State of New South Wales v Burke (Preliminary)

[2023] NSWSC 1186

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Burke (Preliminary) [2023] NSWSC 1186

Hearing dates:

03 October 2023

Date of orders:

05 October 2023

Decision date:

05 October 2023

Jurisdiction:

Common Law

Before:

Sweeney J

Decision:

1. Pursuant to s 10A of the Act, the defendant be subject to an Interim Supervision Order from 16 October 2023.

2. Pursuant to s 10C(1) of the Act, the Interim Supervision Order is to be for a period of 28 days.

3. Pursuant to s 11 of the Act, I direct that the defendant, for the period of the Interim Supervision Order, comply with the conditions set out in the Schedule to this judgment.

4. Pursuant to s 7(4) of the Act:

(a) I appoint two qualified psychiatrists and/or two registered psychologists, or one qualified psychiatrist and one registered psychologist, to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court when a date for the final hearing is fixed; and

(b) I direct the defendant to attend those examinations.

5. I direct that access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

Catchwords:

HIGH RISK OFFENDERS — Extended Supervision Orders — Preliminary hearing

Legislation Cited:

Child Protection (Offenders Registration) Act 2000 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW)

Cases Cited:

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

Wilde v State of New South Wales [2015] NSWCA 28

Texts Cited:

Nil

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Andrew Mark Burke (Defendant)

Representation:

Counsel:
A Mykkeltvedt (Plaintiff)
J Wilcox (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2023/226851

Publication restriction:

Nil

JUDGMENT

1. By summons filed on 14 July 2023 the State of New South Wales, the plaintiff, seeks orders under the Crimes (High Risk Offenders) Act 2006 (NSW) in respect of Mr Andrew Burke, the defendant.

2. The final relief sought is an Extended Supervision Order.

3. A preliminary hearing, pursuant to s 7(3) of the Act, occurred on 3 October 2023. The plaintiff sought an Interim Supervision Order pursuant to s 10A of the Act and orders appointing experts to examine the defendant and provide reports to the Court, pursuant to s 7(4) of the Act.

4. The defendant, through his counsel Mr Wilcox, accepted that the statutory preconditions for the making of the interim orders sought are established and submitted that if the Court is independently so satisfied it would be appropriate for the Court to make the orders sought for an Interim Supervision Order and the appointment of experts.

5. There is a dispute between the parties about some of the conditions to be included in the Interim Supervision Order sought.

A brief consideration of the statutory scheme

6. In this preliminary hearing, s 10A of the Act provides that the Court may make an Interim Supervision Order if it appears that the offender’s (defendant’s) current custody will expire before the proceedings are determined and the matters alleged in the supporting documentation would, if proved, justify the making of an Extended Supervision Order. Section 5B(d) of the Act provides that the Court may make an Extended Supervision Order if satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.

7. If, following the preliminary hearing, the Court is so satisfied, it may make orders pursuant to s 7(4) of the Act appointing qualified psychiatrists and/or registered psychologists to examine the offender and provide reports to the Court about those examinations, and directing the offender to attend those examinations.

8. In deciding whether the Court is satisfied that an order should be made, the Court must have regard to the objects of the Act. The primary object of the Act is to ensure the safety and protection of the community: s 3(1). Another object of the Act is to encourage high risk offenders to undertake rehabilitation: s 3(2). The safety of the community must be the paramount consideration of the Court in determining whether to make an Extended Supervision Order: s 9(2).

9. Section 11 provides for “appropriate” conditions of orders.

Supporting documentation

10. The parties provided the supporting documentation in two folders, which were marked Exhibit A. The plaintiff relied on an affidavit of Melinda Smith, affirmed 20 July 2023, to which were annexed Risk Assessment Reports, psychological reports, Parole Reports, and material relating to Mr Burke's relevant prior offences, and an affidavit of Johanna Fisher, affirmed 25 September 2023, and annexures. The defendant relied on the affidavit of his solicitor, Melissa Tresheil Smith, affirmed 18 September 2023 and annexures.

Background

11. The defendant is currently serving a sentence which will expire on 16 October 2023. That is the date from which it is sought that the Interim Supervision Order should commence.

12. Recently, on 15 August 2023, the defendant was released to parole. On 4 September 2023 he was charged with possessing child abuse material and breaching a Child Protection Prohibition Order, the offences alleged to have occurred on 28 August 2023. He was refused bail on those charges and remains in custody. I was advised during the hearing that his parole has been revoked. The fresh charges are listed for mention in Campbelltown Local Court on 22 November 2023.

13. The defendant is 45 years old. He has been sentenced to imprisonment three times in the District Court since 2012 for offences relating to possession of child abuse material, procuring a child under 16 for sexual activity and sexual intercourse with a child aged between 14 and 16 years. He therefore meets the definition under ss 4A and 5 of the Act of an offender who has been sentenced to full-time imprisonment for a serious offence, including a serious sex offence.

14. In 2012 the defendant was sentenced by North DCJ for offences of using a carriage service to procure a person under 16 years for sexual activity, using a carriage service to transmit an indecent communication to a person under 16, and possessing child abuse material. The facts were that police became aware of sexualised internet communications between the defendant and a 10 year old child. In March and April 2011 police communicated online, and then by telephone, with the defendant, pretending to be an 11 year old girl. The communications became sexual, including the defendant instructing the supposed 11 year old girl how to masturbate. He arranged to meet the girl and when he went to the meeting place he was arrested. Police searched his phone and found six videos and three written stories which were child abuse material, including penetrative sexual activity involving adults and young female children.

15. North DCJ noted that the defendant had told a psychologist who prepared a report that he was looking for a real relationship with the 11 year old girl and would have engaged in sexual activity if she had been willing, that he had difficulty forming adult relationships and had begun contacting people of a younger age.

16. The defendant was sentenced to a fixed term of 9 months imprisonment for the offence of possessing child abuse material, to date from 8 April 2011, to 15 months imprisonment to date from 8 July 2011 for the offence of using a carriage service to transmit an indecent communication and for the offence of using a carriage service to procure a person under 16 years to engage in sexual activity, 2 years 6 months imprisonment to date from 8 July 2011. He was ordered to be released on a recognizance on 7 February 2013. While he was on that recognizance, and in breach of it, he committed his next offences.

17. Those offences, committed in August 2013, were three counts of sexual intercourse with a person aged between 14 and 16 years, one count of failing to comply with his reporting obligation under the Child Protection (Offenders Registration) Act 2000 (NSW), and one offence of possessing child abuse material. The defendant went onto a social media website, posing as a teenage girl, using a picture of a 16-17 year old girl. Using that persona, he contacted a 15 year old girl by internet and then by phone messaging. The defendant arranged to meet the 15 year old girl and took her to his home, where he kissed her. He then arranged for her to attend his home a few days later, on the weekend, where he had penile-vaginal intercourse with her three times. While the child was at the defendant's home Corrective Services Officers attended his home to check on him. He spoke to them outside his unit with the door closed, and did not disclose the presence of the child in his unit. When the offences against the child became known to her family, police arrested the defendant and searched his home. Police became aware the defendant had been accessing social media sites in breach of his reporting obligations. Police also located a thumb drive which contained child abuse material in the form of videos, photographs and written stories. It included sexual activity between adults and children and bestiality.

18. In sentencing the defendant, Wilson SC DCJ observed that he had acquired a mobile telephone with internet browsing capabilities and used it to communicate with the child, adopting a fictional persona, and cultivated the relationship to give him access to a child for sexual activity, knowingly circumventing the measures put in place to minimise the risk of him reoffending. Her Honour stated that this was not an accidental failure or inadvertent oversight, but rather a calculated deception of the authorities intended to facilitate his crimes, only a matter of months after being released from prison in early 2013.

19. The defendant's Commonwealth Recognizance was revoked and he was ordered to serve the outstanding 11 months of that sentence. For the fresh offences he was sentenced to a combined total sentence of just over 7 years, commencing on 21 July 2014 and expiring on 20 August 2021 with the non-parole period expiring on 20 August 2019.

20. He committed his next set of offences whilst on parole, in December 2019, four months after he was released to parole in August 2019. They were an offence of possessing child abuse material and failing to comply with his reporting obligations under the Child Protection (Offenders Registration) Act 2006.

21. The facts were that police went to the defendant's home to conduct checks under the Child Protection (Offenders Registration) Act 2006. They found he was in possession of two mobile phones, one of which he tried to conceal. There was child abuse material on both phones and the defendant was using four email addresses different from that which he had declared in his Child Protection Register Acknowledgement. On the two mobile phones there were 25 image files and 19 video files which included penetrative sexual activity between adult men and very young female children. Berman SC DCJ noted a need for specific deterrence in sentencing the defendant. He noted that the defendant had difficulties with interpersonal relationships and led and "almost isolative" life. His Honour sentenced Mr Burke to a term of imprisonment of 3 years with a non-parole period of 2 years, dating from 17 October 2020. It is this sentence which is due to expire on 16 October 2023.

Risk factors

22. Based on the recent Risk Assessment Reports and the historical reports, I note the following issues and risks in respect of the defendant's behaviour:

• Loneliness, social isolation, depression, anxiety and possible Autism Spectrum Disorder, not yet assessed or diagnosed

• He is lacking in social supports: his mother lives in Queensland and is described as protective and minimises his offending behaviour; his brother lives in Newcastle

• He has difficulty making friends with adults and forming relationships with adult women, and therefore has pursued relationships, including potential sexual relationships, with children. He is described as having a naïve understanding about sex and relationships. He has a deviant sexual interest in children

• His use of adult pornography led to his accessing child abuse material

• Gaming sites have been a source of, or gateway to, his accessing child abuse material

• He gained friendship and acceptance by discussing child abuse material online

• He escalated from online offending to off-line offending

• He continues to have intrusive sexual thoughts about prepubescent children and said it would likely be "years before he could stop such thoughts popping into his head"

• He acknowledged a historical preoccupation with sex and finding a girlfriend to have sex with. In that context he spent up to 2 hours a day watching pornography and communicating online with others in sexually oriented chat rooms

• His sexual offending is considered chronic, given the persistence and frequency of his offending in the short time he was in the community before sexually reoffending

• He has breached parole and Child Protection Orders by sexually reoffending and accessing child abuse material and has circumvented conditions and restrictions intended to prevent him from re-offending

• His most likely further sexual offending may involve grooming children online for sexual activity and/or accessing child abuse material. His likely child victim would be aged approximately between 10 and 15 years old, and he would likely seek out such a child online with a view to a sexual relationship

• His offending may be precipitated by loneliness, depressed mood, social isolation, rejection by adults, increased deviant fantasies or a preoccupation with sex

• Psychological coercion (grooming) is a relevant risk

• He is untreated in that he has not engaged in sexual offending treatment programs in custody

• He is assessed as at above average risk of sexual reoffending

• He has a limited and intermittent employment history, is relatively unskilled and has had difficulties maintaining employment because of issues with his reliability.

Findings

23. Having regard to all of the material in the supporting documentation, which I have summarised above, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if he is not kept under supervision. I am therefore satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an Extended Supervision Order. I am therefore required to make, and will make, an order appointing qualified psychiatrists and/or psychologists to conduct examinations of the defendant and furnish reports to the Court and direct the defendant to attend those examinations. I will also make an Interim Supervision Order.

Conditions of the Interim Supervision Order

24. There is a dispute between the parties about some of the proposed conditions which the plaintiff seeks to be included in the Interim Supervision Order.

25. Section 11(1) provides that an Interim Supervision Order may direct an offender to comply with such conditions as the Court considers appropriate. In Wilde v State of New South Wales [2015] NSWCA 28 the Court of Appeal stated at [53]: "… the Court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order”.

26. In Lynn v State of New South Wales [2016] NSWCA 57 Basten JA said that "The Court will seek to impose the least intrusive conditions consistent with its assessment of the risk and a further assessment as to what kind of conditions are likely to be effective" in “diminishing the risk to an acceptable level": [129].

27. The plaintiff attached to its summons a schedule of conditions sought to be included in the Interim Supervision Order. The parties prepared a table, which is behind tab 8 in volume 1 of Exhibit A, indicating those proposed orders with which the defendant did not agree and suggesting amended orders. The plaintiff agreed with some of the defendant’s proposed amended conditions. The following are the conditions which remained in dispute in the preliminary hearing and were the subject of submissions.

Conditions 5-7: Schedule of movements

28. Proposed conditions 5-7 would require the defendant to provide a weekly plan, or "schedule of movements", to not depart from his approved schedule of movements and to seek approval from a Departmental Supervising Officer (DSO) to change his approved schedule of movements.

29. The defendant opposes those proposed conditions. His counsel submitted that they are unnecessary, but are intrusive and rigorous. Counsel submitted that the real risk, as demonstrated by the defendant’s past offences and the risk scenarios outlined in the Risk Assessment Report of 22 October 2022, is misuse of electronic devices, and grooming children online prior to meeting them, rather than approaching children randomly in the community. Counsel submitted that the other proposed conditions can address the risk of misuse of electronic devices.

30. Counsel for the plaintiff submitted that the defendant’s sexual history is chronic, involved both grooming of children online and meeting a child, that he admits continuing intrusive sexual thoughts in relation to prepubescent children and he has offended whilst on parole and under parole supervision. The plaintiff relied on the risk scenarios outlined in paragraph [66] of the Risk Assessment Report of Sarah Wright of October 2022, which include grooming child victims online for sexual activity. Ms Wright thought that the risk of the defendant approaching an unknown child in person rather than online and committing a contact sexual offence was plausible, but the least likely given his history. Other than arranging to meet a child groomed online for the purpose of sexual activity, another risk identified was attempting to gain social acceptance by sharing and discussing child abuse material online.

31. Counsel for the plaintiff also relied on Ms Wright's statement at paragraph [73] of her Risk Assessment Report that "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 Mr Burke is not under any form of legal restraint". The plaintiff submitted that the proposed conditions in relation to the schedule of movements were potentially of importance in promoting such a stable lifestyle.

32. I note that one of the objects of the Act is to encourage high risk offenders to undertake rehabilitation: s 3(2). Being required to submit a schedule of planned movements would seem to contribute to providing some structure and stability in the defendant's life, thus promoting that aspect of his rehabilitation, as Ms Wright canvassed.

33. Is unclear from the material tendered in this preliminary hearing whether the defendant has been subject to scheduling conditions in the brief periods he was at liberty on recognizance or parole before he reoffended, other than attending appointments with Parole Officers. One of the defendant's risks is meeting children he has groomed online. He did it on one occasion and engaged in sexual activity, and he attended an intended meeting with a child, in his view for sexual activity, although the child he thought he was meeting on that occasion was a police officer posing online as such.

34. Having to provide a schedule of his planned movements, and not depart from it without prior approval, whilst I appreciate is intrusive, would provide him with some structure in his life, which may provide some deterrent to him meeting in person children he has met online, thus addressing that risk, and may also contribute to his rehabilitation. Therefore I am satisfied it is appropriate to include conditions 5, 6 and 7 in the Order and I will impose those conditions in the Order.

Condition 17: Place restrictions

35. Proposed condition 17 would prohibit the defendant from attending a range of specified places where children may be likely to attend, without the prior approval of a DSO. The defendant seeks to exclude from that condition libraries, and proposes an additional condition that he is only permitted to go to libraries between the hours of 10:00am and 2:00pm on school days.

36. I note Ms Wright's recommendation in her Risk Assessment Report that risk management strategies include place restrictions precluding Mr Burke's attendance at child-oriented venues and strategies for monitoring his internet use.

37. The plaintiff expressed concern with the defendant’s proposed alternative condition, submitting that there would be difficulties in identifying and monitoring exactly when children might be present at a library. The plaintiff also submitted that libraries are places where computer access is available and the defendant's computer access in a library would be difficult to monitor. The plaintiff noted that proposed condition 17, in its original proposed form, permits the defendant to attend a library with the prior approval of a DSO.

38. Counsel for the defendant submitted that the defendant wishes to attend libraries to read books, access the internet, and as a social experience to address his loneliness and social isolation. He conceded he can access the internet at home.

39. I accept that the defendant’s remaining at home, lonely and socially isolated, is a risk factor for him reoffending. Proposed condition 17 would permit him to attend a library with the prior approval of a DSO. I appreciate that would require planning and seeking approval and that may involve time delay. The defendant’s use, and potential misuse, of computers in libraries would be more difficult to check than his using the internet at his home. Libraries are places where children are likely to attend, and their attendance may be unpredictable and difficult to control.

40. In my view proposed condition 17, which would permit the defendant to attend libraries with the prior approval of a DSO, strikes a balance of mitigating the risks of his attending a library where children attend and misusing computers there, while still permitting him to leave his home and attend a library, but with approval. I consider it is appropriate that I make condition 17 in its original proposed form and I will impose that condition in that form.

Conditions 23-26: Drugs and alcohol

41. Proposed conditions 23- 26 would prohibit the defendant from using or abusing unlawful drugs or consuming alcohol without the prior approval of a DSO, would require him to submit to drug and alcohol testing and would require him to participate in programs and courses for drug and alcohol rehabilitation as reasonably directed by a DSO.

42. The defendant opposes those proposed conditions. Counsel submitted that there is a lack of evidence of drug and alcohol abuse being risk factors, that his substance use was historical and limited and did not extend beyond the time of his first serious offences in 2011. Counsel submitted that breaches of conditions of supervision orders are regarded as serious by the Local Court, with potential high penalties. Counsel submitted that the plaintiff's submission that drugs or alcohol would impair the defendant’s impulse control was speculative.

43. The plaintiff relied on psychologist’s reports tendered to the Court previously, in connection with the defendant’s being sentenced for offences, acknowledged that his alcohol use was somewhat limited, and referred to the defendant's use of marijuana at the time of his 2011 offences. Counsel for the plaintiff submitted that while there was not a direct link between the defendant's abuse of substances and his offending, alcohol and substances may impair his impulse control or his inhibitions.

44. I note that in her Risk Assessment Report of October 2022, Ms Wright stated that the defendant had told her of his weekly use of cannabis from the age of 17 until his first arrest, in the context of gaming, and described binge drinking in the context of gaming with his brother and his brother’s friends. I note that gaming is regarded as a risk factor as a potential medium for the defendant to meet children online.

45. I do not regard it as speculative that alcohol and drugs can disinhibit people. The defendant’s limited history of drug and alcohol use would not require him to engage in programs or courses for drug and alcohol rehabilitation, as proposed in condition 26. Whilst I accept alcohol could be a disinhibiting substance, the defendant's history of its use and its relationship to his offending does not provide a strong case to prohibit him from consuming alcohol, as proposed in condition 24. I will not include either condition 24 or 26 in the Order.

46. Cannabis could have a disinhibiting effect on the defendant, and I note his admitted history of using it in the context of gaming, which is an interest of his and a pastime he intends to pursue. There is nothing in the material before me to justify his use of illegal drugs. I consider it appropriate, to mitigate the risk of the defendant becoming disinhibited by cannabis use and communicating online with children, to impose proposed condition 23, prohibiting him from using or possessing prohibited drugs or abusing drugs unlawfully obtained, and I will impose that condition. I also consider it appropriate to impose an amended form of proposed condition 25, in terms that "The defendant must submit to drug testing at the reasonable request of a DSO, if the DSO believes on reasonable grounds that it is necessary to do so because the defendant has consumed prohibited or unlawfully obtained drugs in breach of condition 23.”

Condition 39: Access to the internet and other electronic communications

47. The next condition in dispute is proposed condition 39, which would prohibit the defendant from accessing, joining or connecting to social networking services or applications without the prior approval of a DSO, including multiplayer video games. The defendant seeks to exclude multiplayer video games from proposed condition 39, and proposes an alternative condition 39A, which would permit him to join multiplayer video games subject to the reasonable directions of a DSO.

48. Counsel for the defendant submitted that the defendant has a lonely life and enjoys playing video games with his brother and other persons, as a means of managing his mood and passing the time.

49. The plaintiff relied on the defendant's account to Sarah Wright (in paragraph [24] of her Risk Assessment Report of 22 October 2022) that his most recent offence of possessing child abuse material occurred because he found sexualised cartoons while playing PlayStation and on a gaming webpage, on the latter of which someone had posted child abuse material, and he began engaging in online conversations with other users on the website about the material to gain friendships and acceptance.

50. The plaintiff relied on reports annexed to the affidavit of Johanna Fisher about children and gaming, including that many games have a chat capacity, which allows players to directly communicate with each other and that "In game chat is a common method for online child sex offenders to target children". The plaintiff also relied on the defendant’s previous circumvention of supervision requirements, including the use of the second mobile phone, and submitted that the use of online gaming facilities may provide him with another means to circumvent supervision.

51. I accept that playing video games, including with his brother, is a social activity which is a means to address the defendant’s risk factors of loneliness and social isolation. However, it is clear that gaming websites may provide the defendant with a means to contact children and, as he admitted in respect of his most recent offence, reoffend in relation to child abuse material.

52. Proposed condition 39 requires the defendant to obtain the prior approval of a DSO to join multiplayer video games. The defendant’s proposed condition 39A would permit him to join multiplayer video games subject to the reasonable directions of a DSO. The difference appears subtle. I consider that the balance between the defendant having the social activity of playing multiplayer video games and managing the risks of his reoffending in similar ways to his past offences can be met by the condition in its original proposed form. Therefore I consider it appropriate to impose condition 39 in its original form.

Condition 45: Access to pornographic material

53. Proposed condition 45 would prohibit the defendant from purchasing, possessing, accessing, obtaining, viewing, participating in or listening to specified material and other material "as directed by a DSO with respect to concerns related to risk of committing a serious offence". The defendant proposed condition 45A, which would permit him to purchase, possess, access, obtain, view or listen to legal adult pornography, but only with a DSO's prior approval and subject to reasonable directions by a DSO with respect to the type and medium of such material and frequency of the defendant’s access to such material.

54. The plaintiff submitted that the defendant's prior use of adult pornography had led him to accessing child abuse material, as he told Ms Wright, as reflected in paragraph [21] of her Risk Assessment Report. The plaintiff also relied on paragraph [60] of Ms Wright's report, in which she reported that the defendant "acknowledged historical preoccupation with sex that contributed to his sexual offending; he was focused on attempting to find a girlfriend so that he could have sex, and he spent up to 2 hours per day watching pornography and communicating with others in sexually oriented chat rooms online". In the same paragraph Ms Wright documented that the defendant has a deviant sexual interest in children, reported that he "continues to experience intrusive sexual thoughts about prepubescent children" and "expressed the view that it would likely be years before such thoughts stop popping into his head". The plaintiff submitted that there is a risk of the defendant's use of adult pornography leading to sexual preoccupation and reoffending in terms of child abuse material and children.

55. Counsel for the defendant acknowledged the defendant’s past "slippery slope" between adult and child pornography, submitted that the aim of the condition was to permit a healthy sexual outlet in respect of lawful pornography, and submitted that the defendant’s proposed condition, involving DSO knowledge, would prevent "an untrammelled sexual preoccupation developing”.

56. I accept there is strength in the plaintiff's submissions about the risk of the defendant's use of adult pornography fuelling his sexual preoccupation and being a gateway to his using child abuse material. The absolute prohibition in proposed condition 45 seems too extreme. I consider that the risks can be managed and the balance struck by the defendant’s proposed condition 45A, which would permit him to access or use adult pornography with a DSO's prior approval and subject to a DSO's reasonable directions. I consider that an appropriate condition for the Interim Order. I will make condition 45 in the terms proposed by the defendant.

Condition 53: Medications

57. The original proposed condition 53 stated "The defendant must take medications that are prescribed to him by his healthcare practitioners only in the manner prescribed". The defendant proposed an alternative condition: "The defendant must take medications that are prescribed to him (with his informed consent) by his healthcare practitioners for treatment of his mental health only in the manner prescribed”. In response, the plaintiff proposed an alternative condition 53: "The defendant must take medications that are prescribed to him by his healthcare practitioners for treatment of his mental health or otherwise to address his risk of sexual offending only in the manner prescribed".

58. I note Ms Wright's opinion in her Risk Assessment Report that the defendant’s depressed mood may be a precipitating factor for his reoffending. He has also reported past anxiety and some past psychologists have expressed the opinion that there may be undiagnosed Autism Spectrum Disorder present. It is not clear what the proposed medication is intended to address.

59. The plaintiff submitted that the latter part of the proposed condition is to prevent abuse of prescribed medication, and the defendant does not object to that part of the proposed condition. There is an issue between the plaintiff and the defendant about the defendant requiring medication to only be prescribed to him with his informed consent. The plaintiff submitted that there are risks of a lack of insight by the defendant and therefore a lack of compliance with prescribed medication. The plaintiff acknowledged that doctors are unlikely to prescribe medication without a patient’s informed consent.

60. Counsel for the defendant submitted that a doctor prescribing medication for the defendant with his informed consent may be implicit. He submitted that any non-compliance issues could be dealt with by proposed condition 54, which would require the defendant to notify a DSO if he ceased to take or declined to commence taking any medication referred to in condition 53.

61. It is clear from Ms Wright's report and previous reports that mental health is an aspect of the defendant’s risk profile for reoffending, as is a degree of lack of insight. He also told at least one of the report writers that he had previously ceased antidepressant medication because of side effects. Lack of compliance with a medication regime for treatment of mental health is a not infrequent aspect of treatment of mentally ill people. I am not persuaded that the requirement in condition 54 that the defendant advise a DSO if he ceases to take, or refuses to take, medication will suffice, given his prior circumventions of supervision conditions, and that a mentally ill person who ceases to take medication may not be inclined to inform a DSO of that fact. However, to prevent the condition being more intrusive than is required to manage the risk, I am prepared to include the qualification that he is required to take medications prescribed to him with his informed consent. I also note that proposed condition 55 permits the defendant’s healthcare practitioners sharing information relevant to his risk management with a DSO. Therefore I consider it appropriate that condition 53 be in a form which combines the proposed amendments of the plaintiff and the defendant.

Other conditions

62. For completeness, I note that the plaintiff agreed with the defendant’s proposed amendments to proposed conditions 30, 43, 47, 55 and 57, and I will impose those conditions in those terms.

Orders

63. I make the following orders:

1. Pursuant to s 10A of the Act, the defendant be subject to an Interim Supervision Order from 16 October 2023.

2. Pursuant to s 10C(1) of the Act, the Interim Supervision Order is to be for a period of 28 days.

3. Pursuant to s 11 of the Act, I direct that the defendant, for the period of the Interim Supervision Order, comply with the conditions set out in the Schedule to this judgment.

4. Pursuant to s 7(4) of the Act:

1. I appoint two qualified psychiatrists and/or two registered psychologists, or one qualified psychiatrist and one registered psychologist, to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court when a date for the final hearing is fixed; and

2. I direct the defendant to attend those examinations.

5. I direct that access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

SCHEDULE OF CONDITIONS OF SUPERVISION

Andrew Mark Burke

Departmental Supervising Officer (DSO)

Corrective Services NSW (CSNSW)

In these conditions:

“CSNSW” means Corrective Services NSW.

“Commissioner” means Commissioner for Corrective Services

“Defendant” means Andrew BURKE also known as Andrew Mark BURKE the defendant in these proceedings and the subject of the order.

“Electronic Identity” means each of the following:

(a) an email address,

(b) a user name or other identity allowing access to an instant messaging service,

(c) a user name or other identity allowing access to a chat room or social media on the internet,

(d) any other user name or other identity allowing access to the internet or an electronic communication service.

“DSO” means Departmental Supervising Officer, that is, any Corrective Services Officer supervising the defendant under the order.

“Material” includes:

1. any written or printed material;

2. any picture, painting or drawing;

3. any carving, sculpture, statue or figure;

4. any photograph, film, video recording or other object or thing from which an image may be reproduced;

5. any computer data or the computer record or system containing the data; and

6. any other material or object on which an image or representation is recorded or from which an image or representation may be reproduced.

“NSWPF” means NSW Police Force.

“Associate” includes, but is not limited to, being in company with, or to communicate by any means (including by post, facsimile, telephone, email or any other form of electronic communication).

“Search” includes:

1. A garment search, being 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; and

2. A pat-down search, meaning a search of the defendant where the defendant’s clothed body is touched.

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

1. The defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions of a DSO.

2. Where a direction may conveniently be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service.

3. The defendant must truthfully answer questions from a DSO, or any other person supervising him, about where he is, where he is going, who he is with, what he is doing and the nature of his associations.

Electronic Monitoring

4. The defendant must wear electronic monitoring equipment as directed by a DSO and must not tamper with, or remove, the equipment.

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 a DSO, he must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period.

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

Part B: Accommodation

8. The defendant must live at an address approved by a DSO and notify a DSO of any intention to change the defendant’s address or living arrangements.

9. The defendant must be at his approved address between 9PM and 6AM unless other arrangements are approved by a DSO.

10. The defendant must comply with rules or by-laws (or both) of any approved accommodation for the defendant.

11. The defendant must allow a 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 or any alternative approved addresses (if relevant) without the approval of a DSO.

13. The defendant must promptly notify a DSO of any visitor entering and remaining at his approved address and must not permit any person to stay overnight, at his approved address (other than persons who ordinarily reside at his approved address), without the prior approval of a DSO.

Part C: Place and travel restrictions

14. The defendant must surrender any passports held by him to the Commissioner, must not be in possession of any passports, and must not attempt to apply for any passports.

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

16. The defendant must not frequent or visit any place or district specified by a DSO.

17. Without limiting condition 16 above, the defendant must not go to any of the following without the prior approval of a DSO:

a. Schools;

b. Amusement parlours, amusement parks and theme parks;

c. Cinemas;

d. Libraries and museums;

e. Camping grounds and caravan parks;

f. Children’s playgrounds and parks;

g. Pools, playing fields and sporting facilities;

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

i. Residences where the defendant knows that persons aged under 18 years ordinarily reside; and

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

18. 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, without the prior approval of a DSO.

Part D: Employment, finance and education

19. The defendant must take all reasonable steps to participate in interventions as recommended by a DSO, including the development of a case management plan which may include employment, education, training or participation in personal development programs.

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

21. The defendant must notify a DSO of any intention to change his employment if practicable before the change occurs or otherwise at his next interview with a DSO.

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

Part E: Drugs and alcohol

23. The defendant must not use or possess prohibited drugs, or abuse drugs unlawfully obtained.

(24. Deleted)

25. The defendant must submit to drug testing at the reasonable request of a DSO, if a DSO believes on reasonable grounds that it is necessary to do so because the defendant has consumed prohibited or unlawfully obtained drugs in breach of condition 23.

(26. Deleted)

Part F: Non-association

Association with Children

27. The defendant must not associate with anyone who he knows or reasonably should know is under 18, other than incidental contact in a public place in the course of the duties of the minor; or with the written permission of a DSO and in accordance with any requirements reasonably determined by a DSO, including that the contact takes place in the presence of an adult who has been approved in writing by a DSO.

Associations with Others (not children)

28. The defendant must not associate with any person or persons specified by a DSO.

29. Without limiting condition 28, the defendant must not associate with any person held in custody without prior approval of a DSO.

30. The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary, and only after the defendant has been so informed and given the opportunity to make the disclosure himself.

31. The defendant must obtain written permission from a DSO prior to joining or affiliating with any club or organisation.

Part G: Access to the internet and other electronic communication

32. The defendant must obey any reasonable direction by a DSO about communication, internet access and use of electronic devices (including, but not limited to, approval of devices used, method of communication, access to the internet and restrictions on deleting information.)

33. The defendant must not use any alias, electronic identity, log-in name, name other than Andrew Burke or Andrew Mark Burke or any email address other than those known to a DSO. The defendant must give a DSO a list of all devices, services and applications he uses to communicate with or to access the internet and advise a DSO of any change to the list immediately. This includes phones, tablet devices, data storage devices or computers.

34. The defendant must only use an electronic device which has the ability to access the internet after the device has been disclosed to a DSO and the device has been seen and approved for use by a DSO.

35. The defendant must provide the details of telephone numbers, service provider account numbers, email addresses or other user names as well as any relevant passwords, pin codes and pass codes used by the defendant and the nature and details of the internet connection, as directed.

36. The defendant must provide a DSO with all passwords, pin codes and pass codes used to access all electronic devices, electronic applications, internet sites and communication platforms of any kind.

37. The defendant must not use any coded or encrypted messaging application or service.

38. The defendant must provide any code or encryption for any electronic data or any electronic communication if discovered on the defendant’s electronic devices or accounts as a result of a search or a remote inspection.

39. The defendant must not access, join and/or connect to any social networking service or application without the prior approval of a DSO, including, but not limited to, use of internet-based email, instant messaging services, online community services, multiplayer video games and other telecommunications-based services including text and voice services.

40. The defendant must provide consent for a DSO (or any other person requested by a DSO) to remotely inspect any internet account used by the defendant, including any internet service provider account, email accounts and social media accounts, in monitoring compliance with this Order.

41. The defendant must not delete or alter any applications, email, text messages, any electronic message, call history, any data, internet search, internet or application search history, any application chat or communication history from his phone, computer, tablet or any other electronic device without the prior consent of a DSO.

42. The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with a DSO.

Part H: Search and seizure

43. If a DSO forms a reasonable suspicion that a search is required, either to monitor the defendant’s compliance with this order, or for the safety and welfare of any other person, or because the DSO suspects the defendant of having engaged in behaviour or conduct associated with an increased risk of committing a serious offence, the defendant must submit to the search of any item or place in his possession or under his control, including his residence, any vehicle in which he is traveling or which is under his effective control, any computer, electronic and communication device, or any storage facility, garage, locker or commercial facility; and to the seizure of any object located during the search.

44. 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 this Order.

Part I: Access to pornographic, violent and classified material

45. The defendant is permitted to purchase, possess, access, obtain, view or listen to legal adult pornography, but only with a DSO’s prior approval and subject to reasonable directions by a DSO with respect to the type and medium of such material and frequency of the defendant’s access to such material.

Part J: Personal details and appearance

46. The defendant must not change his name from Andrew Burke or Andrew Mark Burke or use any other name without notifying a DSO.

47. The defendant must notify his DSO within 24 hours if he significantly changes his appearance.

48. The defendant must let a DSO photograph him, dressed, within one week of the commencement of these conditions and following any significant change to his appearance.

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

Part K: Medical intervention and treatment

50. The defendant must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction.

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

52. The defendant must attend, upon the direction of a DSO, any therapy sessions, disengagement services, support and treatment programs the subject of the direction.

53. The defendant must take medications that are prescribed to him, with his informed consent, by his healthcare practitioners for treatment of his mental health or otherwise to address his risk of sexual offending only in the manner prescribed.

54. The defendant must notify a DSO immediately if he ceases to take or declines to commence taking any medication as referred to in the above condition.

55. The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with a DSO, where those practitioners consider such information to be relevant to his ongoing risk management and rehabilitation.

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

57. The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him to the extent that it is relevant to his risk of reoffending or rehabilitation, and only after the defendant has been so informed and given the opportunity to make the disclosure himself.

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Decision last updated: 05 October 2023