State of New South Wales v Burchell (No 2)

[2017] NSWSC 1191

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Burchell (No 2) [2017] NSWSC 1191
Hearing dates:	4 September 2017
Decision date:	06 September 2017
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	See paragraph [86].
Catchwords:	CRIMES (HIGH RISK OFFENDERS) ACT 2006 – high risk sex offender – offences against sections 66I and 66J of the Crimes Act 1900 (NSW) –application for extended supervision order sought by the State – HELD – matters pursuant to section 9 of the Crimes (High Risk Offenders) Act 2006 taken into account in making an extended supervision order – defendant’s risk of sexual re-offending remains high – supervision required to maintain consistency and routine in offender’s life – risk of drug use connected to offender’s sexual offending unless there is external support and supervision– safety of the community requires that extended supervision order be granted CRIMES (HIGH RISK OFFENDERS) ACT 2006 – conditions of extended supervision order – whether sufficiently certain – reasonableness and relevance to risk posed – presumption that conditions will be enforced reasonably and for a proper purpose – whether condition empowering Departmental Supervising Officer to direct defendant to engage in employment appropriate
Legislation Cited:	Child Protection (Offenders Prohibition Orders) Act 2004 (NSW), ss 5, 13 Child Protection (Prohibited Employment) Act 1998 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 4, 5, 5B, 5H, 5I, 6, 7, 9, 10, 10A, 11, 12, 21, 25 Crimes Act 1900 (NSW), ss 38, 61I, 61J, 61M, 61N, 91H, Pt 3 Criminal Code Act (Cth), s 474.19
Cases Cited:	State of New South Wales v Amohanga [2015] NSWSC 875 State of New South Wales v Banks [2016] NSWSC 926 State of New South Wales v Burchell [2017] NSWSC 712 State of New South Wales v Russell [2015] NSWSC 488 Thompson v The Council of the Municipality of Randwick (1950) 81 CLR 87
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) Timothy Michael Burchell (Defendant)
Representation:	Counsel: I Fraser (Plaintiff) A Cook (Defendant)   Solicitors: Crown Solicitor’s Office (Plaintiff) Legal Aid Commission (NSW) (Defendant)
File Number(s):	2017/129611

Judgment

1. By summons filed on 1 May 2017 the State of New South Wales (the plaintiff) seeks an extended supervision order (ESO) for the maximum period of five years pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). All references to legislation in these reasons will be references to the Act, unless otherwise specified.

2. At the preliminary hearing, which was listed before me on 24 May 2017, I made orders pursuant to s 7(4) of the Act appointing experts to examine the defendant and furnish reports. Dr Adams and Dr Sheehan examined the defendant and furnished reports to the Court in accordance with the orders.

3. Ms Cook, who appeared on behalf of the defendant, accepted that the application was made in time; the defendant is over 18 years; he is a sex offender within the meaning of s 4; he is a supervised sex offender within the meaning of s 5I; and the Court would be satisfied to a high degree of probability that the defendant is a high risk offender such that an ESO could be made.

4. Since the summons was filed, the plaintiff has made various amendments to the conditions which are contained in a schedule to the summons, in part in response to the submissions made on behalf of the defendant by Ms Cook. Those presently pressed are contained in a schedule which was filed on 22 August 2017. These will be addressed further below. The principal issues in the proceedings are the duration of any ESO and the conditions of any such ESO.

The relevant legislation

5. 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.”

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

7. The term “sex offender” is defined by s 4 of the Act to mean “a person over the age of 18 years who has at any time been sentenced to imprisonment following his or her conviction of a serious sex offence”.

8. Section 5(1) of the Act defines “serious sex offence”. The definition relevantly includes an offence under Division 10 of Part 3 of the Crimes Act 1900 (NSW) which is punishable by a sentence of imprisonment of 7 years or more (such as offences against ss 61I and 61J); and an offence under s 38 of the Crimes Act that has been committed with intent to commit an offence under Division 10 of Part 3 of the Crimes Act which is punishable by a sentence of 7 years’ imprisonment or more.

9. 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.”

10. The plaintiff may apply to this Court for an ESO (s 5H), which can be made by this Court under s 5B. The persons against whom such an application can be made are set out in s 5I and relevantly include a person who is serving a sentence of imprisonment for a serious sex offence, or an offence of a sexual nature, or for another offence which is being served with a sentence for a serious sex offence or an offence of a sexual nature.

11. Section 6 provides that an application for an ESO may not be made until the last 6 months of the offender’s current custody and must be supported by documentation which includes a report by a relevant expert (qualified psychiatrist, registered psychologist or registered medical practitioner) that assesses the likelihood of the offender committing a further serious sex offence.

12. Section 7 provides for pre-trial procedures for an application for an ESO. Section 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.”

13. 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,

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

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

(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,

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

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

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

(i) any other information that is available as to the likelihood that the offender will 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).”

14. Section 10 provides that an ESO can be made for a period not exceeding five years. Section 11 provides for the conditions that may be imposed on an ESO (or ISO). Failure to comply with the requirements of an ESO (or ISO) is an offence under s 12.

15. These proceedings are to be conducted as civil proceedings: s 21. Section 25 empowers the Attorney-General to require provision of certain information. Any document produced in answer to an order in writing under s 25(1) is admissible in proceedings under the Act, “[d]espite any Act or law to the contrary”: s 25(3).

Background facts

Nature of findings

16. The defendant has not contested any of the factual narrative that was derived from the plaintiff’s evidence at the preliminary hearing. Having considered that evidence I am satisfied of the following facts, which are largely derived from those which are contained in my judgment following the preliminary hearing: State of New South Wales v Burchell [2017] NSWSC 712.

The defendant’s social background

17. The defendant was born in 1971. He was raised by his father and had limited contact with his mother. He changed schools frequently because of his father’s employment. He told Dr Parker, a psychologist by whom he was assessed on 21 December 2016 for the purposes of the present proceedings, that his father had numerous jobs and he felt that no one cared about him when he was a child. He left home when he was 17 and moved to Darwin. He lived in the Northern Territory for a while before returning to Victoria. He told Dr Parker that he formed good friendships, took up surfing and had a relationship of seven years’ duration. When he was 24 his father died. His drug use increased and he lost his job in a bakery and became homeless. He attempted suicide. He moved to Ballina. He had a criminal history of non-sexual offences, before moving to New South Wales in his twenties.

18. He has two children from two relationships: a son and a daughter.

Criminal history in New South Wales

19. The defendant has an extensive criminal history in New South Wales, which commenced in October 1997 when he was 26. His history includes larceny; destroy or damage property; behave in an offensive manner; resist police; reckless wounding; possess prohibited drug. He has spent several relatively short periods in gaol for these offences. He has also failed to comply with bail conditions.

Sexual offences

20. The offences of a sexual nature for which he has been convicted include the following.

Offence of commit act of indecency: April 2002

21. In 2002 the defendant asked a woman who was staying at a hotel where he was working as an early morning chef if he could use the toilet facilities in her room. She agreed. He used the opportunity to masturbate in her bathroom. After he left her room he masturbated outside her hotel room. He was convicted of the offence of commit act of indecency (contrary to s 61N(2) of the Crimes Act) and was fined $900. The defendant explained to Dr Parker that he had been smoking marijuana and had become sexually aroused when he saw the victim in a towel.

Offence of aggravated indecent assault: April 2006

22. In April 2006 the victim, an 8-year old girl and her 9-year old cousin, were in the recreation room at the Shaws Bay Caravan Park. The victim sat on a mattress facing the television while her cousin played computer games. The defendant sat next to the victim and put his hand under her skirt and pinched her underpants. She moved away and the defendant said, “it was a mouse”. The victim left the room and reported the matter. He was charged and convicted. A sentence of imprisonment of 6 months was imposed which commenced on 28 April 2006.

23. The defendant told Dr Parker in December 2016 that he saw the victim and began fantasising about her before the assault. According to the defendant, he was smoking a lot of drugs and drinking alcohol every day at that time.

Using a carriage service to access child pornography: January 2007

24. In January 2007 the defendant was charged with two counts of using a carriage service to access child pornography (s 474.19(1)(a)(i) Criminal Code Act (Cth)) on 16 January 2007 and 18 January 2007 respectively. These incidents occurred while he was a registered child sex offender and on parole. He attended an employment agency and logged onto their computer network. He used the network between 10am and midday. The history of the computer was accessed which indicated that the defendant had accessed photographs of children in sexually explicit and provocative poses. The internet history indicated that the offender had searched "preteen lolitas modelling" and "nude little girls". The defendant was convicted and received a sentence of imprisonment of 7 months with a non-parole period of 3 months which commenced on 25 January 2007. The defendant admitted to Dr Parker that he had used the computer to view pornography but told Dr Parker that he was surprised because he did not think it was child pornography.

Possession of child abuse material: April 2011

25. At about 7.10pm on 9 April 2011 police received numerous calls relating to a male shouting and kicking a phone booth on Dixon St, Haymarket. Upon seeing police the defendant rode away on his bicycle. The defendant was arrested on suspicion of damaging the phone booth. He was entered into custody. His mobile phone was inspected and revealed a number of images being child abuse material which was classified as level one on the Copine scale (non-erotic and non-sexualised pictures showing children). The defendant was charged with produce, disseminate or possess child abuse material (s 91H(2) Crimes Act), convicted and sentenced to imprisonment for 9 months commencing 23 April 2011 with a non-parole period of 6 months.

The index offence: March 2013

26. On Sunday 17 March 2013 the 3-year old victim was playing with her 4-year old sister among the clothing racks of the baby wear department at Big W within the Market Town Shopping Centre Newcastle. Her mother was nearby. The victim moved out of her mother's sight. The defendant approached the victim, pulled down her underpants and touched her vagina. When arrested the defendant co-operated and made admissions. The NSW Police Statement of Facts noted that the defendant stated that he had used the drug “ice” earlier that day and stated he could not recall events inside Big W, although he could recall, in detail, events either side of the alleged incident. He eventually admitted to the offence and stated "I didn't touch her on the bottom, I touched her on the fanny". He confirmed that he used his fingers to touch the victim's vagina and that he moved her underwear to the side. The Statement of Facts also noted that the defendant stated that he was not reliant on drugs, but that if he takes the drug ice it “messes with his head”. The defendant also admitted that ice “triggers sexual thoughts." At the time of the offence he was the subject of a Child Protection Prohibition Order which was to expire on 15 July 2013 and was on the Child Protection Register.

27. The defendant was sentenced by Maiden SC DCJ on 4 September 2013 in the District Court at Newcastle in respect of one count of indecent assault pursuant to s 61M(2) of the Crimes Act following a plea of guilty. His Honour sentenced the defendant to a term of imprisonment of 4½ years with a non-parole period of 3 years. The defendant became eligible for parole on 23 March 2016 and was released to parole on 30 March 2017. His sentence expires on 23 September 2017. His Honour noted the defendant’s history of offending as well as the four previous instances of sexual offending. The sentencing judge had regard to the report of Dr Richard Furst, consultant forensic psychiatrist who noted diagnoses of bipolar disorder; substance use disorder (cannabis and amphetamines); a personality disorder (anti-social with borderline features); and paedophilia. His Honour said:

"The paedophilia that Dr Furst refers to is heterosexual paedophilia consistent with a primary paraphilia, that is a disorder of sexual arousal and attraction. That matter perhaps is relevant to his offending behaviour on this day and what must be and which I find what has occurred is that Mr Burchell has had an underlying paedophile condition and when he took the substance ice, either on the day or earlier, that whatever control mechanisms he may have had when substance or alcohol free dissipated and gave rise to him seeking out the victim on this day.

In doing so, I accept that it was not planned, however, it is clear that by going to that part of the store that he was looking for a young female to attack, which he did. ... I find that it was his drug use that caused that behaviour notwithstanding that he had an existing psychiatric condition. ... what is clear is that because of his complex psychiatric conditions he was unable to control those conditions when affected by alcohol."

28. His Honour addressed the connection between drug-induced disinhibition in the following passage:

"What is most saddening about this matter, besides what is the actual offending behaviour and what may be the effect on the young girl and her family, is that this matter, in my mind, would not have occurred had Mr Burchell not taken the illicit substances which I have earlier referred to. This is a matter where he knew, from his experience of his various offending behaviours and period of time in incarceration what would happen if he could not control his instincts. In this matter what has occurred is that he took ice and as for the finding I have set out above this is most likely the reason that this offence occurred."

29. The defendant was in custody for the index offence from 4 March 2012. He was not released to parole in March 2016 as he had not completed a program to address his sex offending. He commenced the Custody-Based Intensive Treatment (CUBIT) program on 7 December 2015 at Cessnock gaol. He was transferred to Metropolitan Special Program Centre, at Long Bay gaol on 6 February 2017. He was released to parole on 30 March 2017. The conditions of his parole include a requirement that he attend Forensic Psychology Services (FPS) and drug and alcohol counselling. His parole has been supervised by the ESO team since his release. From the date of his release he was living at the Nunyara Community Offender Support Program Centre (COSP).

29. On 9 May 2017 the Local Court at Waverley made a Child Protection Prohibition Order (the Prohibition Order) in respect of the defendant pursuant to s 5 of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW). The terms of the Prohibition Order relevantly provided:

“The Local Court orders that [the defendant] is prohibited from engaging in specific conduct, namely:

. . .

7)   Not to be in the possession of any images depicting children or child-like images.

. . .

9)   Not to be in possession of any children’s underwear or nappies.

. . .”

Breach of the Prohibition Order

31. In May and June 2017 the defendant behaved aggressively towards staff at Nunyara COSP and was given warnings about his behaviour. He failed to attend his weekly scheduled case review meeting on 18 May 2017, which was the second occasion on which he had failed to attend. On 19 May 2017 he was given a written warning. He was also sanctioned about failing to save in accordance with his budget. On 15 June 2017 he commenced employment as a labourer.

32. In June 2017 there were several occasions on which he was abusive to COSP staff. On 27 June 2017 he was directed, as per his parole conditions to be of good behaviour and adapt to normal community life, “to behave in an acceptable manner and refrain from offensive language.”

33. Ultimately it was determined that he would be obliged to leave the Nunyara COSP and move to the Campbelltown COSP because of his aggression towards staff.

34. On 27 June 2017 when his room at the Nunyara COSP was being cleared out by staff in preparation for his relocation, items were found in it which led to his being charged on 28 June 2017 with breaches of condition 7 of the Prohibition Order. The Facts Sheet attached to the Court Attendance Notice sets out the particulars of breach. The items found in his room which are alleged to constitute a breach of condition 7 were: a Stella Magazine (a lift-out from The Sunday Telegraph) which depicted a mother with a baby, a pram and a toddler child; and a Foodworks brochure which included advertisements for nappies which depicted a mother with her toddler in a nappy. Section 13 of the Child Protection (Offenders Prohibition Orders) Act provides that the offence of contravene a prohibition order carries a maximum penalty of 5 years’ imprisonment and a maximum fine of 500 penalty units ($55,000). Although baby items were apparently found in his room, these were not the subject of a charge.

35. The defendant’s parole was revoked on 12 July 2017, effective from 27 June 2017, on the basis of this charge. An application for review of the revocation was withdrawn by the defendant. The Director of Public Prosecutions has elected to proceed on indictment. The matter is next listed for mention in the Central Local Court on 10 October 2017. This is the first occasion on which it will be in the committals list. Presently the defendant is in custody serving the balance of his sentence for the index offence, which will expire on 23 September 2017. An application for bail prior to revocation of his parole was refused. Accordingly, unless there is a further bail application, he will remain in custody on remand on the expiry of his sentence.

Matters to be taken into account under s 9

36. Section 9(3) requires this Court, in determining whether or not to make an ESO, to have regard to the matters which are addressed in the subsection. These matters are, to the extent relevant, listed below. The first of these matters, the safety of the community (s 9(3)(a)), will be addressed last since it is affected by the other matters considered.

The reports received from the persons appointed under s 7(4) [court-appointed experts] to conduct examinations of the offender, and the level of the offender’s participation in any such examination (s 9(3)(b))

Report of Dr Adams dated 14 August 2017

37. Dr Adams, forensic psychiatrist, examined the defendant on 7 and 20 July 2017 and prepared a report dated 14 August 2017. Dr Adams considered the defendant to manifest features consistent with the paraphilic (sexually inappropriate behaviour) disorder of paedophilia. He has a history of drug and alcohol use which is consistent with severe substance abuse disorder. Dr Adams noted that the defendant insisted that he had remained abstinent for some time, including during his most recent period in the community (since his release to parole on 30 March 2017). Dr Adams identified various risk factors associated with the defendant’s offending conduct. He identified critical risk management needs which included the defendant’s “psychosexual disorder; his personality vulnerabilities; his interpersonal deficits; his difficulties with emotional regulation; and his insight into his history of sexually inappropriate behaviour”.

38. Dr Adams noted the connection between the risk of the defendant committing a serious sex offence and his use of illicit substances. He considered the list of conditions proposed by the plaintiff in the schedule to the summons and considered that they would be sufficient to manage his risk in the community and that they were appropriate.

39. Dr Adams considered that an ESO of five years “could not be considered inappropriate given the long term nature of his risk management needs”. He also recommended that he be treated by a forensic psychiatrist in the community. Dr Adams considered that there were factors which tended to support the prescription of anti-libidinal medication for the defendant. However, he noted that the defendant “was adamant that he would not consider it as a treatment possibility”.

Report of Dr Sheehan dated 11 August 2017

40. Dr Sheehan, a forensic psychiatrist summarised his opinion in the following terms:

“In my view Mr Burchell’s prognosis is quite guarded in the absence of an Extended Supervision Order (ESO), with a heightened risk of a return to homeless hostels or other unstable accommodation, increased stress, poor coping (acting out, sexual coping and substance use). Under such circumstances he would be vulnerable to acting impulsively on deviant fantasies, such as accessing child pornography, fetish material or seeking to touch prepubescent females (the latter being acts approaching the threshold for a serious sex offence). The type of sexual offending exhibited by Mr Burchell cannot be easily managed due to the impulsivity and opportunism involved in public places. However, an ESO can assist in offsetting the risks by interrupting escalating sexual behaviour, encouraging improved coping skills, coordinating any suitable medications (including antilibidinal medications if prescribed), restricting access to high risk locations, and monitoring his associations. Mr Burchell’s risk factors are chronic and some remain contemporaneous, therefore it is unrealistic to imagine that even with his genuine effort, that he would be able to overcome these difficulties in a short period. This points towards suitability for the higher end of the five year range and certainly no less than three years would be realistic.”

The results of any other assessment prepared by a qualified expert 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 (s 9(3)(c))

41. As referred to above, the defendant was assessed by Dr Parker who prepared a report dated 10 January 2017 (from which much of the history set out above is derived). Dr Parker opined that the defendant’s life “unravelled” after the death of his father which resulted in his abusing drugs. Dr Parker said that the defendant had responded positively to the CUBIT Program. Dr Parker was concerned that the defendant would only have six months on parole before his sentence expired and considered that to be too short a period to assess the risk of his re-offending. Dr Parker’s view was that the defendant’s risk of sexual re-offending remains high. He said:

“Without any form of supervision, it is possible he would return to his previous lifestyle and substance abuse, with the consequent risk of further offending”.

42. Dr Parker said that when the defendant takes drugs:

“[H]e appears to descend fairly rapidly into a chaotic lifestyle, where a range of offences (both sexual and non-sexual) are common place.”

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 (s 9(3)(d))

43. Dr Parker outlined the results of Static-99R and STABLE-2007 analysis for the defendant. Static-99R is designed as a predictive tool for sexual recidivism based on static factors. The defendant’s score of 7, which is classified as IV-b, was well above average risk in the range formerly referred to as "high risk". Compared to other adult male sex offenders the defendant’s score is in the 96th or 97th percentile. STABLE-2007 was developed to assist clinicians in identifying stable dynamic risk factors for sexual re-offending: intimacy deficits, social influences, distorted attitudes, general self-regulation and sexual self-regulation. Dr Parker assessed the defendant's score as 19, which is classified as “high”.

44. Dr Sheehan also addressed the risk assessment process. He too noted that the defendant scored 7 on the Static-99R, which placed the defendant in the high risk or well above average risk. He also applied the Risk of Sexual Violence Protocol (RSVP), a structured, professional judgment tool and identified a number of dynamic risk factors pertaining to the defendant, which largely accorded with those identified by Dr Parker.

Any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community (s 9(3)(d1))

45. Jessica Smith, Senior Community Corrections Officer at the Cessnock Parole Unit prepared a report dated 9 December 2015. At that time release to parole was not recommended as the defendant had not yet completed the CUBIT program. Ms Smith noted the defendant’s lack of social support in the community and his poor behaviour in custody. In the next report, dated 11 January 2017, Ms Smith noted that the defendant was doing the CUBIT program and had demonstrated good progress. Ms Smith noted that the defendant had not committed any institutional misconduct since May 2015 and that parole would be recommended in March 2017 when it was expected that the defendant would have completed CUBIT.

46. Ajay Dayal, a Senior Community Corrections Officer within the ESO team, prepared a Risk Management Report dated 20 February 2017 in which the defendant’s periods in custody and under supervision were noted. Mr Dayal identified the defendant’s risk factors as being: substance abuse; alcohol abuse; sexual drive/preoccupation; intimacy deficits; and sexual attitudes. Mr Dayal proposed a management plan which includes the following: weekly interviews; random drug testing; random field visits; attendances at FPS; electronic monitoring with a curfew and the requirement to submit a weekly schedule in advance; non-association and place restrictions; and review of internet access. Mr Dayal prepared a further report dated 18 May 2017. As at that date, Mr Dayal described the defendant’s engagement with Community Corrections as “satisfactory” although he noted that the defendant’s stay at the accommodation was “borderline” since he had, on a number of occasions, displayed aggression towards staff and other residents. He also commented that although the defendant had a few minor deviations from his weekly schedule of movements at the beginning of his period on parole, his compliance had improved. Mr Dayal also reported that the defendant was attending group sessions at FPS and that his participation was reported to be satisfactory. Mr Dayal said that the defendant had been randomly tested for drugs and alcohol and all results were negative. I note that Mr Dayal’s updated report predates the recent events referred to above, which have led to revocation of the defendant’s parole.

47. Pauline Jeffress, who was assigned as the defendant’s Departmental Supervising Officer (DSO), opined as to the management of the defendant while he is in the community. She used the Level of Service Inventory-Revised (LSI-R) to assess his risk of re-offending. She said, in her affidavit sworn on 18 August 2017 (which was read without objection by the plaintiff at the final hearing) that the defendant was assessed under the LSI-R on 7 July 2017 as posing a medium/high risk. Ms Jeffress overrode that assessment and adjusted it to a high rating in view of his previous offending, the Static-99 result and the Sex Offender Supervision Assessment. She also referred to the Community Impact Assessment (CIA), which is a tool used by Corrective Services NSW and provides a basis for increased monitoring of offenders.

48. Ms Jeffress noted in her affidavit that she had tried to talk to the defendant about his aggression towards staff at the Nunyara COSP. She reported that:

“on each occasion he has not taken responsibility for his actions, instead blaming others. My impression is that he does not perceive his behaviour to be intimidating.”

49. Ms Jeffress gave further evidence about the particular conditions sought by the plaintiff, which will be addressed in further detail below. As to condition 19 she said:

“Proposed condition 19 requires the offender to enter employment, or make himself available for, employment, education, training or participation in a personal development program. The Defendant has always impressed me as someone wanting to work. However, the purpose of this condition is to assist the Defendant in re-integrating into the community through ensuring that he undertakes training, education, or other programs with a view to obtaining employment and encouraging his self-worth.”

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 (s 9(3)(e))

50. The defendant completed eight sessions of the 20-session Explore, Question, Understand, Practise to Succeed (EQUIPS) Addiction program, which was terminated due to low numbers. He completed the CUBIT program. However this took from 7 October 2015 until 2 March 2017, which was longer than expected. According to the CUBIT treatment report dated 9 March 2017 the length of time the defendant took to complete the program could be attributed to his lack of motivation to engage in the requirements of the program. The author of the report said that:

“[The defendant’s written tasks and oral reflections] demonstrated a basic understanding of his problematic behaviours and appropriate utilisation of the skills and strategies. He continues to have difficulties identifying the problematic behaviours when experiencing a strong emotional response or feels he is being blamed for something.”

51. The report also noted that the defendant reported that in the period leading up to each offence the defendant was not in a relationship; lacked support; was unable to express his emotions or solve problems; questioned his purpose in life; engaged in excessive alcohol and drug use; and then increased his pornography use and masturbation. His pornography use and fantasies became more deviant, moving to pre-pubescent girls. The author of the report identified several risk factors and warning signs, which included the following: sexual pre-occupation; using sex to cope; deviant sexual thoughts; emotional inhibition; loneliness/isolation and fear of rejection; intimacy deficits; impulsivity; avoidance of solving problems; substance use; and a general lack of concern for others. The report said:

“[The defendant’s] contact sexual offending was impulsive and opportunistic, believing he would not get caught, and appeared to be an attempt to manage his emotions, act out sexual fantasy or sexualised thoughts he had whilst viewing child pornography."

52. The defendant worked in various positions in gaol from which he was dismissed because of his behaviour. However, these dismissals occurred prior to the completion of the CUBIT program. Nonetheless, his inability to maintain stable employment, even in the custodial setting, suggests that he needs supervision to maintain consistency and routine in his life with a view to minimising the risk of substance abuse and consequential re-offending.

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 (s 9(3)(f))

53. The defendant’s first involvement with NSW Probation and Parole Service was in November 2002. His criminal history indicates nine breaches of bail or his reporting requirements. On 26 November 2004 a previous parole order was revoked on the basis that the defendant was unable to adapt to normal, lawful community life. A Breach of Parole Report dated 2 May 2007 noted that he appeared to be in breach of a prescribed condition in that he was not residing at the address specified in his release arrangements. A Breach of Parole Report dated 25 July 2012 noted a positive result to cannabis was returned in a routine drug test. A review of the material indicates that the defendant has previously had difficulties complying with his obligations.

54. As referred to above, Mr Dayal’s reports confirm that the defendant was generally compliant with his parole obligations until about June 2017. Ms Solomon, a forensic psychologist with FPS, reported in an email dated 19 May 2017 that the defendant had been engaging well with the weekly sessions.

The level of the offender’s compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 (NSW) or the Child Protection (Offenders Prohibition Orders) Act (s 9(3)(g))

55. On 6 September 2004 the defendant signed a Prohibited Employment Declaration pursuant to the Child Protection (Prohibited Employment) Act 1998 (NSW) prohibiting him from applying for, undertaking or remaining in child-related employment as he had been convicted of a serious sex offence as defined in that Act. When the defendant committed the index offence he was the subject of a Child Protection Prohibition Order.

56. As referred to above the defendant was charged with breaching condition 7 of the Prohibition Order. This matter has not yet been determined.

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 (s 9(3)(h))

57. These matters have been set out above in the narrative. The defendant’s history demonstrates the connection between disinhibiting drugs and sex offending.

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

58. I have referred to the remarks on sentence of Maiden DCJ above and, in particular, his Honour’s impression that the offending conduct would not have occurred but for the defendant’s substance abuse.

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) (s 9(3)(i))

59. While in custody for the index offences, the defendant has had, between 4 March 2012 and 22 June 2015, 22 breaches of discipline including offences of indecency; intimidation; fail to attend muster and possess drug. There have been no breaches in custody from 22 June 2015.

60. The location of the material in his room at Nunyara COSP, which was the subject of the charge for breach of the Prohibition Order, provides some indication that his paraphilic tendencies continue.

The safety of the community (s 9(3)(a))

61. The consensus of expert opinion, which was based in part on the scores on the static and dynamic risk tools, is that there is a high risk of the defendant re-offending unless his life is ordered and he remains drug-free. When unsupervised, he tends to be reactive to the circumstances around him. When he loses employment, or is frustrated by the end of a relationship or some other trigger, he tends to take substances, become disinhibited and satisfy his sexual urges in a way which amounts to criminal offending, either because an adult woman does not consent, or because a child is involved. The impulsive nature of his offending means that the community is at risk unless his substance abuse can be controlled and his life can be ordered. Presently it does not appear that he has the capacity to remain in stable accommodation, obtain and maintain stable employment and remain drug-free without external support and supervision. His positive response to the CUBIT program provides some indication that, given external supervision, he can learn skills and strategies to modify his behaviour and reduce the risk he poses to others.

62. The recent events at Nunyara COSP are an indication of the extent to which the defendant requires supervision. Although the alleged breach of the Prohibition Order did not involve any act against an actual or potential victim, the possession of material in breach of the order indicates continued paraphilic tendencies which, if acted upon, present a high risk of a further serious sex offence.

Conclusion

63. I am satisfied that it is both appropriate and necessary to make an ESO. The defendant poses a high risk of committing a serious sex offence unless supervised.

The duration of the order

64. The Act provides that the maximum term for which an ESO can be ordered is five years. The defendant’s obligations under an ESO are automatically suspended for any period during which the defendant is in lawful custody: s 10(2). He is presently in custody serving the remainder of his sentence which will expire on 23 September 2017. Accordingly, the ESO should commence on that day. If he remains in custody on that day, his obligations under the ESO will be suspended until his release: s 10(2). The length of the ESO will be increased accordingly by the time spent in custody: s 10(1)(b).

65. As referred to above, both court-appointed experts considered that, having regard to the long-standing factors which give rise to the risk which the defendant poses to the community it could not be expected that they will resolve in a period of less than five years. Ms Cook submitted that an ESO of a shorter period would provide a “fruitful incentive for the defendant to progress well through the stages of the ESO.”

66. While the rehabilitation of the defendant is an important purpose of the Act, its primary purpose is the protection of the community. I do not consider that the risk factors posed by the defendant are such that there is any realistic expectation that he could manage his own risk without supervision within a period of five years such that his risk would be reduced to an acceptable level. In these circumstances and having regard to the history set out above and the opinions of Drs Adams and Sheehan, I am persuaded that it is appropriate for the term of the ESO to be five years.

The conditions of the ESO

67. The original conditions proposed by the plaintiff have been amended to reflect the conditions presently sought by the plaintiff in light of objections raised by Ms Cook on the defendant’s behalf. I propose to address only those conditions which are controversial since I am satisfied that the balance is necessary and reasonably related to the risk posed by the defendant or the management of his risk. The numbering of the proposed conditions corresponds with the schedule provided by the plaintiff. Due to some deletions, the numbers of the propose conditions do not correspond with the number in the schedule to these reasons. However, the relationship between a proposed condition and an actual condition will be evident from its terms.

Part B: Accommodation

Proposed curfew condition (condition 10)

68. Proposed condition 10 provides:

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

69. Mr Fraser, who appeared on behalf of the plaintiff submitted that this condition was reasonably necessary as it formed an integral part of a three‑part management strategy of electronic monitoring, scheduling and a curfew. He submitted that a curfew could minimise the risk of substance abuse which was related to the defendant’s past offending. Ms Cook contended that there was no sufficient relationship between the hours of the curfew and his offending. Further, she submitted that one of the defendant’s skills as a baker (which has been a source of employment in the past) would require him to rise much earlier than the 6am conclusion of the curfew. She proposed that the condition be reworded such that there is no curfew unless the DSO specifically imposes a curfew between the hours of 10pm and 5am. Ms Cook argued that the electronic monitoring and provision of weekly schedules were sufficient to manage the risk posed without the curfew condition.

70. I consider that the condition as drafted is reasonable and necessary. The promotion of regular sleeping and waking hours is associated with managing the risk of the defendant relapsing to the use of substances. Such regularity would also tend to assist him to obtain and retain employment, which is also relevant to risk since it would provide structure for his life and a diversion from his paraphilic tendencies. I am satisfied that it is appropriate to make condition 10 in its current form. I note that there is sufficient flexibility within the terms of the condition for alteration in the times of the curfew to accommodate hours of work or other matters.

Part C: Place and travel restrictions

Proposed place restriction excluding the defendant from places where sexually explicit material, services or entertainment is sold (condition 18)

71. The proposed condition is as follows:

“Unless approved by the DSO, 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.”

[Emphasis added.]

72. Ms Cook submitted that the last eight words are too vague to be enforceable and are potentially confusing. Although Mr Fraser did not have instructions to concede that these words ought be deleted, he did not argue for their retention. I am satisfied that these words ought be deleted and the remainder included as a condition of the ESO.

Part D: Employment, finance and education

73. Proposed condition 19 provides as follows:

“If the defendant is unemployed, the defendant must enter available employment if and as directed by the DSO or make himself available for employment, education, training or participation in a personal development program as directed by the DSO.”

74. Ms Cook contended that the condition was unwarranted in the present case since the plaintiff had a good employment record and did not need to be coerced into taking employment or participating in any treatment or development program. She submitted that the intrusion into his autonomy was neither reasonable nor necessary as no nexus has been demonstrated between this condition and the risk of the defendant’s re-offending. She relied on the reasons of Rothman J in State of New South Wales v Banks [2016] NSWSC 926 at [68(d)] in which his Honour rejected a proposed condition in similar form and questioned the government’s power to force someone into compulsory labour. Ms Cook also referred to the view of Adams J in State of New South Wales v Russell [2015] NSWSC 488 at [33] that the requirement that a person accept employment was “such an interference with basic civil rights that it could not be countenanced except in the exceptional circumstances”.

75. Mr Fraser referred to the reasons of Schmidt J in State of New South Wales v Amohanga [2015] NSWSC 875 at [48]-[55] in which her Honour explained the imposition of a condition to similar effect on the ESO made in that case.

76. I consider this condition to be reasonable and necessary. Although the defendant has shown himself to be capable of obtaining employment, his history shows that he is apt to lose it for reasons associated with his incapacity to control his emotional responses in a socially acceptable way. Employment is likely to be highly significant in reducing the defendant’s risk of re-offending. It will divert him in a productive and remunerative way and assists him to live in the community in a socially acceptable manner. Moreover, the condition also covers education and training. It may be that there is a course which will assist him to obtain, retain or regain employment. If the DSO has no power to enforce such participation, the risk may not be controlled as effectively as if it were a condition. A power such as the power conferred on the DSO by conditions of an ESO is subject to the requirement that it be exercised reasonably, in good faith and for the purpose for which it was granted: Thompson v The Council of the Municipality of Randwick (1950) 81 CLR 87 at 105-106 (Williams, Webb and Kitto JJ). I am persuaded that there is a sufficiently direct link between the mitigation of the risk posed by the defendant through regular employment and the terms of the proposed condition 19. I do not regard the condition as being either onerous or oppressive in the present case. I am satisfied that it is appropriate to include it in the conditions of the ESO.

Part J: Personal details and appearance

Conditions relating to change of appearance and photographing the defendant

77. Proposed conditions 47 and 48 (which correspond to conditions 45 and 46 in the Schedule to these reasons) are as follows:

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

48.   The defendant must let CSNSW photograph him.”

78. Ms Cook contended that cl 47 was unwarranted and also too vague to be appropriate having regard to the criminal sanctions for breach. She also argued that there ought be some limitation on condition 48 to confine the right to photograph the defendant to those instances where he had either changed his appearance or where the passage of time might have had the effect of changing his appearance.

79. I am persuaded that the wording of condition 47 is unnecessary. The plaintiff has not identified any reason, other than the need to identify the defendant to those who may not be as familiar with his usual appearance as his DSO and also to permit his DSO to recognise him if he has substantially changed his appearance. In these circumstances, I consider that proposed condition 47 should be reworded to delete “without the approval of his DSO” and to substitute the words with “unless he has informed his DSO in advance of the proposed change”. As to proposed condition 48, I am not persuaded that there is any warrant for limiting its operation to particular periods. Conditions ought not be drafted on the basis of any assumption that they will be enforced capriciously.

Part K: Medical intervention and treatment

80. Proposed conditions 50-55 (which correspond to conditions 48-53 in the Schedule to these reasons) provide as follows:

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

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

52.   The defendant must take all medications that are prescribed to him with his informed consent by his healthcare practitioners.

53.   If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify the DSO within 24 hours of ceasing to take the medication.

54.   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.

55.   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.”

81. Ms Cook initially submitted that each of these conditions was objected to. She contended that the defendant does not presently take any medication or have any health issues. She noted that no one can be forced to be assessed for, or take, anti-libidinal medication without consent. She queried the potential for any of these conditions to reduce any risk posed by the defendant. She also contended that the effect of proposed condition 55 was to override the presumption of privacy and submitted that a further qualification ought be added to the condition to ensure that only those who were directly involved in his supervision, management and care ought be permitted to have access to information concerning him.

82. Mr Fraser argued that the defendant was protected by privacy laws which would ensure that only those with an interest as specified by Ms Cook would have access to the information concerning him in any event. He relied on the oral evidence given by Drs Adams and Sheehan concurrently, in which they, in effect, agreed on the importance of those involved in the defendant’s supervision, care and management being privy to the pool of information concerning him so that good, well-informed decisions could be made by all concerned on the basis of the most complete, up-to-date information.

83. Mr Fraser also relied on the opinion of Dr Sheehan about the potential for therapeutic medication (other than anti-libidinal medication) to attenuate the risk posed by the defendant. Dr Sheehan said:

“35. Mr Burchell has a somewhat complex psychiatric history. He denied any history of psychosis or major mental illness, but there are several file entries describing odd behaviour, such as: paranoia, persecutory ideation, disordered thought, manic presentation, insomnia, and labile mood. There is a clear pattern over time of poor affective regulation in terms of having explosive fits of temper and at times it is not clear what was seen to provoke this. There was a psychiatric admission to Lismore's Richmond Clinic approximately 15 years ago. Mr Burchell told me that he was living in a tent in a caravan park at the time and that and the admission was prompted by him being angry and yelling at everyone in the park to be quiet. He was managed in the Mental Health Screening unit at MRRC during 2013 when his behaviour and presentation deteriorated. Mr Burchell reported having made one self-harm attempt (cutting his wrists) immediately prior to his father dying. However, file information suggests further acts of self-harm in younger life such as slashing his neck and carbon monoxide poisoning). He has been prescribed the atypical antipsychotic medication quetiapine (and olanzapine) on several occasions, but not since 2013.

36. Dr Furst (29 July 2013) diagnosed Bipolar Affective Disorder (manic with psychotic features), but other psychiatrists (Dr Elis and Dr Adams) formed the view that Mr Burchell's periods of bizarre presentation were attributable to his

substance use, opining that the symptoms had quickly resolved upon abstinence. In my view, whilst the symptoms described are consistent with Bipolar Affective Disorder, they may also be accounted for by a combination of substance use and personality pathology, which makes a definitive diagnosis unclear at this point.

37. Mr Burchell does not currently present with symptoms of mental illness, although his mood regulation remains evidently poor. He rated his mood at 7/10. He is currently prescribed no medications at all. In my view, assessment for mood stabilising medications may have some utility going forward if such medications may assist him to manage his temper, not jeopardise his accommodation (through outbursts) and to tolerate supervision better.”

84. I accept Dr Sheehan’s opinion about the potential for medication to help the defendant to manage his temper. Although he cannot be required to take medication without his informed consent, it may be that, if he agreed to taking such medication it would help him in the way described by Dr Sheehan. In these circumstances, the conditions which relate to medication, 52-53, are reasonably necessary. Condition 50 is plainly necessary since the sharing of information is important for managing the risk posed by the defendant and assisting with his rehabilitation. Condition 51 was objected to on the ground that it merely replicated conditions 1 and 3, and potentially proposed condition 27 (which relates to drug and alcohol rehabilitation and corresponds with the actual condition 25 in the Schedule to these reasons). I consider it to be desirable that a condition such as condition 51 be spelled out expressly rather than that it be left under the rubric of the more general conditions, 1 and 3. Proposed condition 27 (now condition 25 in the ESO, see below) relates only to drug and alcohol rehabilitation rather than to other treatment courses. I do not regard condition 51 as repetitive.

85. I am persuaded that it is appropriate to include conditions 50-55 as proposed subject to one matter. Although Mr Fraser said that the plaintiff’s position was that only those staff members who were directly involved in the defendant’s management, supervision and care would be permitted to access the information referred to in proposed condition 55, I consider it to be preferable that this qualification be expressed in the condition. Accordingly, the condition which corresponds to proposed condition 55 (condition 53, see below) contains the following words at the end:

“on the basis that access to such information be limited to those persons who are directly involved in his supervision, management and care”

Orders

86. 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 23 September 2017.

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 Adams and Dr Sheehan 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 OF CONDITIONS OF SUPERVISION

TIMOTHY MICHAEL BURCHELL

Departmental Supervising Officer (DSO)

Corrective Services NSW (CSNSW)

* Any reference to DSO includes any other person supervising the defendant

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

1. The defendant must accept the supervision of CSNSW until the end of the Order.

2. The defendant must report to the DSO.

3. The defendant must follow all reasonable directions by his DSO.

Electronic Monitoring

4. If directed, the defendant must wear electronic monitoring equipment as directed by the DSO.

Schedule of Movements

5. 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.

6. 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.

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

8. The defendant must truthfully answer questions from his DSO about where he is, where he is going and what he is doing.

Part B: Accommodation

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

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

11. The defendant must allow his DSO 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 CSNSW.

15. The defendant must surrender any passports held by the defendant to the Commissioner of CSNSW.

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

17. Without limiting condition 16 above, the defendant must not go to any of the following unless approved in advance by his DSO:

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

2. Amusement parlours, amusement parks and theme parks;

3. Cinemas;

4. Libraries and museums;

5. Camping grounds and caravan parks;

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

7. Pools, playing fields and sporting facilities;

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

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

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

18. Unless approved by the DSO, 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.

Part D: Employment, finance and education

19. If the defendant is unemployed, the defendant must enter available employment if and as directed by the DSO or make himself available for employment, education, training or participation in a personal development program as directed by the DSO.

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

21. The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by his DSO.

Part E: Drugs and alcohol

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

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

24. The defendant must not enter any licensed premises, with the exception of restaurants, cafes, and supermarkets, without the approval of his DSO.

25. The defendant must attend and participate in programmes 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.

Part F: Non-association

Association with Children

26. The defendant must not approach or have contact with 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)

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

28. The defendant must not be in the company of any people who are consuming or who he knows are under the influence of illegal drugs or alcohol without prior approval of his DSO.

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

30. If the defendant starts an intimate relationship with someone:

1. he has to tell his DSO immediately; and 

2. if required by his DSO, he must either:

1. tell the person of his criminal history; or

2. give consent for the DSO to tell the person of his criminal history.

31. 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.

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.

33. 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. 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 H: Search and seizure

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

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

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

3. 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:

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

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

6. 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

7. search and examination of his person.

38. For the purposes of the above condition:

1. a search of the defendant means a garment search or a pat-down search.

2. 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.

39. During a search carried out pursuant to condition 37 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:

1. the safety of residents or of staff at the defendant's approved address;

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

3. 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.

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

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

Part I: Access to pornographic, violent and classified material

42. 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, unless otherwise approved in advance in writing by the DSO.

Part J: Personal details and appearance

43. The defendant must not change his name from Timothy Michael Burchell 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 Timothy Michael Burchell 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 must not change his appearance unless he has informed his DSO in advance of the proposed change.

46. The defendant must let CSNSW photograph him.

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.

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

50. The defendant must take all medications that are prescribed to him with his informed consent by his healthcare practitioners.

51. If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify the DSO within 24 hours of ceasing to take the medication.

52. 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.

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 on the basis that access to such information be limited to those persons who are directly involved in his supervision, management and care.

Decision last updated: 07 September 2017