State of New South Wales v BG (Final)

[2019] NSWSC 200

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	State of New South Wales v BG (Final) [2019] NSWSC 200
Hearing dates:	28 February 2019
Date of orders:	06 March 2019
Decision date:	06 March 2019
Jurisdiction:	Common Law
Before:	Fagan J
Decision:	(1) Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 the defendant is to be under supervision in the community for a period of 3 years commencing when the defendant’s current custody expires. (2) Pursuant to s 11 of the Act during the period of the said extended supervision order the defendant is to comply with conditions in the schedule to these reasons (subject to revision of the numbering to accommodate deletions).
Catchwords:	HIGH RISK OFFENDER - serious sex offender - final hearing - sexual intercourse with a person under the age of 10 years in 2003 - criminal history includes other sexual offences, chequered history of compliance with supervisory conditions - parole revoked following release on parole in June 2018
Legislation Cited:	Child Protection (Offender Registration) Act 2000 Children (Criminal Proceedings) Act 1987 Court Suppression and Non-Publication Order Act 2010 Crimes Act 1900 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Law Enforcement Powers and Responsibilities Act 2002 (NSW)
Cases Cited:	State of New South Wales v BG (Preliminary) [2018] NSWSC 1694
Category:	Principal judgment
Parties:	State of New South Wales (plaintiff) BG (defendant)
Representation:	Counsel: T Hammond (plaintiff) E Kerkyasharian (defendant)   Solicitors: Crown Solicitor’s Office (plaintiff) Legal Aid Commission NSW (defendant)
File Number(s):	2018/272666
Publication restriction:	No

Judgment

1. HIS HONOUR: By summons filed on 5 September 2018 the plaintiff seeks an extended supervision order (“ESO”) of 3 years duration under the Crimes (High Risk Offenders) Act 2006 (NSW) against the defendant, BG. Three of the defendant’s past offences, which must be referred to in these reasons, were committed against his daughter when she was eight years old. Publication of the defendant’s name would identify the daughter. A non-publication order was made on 6 November 2018 by Johnson J under the Court Suppression and Non-Publication Orders Act 2010 (NSW) prohibiting publication of the name of the defendant and directing that he be referred to by the pseudonym "BG" for the purpose any further proceedings on the summons.

2. Johnson J made an interim supervision order on 6 November 2018: State of New South Wales v BG (Preliminary) [2018] NSWSC 1694. His Honour also ordered under s 7(4) of the Act that expert reports be furnished to the Court. Such reports have now been provided by Dr Adam Martin, a forensic psychiatrist, and Mr Luke Brabant, a clinical psychologist. The reports are dated 14 January 2019 and 25 February 2019 respectively.

3. Statutory threshold requirements for making an ESO, prescribed by ss 4A(a), 4A(b), 5B(a)-(c), 5I(2)(a)(i)-(ii) and 6(1) of the Act, are conceded by counsel for the defendant. These requirements relate to the timing of the application, the custodial status of the Defendant when the summons was filed, the age of the Defendant, the fact that the Defendant has served a sentence of imprisonment following conviction for a “serious sex offence” and the fact that the Defendant is a “supervised offender” within the meaning of the Act. I am satisfied that the threshold requirements are fulfilled and the concessions are properly made.

4. In these circumstances, the question whether an ESO should be made turns upon whether:

the Supreme Court is satisfied to a high degree of probability that the [defendant] poses an unacceptable risk of committing another serious offence if not kept under supervision under the order (s 5B(d)).

To decide this I am required to take into account the considerations listed in s 9(3). One of these, item (h), is the offender’s criminal history and any pattern of offending behaviour. I will commence with consideration of the index offending, being the serious sex offences that attract the operation of the Act. I will then consider the balance of his criminal history and the others 9(3)factors.

The index offences

5. The serious sex offences that engage the Act were committed on some date between 1 June and 31 July 2003. There were two offences against s 61M(2) of the Crimes Act 1900 (NSW) and one against s 66A, being, respectively, acts of indecency and an act of sexual intercourse against a girl under ten years. The complainant was the defendant’s daughter, then aged eight. The defendant was found guilty after trial in 2010. He was sentenced to concurrent terms of varying length, the longest being 9 years with a non-parole period of 6 years. To allow for pre-trial custody the sentence was backdated to commence on 29 January 2010. The non-parole period expired on 28 January 2016 and the head sentence expired on 28 January 2019. The defendant’s appeal against conviction was dismissed.

6. At the time of these offences the defendant and the complainant’s mother had been separated for two years. The complainant resided with her mother in Mackay, Queensland until mid-February 2002 when she moved to New South Wales to live with the defendant. The defendant had a new female partner with whom he had frequent arguments in the context of heavy drinking. The offences occurred on an evening when the defendant had consumed a large amount of alcohol and his partner had temporarily left the house. The defendant entered his daughter’s bedroom, attempted to remove her pyjamas and touched and rubbed to her vagina. She hit him, struggled and resisted. He penetrated the child’s vagina with one finger. He pulled down his own trousers and used his hand to rub his penis on her vagina. He stopped when he heard his partner returning to the house in her car. The child returned to live with her mother in Queensland shortly after this. She told no one about it until 2008 when she described the events to a school friend

General criminal record

7. The defendant was born in 1970 and is now 48 years old. He has lived in New South Wales and Queensland and has a criminal record in both states. In summarising his criminal history as follows I have listed events in date order of the commission of offences. For a number of these offences he was charged sometime after they were committed and for some of them he was sentenced significantly later again. The result is that his criminal record in New South Wales, which lists offences in the order in which the defendant was sentenced for them, is to say the least confusing. The chronological arrangement below gives a clearer picture of the course of violent and sexual offending throughout his life.

8. In March 1989 at the age of 18 and again in July 1990 at the age of 20 the defendant committed minor offences of fighting and assault. In June 1991, aged 21 years, he breached an Apprehended Violence Order. All of these offences were committed in New South Wales. None of them attracted custodial punishment.

9. In April 1995 at the age of 24 in Mackay the defendant went armed in a public place for which he was placed on a recognizance. On 14 December 1998, aged 28, he committed an assault occasioning actual bodily harm in Mackay. Once more, no imprisonment was imposed. On 21 November 1999, aged 29, the defendant committed offences in Mackay of wounding and wilful destruction of property. He was sentenced to 3 years imprisonment with a recommendation for release on parole after 12 months. At about the same time he committed offences of assaulting and obstructing police, stealing and breach of a domestic violence order. He received sentences of 1 and 3 months for these offences, all served concurrently.

10. Sometime after he had served these terms of imprisonment in Queensland (during 2000 and 2001) the defendant moved back to New South Wales. His former partner, the mother of his child, remained in Queensland. The index offences were then committed in mid-2003. They were not charged until more than 6 years later.

11. Back in New South Wales, on 6 July 2006 at the age of 36 years the defendant committed an assault occasioning actual bodily harm. He was at this time living in the Muswellbrook area. He was driving a truck and became angry with another driver for attempting to overtake him as he changed from the left to the right lane. When both vehicles stopped at a traffic light the defendant alighted from his truck, approached the other driver seated in his car, abused him and punched him to the face breaking the man’s nose. The defendant was convicted in his absence for this offence in August 2007 and not dealt with for it until he was arrested for the index offences on 11 November 2009. He was in due course sentenced to 2 months imprisonment which commenced from that arrest.

12. On 18 August 2006 he committed a further assault occasioning actual bodily harm, this time against a female with whom he had ended a relationship some three years earlier. She had moved into a flat in Aberdeen, near Muswellbrook, where she was living with her new male partner and an eight-month-old child. The defendant visited the flat on one occasion while the former female partner was absent. He was allowed entry by the victim’s new male partner, who then departed. When the victim returned home she asked the defendant to leave. He refused and became abusive. This escalated to the defendant shoving and then choking the victim. He pushed her onto a bed and she fought him. He said, amongst other things “I’m going to fuckin’ kill you”. He followed her as she fled from the house and punched her through the window of her car as she drove away. Again defendant was convicted in his absence and not sentenced until he had been arrested in November 2009 on the index offences. He was sentenced to imprisonment for 1 month, also to run from the date of his arrest.

13. On 27 June 2007, at the age of 37, in Brisbane the defendant attempted to rape a 37-year-old woman with whom he was in a de facto relationship. They argued at about 1 o’clock in the morning, in the dwelling where they cohabited. The complainant left but came back to the house later in the morning to retrieve the keys to her car. The defendant forced her onto a bed, forced his penis against her lips and tried to open her mouth with his fingers. The complainant clenched her teeth and resisted. The defendant then masturbated and ejaculated over her mouth and face. For this he was sentenced to 4 years and 6 months imprisonment, 18 months to be served and the balance suspended. The 18 months was served from his arrest on 27 June 2007 to 26 December 2008

14. After the defendant’s arrest on11 November 2009 when he was charged with the index sexual offences against his daughter he was remanded in custody. This remand continued for 8½ months until he was granted bail on 2 August 2010. Upon release the defendant commenced to live with another female victim, with whom he had had an acquaintance since 2007. She had been visiting him in prison at Tamworth since March 2010 and had provided surety of $1,000 for his release. He commenced to live with her in a caravan that she had rented for the two of them at Cessnock. On the morning of 12 August 2010 the defendant and the victim commenced to have sexual intercourse, consensually. Part way through victim said she was in pain and told him to stop. He disregarded this and continued. An argument followed and the victim called the police.

15. The defendant’s bail was revoked and he was returned to custody on 22 August 2010. He later pleaded guilty to a charge of sexual intercourse without consent contrary to s 61I of the Crimes Act. He was not dealt with for this until after he had been sentenced for the index offences against his daughter. There was then imposed a term of 2 years and 10 months with a non-parole period of 2 years, commencing 29 January 2015 (one year before expiry of his non-parole period for the index offences). This effectively extended the period he would have to serve without parole by one year, to 28 January 2017.

16. In December 2015 while the defendant was in prison he wrote a letter to his partner of many years earlier, the mother of the child whom he sexually assaulted in mid-2003. The mother had given evidence in his trial in November 2010. The letter included the following:

Hello Dog, I’m fucken telling you & your boyfriend when I get out use are gunna get it. You see I know I fucken didn’t do it. … I’m gunna bring you down for fraud. … You and him are gunna get it & you wont see it COMING PAY BACKS A BITCH.

17. For this the defendant was charged with stalking and intimidation and was sentenced to imprisonment for 2 years with a non-parole period of 1 year. This sentence commenced on 15 March 2017 so that the non-parole period expired on 14 March 2018 and the head sentence will expire on 14 March 2019. This sentence had the effect that the earliest date upon which the defendant could be released on parole was 14 March 2018. In the event he was granted parole from 28 June 2018.

The Child Protection (Offenders Registration) Act 2000 (NSW)

18. By reason of having committed the index offences the defendant is a registrable person under the Child Protection (Offenders Registration) Act 2000 (NSW). Upon his release to parole on 28 June 2018 he was served by Corrective Services with a Notice Issued to Registrable Person under s 6 of that Act. By force of s 9A the defendant was required to supply to the Commissioner of Police within seven days extensive personal details, as prescribed by s 9. On 3 July 2018 the defendant attended Maroubra police station and supplied the personal information required.

19. Pursuant to s 9(1)(p) of the Child Protection (Offenders Registration) Act the information required to be supplied included details of any email addresses, internet user names, instant messaging user names and the like. By s 11(1) the defendant was required to report any changes in these particulars within seven days. In his provision of information to police on 3 July 2018 the defendant did not refer to a Facebook account or a Messenger account. From 10 July 2018 he was using such accounts but failed to report this change within seven days. He subsequently attended Maroubra police station to update his personal information with two email addresses he had commenced to use but did not at that time disclose the Facebook and Messenger accounts. Police attended on him at his accommodation on 14 August 2018 and ascertained that he had these two accounts. He was charged with offences of failure to report contrary to s 17(1) of the Act.

20. On 4 July 2018 the defendant phoned an 18-year-old boy living in West Kempsey and asserted that he was owed money by the boy’s father. The defendant said that he required the boy to pay the money and that the defendant knew where he lived and knew what car he was driving. The boy was intimidated by the call and informed police. They traced the call to the defendant’s mobile service. He was charged with using a carriage service to menace or harass.

21. As a result of these charges laid in respect of the defendant’s conduct whilst on parole and also having regard to his lack of cooperation in adhering to schedules of movements and submitting to electronic monitoring, his parole was revoked with effect from 4 July 2018. The defendant was not taken back into custody until 6 September 2018. The Court has been informed that, in consequence of these events, his release date at the expiry of his head sentence has been extended from 14 March 2019 to 15 May 2019.

The test of unacceptable risk

22. The defendant’s counsel opposed the making of an ESO but did not press arguments to suggest that the Court could not be satisfied there is an unacceptable risk according to the test in s 5B(d) of the Crimes (High Risk Offenders) Act (quoted at [4] above). Instead counsel’s arguments were directed to minimising the conditions of the order to be made. The approach of defendant’s counsel is realistic in the circumstances. I am nevertheless required to consider the factors listed in s 9 of the Act and form my own view whether there is a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision.

23. The principal feature of the evidence which leads to my satisfaction on that question is the defendant’s criminal record. He is now 48 and has been in prison almost continuously for 9 years. When that period of imprisonment commenced, in November 2009, he was 39. From the age of 18 the course of his offending over 20 years of adult life exhibited repeated recourse to violence, albeit of a relatively moderate order, and repeated sexual offending against women with whom he has been in intimate relationships. His sexual offending has commonly been fuelled by alcohol and accompanied by considerable anger. Such consistency in type of criminal behaviour over two decades demonstrates entrenched propensities and a high risk of repetition.

24. In characterising the defendant’s criminal record in this way, I have not referred to the index offences against his daughter. There is no other proven instance of sexual offending by the defendant against a child. So far as his record shows, all other sexual activity and sexual offending has been with adult partners of an age relatively close to his own. There is reference in Ms Terry’s Risk Assessment Report of 4 June 2018 to the defendant having sexually assaulted his younger brother in about 1987 and to having sexually assaulted his stepdaughter aged 11 years, apparently in 2009. Both of these references are noted as “allegation only” and I cannot give them weight in support of a conclusion that he has evinced deviant sexual interest. His form has been, consistently, anger and violence, including sexual violence, towards women with whom he has had an emotional connection, often associated with excessive alcohol consumption.

25. This impression is confirmed by the Risk Assessment Report of Ms Terry (a senior forensic psychologist with Corrective Services), which includes the following:

[The defendant’s] sexual offences have targeted two female intimate partners as well as his daughter. [The defendant’s] sexual offending appears to occur in the context of a domestic violence cycle, with a sustained pattern of domestic violence across relationships, evidenced by a history of [Apprehended Domestic Violence Orders] and breaches of same, verbal aggression, physical assaults and sexual violence. His offending behaviour is reflective of poor interpersonal problem solving and coping, with attempts to regain control or manage perceived slights and/or rejection, generally in the context of substance abuse.

There are also a number of documented examples of interpersonal aggression towards strangers, acquaintances, neighbours, family members, landlords and police officers.

26. Using actuarial tools Ms Terry assessed the defendant’s static risk factors as placing him at “well above average” risk for sexual offence recidivism, relative to other male sexual offenders. Tools used by Ms Terry for assessing dynamic risk factors placed him within the “high risk” range. The combined application of these actuarial assessments ranked the defendant in the high risk category for both sexual and violent offending. Ms Terry acknowledged limitations with respect to the tools that she used, in particular because the circumstances of any one individual, such as the defendant, may not be adequately captured in the data upon which the predictions generated by actuarial means are based. However, she regards the results scored for the defendant as providing an objective guide.

27. Ms Terry coupled the actuarial results with a more general survey of the defendant’s criminogenic needs. She concluded:

The goal of any ongoing case management would be to encourage the development and maintenance of a stable and sustainable lifestyle, so that newly formed habits can be maintained even when [the defendant] is not under any form of legal restraint. … [Ms Terry referred to the insufficiency of the restraints upon the defendant as a result him being on the Child Protection Register, in particular lack of continuous monitoring and interaction with authorities]. I would consider that such other community-based options for [the defendant’s] risk management are inadequate, given his assessed risk and needs, and especially given that he remains untreated going into the final 10 months of his sentence.

In the event that no order was imposed, after 14 March 2019 [the defendant] would … have no support from, or any monitoring by, [Corrective Services]. … It remains the case that without oversight from [Corrective Services], [the defendant] will continue to present a heightened risk of returning to sexual offending particularly if he resumes alcohol or drug use and/or a domestic intimate relationship.

28. Both of the Court appointed experts, Dr Martin and Mr Brabant, found the defendant reticent regarding historical information relevant to psychiatric issues, which limited their ability to provide a diagnosis. Dr Martin considers that he fulfils DSM-5 diagnostic criteria for antisocial personality disorder, defined as “a pervasive pattern of disregard for and violation of the rights of others, occurring since age fifteen years …”. Dr Martin also considers that

given the lengthy history of regular use of various substances with problematic associated behaviours, he can be diagnosed with substance abuse disorder[s] as defined in DSM-5 with use of alcohol, cannabis and amphetamines.

29. Dr Martin observes that antisocial personality traits and substance abuse disorders are considered to be chronic and enduring. The doctor considers it unlikely the defendant has a major mental illness such as schizophrenia, although he recognises it is possible that he experiences paranoia, especially if using methamphetamine or cannabis. His history and mental state examination, according to Dr Martin, were not consistent with a chronic mental illness of a psychotic nature. Nevertheless the defendant has for some time been taking prescribed antipsychotic and mood stabilising medication and an antidepressant.

30. Dr Martin concurred with the findings in Ms Terry’s report and expressed the view that the defendant “should be regarded as at higher risk of committing further serious offending”. The doctor said:

His history is strongly suggestive of him having long-term problems with emotional dysregulation, being impulsive and acting anti-socially, and it appears there are very limited social supports in the community.

Without significant supervision in the community, it is likely that [the defendant] would engage in problematic substance abuse which would increase his risk of antisocial or offending behaviour, both sexual and non-sexual. With extensive community supervision, his risk will be mitigated to an extent by preventing substance use, limiting the potential for contact with potential victims and by being able to monitor his movements. … In my view the most important risk factors are access to alcohol and other substances, which will significantly increase his risk of future offending, and his domestic circumstances, where given his history of relationship difficulties and sexual offending behaviours, that he will be at increased risk of offending if in a future dysfunctional relationship, or if in close proximity to vulnerable people, including children.

31. Dr Martin expressed the view that electronic monitoring may assist by limiting “the likelihood of him frequenting problematic environments and having access to vulnerable people”. The doctor did not identify any particular “problematic environments” and I do not find in the defendant’s history any pattern or probability of his offences being connected with his attendance at any particular place or category of place.

32. Dr Martin also considered that:

regular psychological sessions will allow for monitoring of his mental state and potentially give an opportunity for intervention in the event of escalating risk. It is reasonable for him to take psychiatric medication and it would be helpful for him to see a psychiatrist on a regular basis for prescription and monitoring of side effects and monitoring of effectiveness.

33. Mr Brabant drew conclusions about the pattern of the defendant’s record which are consistent with my own (see [23]-[24] above). Mr Brabant could not identify firm evidence of sexual deviance or preoccupation. His report of 25 February 2019 includes the following:

Beyond his sexual offending, there does not appear to be anything in [the defendant’s] history to indicate that he has deviant sexual preferences or interests. However, given the age of his child victim (i.e. eight years old) sexual attraction to prepubescent female children cannot be ruled out.

[T]here is no concrete evidence to confirm that he has deviant sexual interests/preferences or experiences sexual preoccupation. Given that two of [the defendant’s] offences occurred following domestic incidents, it is possible that he has a history of using sex to alleviate feelings of anger, or coercive sex as a way of expressing his hostility.

[The defendant’s] difficulties with attachment and emotion-management have been most evident within his intimate relationships, and have resulted in reported domestic violence incidents, Apprehended Domestic Violence Orders and acts of sexual violence. Within these relationships he appears to have used violence as a means of expressing his anger and to gain control of situations in which he feels as though he cannot influence his partner’s behaviour through alternate means. … In the case of the offence against his daughter, this hostility was probably redirected towards his daughter in the absence of his intimate partner as offence details state that his partner had left the house. Of concern is that this pattern of domestic abuse can commence quite fast for [the defendant] as evidenced by the short period of time between him residing with the victim of his most recent adult offence and the offence occurring [August 2010].

34. With respect to psychiatric condition Mr Brabant made these observations:

[The defendant] stated that he has experienced voices and feelings of paranoia for “a few years” and that they have been progressively getting worse. … He reported that they only occur when outside of his cell and that when in the community in 2018 they increased in intensity. … While an underlying psychotic illness cannot be ruled out, I do not believe that [the defendant’s] account of his experience of voices and paranoia is enough to meet diagnostic criteria for schizophrenia at this time.

[I]t is recommended that [the defendant] participate in a full psychiatric review to explore his reported psychotic symptoms further.

35. I accept the evidence of Ms Terry, Dr Martin and Mr Brabant as extracted above subject to the qualification about Dr Martin’s view on electronic monitoring. I am satisfied from the Risk Management Report of Ms Kirkwood and Ms Farroway, dated 3 July 2018, that the defendant can reasonably and practicably be managed in the community. I recognise a degree of uncertainty with respect to the likely compliance of the defendant, having regard to his past conduct. Taking all these considerations together, including my assessment of the defendant’s record, I am well satisfied, according to the test in s 5B, that he poses an unacceptable risk of committing another serious offence if not kept under supervision. I judge three years to be a suitable period to secure protection of the community during the defendant’s reintegration after his nine years in prison.

Conditions of the ESO

36. Numerous of the conditions of supervision sought by the plaintiff under s 11 of the Act are opposed by the defendant. Overall, I consider that many of the conditions for which the plaintiff has argued are not appropriately tailored to the supervision of this particular defendant and do not pay sufficient regard to the circumstances in which he is likely to commit a further offence, based upon his history. In settling the conditions to be imposed under s 11 of the Act, I must have regard to the fact that any breach thereof may result in prosecution for an offence against s 12, the maximum penalty for which is 5 years imprisonment. A degree of caution must be exercised in setting conditions, where breach may have such serious penal consequences.

37. Many of the things which would be prohibited according to the conditions proposed by the plaintiff would not be punishable at all according to the general criminal law. The effect of making an ESO with conditions of this nature is to proclaim specifically for the defendant, for the period of the order, a series of prohibitions each carrying a maximum penalty of five years imprisonment. With respect to each such condition the Court must be satisfied that it at least contributes usefully to the protection of the community and also that it is reasonably measured and appropriate to the objects of the Act.

38. In settling the conditions of the order I take into account s 3 of the Act, as follows:

3 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.

39. The second objective, of encouraging rehabilitation, may be entirely frustrated if stringent conditions are imposed that are not reasonably specific to reducing the particular risks of reoffending which the defendant poses. If unreasonably sweeping and undirected constraints are imposed then breach of them followed by prosecution and imprisonment may become an unacceptable hazard flowing from the order. Interruption of the defendant’s liberty under the ESO by prosecution and return to prison for infringement of unnecessary conditions would disrupt and impede prospects of rehabilitation. The two objectives identified in s 3 are not mutually exclusive. Rehabilitation of an offender will of itself contribute to the safety and protection of the community.

40. The following paragraphs address conditions that are proposed by the plaintiff but opposed by the defendant. The numbering used is taken from the schedule of conditions submitted by the plaintiff. Numerous other conditions that are not in controversy will simply be included in the final order, without discussion here. Where the plaintiff no longer pursues a condition that was sought in the summons, I will make no reference to it and will simply omit it from the final schedule of conditions.

Monitoring and reporting

41. The plaintiff seeks this condition:

3 The defendant must follow all reasonable directions by his DSO [Departmental Supervising Officer] or any other person supervising him.

42. This is objected to by the defendant as being unnecessarily general and placing him at risk of breach in the face of arbitrary ad hoc directions. I accept that many of the other conditions which are to be imposed contain specific directions with which the defendant must comply. However I do not consider that it would be possible to spell out in advance every kind of reasonable direction that might be given over the next three years. A general power of direction is therefore required. I do not consider that it is likely to give rise to infringement or risk of prosecution in circumstances which would be unfair or capricious. I will include this condition

Electronic monitoring

43. In my view electronic monitoring is not an appropriate condition for the defendant. The condition sought by the plaintiff is that the defendant should wear monitoring equipment “as directed by the DSO”. This would leave it in the discretion of persons administering the order to determine for how long electronic monitoring should continue. It is usual, according to the practice of the Extended Supervision Unit of Corrective Services, to require electronic monitoring automatically on commencement of an ESO, in conjunction with a requirement that the defendant submit weekly schedules of his movements, to which he would be required to adhere. The practice is to reduce these requirements gradually, in the exercise of the DSO’s discretion, under a condition such as that now proposed. The first stage of reduction would be to continue electronic monitoring but with a less restrictive form of scheduling, then monitoring with no scheduling, then no monitoring or scheduling.

44. The incorporation of the discretion, which would enable monitoring to be relaxed and then done away with over time, does not encourage me to impose this condition. On my assessment of the defendant’s criminal record and upon the analysis made by each of Ms Terry and Mr Brabant, the circumstances of likely future offending by the defendant are not amenable to reduction or containment by tracking his movements. His previous violent sexual offending has been committed within the home in which he was residing at the time. His other violent offending, such as the assault on the driver who changed lanes and the assault on his former partner at Aberdeen, does not appear to have had any consistent link with locations or situations that the defendant could be directed (and monitored) to avoid.

45. Electronic monitoring is no doubt extremely useful in relation to, for example, paedophiles who may be directed to stay away from school grounds, swimming pools and sporting venues. Where the nature of an offender’s propensity for recidivism is associated with locations involving opportunity and heightened risk, directions to stay away from such places and electronic monitoring to ensure that this occurs would be appropriate. There is no location that this defendant could be directed and monitored to avoid in order to reduce the risk of him committing domestic sexual violence, as he has done in the past, in his own dwelling.

46. I take into account that the imposition of electronic monitoring is highly intrusive. It often results in calls from the control room of the monitoring contractor when the offender is seen to depart from his scheduled place or route. These departures may be entirely innocuous but lead to protracted exchanges by phone. The use of monitors also frequently involves calls to remind the wearer to recharge the device and at times messages or calls seeking verification of the status of indicator lights and so on. It is not unusual for the intrusive nature of this form of surveillance to lead to significant friction between the offender and the control room and/or Corrective Services. In the absence of significant utility for risk reduction I see electronic monitoring as likely to be counter-productive in management of the defendant under the order.

Schedule of movements

47. The parties agree upon the following condition:

5 If directed upon reasonable notice by his DSO, the defendant must provide his DSO a schedule of movements for a period of no more than seven days.

I propose to add to this agreed wording the words “and the DSO may require, again on reasonable notice, successive schedules for subsequent periods of seven days”.

48. This condition may prove useful in the supervision of the defendant at least by enabling the DSO to engage with him regarding structure and direction in his activities. Notably, the condition in this form does not require the approval of the DSO before the defendant proceeds to act in accordance with it. However pursuant to Condition 3 it would be open to the DSO, acting reasonably, to direct the defendant to do something not included on the schedule or to refrain from doing something not included.

49. The parties are not agreed about what provision may be made for variance of or departure from a schedule, once submitted. I will impose conditions in the following terms, in place of Conditions 6, 7 and 8 propounded by the plaintiff:

6 The defendant must not depart from a schedule provided under Condition 5 unless he has notified the DSO 24 hours beforehand of the proposed change, except in urgent circumstances in which case reasonable notice must be given or if the DSO approves a change on shorter notice.

7 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 and must not mislead the DSO or other supervising person. He must likewise answer truthfully with respect to his intentions regarding future movements and activities.

Accommodation

50. The plaintiff seeks the following conditions with respect to the defendant’s accommodation, each of which is opposed by the defendant:

11 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 permit any person to enter and remain, or to stay overnight at his approved address, without the prior approval of his DSO

51. In the case of Condition 13, the defendant proposes an alternative condition which would require that the DSO give reasons for not approving a person to stay at the defendant’s accommodation. I will not impose that requirement as it would add another level of complexity to the orders and to the duties of the DSO and other Corrective Services staff. As a matter of maintaining cooperation of the defendant under the order I would expect that the DSO would usually find desirable to explain why approval is withheld under Condition 13.

52. I regard Conditions 11 and 13 sought by the plaintiff as appropriate. They go to the heart of the risk of further serious offending which is exhibited by the defendant’s record. It is necessary that the DSO should be able to inspect the place where the defendant is living and give directions about who may stay there with him, with a view to reducing the risk of repetition of the kind of sexual violence that has been perpetrated by the defendant against females who have resided with him in the past.

Place and travel restrictions

53. The plaintiff seeks the following general condition concerning direction of the defendants movements:

16 The defendant must not go to a place if his DSO tells him on reasonable grounds he cannot go there.

54. This condition adds nothing to Condition 3 and I will not order it. Condition 3 is of sufficient width to enable the DSO to give a reasonable direction regarding a place to which the defendant should not go and to require that the defendant obey the direction. The defendant has proposed an alternative condition under which the DSO would only be able to direct him against attending a place that the DSO believes on reasonable grounds “substantially increases the risk of [the defendant] committing a serious offence”. Further, the defendant’s alternative formulation would require that the DSO provide reasons for forming his view and issue these in writing within 72 hours.

55. I do not consider the defendant’s alternative to be appropriate or necessary. A direction given by the DSO under Condition 3 not to attend a particular place would only satisfy the prerequisite of reasonableness if directed to averting a substantially increased risk of commission of a serious offence. I am not prepared to require the giving of reasons, with or without confirmation in writing, because of the tendency of this to overcomplicate the administration of the order (as referred to at [51] above).

Employment, finance and education.

56. The plaintiff seeks this condition:

18 If the defendant is unemployed, the defendant must make himself available for employment, education, training or participation in the personal development program to the extent reasonably directed by the DSO.

57. The defendant opposes such a condition. He has previously worked as a truck driver and has stated in the course of these proceedings and in his interviews with Dr Martin and Mr Brabant an intention to seek such work again upon his release. If the condition sought by the plaintiff should be imposed, failure of the defendant to make himself available for employment or training in disobedience of a reasonable direction by the DSO would constitute an offence carrying a maximum penalty of five years imprisonment.

58. I will not impose Condition 18. A term requiring availability for employment or training may be justifiable in a parole order where, if the parolee will not make himself so available, it may be appropriate that he should serve out the rest of his sentence in full-time custody. The considerations are very different in relation to an ESO, which takes effect when the defendant’s sentence has expired. The effect of a condition in the terms proposed would be to criminalise refusal to work or train, exposing the defendant to a substantial term of imprisonment additional to any that has otherwise been fixed for any criminal offence. It is obviously highly desirable that he should work and/or undergo training. But the protection of the community and the rehabilitation the defendant do not so critically depend upon this as to justify a condition under which it would be a crime for him to refuse work.

Drugs and alcohol

59. The plaintiff seeks the following conditions which are opposed by the defendant (in the case of Condition 23) or sought to be modified (in the case of Condition 24):

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

24 The defendant must attend and participate in programs and courses for drug and alcohol rehabilitation as directed by his DSO, and must not discharge himself from such programs and courses without prior approval of his DSO.

60. The contest over these provisions is to be considered against the background of other terms which are agreed, including that the defendant must not use alcohol unless permitted by his DSO and that the DSO may set limits on the amount of consumption of alcohol (Condition 21). With that condition in place I see no justification for a requirement that the defendant obtain approval before entering licensed premises. That would be unduly restrictive and not justified, as a means of protecting the community, by anything in the defendant’s history. It does not appear that his past serious offending has had anything to do with attendance at licensed premises. Much of it has arisen out of excessive alcohol consumption within his own home, to which the agreed Condition 21 is directed.

61. The defendant proposes a modification of Condition 24 to require that the DSO give reasonable notice of any drug or alcohol program that he is required to attend and that the direction not interfere with his employment obligations. The defendant’s modified wording of this clause is appropriate. It is no doubt reasonable that he be required to participate in rehabilitation programs and courses. Dr Martin and Mr Brabant identified in the defendant’s history a consistent relationship between his offending and the misuse of alcohol and/or illicit drugs. They both concluded that this history exhibited signs of a substance use disorder. A requirement of reasonable notice to attend a rehabilitation course is no more than common sense. I also consider that it would be sensible to avoid compromising the defendant’s employment opportunities through any clash with drug and alcohol rehabilitation. It may be difficult for the defendant to recover from a loss of employment if he should be directed by the DSO to give priority to a drug/alcohol program. Employment is likely to be a most important integer in general rehabilitation. It should be possible to accommodate any such program outside working hours.

Association with children

62. It is accepted that there should be a condition restricting the defendant’s contact with persons under 18. He has a son who is under that age and he has proposed a condition which would allow him to have contact with the boy, without anyone else present, if his DSO and the Department of Family and Community Services approve. I will impose a condition as follows, which I understand accords with the ultimate submissions of both parties:

25 The defendant must not approach or have contact with any person who he knows is under 18, other than:

a. incidental contact in a public place in the course of the duties of the person or

b. with the written permission of his DSO and in accordance with any conditions reasonably determined by the DSO, including that the contact takes place in the presence of another person who has been approved in writing by the DSO or

c. in the case of the defendant’s son, with the approval of the Department of Family and Community Services and his DSO and on any conditions that either the Department or his DSO may reasonably determine.

Association with others (not children)

63. The plaintiff seeks the following conditions, to which the defendant objects:

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

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

28. The defendant must not associate with any people who he knows are consuming or under the influence of alcohol, without prior approval of his DSO.

64. The defendant has proposed an alternative to Condition 26, incorporating qualifications regarding the DSO having reasonable grounds for belief that association with a particular person would increase the risk of offending. The defendant’s alternative drafting would also require that the DSO provide reasons. Other more limited modifications to drafting are proposed in respect of Conditions 27 and 28.

65. In my view Condition 26 is not warranted. I take into account that Condition 29 will require the defendant to notify his DSO if he commences an intimate relationship. I will address that proposed condition further, below. Historically it has been the defendant’s associations with females with whom he forms intimate relationships that have led to his commission of serious offences, namely, sexual offences against these female companions themselves. There is nothing in the defendant’s criminal history or in the assessments of Dr Martin, Mr Brabant or Ms Terry to suggest that association by the defendant with people in any other category is a risk factor for further serious offending.

66. Condition 28 is in my view reasonable on the basis that it should be easy enough for the defendant to comply with and any association with people known to be consuming or under the influence of illegal drugs could increase the risk of him doing so himself. Association with users of illicit drugs could have no legitimate pro-social benefit. On the other hand, Condition 29 is unreasonable. It would be breached by the defendant keeping the company of a person having a drink in a hotel or allowing a person to drink alcohol in his own home. The requirement to obtain the approval of the DSO before allowing either of these situations to arise would be severely restrictive and, so far as I can see, would not serve either of the objectives of protection of the community or rehabilitation of the defendant.

67. The plaintiff’s proposed Condition 30 is as follows:

30 If the defendant starts an intimate relationship with someone, he has to tell his DSO who may want to tell the person about his criminal history.

The words in bold do not contribute to clarity of meaning of this condition and I propose to reword it as follows:

30 If the defendant starts a sexual relationship with someone, he has to tell his DSO who may tell the person about his criminal history.

68. The defendant seeks modification of the condition so that it would apply only if he should enter “an ongoing intimate relationship” and to allow seven days within which notification must be given to the DSO with a requirement that the defendant have an opportunity to discuss his criminal history with the person concerned before the DSO passes on such information.

69. I consider the plaintiff’s wording of this condition is appropriate, subject to the modifications already mentioned. Again this is a condition central to reduction of risk of further offending of the kind that has occurred in the past. The operation of the condition should not be restricted to the ill-defined category of “ongoing” intimate relationships. The defendant’s sexual relationship with at least one of his past female companions degenerated into sexual violence with great rapidity after his release on bail in August 2010. The DSO should be notified immediately the defendant’s relationship with any woman becomes sexual. The defendant’s opportunity to discuss his criminal history with any female will rise immediately upon their relationship becoming intimate and there is no need to provide for deferral of the DSO contacting the person about this.

70. The plaintiff also seeks a condition following terms:

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

71. This is opposed by the defendant but I will add such a condition, substituting the word “utilising” in place of the highlighted words. I consider that a requirement for permission to use an internet or mobile based social networking service is a sufficient restriction.

Access to the internet and other electronic communication

72. The plaintiff seeks a group of conditions numbered 32-36 which would require the defendant to notify his DSO of devices and applications used by him to access the internet and would enable the DSO to gather information about the defendant’s use of these devices. All of these conditions are opposed. The defendant proposes instead a single condition that he should permit examination of his electronic devices on reasonable notice.

73. I consider the plaintiff’s proposed conditions are reasonable and necessary, except Condition 36, which would be repetitive of Condition 32. Given the nature of past offending by the defendant and the risk to which the ESO is directed, it is important the DSO should have full capacity to monitor the defendant’s internet communications. It is notorious that internet dating sites and applications, in particular, are now a very widely used means of introduction for people looking for sexual partners. If these are to be used by the defendant, then risk reduction with respect to future offences of the kind he has perpetrated in the past may well be highly dependent upon the DSO having oversight of his online activities.

Search and seizure

74. Conditions 37-39 and 41 as proposed by the plaintiff would confer upon the DSO a power of search of the defendant’s place of residence, any vehicle under his control, any storage facility and his person. The proposed conditions would give the DSO power to seize anything found. The powers of search and of seizure would be conditioned only upon reasonable belief of the DSO that their exercise 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;

c because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence.

75. This proposed power of search and seizure is of far greater scope than the powers conferred on police officers to search without warrant pursuant to s 21 of the Law Enforcement Powers and Responsibilities Act 2002 (NSW), in that the preconditions for undertaking the search according to the conditions drafted by the plaintiff are significantly undemanding. The proposed conditions would confer a power of search in circumstances where no warrant could be obtained under Pt 5 of the Law Enforcement Powers and Responsibilities Act. Moreover, as drafted the power of search would be unlimited with respect to the things that might be searched for and seized. In this respect, again, the power is much wider than any provision of the Law Enforcement Powers and Responsibilities Act.

76. I see no justification for giving the DSO a search power of this sweeping and intrusive nature. If the power to search and seize were to be conferred at all it would have to be constrained by significant limitations, not appearing in the draft conditions proposed by the plaintiff, in order to avoid abuse and to protect the defendant and other persons who might be affected from arbitrary and unnecessary invasions of privacy. In any event I do not see how a power to search the defendant’s accommodation or his person has any real connection with supervising him with a view to either protecting the community or promoting rehabilitation. It is not apparent to me how the power to conduct unconstrained searches would be relevant to ensuring his compliance with the balance of his conditions.

77. The only category of physical items that I can conceive of as being relevant to compliance would be his mobile phone and/or electronic devices. The plaintiff has sought and I intend to grant a condition permitting remote access to the defendant’s internet services and accounts (Condition 33).

78. The plaintiff also seeks the following condition, which I will impose:

40 The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use.

79. In my view Conditions 33 and 40 are sufficient to enable the plaintiff to monitor compliance with other substantive conditions. I consider that Conditions conferring of a power of search in the terms claimed by the plaintiff would be significantly disproportionate to any perceived need to oversee general compliance.

Access to pornographic, violent and classified material

80. The plaintiff seeks a condition that the defendant should not possess or have access to pornographic material that would be classified as “Refused Classification”, or that would be in one of the highly restricted categories of classification, or other pornographic material as directed by his DSO. The defendant proposed some narrowing of this constraint but did not accept that a condition regarding access to any sort of pornography was justified. I find nothing in the evidence to indicate that past violent or sexual offending by the defendant has been in any way connected with his viewing of pornography. The expert witnesses referred to uncertainty, in psychological and psychiatric discourse, regarding a connection between the watching of various kinds of pornography and the risk of commission of sexual offences. Whatever the state of uncertainty about this with respect to the population generally, there is no evidence that would warrant imposing such a restriction on this defendant.

81. It might well be said that giving the DSO power to forbid him from watching X18+ pornography would not be a very significant intrusion upon his liberty. However that is not the only consideration. In considering all proposed conditions the Court must bear in mind, as mentioned already in this judgment, that imposing them has the effect of proclaiming against the defendant a prohibition to which no other member of the community is subject, the infringement of which would be punishable by up to 5 years imprisonment. A prohibition of that nature is not to be imposed lightly or merely for more abundant caution. It has to be justified on the evidence and shown to be material to the protection of the community.

Personal details and appearance

82. The plaintiff seeks a condition which would prohibit the defendant from changing his appearance without the approval of his DSO. The defendant’s proposed alternative condition, which merely requires notification of any significant change within 24 hours, is entirely adequate. I will impose the defendant’s condition, as follows:

45 The defendant must notify his DSO of any significant change of appearance within 24 hours.

83. A further condition proposed by the plaintiff is that the defendant should permit Corrective Services to photograph him. Again, the defendant’s alternative formulation is sufficient and more reasonable and I will impose it, in the following terms:

46 The defendant must permit CSNSW to photograph him at or about the commencement of this order and, if requested by his DSO on reasonable notice, must permit photography of any part of his body the appearance of which is subsequently changed significantly.

Medical intervention and treatment

84. With respect to a proposed condition that the defendant should attend all psychological and psychiatric therapy as directed, he seeks a qualification that this should be conditional upon the cost of the treatment being covered by Medicare or by other government subsidy or by Corrective Services or the State. In my view it is reasonable to impose a condition that he attend such therapy provided that the costs can be covered in some way. I will impose a condition in these terms:

49 The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment as directed by his DSO, on reasonable notice, provided that if the whole cost thereof is not met by Medicare or by other Commonwealth or State funding then any cost which the defendant himself will be required to bear is reasonably within his means.

85. The plaintiff also proposes conditions requiring the defendant to take medication and to notify his DSO if he ceases to do so. The defendant’s proposed condition is more liberal with respect to notifications to the DSO. I propose to adopt the defendant’s version, with some modifications (indicated in bold) of my own, as follows:

50 The defendant must take all psychiatric medications that are prescribed for him by his healthcare practitioners in accordance with their directions. The defendant must disclose these prescriptions to the DSO within 72 hours of the prescriptions being made. The defendant must notify the DSO within 24 hours of failing to take such medication as directed, either on a temporary or permanent basis.

86. I have limited this term to psychiatric medication as that is the only aspect of healthcare to which, so far as the evidence shows, conditions of an ESO could properly be directed. If, for example, the defendant should be prescribed statins for cholesterol reduction and did not wish to follow that therapy, I do not consider that this would be any concern of Corrective Services or would have any relationship to the risk of reoffending or the protection of the community.

87. The plaintiff seeks further conditions in the following terms:

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

53 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.

88. A significant objection to both of these conditions is the evidence of Dr Martin concerning the importance of confidentiality of communications in securing confidence of a psychiatric patient, thereby to obtain a full and frank history and description of symptoms. Dr Martin accepted that in psychiatry the practitioner is highly dependent upon patient disclosure as a means of ascertaining symptoms. He said:

A person ‑ all things being equal, a person should go into a doctor's room or a psychologist's room and feel that it is a safe space, that they can say anything they like without being ‑ and can be validated and not judged and that will facilitate the best management of that person.

… one has to develop a rapport, therapeutic rapport, and trust to enable the person to be able to say exactly what's happening and so the person is less guarded in withholding information.

89. Dr Martin said that, quite apart from the need to maintain confidence of the patient in order to receive diagnostic information, medical ethics dictate that confidentiality be observed. He volunteered that an exception exists where matters disclosed by the patient to the psychiatrist reveal a risk of self harm or harm to others in which case the psychiatrist’s duty would be to break confidence and notify authorities. Dr Martin gave an instance of having done this himself.

90. It is clear to me that the defendant has, at least, personality disorders which have contributed to his past offending, that these have not been systematically examined or diagnosed let alone treated and that a significant contribution both to protection of the community and to rehabilitation of the defendant could be made by encouraging him to engage with a psychiatrist. On the basis of Dr Martin’s evidence I consider that this important endeavour would be subverted by the plaintiff’s proposed Conditions 52 and 53 and I will not order them. I take into account that neither Dr Martin nor Mr Brabant was able to obtain a comprehensive history from the defendant. In the setting of a psychiatric consultation for the purposes of a report to Corrective Services (and, in this case, the Court), he was evidently wary of providing the sort of personal history which would be essential to diagnosing and treating his problems.

89. From the history of this defendant’s past crimes there is no suggestion that they have been preceded by warning signs in the nature of acute psychiatric symptoms. From a preventive perspective there appears to be no utility in the DSO being privy to the defendant’s confidential medical communications with any treating psychiatrist or psychologist whom he might consult. There is a strong balance of considerations in favour of enabling the defendant to engage in confidential psychiatric and psychological examinations to facilitate accurate diagnosis and effective treatment and, thereby, the protection of the community.

Conclusion

92. The State’s claim for conditions of the ESO in this case was, in my view, insufficiently refined to the particular circumstances of the defendant. The defendant’s counsel identified numerous conditions that seem to have been included in the plaintiff’s claim indiscriminately or, at least, by way of overreach. A large number of them would only be appropriate to an offender of a type quite different from the defendant. The result has been an inordinate amount of hearing time absorbed in receiving competing oral submissions with respect to a large proportion of the 54 conditions listed in the plaintiff’s summons and still more time after judgment was reserved working through the differences to settle a final form of order.

93. The orders of the Court will be:

1. Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 the defendant is to be under supervision in the community for a period of 3 years commencing when the defendant’s current custody expires.

2. Pursuant to s 11 of the Act during the period of the said extended supervision order the defendant is to comply with the conditions in the schedule to these reasons (subject to revision of the numbering to accommodate deletions).

Schedule

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

1.   Corrective Services NSW (CSNSW) will administer the Order.

2.   The defendant must report to the Department Supervising Officer (DSO) upon reasonable notice being given.

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

Electronic Monitoring

4.   N/A.

Schedule of Movements

5.   If directed upon reasonable notice by his DSO, the defendant must provide his DSO a schedule of movements for a period of no more than 7 days and the DSO may require, again on reasonable notice, successive schedules for subsequent periods of 7 days.

6.   The defendant must not depart from a schedule provided under Condition 5 unless he has notified the DSO 24 hours beforehand of the proposed change, except in urgent circumstances (in which case reasonable notice must be given) or if the DSO approves a change on shorter notice.

7.    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 and must not mislead the DSO or other supervising person. He must likewise answer truthfully with respect to his intentions regarding future movements and activities.

8.   N/A.

Part B: Accommodation

9.   The defendant must reside at an address approved by his DSO.

10.   If directed upon reasonable notice, the defendant is required to be at his approved address on a particular night.

11.   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.

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

13.   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

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

15.   N/A.

16.   N/A.

17.   The defendant must not attend any place used solely or mainly for the provision of sexual services or sexually explicitly entertainment without the approval of his DSO.

Part D: Employment, finance and education

18.   N/A.

19.   The defendant must not start any job, volunteer work or educational course without the approval of his DSO.

20.   N/A.

Part E: Drugs and alcohol

21.   The defendant must not possess or use illegal drugs or prescription medication other than prescribed. The defendant must not use or possess alcohol unless permitted by his DSO. The DSO can set limits on the amount of consumption by the defendant.

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

23.   N/A.

24.   The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as directed on reasonable notice by DSO, provided that the direction does not interfere with any employment obligations of the defendant.

Part F: Non-association

Association with Children

25.   The defendant must not approach or have contact with any person who he knows is under 18, other than:

a. incidental contact in a public place in the course of the duties of the person or

b. with the written permission of his DSO and in accordance with any conditions reasonably determined by the DSO, including that the contact takes place in the presence of another person who has been approved in writing by the DSO or

c. in the case of the defendant’s son, with the approval of the Department of Family and Community Services and his DSO and on any conditions that either the Department or his DSO may reasonably determine.

Associations with Others (not children)

26.   N/A.

27.   The defendant must not associate with any people who he knows are consuming or under the influence of illegal drugs.

28.   N/A.

29.   The defendant must not engage the services of sex workers, without prior approval of his DSO.

30.   If the defendant starts a sexual relationship with someone, he has to tell his DSO who may tell the person about his criminal history.

31.   The defendant must obtain permission from the DSO prior to utilising any internet or mobile based social networking service.

Part G: Access to the internet and other electronic communication

32.   The defendant must give his DSO a list of all devices, services and applications 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 and relevant passwords and codes, used by the defendant and the nature and details of the internet connection, as directed. This information must be updated within 48 hours of any change.

33.   The DSO (or any other person requested by the DSO) may remotely inspect any internet account used by the defendant, including the defendant's email addresses, in monitoring compliance with this order.  

34.   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.

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

36.   N/A.

Part H: Search and seizure

37.   N/A.

38.   N/A.

39.   N/A.

40.   The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use.

41.   N/A.

Part I: Access to pornographic, violent and classified material

42.    N/A.

Part J: Personal details and appearance

43.   The defendant must not change his name from “[BG]” or use any other name without the approval of his DSO.

44.   The defendant must not use any alias, log-in name, or a name other than “[BG]” 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.

45.   The defendant notify his DSO of any significant change of appearance within 24 hours.

46.   The defendant must permit CSNSW to photograph him at or about the commencement of this order come into effect and, if requested by his DSO on reasonable notice, must permit photography of any part of his body the appearance of which is subsequently changed significantly.

47.   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 K: Medical intervention and treatment

48.   The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults within 72 hours of the first consultation with that practitioner.

49.   The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment as directed by his DSO, on reasonable notice, provided that if the whole cost thereof is not met by Medicare or by other Commonwealth or State funding then any cost which the defendant himself will be required to bear is reasonably within his means.

50.   The defendant must take all psychiatric medications that are prescribed for him by his healthcare practitioners in accordance with their directions. The defendant must disclose these prescriptions to the DSO within 72 hours of the prescriptions being made. The defendant must notify the DSO within 24 hours of failing to take such medication as directed, either on a temporary or permanent basis.

51.   N/A.

52.   N/A.

53.   N/A.

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Amendments

08 March 2019 - corrected paragraph numbering in schedule

Decision last updated: 08 July 2020