State of New South Wales v Cannon

[2022] NSWSC 1622

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Cannon [2022] NSWSC 1622

Hearing dates:

25 November 2022

Date of orders:

25 November 2022

Decision date:

25 November 2022

Jurisdiction:

Common Law

Before:

Walton J

Decision:

(1) An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”):

(a) appointing two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) to conduct separate psychiatric and/or psychological 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; and

(b) directing the defendant to attend those examinations.

(2) An order pursuant to sections 10A and 10C of the Act, that the defendant be subject to an interim supervision order for a period of 28 days from 25 November 2022.

(3) An order pursuant to s 11 of the Act, directing that the defendant, for the period of the interim supervision order, comply with the conditions as set out in the Schedule of Conditions annexed to these minutes of order.

(4) A order pursuant to ss 7 and 8(1)(c) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) prohibiting the publication of the name of the current suburb where the defendant resides.

(5) The order at paragraph 4 shall apply:

(a) to all media including, but not limited to, print, radio, television, internet and social media;

(b) throughout the Commonwealth;

(c) until 24 March 2023 unless rescinded or amended earlier by order of the Court.

(6) Parties have liberty to approach the HRO List Judge to list for further directions.

Catchwords:

HIGH RISK OFFENDER – preliminary hearing – application for Interim Supervision Order and for examination by court-appointed psychiatrists or psychologists – whether matters alleged in the supporting documentation would, if proved, justify the making of Extended Supervision Order – contention about conditions – schedule of movements – information relating to defendant’s financial affairs – disclosure of criminal history – access to the internet and other electronic communications – health care and treatment – Interim Supervision Order made with Schedule of Conditions

Legislation Cited:

Crimes Act 1900 (NSW), ss 61C, 61D

Crimes (High Risk Offenders) Act 2006 (NSW), ss 5B, 5I, 7, 9, 10A, 10C, 11

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Kenneth Cannon (Applicant)

Representation:

Counsel:
C McGorey (Plaintiff)
J Wilcox (Defendant)

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

File Number(s):

2022/259007

Publication restriction:

Pursuant to order (4), there is a prohibition against the publication of the name of the suburb where the defendant currently resides.

EX TEMPORE Judgment (REVISED)

INTRODUCTION

1. By a Summons filed on 29 August 2022, the State of New South Wales (the plaintiff) sought orders for final relief as well as interim, interlocutory, and ancillary relief under various provisions of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) with respect to the defendant, Kenneth Cannon.

2. The plaintiff sought an order under s 9(1)(a) of the Act that the defendant be the subject of an extended supervision order for a period of three years and accompanying conditions for the purposes of s 11 of the Act. However, today's proceedings are concerned with applications for interim relief and interlocutory relief as well as ancillary relief.

3. The plaintiff seeks an order pursuant to s 7(4) of the Act appointing two psychiatrists and/or registered psychologists or any combination of two persons to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to this Court on the results of those examinations and directing that the defendant attend those examinations.

4. The plaintiff also seeks an order pursuant to ss 10A and 10C of the Act that the defendant be the subject of an interim supervision order for a period of 28 days operating from the date of any judgment given by the Court.

5. The defendant is a 62-year-old man, who has been in continuous custody between 23 May 1990 and 5 January 2022. He has served sentences for various serious offences on three separate occasions: two violent sex offences committed on strangers in 1986 and 1990 respectively and for the offence of murder in 1987. Whilst the convictions for those offences were ultimately determined over a longer period, the offending occurred over approximately a four-year period.

6. He was released to parole on 5 January 2022 on the sentence imposed for a sexual assault committed in 1986. The head sentence expired on 28 September 2022. Since the defendant was released on parole, he has resided at the Nunyara Community Offenders' Support Program (“the COSP”). On 8 November 2022, the defendant moved from the COSP to an 11-bedroom male guesthouse in [a suburb]. I accept the submission advanced by the plaintiff that this is a less structured environment than existed under the COSP, although it may also be observed at an early stage that the defendant has by and large adopted a positive attitude to his parole and there appears to be some relevant improvements in that respect.

7. The determination of this matter is undertaken in the context of a preliminary hearing. At a preliminary stage, the matters alleged in the plaintiff's supporting documents are to be taken as proven. The Crown relied upon the affidavit evidence of Stefan Skopelja affirmed 22 August 2022 and Jessica Leigh Murty affirmed on 24 October and 21 November 2022 respectively. I note for completeness at this juncture that the defendant relied upon the evidence of Nicholas Breen affirmed on 7 November 2022.

RELEVANT PRINCIPLES

8. The following principles may be briefly stated with respect to a determination made during a preliminary hearing:

1. Whether the alleged matters would justify the making of an extended supervision order at final hearing. The Court is not required to predict the outcome of that final hearing rather the Court determines whether it would be reasonably open to make an extended supervision order at final hearing assuming proof of the matters. This involves a consideration to which I will turn shortly of the satisfaction of the conditions in s 5B of the Act and whether the Court might exercise a jurisdiction under s 9(1) of the Act.

2. If the Court is satisfied of the making of the extended supervision order in all the circumstances the Court is mandated to make an order under s 7(4).

3. Assuming that s 7(4) orders are made whether an interim order ought to be made is to be considered under s 10A of the Act. That provision is enlivened if it appears the defendant's supervision will expire before the final determination of the extended supervision order.

4. In determining those matters the Court is required to consider the objects of the Act insofar as they concern the safety and protection of the community.

5. Finally, it is appropriate to give weight at this stage of the proceedings to risk avoidance.

BACKGROUND AND ISSUES

9. The position of the defendant taken in the preliminary hearing may be described, shortly, as follows:

1. For the purposes of the preliminary hearing only, the defendant accepted that the statutory pre-conditions were established and that the matters alleged in the supporting documentation, if proved, demonstrated to a high degree of probability that the defendant posed an unacceptable risk of committing a serious offence, if not kept under supervision.

2. The defendant accepted that the plaintiff had established its case for interim relief, however, emphasised that the ultimate conclusion in that respect remained a matter for the Court's independence satisfaction.

3. If the Court is satisfied that the interim orders ought be made the defendant did not oppose the making of an interim supervision order but did take issue with some of the conditions sought by the plaintiff.

10. At the time of the making of those submissions by the defendant there was a greater contest as to the conditions sought to be imposed in conjunction with the interim supervision order. Commendably, the respective counsel in the matter have reduced the matters requiring the Court's attention in that respect for the purposes of s 11 of the Act to which I will return. I further note with respect to the conditions debated between the parties, and, in fact, as proposed by agreement in Exhibit 1 of the proceedings, that the defendant emphasised the progress made by the defendant on parole as a matter particularly bearing upon the Court's considerations in that respect.

11. Before turning to the relevant statutory preconditions, I note that counsel for the plaintiff incorporated within his written submissions a helpful chronology. For the purposes of this preliminary hearing, that chronology is uncontentious. The chronology is as follows:

Date Sentenced	Offence/outcome
14 Feb 1960	Defendant born (currently 62).
Jul 1974 to Nov 1977	Commits various non-violent/sexual juvenile offences including break and enter (1997), steal motor vehicle (1976) and theft.
6 Mar 1975	Defendant (15) commits indecent assault on female (7-year-old sister). Defendant admits committing numerous assaults on her over 1-month period (sometimes in presence of his brother aged 11).
18 Apr 1975	Defendant committed to institution for 1st 1975 Indecent Assault (Children’s Court sentence).
Mid-Oct 1975	Defendant released to the care of his mother.
11 Dec 1975	Defendant (15) charged with indecent assault on female (9-yearold sister). Committed when mother not present. Sentenced by the Children’s Court on 16.1.1976 to be “committed to care of Minister as ward of the State. Psychiatric Treatment Recommended” (2nd 1975 Indecent Assault).
About Jan/Feb 1976	Defendant begins living at a Community Youth Hostel, Mosman with other juvenile males. Remains a ward of the State for the next three years.
14 Feb 1978	Defendant turns 18.
1981 to 1988	Commits numerous drink drive and drive whilst disqualified offences (1981, 1982, 1983, 1986, 1987, 1988).
8 Nov 1986	Defendant (26) commits sexual assault (15-year-old female) (Sexual Assault Cat 3 – Person under 16). Committed in park in early hours (night-time). Ambushed victim as she walked by and held a knife to her throat. Forced her to the ground and committed forceful penile-vaginal intercourse (ejaculation) (1986 Sex Offence). Victim not known to him. Defendant not identified/charged until February 2014 (sentenced 9.7.2015).
19 Apr 1987	Defendant (27) commits murder (18-year-old female victim, SAJ) (1987 Murder offence). Victim last seen alive after leaving nightclub about midnight. Police found her submerged in a river, deceased, later that same morning. Police called to the scene after the defendant raised alarm. Defendant directed police to drag marks near the river. Defendant states in his police interview, and in his evidence at inquest, that he was at the location for innocent reason. The victim found to have 20 stab wounds. The victim was placed in river at the brink of her death. The cause of her death was blood loss from a lacerated aorta. Semen stain found on underwear. Defendant is not charged for this offence until July 1990 (when DNA linked to the defendant) (sentenced 29.8.1991).
11 May 1990	Defendant (30) commits (1) threatened actual bodily harm with an offensive weapon with intent to have sexual intercourse (Sexual Assault Cat 2) and (2) sexual intercourse without consent (Sexual Assault Cat 3) (sentenced on 29.11.1991) (“1990 Sex Offences”). Offences committed on a 16-year-old female victim, not known to defendant, at night-time in a public place. Used knife.
23 May 1990	Defendant enters custody after he is charged for the 1990 Sex Offence. Remains in continuous custody thereafter until release to parole on 5 January 2022.
10 Jul 1990	Defendant is charged with SAJ’s murder. This followed police obtaining a blood sample after defendant’s arrest in May 1990, and his DNA being linked to the semen recovered on SAJ’s underwear (1987 Murder Offence victim).
29 Aug 1991	Sentenced by Studdert J for the 1987 Murder Offence after his conviction at trial. Sentenced to 21 years imprisonment, with a 16- year non-parole period (NPP), commencing 29.8.1991 (head term expiring 28 August 2012).
29 Nov 1991	Sentenced for the 1990 Sex Offences by Shadbolt DCJ (Sydney District Court). Following CCA intervention, 14 the defendant receives an effective sentence of 12 years 10 months’ imprisonment with an 8-year 10-month NPP, commencing 29.8.2007 with the head term expiring 28 June 2020.
6 May 1994	Last custodial discipline offence (obstruct prison officer).
1 May 2009	Holds A2 Maximum Security classification.
12 Nov 2009	Completes the Sex Offender Preparatory Program (satisfactory participation).
27 Jul 2011	Progresses to Medium Security classification.
28 Aug 2012	Head term for the 1987 Murder offence expires.
9 Apr 2013	Progresses to C1 Minimum Security classification.
26 Sep 2013	Completes Getting SMART program (Junee Correctional Centre).
26 Feb 2014	Defendant is charged for the 1986 Sex Offence.
9 Jul 2015	Sentenced for the 1986 Sex Offence by Payne DCJ. Sentenced to 7-years imprisonment (25% plea discount), with a 3-year NPP, commencing 29.12.2015 (head term expires 28 December 2022).
29 Dec 2015	1986 Sex Offence sentence of imprisonment commences.
20 Jul 2017	Gains Section 6 “on complex” restricted permit. Commences employment as general farmhand outside Junee Correctional Centre perimeter fence. Progressed to leading hand (positive work reports).
28 Dec 2018	Becomes eligible for release to parole for the first time.
23 Jul 2019 to 21 Aug 2020	Participates in the High Intensity Sex Offender Program (HISOP) Engages constructively and presents as motivated to engage. Showed significant improvement in “key areas” by completion (HISOP Treatment Report dated 9.10.2020).
28 Jun 2020	Effective head term for the 1990 Sex Offences expires.
24 Jul 2020	Progresses to C3S classification (difficulties in finding a sponsor to supervise him engaging in leave).
19 Oct 2021	Serious Offenders Review Council (SORC) recommends to SPA in favour of release to parole. Release supported given the need for the defendant to undergo supervision before the expiration of his sentence.
6 Dec 2021	State Parole Authority (SPA) makes parole order. Order made on basis that the defendant had “limited time remaining on his sentence and supervision in the community is essential for his successful reintegration”.
5 Jan 2022	Released to parole with conditions providing for electronic monitoring (EM), scheduling and curfew. On release resides at the Nunyara COSP. Engaged with Alcoholics Anonymous (AA), psychology and Maintenance sessions.
28 Dec 2022	Head sentence for the 1986 Sex Offence will expire.

12. Putting aside the particular requirements of s 5B(d), there was no dispute that the remaining preconditions in s 5B had been met in this case. I consider that that concession was appropriately made and will briefly deal with the preconditions as follows:

1. Firstly, as to s 5B(a), the precondition is satisfied as the defendant is over 18 years of age and has served a sentence of imprisonment for a serious offence which includes the offence of murder.

2. Secondly, as to the requirements of s 5B(b), I again consider that the precondition is met having regard to the matters raised in the written submissions for the plaintiff. In summary, by this precondition the defendant needs to be found to be a supervised offender as defined in s 5I when the application is made, namely, at the point of the filing of the summons. A serious offence constitutes a serious sex offence or a serious violence offence. A serious sex offence is relevantly defined in s 5 of the Act.

I pause there to note that those short forms, which are found in the chronology which I have incorporated in my decision, arose under ss 61C and 61D of the Crimes Act 1900 (NSW). Since their commission, these provisions have been repealed. At the time the 1986 and 1996 offences were committed the offence provisions fell within Pt 3 of the Crimes Act1900, albeit that there was not a specific Div. 10 subtitle at that time. That is sufficient in my view that the offences satisfy s 5(1)(a) on that basis. I also accept that there is a proper basis for making the requisite conclusion having regard to the alternative submissions advanced by the plaintiff relying upon the provisions of s 5(c)(i).

3. Thirdly, the precondition under s 5B(c) is satisfied as the application has been made before the expiration of the current sentence.

13. I turn then to the unacceptable risk precondition for the purposes of s 5B(d). That precondition requires satisfaction 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. Before turning to my evaluation for the purposes of s 5B(d), as an independent consideration by the Court, I propose to say something briefly about the background of the defendant drawing upon the plaintiff’s submission in that respect.

14. The defendant is the eldest of three children. He described his childhood as dysfunctional and said he was exposed to his parents' alcohol and domestic abuse. After his father left home his mother engaged in several abusive relationships.

15. A 1975 court report noted the defendant's mother's report that the defendant was continually assaulted by his father, including an occasion resulting in the defendant being hospitalised.

16. In 1975 when the defendant was 15 years of age he was placed in an institution after indecently assaulting his sister. He returned to his mother's care later that year and again committed sexual assaults, this time on his nine-year-old sister. Thereafter he was made a Ward of the State and entered a State residential facility.

17. In 1976, a psychological report concluded that the defendant presented as emotionally immature and disturbed.

18. In about May to June 1977, the defendant was released from residential care. He lived then with his mother for a short period of time and thereafter with his maternal grandmother.

19. He reported to a psychologist in 1991 that he had never been able to form happy relationships. He was in a long-term relationship between 1980 and 1990 with a woman whom he married in 1986 and had two children. That relationship ended in 1990. After entering custody, he married again to someone he reported he had had an on-and-off affair with over a number of years. That relationship also ended.

20. The defendant was reported to have commenced alcohol use from about 15 years of age. By 18 years of age, he consumed a heavy amount daily. Before his offending in 1990 he had reported attending Alcoholics Anonymous to address his alcoholism. I note that he has returned to participation in Alcoholics Anonymous and appears to have done so rigorously during his parole.

21. Since entering custody in 1991, it appears he has had no contact with his parents or siblings. As of 1995 the defendant reported that he had not seen his two children in the preceding five years. Again, that appears to continue to date. It also appears that the defendant did not receive visits from parents outside of prison since his relationship with his second wife ended in about 1994. It follows that the assessment by Community Corrections that, as of 2020, the defendant had little or no ties in the community may be accepted.

22. Submissions were advanced in the course of the disputed conditions as to whether the defendant had engaged in deception at an earlier point in time. It was put in support of the defendant in this respect that, whatever conclusion may be reached in that respect, it is dated given that it derives from the proceedings concerning the murder offence. Nonetheless, in my view, it remains a relevant consideration in the context at least of the consideration of the disputes as to the conditions.

13. I accept the submission advanced by the plaintiff that the defendant created a false account during the murder proceedings and the events leading up to the murder to explain his presence at the scene where the defendant's body was found. He made a dock statement in his trial claiming that he had a chance meeting with the deceased which led to her consenting to intercourse. I agree with the submission of the plaintiff that this was most likely done to explain the presence of the semen stain found on the deceased's underwear that was attributed to the defendant. By its verdict, the jury rejected that account.

PRECONDITIONS

24. In my view, the plaintiff has established the precondition under s 5B(d). The matters alleged in the supporting documentation in these preliminary proceedings, if proven, demonstrate to a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence, if not kept under supervision. My primary basis for that conclusion is found in the short submission advanced by the plaintiff as to the matters which the plaintiff would emphasise in that respect. They seem to me to be well-founded and consist of the following:

1. The number of relevant offences, (indecent, sexual and murder offences), the defendant committed whilst in the community before entering custody at the age of 30.

2. The gravity of those offences.

3. The magnitude of time he spent in custody until recent times; and

4. The limited time of supervised release before his sentence expires.

25. However, the mere statement of that rationale would lose some of its poignancy if I do not attend to the context in which they are to be considered. In other words, it is necessary to put some flesh on those bones.

26. I have earlier mentioned the indecent assaults by the defendant upon his sisters at a very young age. I also note that in 1986 and 1990 the defendant committed very grave offences on three victims on separate occasions using a knife.

27. The 1986 sex offence was committed on a 15-year-old girl at night-time in a public place and involved forceful penile/vaginal intercourse.

28. The 1987 murder offence was committed on an 18-year-old girl. She suffered 20 stab wounds, including twelve wounds to the neck. She was placed in a river while she was still alive, although close to the point of death from blood loss. I have earlier explained the deception involved in the trial for murder of the plaintiff.

29. The 1990 sex offences were committed on a 16-year-old girl at night-time in a public place during which the defendant committed several sexual assaults, penile/vaginal and forced fellatio. The victim became pregnant and had to undergo a termination of the foetus.

30. I agree with the submission advanced by the plaintiff that the victims were plainly vulnerable, the sex offences having occurred with respect to young females walking in public places in the night-time. For the reasons advanced by the plaintiff, doubt may be cast upon the circumstances of the defendant's explanation for the offending or circumstances of the offending.

31. Some other factors should be mentioned in relation to the conclusion I have reached. The defendant has been in continuous custody for a very long period of time. It may be accepted that during the course of his custody he proceeded to a low security classification and completed the HISOP before his release, although I accept the submission that the gains, he derived from that programme are to some extent questionable.

32. He has been released from custody. He has attended AA and would appear to have abstained from alcohol. He has commenced sessions with a forensic psychologist service and maintenance group, although some difficulties were encountered in that respect. The plaintiff has minimal prosocial support outside parole supervision.

33. In the opinion of the HISOP facilitators, the 1986 and 1996 offences occurred in the context of the defendant's difficulties in relationships, feeling out of control, his sexual preoccupation and resentfulness.

34. Finally, mention needs to be made of the risk assessment report. The author of that report stated that the defendant appeared to be on a positive trajectory as regards his general self-regulation, but that it was not yet known how much it was attributable to the structured environment of prison and what his capacity was to persist in developing necessary skills in a less restrictive and more complex milieu.

35. In the context of the most significant risk related to interpersonal relationships and managing rejection, his professional supports, it was opined, may only learn of issues after the fact rather than assisting him before and during the process of establishing emotional connections with others.

36. For completeness, I note that, having regard to the conclusions I have reached in this preliminary hearing as to the satisfaction of the provisions of s 5B(d), I do not consider there is any proper basis for the Court to exercise a discretion not to make the orders sought by the plaintiff as to interim relief.

37. It follows, therefore, that the Court must make the orders proposed under s 7(4) of the Act and that there is a proper basis in all the circumstances for an interim supervision order to be made for a period of 28 days. It does appear to me to be appropriate in the circumstances that that order would operate from the date of the judgment of this Court, that being today's date.

CONTENTIONS ABOUT THE CONDITIONS

38. As I noted at the outset, there are issues associated with the conditions which are sought to be imposed in conjunction with the interim supervision order. I also have noted that the parties in that respect have managed to reduce the area of contest in that respect to nine conditions out of the proposed conditions which numerically bear the description 6 to 8, 18, 23, 33, 46, 59 and 61. I propose to turn to those conditions but note two matters at the outset.

39. First, I consider the balance of the conditions which are not contested are, in all the circumstances of this matter, appropriate.

40. Secondly, I accept the submission of the plaintiff that it is appropriate to give weight to risk avoidance as regards supervision arrangements pending the receipt by the Court of appointed expert opinions and a thorough examination of his risk and needs at a final hearing. It is in that context that I turn to consider the respective contests between the parties as to the proposed conditions.

Conditions 6 to 8

41. The first area of dispute concerns reporting and monitoring obligations and in particular the schedule of movements. The relevant clauses in that respect are clauses 6 to 8 respectively.

42. This issue does not concern a contest between the condition proposed and a wholesale opposition to that provision as appears with respect to some of the other conditions in contest. In this case, the defendant has proposed an alternative to the conditions proposed by the plaintiff, although I should note, in that respect, that that alternative bears upon the provisions of clauses 6 and 7 and that there is a wholesale opposition to clause 8.

43. The principal points of difference, without going to the minutiae of the differences between the parties, is the extent to which the defendant would require prior approval of a weekly plan provided to his DSO and the extent to which he is required to obtain approval to those changes. There was some further discussion as to the nature of the matters required to be considered as part of the weekly plan which are reflected in the proposed clause 6 by the defendant.

44. The defendant's case in this respect stems in part from references made in the written submissions of the defendant in which there was emphasised the circumstances of the applicant's positive approach to probation and improvements in his overall position in that respect.

45. The defendant also emphasised that the arrangements, that is the more flexible arrangements proposed by the defendant, provided a greater opportunity for prosocial involvement by the defendant and that there had been issues associated with the scheduling arrangements which occurred over a number of nominated dates. This pointed to the inflexibility of the arrangements that had been proposed as well as the difficulties that may be created for the defendant if the more rigorous regime identified by the plaintiff were accepted.

46. It was also submitted that strict scheduling results in a practical denial of an opportunity to make up prosocial associations, which the defendant is enthusiastic to do, and, as I have mentioned in that same context, the defendant contended that he has, in fact, independently and ably accessed the community in a prosocial way over a period of some twelve months. It was submitted that the defendant's proposed condition struck an appropriate balance between giving the defendant greater flexibility and independence, whilst maintaining safety.

47. The counter points by the plaintiff in this respect, however, are made in my view with some force and have substance. Scheduling is a matter which is central to the management of risk. The proposal advanced by the plaintiff, at least at this preliminary stage, in my view is one best placed to enhance the proper assessment and management of the risks, those risks being commensurate with my findings made under s 5B(d). It needs to be also borne in mind that the plaintiff is presently in the course of transitioning from a more structured and secure environment into one which is less so.

48. It is not suggested, and I do not find, that the plaintiff through its relevant officer has unreasonably exercised the control which is sought to operate under the plaintiff's proposal in the present case. There have been some difficulties with scheduling, but there is nothing to indicate, in my view, that the difficulties were ultimately not properly managed.

49. It does appear to me to be important for the purposes of risk management that the DSO has the capacity to make assessments of plans, including assessments as to risk, in advance of the plan being given effect to. Even greater emphasis may be given to the need to exercise those controls with respect to changes to plans as they may occur and, naturally, the extent to which the defendant may be subject to conditions of this kind over time will vary as he progresses, and further assessments are made by supervising officers as to the need to exercise more or less strenuous conditions in the circumstances.

50. I am mindful in coming to this conclusion that the agreed areas of the conditions in Exhibit 1 and those to which I will now turn do in themselves impose rigorous conditions, but, in my view, the scheduling condition is one which is vital to the management of a risk in this case, notwithstanding the age of the defendant and his approach to probation over a relatively short period of time.

Condition 18

51. I turn then to clause 18. It is not entirely clear to me why the plaintiff has persisted with its claim with respect to this clause in the event that the Court was minded to approve conditions 6 to 8. There is some suggestion that the changed circumstances of the plaintiff's supervision in the future might give rise to the necessity for a provision such as this. If that is the case, then that can be assessed for its own merits. However, presently, in the light of concluding that clauses 6 to 8 should be accepted, I consider there is no utility in the grant of condition 18 and I refuse it.

Condition 23

52. Condition 23 requires that the defendant must provide any information relating to his financial affairs, including income and expenditure as directed by his DSO. It is said that this condition is necessary in the following circumstances.

53. The plaintiff contends that the defendant is required under his parole conditions to completely abstain from alcohol. Conditions of that kind are now found in the conditions in exhibit 1. The defendant is residing it is said in a men's hostel and may be exposed to other residents' alcohol use. It is said that the checking of expenses provides a way to monitor for unexplained or unusual expenditures which may point to possible alcohol purchases by the defendant.

54. The condition, which is sought in the present case, as the defendant points out, is not a condition imposed as a parole condition upon the defendant. That is not the end of the enquiry. The matters raised by the plaintiff are plainly relevant, however, they need to be balanced against the positive benefit of the defendant maintaining some degree of autonomy and the questionable benefits from the condition proposed because of, amongst other things, the remaining conditions which the Court proposes to make in Exhibit 1.

55. I agree with the defendant that the proposed condition is to one extent repressive, particularly in circumstances where the defendant has enthusiastically attended upon AA and has maintained his adherence to not consuming alcohol during the parole period. Whether the condition in question would in fact assist in the detection of alcohol use is a factor which may also be doubted. I, therefore, refuse condition 23.

Condition 33

56. Condition 33 provides that the defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary. The defendant does not consent to the proposed condition and notes that the condition was not imposed upon him as part of his parole conditions.

57. It was submitted by the defendant that, if a DSO has concerns about the defendant's associations, a non-association or place restriction direction can be imposed. Further, if the DSO considered it necessary, the DSO could ask the defendant's consent to disclose his criminal history to another. Emphasis was placed upon the need not to corral the opportunities for the defendant to engage in prosocial activities and reference was made to the defendant's supervisors having been able to manage the defendant without this condition to date.

58. The plaintiff's submission in this respect in reply to proceeds upon an assumption, which I consider the Court should properly adopt, that the power conferred upon the DSO in this respect would be exercised reasonably. The Crown from that basis submits that the condition is a significant one because it provides a means of protecting any other person who associates with or has contact with the defendant by providing knowledge as to the defendant's history and that knowledge of that kind enabled that person to make an informed decision about future contact and to assess the relevant risks. The plaintiff contended that it would be a perverse outcome if the defendant commenced an intimate relationship, but his partner had no understanding of his history.

59. In my view, the proper balancing of the considerations results in a conclusion in favour of the plaintiff. The plaintiff has discharged the onus in the seeking of this condition. In substance, I accept that the plaintiff's submissions constitute a proper basis for the making of condition 33 and I make it.

Condition 46

60. Condition 46 comes under proposed Part I of the Schedule of Conditions. That is significant because the proposed condition forms one part of conditions bearing upon the management of the defendant with respect to access to the internet and other electronic communications. The particular issue raised by this condition is whether the defendant should be prohibited from deleting or altering any applications, emails, text messages, electronic messages, and the like, from electronic equipment such as a phone, computer, tablet and the like electronic devices. The condition is opposed by the defendant.

61. As I have mentioned, part of that opposition by the defendant derives from the fact that the defendant will be otherwise the subject of intrusive and onerous obligations under Part I, although the defendant properly accepted that the conditions would have some value as part of his supervision as an additional layer of monitoring. It was submitted that the requirements are regressive in nature and that they were unnecessary in the period of his supervision over some ten plus months to the present time.

62. It was submitted, and reference was made in this respect to part of the OIMS records produced by Ms Murty, that the defendant would prefer to have the flexibility to freely clear data to save memory and organise his electronic affairs and that, in any event, the DSO will have power to remotely inspect his devices and to require him to turn over devices and provide passwords without notice.

63. It does appear to me, however, that the condition here sought by the plaintiff, and the reasons provided by the plaintiff in support of it, are particularly sound. The background to the debate over this condition is that the defendant has been convicted of violent sexual offending upon young women. There is and remains in my view a relevant risk in that respect. Those were casual acquaintances.

64. The risk assessment report identified risks associated with non-consensual pornographic material. The defendant has, as I have mentioned, engaged in deceptive conduct previously. It is not to the point that he may not have done so during a period of incarceration.

65. There are further considerations which bear upon this matter. The plaintiff's proposed condition does not impose a blanket ban on the deletion of the data. It requires consent of the DSO before doing so. In my view, this wisely enables the DSO to check what type of data is being deleted and, if appropriate, scrutinise the actual data in advance. The internet and social media provides an opportunity to arrange meetings with persons which exacerbates risk factors.

66. In the absence of further evidence on the question of the use of this equipment, I accept the submission of the plaintiff that attempts to scrutinise usage of the equipment, once there is a deletion, may present difficulties. In the result, I accept the condition proposed by the plaintiff in paragraph 46.

Conditions 59 and 61

67. The remaining two conditions are conditions 59 and 61. By paragraph 59 the plaintiff proposes that the defendant must agree to his treatment and service providers and health care practitioners sharing information, including reports on his progress and attendance and information he has told them with each other and with a DSO. The defendant does not oppose the condition outright, but in lieu thereof proposes a condition which goes some considerable way to meeting, in my view, the risk which is sought to be managed by the condition proposed by the plaintiff.

68. The plaintiff submitted that the defendant reported in the past abusing alcohol during times of stress and that conditions of the kind here proposed would assist, amongst other things, in identifying that fact and the risk incumbent upon it. It also pointed out, perhaps somewhat disturbingly, that the defendant has sought medication with respect to Viagra which was identified through access to a general practitioner.

69. The consideration of this matter, in my view, may be different but for the alternative proposal advanced by the defendant. I agree with the defendant's submission that his proposal seeks to tailor this condition to general matters relevant to the defendant's risk of committing a serious offence whilst maintaining an appropriate level of confidentiality to ensure a frank and constructive therapeutic arrangement or relationship.

70. I consider that it is important from a therapeutic viewpoint that the defendant is able to confide with those who are providing him therapeutic assistance. That is not an open-ended consideration, and nor is the condition proposed by the defendant in that respect, which, in my view, enables, by less intrusive means, a relevant regulation and assessment of the risk which is sought to be controlled in this respect. The defendant does not have a major mental illness and I also have regard to the terms of condition 60 within the conditions which are agreed.

67. In all the circumstances, I reject clause 59 of the proposed conditions and accept, as to clause 59 or its equivalent, the defendant's position whereby there would be inserted into the condition’s paragraphs 59 and 59A as proposed by the defendant, presumably with some renumbering of the conditions accordingly.

68. The final aspect of the dispute between the parties as to conditions concerns clause 61 by which the defendant must agree to disclose his criminal history to any health care professionals that are treating him. I do not consider in this respect that any proper basis has been established to reject the incorporation of that condition, notwithstanding that the defendant has been incarcerated for a period of thirty years. In particular I place reliance in that respect upon the opinion of the RAR author, both in the primary and the supplementary reports. I, therefore, accept that proposed clause 61 should be incorporated within the conditions.

CONCLUSION

73. It follows, in summary, that I would order that there be made the order proposed in order 1 of the summons.

74. I would further accept that there should be made order 2 of the summons to operate from today's date.

75. Thirdly, I would make orders pursuant to s 11 of the Act in accordance with paragraph 3 of the relief claimed in the summons as amended by the rulings that I have made with respect to disputed matters.

76. Finally, I am informed that Bellew J did make order 6 at a directions listing on the 1 September 2022 and, as a result, it is unnecessary to make order 6.

ORDERS

The Court orders:

1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”):

1. appointing two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) to conduct separate psychiatric and/or psychological 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; and

2. directing the defendant to attend those examinations.

2. An order pursuant to sections 10A and 10C of the Act, that the defendant be subject to an interim supervision order for a period of 28 days from 25 November 2022.

3. An order pursuant to s 11 of the Act, directing that the defendant, for the period of the interim supervision order, comply with the conditions as set out in the Schedule of Conditions annexed to these minutes of order.

4. A order pursuant to ss 7 and 8(1)(c) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) prohibiting the publication of the name of the current suburb where the defendant resides.

5. The order at paragraph 4 shall apply:

1. to all media including, but not limited to, print, radio, television, internet and social media;

2. throughout the Commonwealth;

3. until 24 March 2023 unless rescinded or amended earlier by order of the Court.

6. Parties have liberty to approach the HRO List Judge to list for further directions.

Cannon - Schedule of Conditions for Short Minute of Order (189538, pdf)

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Decision last updated: 29 November 2022