woman alleged that two of her children (a 6-year old boy and a 4-year old girl) were abused by the defendant and another male aged 15-16 years old (C4). Witness statements were taken but no charges were laid. According to the mother, she and her family had moved into a Housing Commission home next to where the defendant lived with C4. While the children’s grandfather was minding them, three of the children (the 4 and 6-year olds and another 7-year old boy) visited the defendant’s home where they alleged he showed them pornography. The 6-year old told his mother that C4 touched his penis and the defendant put his finger up his bottom. The 4-year old girl said that the defendant put a stick up her vagina. The 7-year old boy told police that he saw the defendant touch his siblings in the area of their crotches.

2001 complaint (which did not result in charges being laid)

  1. The defendant lived with a 4-year old boy for some months in 2001. The defendant reported sexualised conduct by the boy to the police, including that the boy called out “don’t touch my dick” while he was asleep. The following year the boy was interviewed by police and told them that the defendant had touched his penis and “bum” while the defendant was naked. Police determined that there was insufficient evidence to charge the defendant. The plaintiff submitted that the defendant’s report to police was, in substance, a ruse which was designed to discredit the boy in the eyes of the police in anticipation of his complaining about the defendant’s conduct.

November/ December 2002 offences: including four counts of aggravated sexual assault victim aged 10-14 years and two counts of incite person under 16 years to commit indecent act

  1. In November 2002 the defendant met two twelve-year old boys at a service station in Goulburn. He purchased pornographic material and invited the victims to view the magazines at his house. The defendant asked them to expose their penises to him, which they did (these acts became counts one and two on the indictment). He performed oral sex on both of them and persuaded them to perform penile anal penetration on him (counts three to six on the indictment). This conduct continued for some months (there were several offences on a Form 1). The victims said that they took part in these acts because the defendant promised to provide them with a mobile phone and money.

  2. In November or December 2002 the defendant befriended a woman who helped him when he fell over in front of her house. She described him as coming across “as a grandfather type figure” who was “very friendly towards me and the kids”. The defendant introduced the woman to a man whom he said was his brother. The woman and the defendant’s brother began a relationship. When the couple went out, the defendant would baby sit the woman’s children. In early 2003 two of the younger children told their mother that the defendant had sexually abused them. The defendant admitted that he had fellated the penis of the young boy, who was five.

  3. After the two children had revealed the abuse, handwritten notes containing sexually explicit material, including the names of the two 12-year old boys (referred to above), were found at the defendant’s home.

  4. On 11 April 2003 the defendant was charged with a series of offences arising from the conduct referred to above. He pleaded guilty to all six counts on the indictment and was convicted at the Goulburn District Court of four counts of aggravated sexual assault, victim aged 10-14 years; and two counts of incite person aged under 16 years to commit an act of indecency. The following additional 25 offences were included in a Form 1:

  1. 22 counts of sexual intercourse with a person aged 10-14 years (which concerned the twelve-year old boys);

  2. 2 counts of incite person aged under 16 years to commit an act of indecency (which concerned the twelve-year old boys); and

  3. one count of sexual intercourse with a person under 10 years (which concerned the five-year old boy).

  1. The defendant was sentenced in the District Court by Blackmore DCJ who imposed a total sentence of eight years, with a non-parole period of six years, to commence on 11 April 2003, structured as follows:

Count

Sentence

Commencement

1

Fixed term of 12 months

11 April 2003

2

Fixed term of 12 months

11 April 2003

3 (& Form 1)

Seven years including non-parole period of five years

11 April 2004

4 & 6

Four years with non-parole period of three years

11 April 2003

5

Fixed term of four years

11 April 2004

  1. The remarks on sentence included the following:

“The offences committed by the offender are abhorrent and deserving of a very condign sentence. . .

The most significant matter which determines where a particular offence is to be placed in the spectrum of offences of this kind is the degree to which the offender is seen to have exploited the youth of the victim. (See R v Sea (unreported) NSW CCA 13 August 1990.)

In this case the facts demonstrate predatory conduct on behalf of the offender. He lured the boys into taking part in this conduct. They were at an age when they were very vulnerable and it is likely that the offender’s behaviour will have serious repercussions with regard to their development. Moreover, on one occasion he introduced another adult into the sexual behaviour. This is a very serious aggravating factor in the offences.”

Neuropsychological testing in 2009

  1. A comprehensive neuropsychological test was undertaken by Mr Rodriguez on 20 May 2009. His findings were as follows:

“Applying the Wechsler Abbreviated Scale of Intelligence (“WASI”), Mr Rodriguez found that Mr Bastian was at the Low-Average range for verbal ability and non-verbal ability. Applying the Addenbrooke Cognitive Examination (“ACER-R”), Mr Rodriguez found that Mr Bastian scored 91 out of 100 and that this indicated “no gross impairment” in the five cognitive domains of attention/orientation, memory, verbal fluency, language or visual-spatial abilities. Mr Rodriguez found that Mr Bastian fell in the non-impaired range (but at the very low end) in terms of his prefrontal function and that his recall of recent events was “relatively intact”.

The First ESO

  1. On 21 March 2011 Fullerton J made an ISO in respect of the defendant which commenced on 10 April 2011, the day he was released from custody, his sentence having expired (the First ISO). The defendant initially lived at Campbelltown Community Offender Support Program Centre (COSP) where he remained until he moved to NSW Housing accommodation.

  2. The First ISO was subject to conditions that included the following:

“3. The defendant must comply with any reasonable direction given by the Departmental Supervising Officer or any other departmental officer who may from time to time be involved in supervision of the defendant.

. . .

19. Without limiting the immediately preceding condition, the defendant must not associate with a particular person or persons if he is reasonably directed by the Departmental Supervising Officer to that effect.”

  1. The First ISO was subsequently reviewed and further ISOs were made by Johnson and Hidden JJ on relevantly the same conditions.

Offences committed during First ISO and First ESO

2011 offences: breaches of conditions 3 and 19

  1. On 20 April 2011 the Departmental Supervising Officer (DSO) gave the defendant a formal written direction (pursuant to condition 3 of the First ISO) that he was not to have any form of contact with any sex offender.

  2. On 4 May 2011 the defendant wrote to a sex offender at the Campbelltown COSP where the defendant himself was residing. The letter was discovered when it was marked return to sender.

  3. On 17 May 2011 the defendant wrote to another known sex offender at the Nunyara COSP at Malabar but this letter was not discovered until later.

  4. On 23 May 2011 the defendant’s DSO told him that he would be issued with a formal warning regarding the breach (relating to the letter of 4 May 2011). On 24 May 2011 two compliance officers visited the defendant at the Campbelltown COSP to discuss the direction he had been given on 20 April 2011. He was asked whether he had breached the direction on occasions other than with respect to the letter on 4 May 2011. He disclosed no other breach. The compliance officers reviewed the defendant’s phone which contained various texts to other sex offenders living within the community.

  5. On 25 May 2011, the DSO and a Senior Compliance and Monitoring Officer visited the defendant, who was given an opportunity to disclose any other contact he had made with sex offenders. He made no such disclosure, although he had sent the letter to another sex offender on 17 May 2011, as referred to above. The defendant admitted that he knew that he was breaching the First ISO at the time he breached it. His phone was reviewed; it contained numerous texts which he had sent to other sex offenders. The contents of his in-box had been deleted, with the result that their responses could not be reviewed.

  6. The letter which the defendant had sent on 17 May 2011 was received on 24 May 2011. Its existence came to the attention of the DSO, who identified it as another (undisclosed) breach of condition 3.

  7. From May 2011 the defendant has had weekly psychological counselling sessions with Forensic Psychology Services (FPS). The notes are in evidence. They are redolent with references which reveal the defendant’s sexual preoccupation with young boys and potential grooming of such boys.

  8. The First ESO commenced on 29 June 2011 (see above). It contained, relevantly, the same conditions set out above.

  9. Further breaches of a similar nature to those set out above (contact with sex offenders) were detected in August 2011, as a result of which the defendant was arrested on 16 August 2011 and charged with two counts of failing to comply with an ISO or ESO (by failing to comply with conditions 3 and 19). He pleaded guilty to the two charges, as a result of which he was convicted and sentenced by the Campbelltown Local Court to a term of imprisonment of 6 months commencing 16 August 2011 and expiring on 15 February 2012.

2013 offences: breach of conditions of ESO and possession of child pornography

  1. On Friday 18 January 2013 COSP employees inspected the defendant’s room and found two Secure Digital cards. They asked him whether there was any child pornography on the cards. He admitted that there was a single image of 5 naked persons, including three young boys. The defendant was cautioned and interviewed by police in the course of which he made admissions about possessing child pornography. He also made admissions about accessing websites that contain child pornography but told police that no evidence to that effect would be found.

  2. While the police were reviewing the image, the defendant received a further text message from a third person that clearly described a sexual act taking place between an adult male and a 13-year old boy. He was interviewed again. In the course of the interview he admitted that he was interested in the three naked boys aged 10 to 15 and the fact that if had had more time he intended to masturbate over the image. He said that he received the image from another resident at COSP as a birthday present and intended to delete the image once he could no longer be stimulated by it, so that he could avoid detection by COSP staff or police. The defendant admitted that he used internet sites to access similar images. The police facts recorded:

“The accused states that he would rather use these means of stimulation in his words to abuse himself rather than go out into the community and re-offend against other children. The accused when speaking to police referred to a skateboarding facility in close proximity to his residence.”

  1. As a result of these events, the defendant was again convicted of failing to comply with conditions 3 and 19 of his First ESO, as well as the offence of produce, disseminate or possess child abuse material contrary to s 91H(2) of the Crimes Act. He was sentenced to a term of imprisonment for six months that commenced on 18 January 2013 (being the date on which he was taken into custody).

Subsequent events including 2016 offence: breaches of ESO

  1. On 4 November 2013 the defendant told FPS that he had had contact with school-aged children who catch the bus outside his Housing NSW accommodation. He met the father of the children in the course of cleaning up around the units. The father later introduced the defendant to his wife and children. The defendant began waving to the children whenever he saw them at the bus stop.

  2. On 25 June 2014 the defendant was found at home with a young male in his twenties, whom he said he had met in Campbelltown. Enquiries made of Community Corrections Officers revealed that the young male, Matthew Potter, had drug and alcohol problems; had been scheduled for schizophrenia; and had often been found by police sleeping in parks. The defendant has referred to Mr Potter at times as his “nephew”, “step-nephew”, and “step-grandson”.

  3. On 2 July 2014 the DSO directed the defendant orally not to associate with Mr Potter. On 5 July 2014 the DSO gave him a formal written direction to that effect. On 21 December 2014 the defendant was given a final written direction and warning not to associate with Mr Potter by any means.

  4. On 9 September 2014 the defendant told FPS, in connection with his sexual preoccupation, that he admitted to thinking (regarding sex with young boys): “if it was done to me, why can’t I do it to others?”

  5. The evidence is not precise about when Depo Provera was first administered to the defendant. However, a report of his general practitioner, Dr Samara-Sekera, dated 6 February 2015 recorded that an injection of Depo Provera was administered every three months. On 2 March 2015 the defendant reported that he experienced erectile dysfunction as a result of the injection and that he no longer had an interest in children.

  6. However, on 13 May 2015, his FPS maintenance notes recorded that the defendant admitted a continuing sexual interest in young boys, of any age, including “about 5”. He said that he would often see such a boy and “have a thought”. This history is to be contrasted with the supposed effect of the anti-libidinal drug in reducing sexual desire and suggests, according to Dr Furst, whose opinion is addressed in more detail below, an ongoing deviant sexual preoccupation which, if acted upon, would lead to the commission of the types of serious sex offences listed in the table set out above.

  7. On 27 July 2015 police went to the defendant’s home because of a domestic dispute between the defendant and Mr Potter which involved violence. No action was taken other than a verbal direction reiterating the prohibition on the defendant’s associating with Mr Potter. In July 2015 the defendant applied to Housing NSW to have Mr Potter added as an additional occupant of his premises. The request was declined.

  8. On 2 September 2015 the defendant told FPS that he was viewing pornography daily as a form of coping.

  9. In October 2015 the defendant was assessed by the Western Sydney Aged Care Assessment Team (ACAT). On 29 October 2015 he was assessed as being eligible to receive residential respite care at a low level or the home care package level 1 and 2.

  10. Clare McNaughton became the defendant’s DSO on 20 December 2015. On 25 December 2015 Ms McNaughton conducted an unannounced visit to the defendant’s home (in premises managed by Housing NSW in Guilford). When the defendant answered the door, he suggested to Ms McNaughton that they sit outside as he had just sprayed “bug spray” inside. Ms McNaughton insisted on coming in. As soon as she entered she saw a young adult male sleeping on the defendant’s bed. The defendant identified the young man as his “nephew” and said his name was “Matthew”, but not “Matthew Potter”; the defendant confirmed that his name was Matthew Porter.

  11. Ms McNaughton woke up the young man (who appeared to be in his early twenties) who was wearing a plaster cast for a broken arm. According to the defendant, Mr Potter’s drowsiness was a result of his having taken medication the previous day. Ms McNaughton asked for his name, to which he answered “Matt”. When she asked for his full name, he answered, “Matt Potter”. The defendant became tearful and said that he would kill himself if he were not permitted to associate with Mr Potter. Ms McNaughton gave a further verbal direction that he was not to associate with Mr Potter.

  12. As referred to above, on 9 December 2015, Fagan J made an ISO against the defendant which commenced on 28 December 2015 (the Second ISO). It relevantly contained conditions equivalent to conditions 3 and 19 of the First ESO. Justice Fagan also ordered that Dr Furst and Dr Martin conduct psychiatric examinations of the defendant and report to the Court.

  13. On 29 December 2015 Detective Senior Constables Ware and Payne visited the defendant at home. When he answered the door, he told the officers that there was no one else at home. Detective Payne called out to Mr Potter and directed him to come out of the house. Mr Potter emerged from the residence. He told the officers that he had been living with the defendant off and on since August 2015. The defendant was arrested. His mobile telephone was seized and searched.

  14. Photographs were taken of text messages on his phone. Several of these text messages appear to be to or from a man called Daniel. I infer from their content, context and the references to FPS that Daniel is also a sex offender. The following texts indicate that the defendant has tried to enlist Daniel’s help to locate vulnerable people:

“Try to find someone is [sic] homeless and let him know what I said and you can give him my phone number”

“Try and fine [sic] someone it is going to be cold for the next 6 weeks ok if you fine [sic] one give him my phone number ok and get him to call ok”

  1. I accept the plaintiff’s submission that these text messages show that the defendant makes advances to others to induce them to come to him.

  2. Other texts found on the defendant’s phone contain sexually explicit messages. There were also 204 videos and 332 images found, all of which were pornographic. The males depicted are young. The plaintiff does not suggest that I could be satisfied that any one of them is younger than 18 years, although some may appear so. The messages and the pornographic material indicate a strong sexual preoccupation from which I infer that the Depo Provera is not having any substantial effect on reducing the defendant’s libido.

  3. On 6 January the defendant entered a plea to the offence of breaching his First ESO and the Second ISO. On 20 January 2016 the matter came before Brown LCM at the Local Court at Parramatta for sentence. Mr O’Brien (who appeared on behalf of the defendant) made the following submission, which I assume to have been made on instructions:

“Also he will inevitably have another extended supervision order put in place, probably for the rest of his life. Inevitably, it would appear, for the rest of his life given the findings of the previous judgments, given the determinations by Local Courts that he’s in breach of those orders and that he’s spent time in custody referable to those breaches. So he’s not someone who is going to be at large into the future. He is going to be supervised, he is going to be on orders for the entirety of his life.”

  1. At the conclusion of the hearing, the defendant was convicted of breaching the First ESO and sentenced to 9 months imprisonment from 29 December 2015 (the date on which he was taken into custody).

The defendant’s physical and mental health

  1. Dr Hill, geriatrician, examined the defendant for the purposes of these proceedings in February 2016. She noted that he has a number of co-morbidities which are generally progressive. She expected further deterioration in his mobility and progression of dementia. As his musculoligamentous structure is weak, he will increasingly become prone to falls. Although she noted that the Montreal cognitive assessment had shown a degree of cognitive impairment (22 out of 30, in circumstances where 24 or 25 would indicate some level of impairment), she said that the assessment was a screening test, not a diagnostic test.

  2. Dr Hill reported:

“Mr Bastian’s conditions would affect his ability to participate in sexual acts.

He would be less able to play a physically ‘active’ role, given his shortness of breath, weakness and fatigability.

His medical conditions, in themselves, would not likely affect his ability to play a physically ‘passive’ role.

…

Mr Bastian’s dependence on a wheeled walker or motorised scoot would likely reduce his ability to procure the commission of sexual acts. His freedom of movement and therefore, the opportunity to make contact with possible participants, would be impeded.”

The section 9(3) factors

  1. I shall address each of the matters in s 9(3) in turn, in so far as each is relevant. However, I propose to address safety of the community (s 9(3)(a)) in a compendious way at the end since many of the other factors also concern this matter.

Section 9(3)(b): reports received pursuant to s 7(4)

Relevant medical diagnoses and their relevance to risk

  1. Drs Furst and Martin, psychiatrists, assessed the defendant. Dr Martin diagnosed a paedophilic disorder and a personality disorder. Dr Furst considered that he met the diagnostic criteria for paedophilia, anxiety and depression and personality disorder with borderline and dependent traits. They both considered him to be at high risk of re-offending without significant intervention and supervision and that it was unlikely that the risk would change over time, notwithstanding his increased age, as his sexual deviance has been enduring. They did not consider that difficulties with mobility would significantly decrease the chances of his engaging in some form of paedophilic behaviour in the near future without supervision.

  2. Dr Furst noted that the defendant’s continued interest in young boys, including those aged 5, as recently as May 2015 was suggestive of ongoing deviance even when on treatment (he was on Depo Provera at the time).

Effects of anti-libidinal medication and its appropriateness in the present case

  1. They considered that, notwithstanding its considerable side-effects, anti-libidinal medication was appropriate and necessary for the defendant. Drs Furst and Martin opined that, if an ESO were to be made, it ought be made for the maximum duration of five years, having regard to the intransigence of the risk factors and the insufficient prospect of their being reduced in the foreseeable future. Dr Martin explained his view in oral evidence in the following terms:

“My understanding is that [five years] is the maximum that can be allowed under this legislation. I think any less time than that would be arbitrary in making those suggestions. I don't see the risks diminishing in the next five years, of course it is possible and no‑one can predict the future and he may become completely immobilised or physically ill in some other way, in which case it would make the conditions of the ESO redundant. But I don't think one can completely anticipate that, I think it is more likely than not that in five years’ time he will still remain relatively mobile.”

The defendant’s failure to take full responsibility for his offending conduct

  1. Both Dr Furst and Dr Martin noted that, although the defendant acknowledged his past offences (as would be expected since he pleaded guilty on most, if not all, occasions), he refused to take responsibility for them and blamed the government and the sexual abuse he had suffered as a child for his offences. Moreover, he understated the effect of his offending on his victims by relying on the circumstance that his abuse of the victims did not include penile penetration. This matter indicates his failure to appreciate, or accept, the consequences and gravity of his actions.

  2. When Drs Furst and Martin assessed the defendant, they were not aware of the most recent breach of his First ESO, which led to his present incarceration. Their opinions as to the risk did not change as a result of being informed of that matter since they both, as referred to above, considered him to present a high risk of re-offending without substantial external control.

Association with Mr Potter

  1. Both psychiatrists considered that contact with Mr Potter would be an additional destabilising factor for the defendant, particularly as the defendant has a history of drinking to excess.

The relevance of the defendant’s current medical condition and potential decrease in mobility

  1. Dr Furst noted the diagnosis of dementia made by Dr Hill and considered that it may have the effect of making the defendant disinhibited and prevent his obtaining any benefit from structured psychological counselling. Dr Martin accepted that any increase in his cognitive impairment may make it more difficult for him to complete schedules and that an insistence that he do so may give rise to oppositional behaviour, to which he has long been prone.

  2. The psychiatrists were provided with the report of Dr Hill which addressed the defendant’s current physical and mental condition and the various co-morbidities to which he is subject. Dr Martin considered that, having regard to the defendant’s usual mode of obtaining access to children for the purposes of sexual abuse, which was to offer boys inducements, reduced mobility would not materially reduce the risk of his re-offending.

  1. The opinions of Drs Furst and Martin are consistent with the opinions of Drs Samuel and Ellis who were appointed by Fullerton J pursuant to s 7(4) of the Act to report to the Court. Their reports were evidence in the proceedings before Hoeben J which led to the making of the First ESO.

The condition regarding pornography: outright prohibition or permission at discretion of DSO

  1. The principal area of disagreement between Dr Furst and Dr Martin was as to the appropriate condition relating to pornography: whether it ought be permitted with the approval of the defendant’s DSO, or whether it ought (as the plaintiff submitted) be prohibited entirely.

  2. Dr Furst considered that a condition permitting pornography only with the approval of the defendant’s DSO would be appropriate. He said that there was no particularly hard evidence either way that viewing adult gay pornography would either increase or decrease the risk of offending. Dr Furst accepted that the defendant had a sexual preoccupation. In answer to the proposition that viewing adult gay male pornography would tend to increase his sexual preoccupation, Dr Furst said:

“There's a risk that it would increase his sexual arousal and the medication that he is receiving, the Depo‑Provera injections, those injections are designed to decrease his sexual arousal and testosterone levels. I guess that you can make an argument that the viewing of pornography, such as this, goes against the clinical goals, treatment; but there is also an argument that viewing the pornography provides some kind of outlet or relief for people. It is really a bit mixed in terms of the impact that it might have on somebody.”

  1. It emerged from further questioning that Dr Furst’s reluctance to support an outright prohibition on adult pornography was its legality. He said:

“I am a little bit reluctant to recommend restrictions on material that's legal or sexual contact with adult males which is legal as well, to take the argument further. But the discretion for the officer ‑ I thought more as a clinical need the discretion might allow a therapeutic connection and working relationship between himself and the officer supervising him as there were, for example, a few movies that he is allowed access to that seemed appropriate.”

  1. As to the risk that access to such material would tend to increase the defendant’s arousal, Dr Furst said:

“I think it stands to reason viewing material like that would tend to increase someone's level of arousal or sexual arousal and in someone who has a sexual deviance that can be of concern. But I'd see it more as a possible increase of risk rather than the likelihood that his risk would then increase to a significantly higher level.”

  1. Dr Martin explained his preference for an outright prohibition in the following terms in his oral evidence:

“It is obviously a highly contentious issue and I don't think there is strong evidence one way or the other around whether watching pornography definitely increases the risk. But I do think it sends a mixed message to Mr Bastian. So I referred in my report to him problems with boundaries and I think he has a personality disorder. I think it is inconsistent with the general risk management process of reducing his sex drive and using medication to ‑ he is taking medication to reduce his libido. And I think to be allowed to watch pornography of any type is probably inconsistent with that. I think it can be regarded as "a slippery slope". So to be allowed to use one type of pornography can potentially lead to another type especially in a person who is highly sexually preoccupied. There is a compulsive element to his sexual behaviour and I do think it is ‑ I think it probably does ‑ probably would lead to increased sex drive, watching pornography in that sense and that is going to be directly related to his risk of re‑offending.”

  1. For the reasons given below, I prefer Dr Martin’s view.

Section 9(3)(c) and (d): assessments prepared by other psychiatrists or psychologists and statistical likelihood of re-offending

The risk assessment report of Dr Payne and Ms Matsuo dated 17 July 2015

  1. Dr Calinda Payne, senior psychologist, and Danielle Matsuo, from Corrective Services NSW, prepared a Risk Assessment Report dated 17 July 2015 (which was relied on by the plaintiff in its application for the Second ISO). Dr Payne also prepared a supplementary report and an affidavit which was read in these proceedings. Dr Payne considered the defendant to pose a high risk of sexual re-offending relative to other male sex offenders, the amelioration of which required external supervision. She explained her conclusions in her report that she did not consider that either the defendant’s age or his compromised mobility ameliorated his risk of re-offending to any significant extent. Dr Payne described the defendant’s ability to self-regulate as “very limited”.

  2. The STABLE-2007 is an assessment tool which assesses dynamic risk factors relating to intimacy deficits, social influences, general self-regulation, sexual self-regulation and co-operation with supervision in order to identify the prospect of a particular individual re-offending. The defendant scored 18 out of a possible 26 points on the STABLE-2007 which is considered to be a high level of stable dynamic needs.

  3. The defendant was assessed by reference to Static 99R (being a tool which assesses static risk by reference to a number of static factors). He scored 4 which placed him in the moderate to high risk category. I note that Dr Furst scored the defendant at 8 by reference to Static 99 (a slightly different tool). I do not regard these risk assessments as particularly probative compared with the actual evidence of the defendant’s conduct over the last decades.

The risk assessment report prepared by Mr Patrick Sheehan on 21 January 2011

  1. The report of Mr Sheehan dated 21 January 2011 was relied on by the plaintiff when it applied for the First ISO pending its application for the First ESO. His observations and conclusions are substantially similar to those made by Dr Payne and Ms Matsuo.

Section 9(3)(d1): any report from Corrective Services NSW as to the extent to which the defendant can reasonably and practicably be managed in the community

  1. The plaintiff relied on risk management reports from John Devoy, the Unit Leader of the ESO Team, as well as a report from Claudia Dabbagh, the previous Unit Leader. Mr Devoy outlined the risks to be monitored (based on Dr Payne’s risk assessment report referred to above) and what was done by the ESO Team to manage those risks, including weekly interviews, monitoring and unannounced visits.

  2. Mr Devoy deposed that the defendant has largely complied with electronic monitoring and the submission of schedules of movements, save that he tends to leave home 15 to 20 minutes earlier than scheduled, which had led to increased scrutiny.

  3. Mr Devoy’s opinion is that electronic monitoring of the defendant is still warranted because of his “limited strategies for managing his risk of re-offending against children”. It also allows the DSO to monitor his movements with a view to reducing the risk of his re-offending.

Section 9(3)(e): treatment or rehabilitation programs undertaken and the defendant’s willingness to participate in such programs

  1. The defendant has participated in several rehabilitation programs, including while in custody. Mr Sheehan said in his report dated 21 January 2011:

“The difficulty for Mr Bastion to make pervasive behavioural change should not be underestimated. He is 65 years of age and has survived by using a particular range of well-rehearsed problematic behaviours for many years, many of which are now a function of his personality. To extinguish these routines and introduce a new range of behaviours at this stage in life will be an arduous process.”

  1. I do not consider it to be reasonable to expect the defendant to engage in any such programs in the future since his poor insight and long-standing sexual deviance appear to be impervious to change. The defendant’s deviant sexual preoccupation, poor insight and limited ability to control himself mean that external supervision is required to ameliorate the unacceptable risk he poses to vulnerable young men and boys.

Section 9(3)(f): the level of the defendant’s compliance with obligations on parole while subject to an earlier ESO

  1. The defendant was twice convicted of breaching the First ESO and served two six month sentences as a result of those convictions. There have been several further breaches referred to in the narrative above which have not resulted in his being charged. The defendant has shown himself to be prepared to evade, mislead and lie to his DSO. His continued association with Mr Potter provides an example of these features of his conduct and his preparedness to flout the directions given to him, compliance with which is a condition of the Second ISO. He can neither be believed nor trusted.

  2. I note the submission of Mr Averre, who appeared on behalf of the defendant, that the defendant’s offending and admitted conduct since his release from custody is of a kind different from that for which he was previously incarcerated. Whereas in the past he committed serious sex offences, of more recent times he has breached the directions of his First ESO and Second ISO by associating with persons with whom he has been directed not to associate and has been found to be in possession of a pornographic image which, though an offence of a sexual nature, is not a serious sex offence. However, I consider that this pattern tends to support the proposition that, when subject to supervision under an ESO or ISO the otherwise unacceptable risk posed to the safety of the community by the defendant can be ameliorated. It does not, however, suggest that the risk would be other than unacceptable were he not subject to an ISO or ESO.

Section 9(3)(h): the defendant’s criminal history

  1. The defendant’s criminal history has been set out in detail in the chronological narrative above. It shows that when unsupervised (and even when on conditional liberty) the defendant takes the opportunity to commit serious sex offences by reason of his underlying sexual preference. The length of his criminal history is such as to dispel any hope of rehabilitation or improvement by reason of treatment, rehabilitation or specific deterrence.

Section 9(3)(h1): the remarks of the sentencing judge

  1. The remarks of Blackmore DCJ are set out above. I note his Honour’s concern about the objective seriousness of the defendant’s conduct, which he described as “predatory”. His Honour also referred to the vulnerability of the victims and the defendant’s preparedness to introduce another adult into the sexual behaviour. This latter matter is of significance when one has regard to the defendant’s tendency to form a relationship of some kind with a vulnerable male person, who might be prepared (because of the person’s dependence on the defendant) to assist the defendant to recruit victims of the age preferred by the defendant.

Section 9(3)(i): any other information that is available as to the likelihood that the offender will commit offences of a sexual nature

  1. The narrative referred to above includes reference to allegations that were made to police about his conduct with children which did not result in the defendant’s being charged. The witness statements in support of those allegations can be taken into account under s 9(3)(i) of the Act. However, they do not significantly add to the criminal history, which contains numerous serious sex offences over a lengthy period.

Section 9(3)(a): the safety of the community

  1. In the present case, the relevant section of the wider community whose safety is compromised by the risk posed by the defendant is the section which comprises young males, including those as young as five. While male children in that group might generally be regarded as vulnerable because of their age, the defendant appears to target particularly those boys who are homeless or otherwise disadvantaged by reason of their lack of supports and poor socioeconomic situations. Such persons may be easy prey to someone such as the defendant who is in a position to offer accommodation (in his Housing NSW residence) or inducements, in the form of cash or items of property. Although the defendant himself is not in a particularly good financial position and is, and has long been, dependent on social security benefits, the victims he targets are, themselves, in such dire straits that the defendant’s resources may provide an inducement.

  2. The defendant has also shown a capacity to work with other sex offenders for a common purpose by texting them about potential assignations and victims.

  3. The defendant has an entrenched sexual deviance which inclines him to sexual contact with such males. He has neither inclination nor capacity to control his sexual urges, which remain strong and persistent notwithstanding his age and the anti-libidinal medication which he has been taking for more than a year. He has shown a capacity for deviousness when trying to conceal breaches of conditions from his DSO (such as making excuses for not allowing his DSO or police into the house when he knew that Matthew Potter was within). Although he has some difficulty with mobility such that he requires a mobile scooter on some occasions, his techniques for luring potential victims do not depend on good mobility.

  4. He has been consistently assessed as presenting a high risk of re-offending. Although not all offences in respect of which he presents a risk are “serious sex offences”, almost all are. His preference for young males means, effectively, that any physical contact with them of a sexual nature is prohibited by Division 10 of Part 3 of the Crimes Act and is punishable by 7 or more years’ imprisonment. The only relevant offence committed by him that was an offence of a sexual nature, rather than a serious sex offence, was the offence contrary to s 91K of possession of the pornographic image.

Conclusion

  1. Having considered the factors in s 9(3) of the Act addressed above, in the context of the narrative of facts, I am satisfied that the defendant, being a sex offender, poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision. Accordingly, I am satisfied that the defendant is a high risk sex offender within the meaning of s 5B of the Act. I note that, although the extent to which a defendant’s liberty is constrained by proposed conditions is a relevant consideration in formulating such conditions (addressed below), it is irrelevant to the determination of whether he poses an unacceptable risk: Lynn v State of New South Wales [2016] NSWCA 57 at [44], [55]-[58] (per Beazley P), [128] (per Basten JA) and [148] (per Gleeson JA).

  2. I am persuaded that it is appropriate, and necessary, to protect the safety of the community, to order a further ESO pursuant to s 9(1)(a) of the Act to commence when the current term of imprisonment for the defendant’s most recent offending expires.

The term of the ESO

  1. Mr Averre contended that it was not necessary for an ESO in respect of the defendant to be for the maximum period of five years pursuant to s 10(1A). He submitted that the objects of the Act could be met with a supervision order of two to three years with a view to determining whether the defendant continues to pose an unacceptable risk at the conclusion of that period. I reject this submission. The only matter which may ameliorate the risk is physical incapacity of a very high order. Although there is a prospect that this will occur, the prospect is presently no more than speculative. By reason of the defendant’s technique and preferences he does not require much, or indeed any, mobility to pose an unacceptable risk. To make the order for a shorter time than the maximum would be likely to result in the plaintiff’s having to go through the same process as it has undertaken in the present case, in circumstances where there is no reason to suppose that there will be any significant amelioration of risk in the next five years.

  2. I note the terms of s 13 of the Act, which make provision for an application for variation or revocation where there is a sufficient change in circumstances. An application under s 13 could be made if the defendant became so substantially incapacitated (by age, dementia, accident or other cause) that the risk he poses was materially reduced such that it was no longer an unacceptable risk.

Conditions

  1. As referred to above, the defendant has been subject to the First ISO, the First ESO and the Second ISO. Mr Averre did not object to any conditions which have been in place already. However, the plaintiff has reviewed its conditions and added or modified conditions, to which the defendant takes exception.

  2. Some of the defendant’s objections are substantive, such as the objection to electronic monitoring, scheduling and the prohibition on pornography, while others are more formal and can be dealt with more briefly. I propose to set out my decision on the conditions to which the defendant objects in the following table and provide further reasons below where I consider this to be necessary to explain my rulings.

Proposed condition

Objection

Ruling and brief reasons

4 – police station

Inapposite

Unnecessary

5 – electronic monitoring

Significant intrusion; no provision for review

Necessary (see below); in-built discretion for DSO provided for

6 – weekly schedule 3 days in advance

Previous version stipulated 2 days

Necessary; may assist in controlling impulse

8 – deviation only in emergency

New condition

Condition appropriate

9 – truthfully answer DSO

New condition; difficult to comply with given defendant’s difficulties with authority figures

Condition appropriate (see below)

11 – curfew between 9pm and 6 am

Previous condition expired after 12 months

Condition appropriate; could be the subject of direction by DSO in any event.

13 – must stay overnight at approved address without approval of DSO

New condition

Condition appropriate having regard to need for close monitoring of defendant’s conduct

14 – not permit anyone to stay at approved address without prior approval of DSO

New condition

Condition appropriate having regard to defendant’s practice of exploiting vulnerable people

16 – must surrender passport

New condition

No evidence that required. Unnecessary.

17 – must not go to a place prohibited by DSO

New condition

Condition appropriate

18 – prohibited places

New conditions (c) – (j) and provision for exception if accompanied by person approved by DSO

Condition appropriate, given nature of places listed.

19 – not attend places where sexually explicit material sold or drugs and alcohol illegally sold

New condition

Condition appropriate given need to minimise the defendant’s opportunities for arousal.

20 – possession of illegal drugs

New condition which is unnecessary as it is already a criminal offence

Condition appropriate because of separate consequences of breach of ESO.

23 – not approach someone he knows is under 18 without approval

New condition; age previously was 16

Condition appropriate; adequate provision for flexibility by reason of approval.

25 – not associate with people consuming illegal drugs or alcohol

New condition.

Condition appropriate as illegal drugs or alcohol may be destabilising having regard to defendant’s previous substance abuse problems

26 – not engage services of a sex worker

New condition

Condition appropriate as defendant’s sexual appetite unlikely to be assuaged and tends to fuel sexual preoccupation

27 – must disclose new relationship to DSO

New condition: former condition required disclosure only if person had children

Condition appropriate.

28 – permission of DSO required to join club or mobile-based social networking service

New condition

Condition appropriate given past difficulties in monitoring and enforcement and tendency of defendant to use others to gain access to potential victims.

29-37- access to the internet and search and seizure of computer or other device by DSO on reasonable grounds

New conditions

Condition appropriate given the defendant’s history of using his phone to store pornographic images and videos and communicate with other sex offenders

39 – no access to pornography

New condition; should be subject to prior approval of DSO

Condition appropriate on the basis of Dr Martin’s opinion set out above; see additional reasons below.

40 – must not use any other name

New condition

Condition appropriate.

42 – must let Corrections photograph him

New condition

Condition appropriate to keep identification current and to take account of change of staff and DSO and ageing process which leads to change in appearance.

43 – inform DSO of forms of identification

New condition

Condition appropriate

46 – must take prescribed medication

New condition

Condition not shown to be necessary.

47 – must inform DSO if ceased to take prescribed medication

New condition

Condition necessary only in the case of anti-libidinal medication.

  1. In summary the ESO which I propose to make is not subject to conditions 4, 16, 46 of the amended summons. It is subject to the other conditions save that condition 47 is amended to read:

“If the defendant does not have administered Depo Provera as prescribed, he is to notify his DSO within 24 hours of the due date for its administration.”

Electronic monitoring and the requirement to submit schedules

  1. I accept the plaintiff’s submission (based on Mr Devoy’s evidence) that advance scheduling of movements would tend to curtail the defendant’s capacity to take advantage of opportunistic assignations arranged instantaneously by text message and provide some safeguard against his acting impulsively to act out his sexual deviance. Although there is some force in the proposition that increased cognitive impairment would tend to compromise the defendant’s capacity to comply with the scheduling condition, he is presently able to comply with the condition. Moreover there is no firm evidence that such deterioration as is inevitable will affect his capacity to do so within the next five years. Accordingly, I am persuaded that conditions with respect to electronic monitoring and scheduling of movements are warranted.

Access to pornography: condition 39

  1. As referred to above, I accept that a ban on pornography is necessary and appropriate, on the basis of Dr Martin’s opinion. I am also influenced by the difficulties of enforcement that a qualified condition such as that proposed by the defendant (and, in the alternative, by the plaintiff) could pose for his DSO. If the condition were qualified as proposed, the DSO would have to view or audit any pornography to assess whether it was illegal or not. As Dr Martin said, it would tend to be a “slippery slope” and send a “mixed message” to the defendant. I do not accept that, in his case, pornography would reduce his deviant sexual desire; rather, having regard to his history, it will probably have a tendency to increase arousal and feed his sexual preoccupation.

Orders

  1. For the reasons set out above, I make the following orders:

  1. An order pursuant to s 9 of the Crimes (High Risk) Offenders Act 2006 (NSW) (the Act) that the defendant be subject to an extended supervision order for a period of five years from 28 September 2016, or such later date as the defendant’s current custody expires.

  2. Direct the defendant, pursuant to s 11 of the Act, to comply with the conditions set out in the schedule to these reasons.

  3. An order permitting the reports of Dr Martin and Dr Furst provided to this Court pursuant to s 7(4) of the Act to be provided to Corrective Services New South Wales, any agency involved in the defendant’s supervision, care or assessment, and the defendant’s treating clinicians or health care providers.

**********

SCHEDULE

EXTENDED SUPERVISION ORDER:

CONDITIONS APPLICABLE TO RAYMOND BASTIAN

Oversight

For the purpose of these conditions, the Departmental Supervising Officer (DSO) is the Corrective Services officer authorised from time to time by the Commissioner of Corrective Services to manage and supervise the defendant pursuant to the extended supervision order. The Department is the Department of Justice (the Department). Corrective Services NSW is a division of the Department.

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

1.   The defendant must accept the supervision of Corrective Services NSW (CSNSW) until the end of the Order.

2.   The defendant must report to the Department Supervising Officer (DSO) or any other person supervising him as directed by the DSO.

3.   The defendant must follow all reasonable directions by his DSO or any other person supervising him.

4.   The defendant must attend the police station nearest to his approved accommodation within 3 days of the date of this order and provide a copy of this order.

Electronic Monitoring

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

Schedule of Movements

6.   If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start.

7.   If the defendant wants to change anything in his schedule of movements once it is approved by his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period

8.   The defendant must not deviate from his approved schedule of movements except in an emergency.

9.   The defendant must truthfully answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing.

Part B: Accommodation

10.   The defendant must live at an address approved by his DSO.

11.   The defendant must be at his approved address between 9.00pm to 6.00am unless other arrangements are approved by his DSO.

12.    The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.

13.   The defendant must not spend the night anywhere other than his approved address without the approval of his DSO.

14.   The defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO.

Part C: Place and travel restrictions

15.   The defendant must not leave New South Wales without the approval of CSNSW.

16.   The defendant must surrender any passports held by the defendant to the Commissioner.

17.   The defendant must not go to a place if his DSO tells him he cannot go there.

18.   Without limiting condition 17 above, the defendant must not go to any:

a.   Day-care centres, pre-schools and schools;

b.   Amusement parlours, amusement parks and theme parks

c.   Cinemas;

d.   Libraries and museums;

e.   Camping grounds and caravan parks;

f.   Children’s playgrounds, parks, and areas with play equipment provided for the use of children;

g.   Pools, playing fields and sporting facilities;

h.   Concerts, theatre shows, movies, events and activities intended for the entertainment of children;

i.   Residences where the defendant knows that persons under 18 ordinarily reside; or

j.   Internet cafes or other business which provide public access to the internet either for payment or for no charge (other than employment agencies)

19.   The defendant must not attend any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment, or where alcohol or drugs are illegally sold.

Part D: Drugs and alcohol

20.   The defendant must not possess or use alcohol or illegal drugs, and he must not possess or use prescription medication other than as prescribed.

21.   The defendant must submit to testing for drugs and alcohol as directed by his DSO.

22.   The defendant must not enter any licensed premises without the approval of his DSO.

Part E: Non-association

Association with Children

23.    The defendant must not approach or have contact without anyone who he knows is under 18 unless his DSO tells him he can, and he is with someone who has been approved in writing by his DSO.

Associations with Others (not children)

24.   The defendant must not associate with people that his DSO tells him not to.

25.   The defendant must not associate with any people who are consuming or under the influence of illegal drugs or alcohol.

26.   The defendant must not engage the services of sex workers.

27.   If the defendant wants to or does start a relationship with someone, he has to tell his DSO who may elect to tell the person about his criminal history.

28.   The defendant must obtain written permission from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service.

28A. The defendant must not deliberately seek out or maintain contact with (either in person or by email, instant message, text or telephone) a person he knows or reasonably ought to know is a vulnerable person, without the prior written approval of his DSO. A “vulnerable person” is a person with:

a.   A serious physical disability; or

b.   A brain disorder (being an intellectual disability, a developmental disorder, a neurological disorder or a brain injury); or

c.   A severe mental illness (such as schizophrenia or psychosis).

Part F: Access to the internet and other electronic communication

29.   The defendant must give his DSO a list of all devices he uses to communicate with or to access the internet. This includes phones, tablet devices, data storage devices or computers. This includes the details of telephone numbers, service provider account numbers, email addresses or other user names used by the defendant and the nature and details of the internet connection, as directed.

30.   The defendant must obey any reasonable directions by his DSO about the use of phones, tablet devices, data storage devices, computers and other devices, including any reasonable directions relating to his access to the internet.

31.   The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO.

32.   The defendant must provide a list of communication devices and data storage devices in the defendant’s possession and advise the DSO of any change to the inventory immediately.

Part G: Search and seizure

33.   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 of behaviour or conduct associated with an increased risk of the defendant committing a serious offence;

then the DSO may direct, and the defendant must submit 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.

34.   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.

35.   During a search carried out pursuant to condition 34 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise:

a.   the safety of residents or of staff at the defendant's approved 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.

36.   The defendant must allow CSNSW or any other person nominated by his DSO to search any phone, tablet device, data storage device or computer that he may use.

37.   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 33 to 36 above.

Part H: Access to pornographic, violent and classified material

38.   The defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification, X18+, R18+, Restricted Category 2 and Restricted Category 1, or any other material as directed by the DSO.

Part I: Personal details and appearance

39.   The defendant must not change his name from “Raymond Bastian” or use any other name without the approval of his DSO.

40.   The defendant must not use any alias, log-in name, or a name other than “Raymond Bastian” or use any email address other than those known to the DSO under condition 32 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email.

41.   The defendant must not change his appearance without the approval of his DSO.

42.   The defendant must let CSNSW photograph him.

43.   If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details.

Part J: Medical intervention and treatment

44.   The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults.

45.   The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend.

46.   The defendant must take all medications that are prescribed to him by his healthcare practitioners.

47.   If the defendant does not have administered Depo Provera as prescribed, he is to notify his DSO within 24 hours of the due date for its administration.

48.   The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his DSO.

49.   The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW.

Decision last updated: 30 March 2016

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Lynn v State of New South Wales [2016] NSWCA 57