State of New South Wales v Carr
[2014] NSWSC 1348
•01 October 2014
Supreme Court
New South Wales
Medium Neutral Citation: State of New South Wales v Carr [2014] NSWSC 1348 Hearing dates: 19 September, 1 October 2014 Decision date: 01 October 2014 Jurisdiction: Common Law Before: Hamill J Decision: See Orders
Catchwords: CIVIL LAW - variation of extended supervision order - history of non-compliance - no evidence of criminal offences apart from breaches of order - defendant repeatedly incarcerated for breaches - electronic monitoring - protection of the community - intellectually disabled offender - simplification of conditions - flexibility in approach - ESO varied Legislation Cited: Crimes Act 1900 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)Cases Cited: Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Munda v Western Australia [2013] HCA 38; 294 CLR 600
R v Booth [2014] NSWCCA 156
R v Fernando (1992) 76 A Crim R 58
R v Hines (No 3) [2014] NSWSC 1273
R v Wilhem [2010] NSWSC 378
State of New South Wales v Hill (No 5) [2013] NSWSC 140
State of New South Wales v Green (Final) [2013] NSWSC 1003Category: Principal judgment Parties: State of New South Wales (Plaintiff)
Darryl Edward Carr (Defendant)Representation: Counsel:
N Kelly (Plaintiff)
S Hall (Defendant)
Solicitors:
Crown Solicitors of New South Wales (Plaintiff)
Legal Aid (Defendant)
File Number(s): 2009/294569 Publication restriction: Nil
EX TEMPORE Judgment (REVISED)
By amended Notice of Motion filed in court on 19 September 2014 the plaintiff seeks orders pursuant to s 13 of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act") varying the terms of an extended supervision order ("ESO") made by his Honour Justice Hall on 14 August 2009. The order seeks variation of the conditions placed on the ESO by substituting those conditions with some 62 conditions concerning the defendant's conduct.
The defendant opposes the orders sought in the notice of motion.
The major source of contention between the parties concerns the reintroduction of electronic monitoring on the defendant. This would require him to wear a device by which his movements could be monitored by the supervising authorities. The defendant also opposed the balance of the orders originally sought by the plaintiff.
The plaintiff read and relied upon the affidavits of:
- Joanna Murray affirmed on 28 April 2014, 12 June 2014 and 21 August 2014;
- Ziggy Abedine affirmed 11 June 2014;
- Danielle Matsuo affirmed 23 April 2014;
- Michael Spurrier affirmed 19 June 2014;
- Bradley Alan Keane sworn 16 September 2014; and
- Narcisa Sutton affirmed 17 September 2014.
Those affidavits exhibited a number of annexures. Further the plaintiff provided me with a working folder (3 volumes) comprising much of that affidavit material. The material includes the judgment of the original sentencing Judge, the judgment of Justice Hall making the ESO in 2009, a number of reports prepared for those proceedings, for reporting purposes and in the course of the supervision of the defendant under the ESO as well as the case notes of the organisations which have both supervised and monitored the defendant's behaviour under the ESO and generally.
At the hearing of the application, evidence was given by Bradley Alan Keane and Narcisa Sutton. Each was cross-examined by Ms Hall, counsel for the defendant.
At the end of the first day of hearing I invited the parties to consider whether any resolution could be reached in respect of a number of the conditions. This followed my hearing evidence from at least one of the experts called by the plaintiff that the defendant may have some difficulty in understanding the conditions given the number of them and their complexity combined with the undisputed fact that he suffers from an intellectual disability. I suggested that the defendant's compliance with the conditions may be more likely if he played some role in formulating them. For that reason the case was adjourned until Wednesday 1 October 2014 to allow the parties to discuss whether such a resolution was possible.
THE HISTORY OF THE CASE
It is necessary to recount some of the history of the matter in order to understand both the plaintiff's submissions in support of the variations sought and the defendant's position in response. That history also explains why I thought it appropriate to allow the parties to discuss a sensible resolution of the matter. Having reviewed the material in the volumes that have been tendered, I have concluded that the practical implementation and enforcement of this ESO has been punitive. That is contrary to the intention of both the Act and the order: cf State of New South Wales v Green (Final) [2013] NSWSC 1003 at [36] - [38].
In short, the defendant has been incarcerated for a number of years since his release from gaol. He has been in gaol longer than he has been in the community. At no stage has he been convicted of any offence apart from breaching the ESO in the various ways that I will describe in the course of this judgment. Section 12 of the Act makes it an offence to breach the conditions of an ESO. There is a maximum penalty of 2 years imprisonment. The first offence under s 12 arose because the defendant returned a positive result for cannabis use. That resulted in this intellectually disabled young offender being imprisoned for 3 months. It is inconceivable that a person in this day and age would otherwise be incarcerated for using cannabis: cf R v Wilhem [2010] NSWSC 378 per Howie J at [12], [27]-[28] and [37]-[38]. As I understand it, he was sentenced because his use of cannabis constituted a breach of one of the many conditions of the ESO. On a subsequent occasion he was sentenced to a period of 8 months and the evidence before me suggests that during the period of incarceration he developed a significant addiction to both heroin and methylamphetamine.
Insofar as the objective of the legislation and the order is (first) the protection of the public and (then) the rehabilitation of the offender, it might be thought that the practical impact in this case has had, at least potentially, the opposite outcome.
I should also note before setting out the history in a little more detail that the expert evidence on behalf of the plaintiff is that his "culture and lifestyle... exacerbates his risk of serious reoffending overall rather than increasing his risk of sexual reoffending specifically".
That is an important consideration given that the purpose of the ESO was to protect the community from the possibility that the defendant would offend sexually given his criminal history and the reason that he was incarcerated in the first place.
On 28 February 2002 the defendant was sentenced by Judge Woods in the District Court sitting in Dubbo for two offences of aggravated sexual assault on a victim who was under the age of 16 and one count of aggravated sexual assault (occasioning actual bodily harm). The sexual offending was very bad. These offences involved two separate incidents. One of the victims was a female child and the other victim was the defendant's middle-aged uncle. It is unnecessary to recount the details of the offending other than to note that it was sexual offending of a most serious and troubling kind. It well justified the application made at the time by the State of New South Wales for an order under the Act.
Judge Woods sentenced the defendant to 8 years imprisonment with a non-parole period of 4 years with respect to the 2 offences involving the child and to a sentence of 6 years with a non-parole period of 3 years for the sexual assault against his uncle. The defendant was released from custody on 4 June 2009. Interim supervision orders were made in July of that year. As I have said, the original ESO was made by Hall J on 14 August 2009.
One of the conditions of the ESO was that the defendant be subject to electronic monitoring. From time to time the defendant expressed frustration as to the supervision under the order. He received a formal warning for "swearing" in October 2009. During that early stage of supervised release his behaviour was described as being aggressive and a number of examples are provided in the documentation of that aggression. None of the aggression was directed to random members of the public. All of the aggression was directed at those either charged with direct implementation of the ESO or service providers offering him "support" as part of the ESO. None of the aggression resulted in him being charged with an offence of violence. At around the same time, a series of case notes demonstrates that he was doing well with some artistic endeavours, was attending a TAFE course in painting and had sold some artwork. He was nervous but excited about exhibiting his work.
On 12 January 2010 the case notes recorded an incident where the defendant behaved in a "threatening manner". He was being advised of the "level of support that Lifestyle Solutions [Community Compliance Group] were asked to provide him". He responded by saying:
"Fuck off. I don't want you in my face every day. I just want to be left alone with my people (family?)."
And;
"Fuck the Community Compliance group they just want to lock me up."
He was recorded as "[starting] on a tirade saying the Community Compliance Group were putting too much pressure on him."
Three days later he was arrested for breaching the extended supervision order. It seems that the breach arose from a positive test for cannabis. He was sentenced to 3 months imprisonment commencing 15 January 2010.
The defendant was released in April 2010. There were various reports as to his conduct at this time. Some of the reports suggested that he was responding well to drug and alcohol counselling while others noted his continued frustration at the supervision conditions. In May 2011 he provided another positive result for cannabis and was subsequently found not to be at the address that he was supposed to be. He was arrested in May 2011 for breaching the ESO and subsequently sentenced to 5 months of imprisonment. The breaches on that occasion included drug use, not complying with his schedule of movements or being at his approved residential address and breaching a curfew.
The defendant was released on 17 October 2011. The reports of his response to drug and alcohol counselling and other supervision and compliance with the ESO were again variable. From time to time he breached the ESO by failing to comply strictly with his approved movement schedule. On 10 January 2012 he was returned to custody. This time he was sentenced, for breaching the residential condition and a curfew, to 15 months imprisonment with a non-parole period of 8 months. It is possible to infer that it was during this period in custody that the defendant developed an addiction to harder drugs. It is not possible to determine whether his first use of heroin and methylamphetamine occurred when he was incarcerated but what is clear to me is that his use of those drugs escalated markedly during that period in custody.
He was released (on parole) on 8 September 2012. His conduct then reflected the escalation in his use of drugs. He was said to be threatening and abusive to staff and did not appear to have any insight into his behaviour. Drug testing in January 2013 showed that the defendant had used both heroin and "speed or ice". The authors of the probation and parole reports expressed some doubt from around this period as to the defendant's "willingness and ability to accept or conform to further supervision". In any event, following further breaches (of both the ESO and parole) the defendant was returned to custody on 20 February 2013. This time he was sentenced to 12 months with a non-parole period of 8 months.
The defendant was released again on 19 October 2013 but only remained in the community for around 2 weeks. A case note on 14 October 2013 indicated that a community justice program (CJP) representative (Kelly Fishburn) said that "she did not perceive sexual offending to be an issue for the offender" but that alcohol, drug use and aggression were of concern. It was said that these concerns were heightened due to the defendant being subject to the ESO "and the fact that he is not permitted to return to his people". During this very short period of release the defendant indicated (on 28 October 2013) that he was struggling with drug withdrawals. A case note records:
"The offender disclosed that whilst in gaol he had been using several illicit substances, such as ice and BUP which he had been injecting, the offender added that his use in gaol was of a heavy volume and frequency (daily use). Offender stated that he was not tested for drugs while in gaol."
He was concerned that urine analysis would prove positive for drugs and said that he did not want to be returned to custody as a result of drug use.
On 4 November 2013 a sample of urine collected in October 2013 indicated the use of methylamphetamine. He was incarcerated again. During that period of incarceration the defendant completed a "getting smart program" which is a program designed to assist with alcohol and drug problems.
Upon his release on 1 May 2014 a review of his situation was made by Michael Spurrier a senior clinical consultant with the New South Wales Department of Family and Community Service and the Community Justice Progress Programs stated that:
"[R]eview identified that reasons for lack of engagement with Mr Carr included a lack of previous consideration for Mr Carr's significant drug and alcohol issues, along with his Aboriginal and Torres Straight Islander cultural background and interpersonal/emotional needs. For example, CJP provided support to Mr Carr while he lived alone in a property where his reported feeling isolated from others and from his community".
Counsel for the plaintiff, who conducted the case with considerable sensitivity and with commendable restraint, indicated that a review of all of the material did not support the proposition that the defendant's aboriginality had not been properly dealt with by those administering the order. It was said that the observation by Mr Spurrier (which was tendered in the plaintiff's case and as part of its evidence on this application) was not correct.
Whether or not that is so, it is extremely troubling that the opinion of Mr Spurrier was that some 4 years after his release, a review of the files suggested that those administering his supervision had failed to take into account the real and significant difficulties being experienced by a young, intellectually disabled, offender of Aboriginal descent. It is hardly conducive to the rehabilitation of such an offender that such matters are not taken into account. This is particularly so in circumstances where he had been locked up on no less than 5 occasions - not as a result of committing independent crimes, let alone crimes of violence - but because he had breached the very onerous conditions of the extended supervision order. I am reminded of the comments of Rothman J in State of New South Wales v Hill (No 5) [2013] NSWSC 140 at [10]:
"This judgment is not an appropriate forum in which to discuss the treatment of Indigenous Australians by the authorities over many years, but it is necessary to recognise that history, and the history of exclusion by "Anglo-Irish" society, in assessing the reaction of Mr Hill (and many others) to the imposition of restrictions by authorities. Reference to the Equality Before the Law Benchbook published by the Judicial Commission of New South Wales is instructive in that regard, particularly the statistics relating to incarceration and violence. Most members of the Australian community are only now learning the fate of Australia's Indigenous population in the past and the level of exclusion and discrimination that still occurs. It is not surprising, in those circumstances, that there is a resistance by Aborigines and Torres Strait Islanders to "authority". I consider that aspect of Mr Hill's behavior must be assessed bearing those issues in mind."
Of course, there is no warrant in the Act for treating Aboriginal offenders differently from offenders of other ethnic and cultural backgrounds: cf Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [36] and Munda v Western Australia [2013] HCA 38; 294 CLR 600 at [22]. However, the comments of Rothman J resonate in the circumstances of the present case. The evidence in this case demonstrates that the defendant's life has had all of the features discussed in cases such as Bugmy v The Queen, Munda v The Queen,R v Booth [2014] NSWCCA 156, R v Hines (No 3) [2014] NSWSC 1273 and the earlier case of R v Fernando (1992) 76 A Crim R 58. He has lived a life of dysfunction, alienation and deprivation. This was put succinctly in a report of Matthew Frize, psychologist, on 10 August 2009:
"Mr Carr is a young adult who has been brought up [in] a largely anti-social and threatening environment. This has included a family environment characterised by severe alcohol and drug abuse, physical violence towards each other and strangers, and offending behaviour that has included theft and sexual violence. In combination with these social factors, Mr Carr was born with a Mild Intellectual Disability which has limited his ability to develop effective problem solving skills, led to poor impulse control and has increased the likelihood of him using physically reactive means to get his needs met. His unsafe and invalidated early environment coupled with intellectual disability and early substance use have led to emotional liability and poor self-worth."
Returning to my overview of the history of the matter, over the last few months the parties agree that the following chronology reflects the position:
1 May 2014 - released to parole
13 May 2014 - taken into custody
14 May 2014 - release on bail
22 May 2014 - parole revoked
23 May 2014 - taken into custody (on parole warrant)
27 June 2014 - release following rescission of revocation of parole
13 September 2014 - taken into custody for an alleged breach of the order. I understand that proceedings for this breach are still before the Local Court.
As I have said, counsel for the plaintiff has conducted himself with admirable restraint and has acknowledged that Mr Carr's case presents real challenges and difficulties.
To put what I have set out above in a nutshell. The defendant was sentenced for offences committed when he was sixteen. He was released from the gaol sentence on 4 June 2009, when he was 24 years old. That is about five years and four months ago. He is now 29 years. Since his release, on a quick and rough calculation, he has been in custody for just a little less than three years. On every occasion that he has been incarcerated since his release, it has been the result of breaching the ESO or breaching parole (which existed because of prior breaches of the ESO). He has not been convicted of, or charged, with any serious offence. Even when he has displayed aggression to those charged with the difficult task of supervising, assisting and supporting him, it seems that his aggression has been at a very low level of violence.
THE CURRENT ASSESSMENT OF RISK
The witness Nascisa Sutton, a psychologist who played a role in the defendant's supervision some years ago, acknowledged that Mr Carr may not fully comprehend the nature of the conditions upon which he has been placed or (if he did understand the words) did not understand the purpose behind the supervision order.
She has also confirmed the opinion that she gave in her report that the risk of reoffending to which she deposes is not a risk of sexual reoffending. Rather, the risk that she is concerned with is the risk which arises as a result of the defendant's somewhat chaotic lifestyle and his now serious drug addiction. Asked to identify what the risk was and what crimes she was concerned that the defendant would commit, she said:
"Perhaps violent offences, break and enter. The lifestyle that is associated with drug use and the context in which this kind of heavier drug use expresses - it makes people more vulnerable to criminal behaviour. By high risk - I think I have not expressed that particularly well. I think risk meaning that it is likely to happen again. And seriously offend, I don't know, Mr Carr, his serious offending in the past was not under the influence of ice or heroin. I really don't know."
Ms Sutton also gave evidence that she was not of the opinion that the defendant had paedophilic tendencies. Part of her evidence was as follows:
"In many ways these conditions are set out to facilitate his management by the people who are actually supervising him. So I think, I have expressed clearly in my report that I do not have the sense of Mr Carr being paedophiliac in his offences. I have said that I do not feel that sexual paedophilia is one of his risk factors. In terms of attending pre-schools and day care centres and those places, it is just where somebody with drug problems, or who is intoxicated, including in amusement parks etc., Mr Carr might be opportunistic. He could, if he was intoxicated or under the influence of drugs, he might reoffend.
Q. I understood you to say there may be a problem with other people being intoxicated?
A. And himself.
Q. And then you said "And Mr Carr"--
A. Yes.
Q. Why is it that his visiting somewhere such as a playground may be a problem if he is intoxicated?
A. He could be disinhibited around children. There is no history of that, I should add, but it is a scenario that we need to be contemplating anyway.
HIS HONOUR
Q. What do you mean by disinhibited?
A. Reacting in a way, I don't know, one of the usual fears is he could swear at the children, or be violent in some way, or expose himself. As I said, there has been no history of it.
Q. There was some fairly troubling conduct when he was in juvenile institutions early in his period of incarceration, I think?
A. Yes, and it is because of those historical things that these conditions are still there, but I should say he has not behaved in this way since he has been released.
KELLY
Q. You were asked some questions about breaches relating to internet use. Would you just explain why or whether you consider the restrictions on Mr Carr's internet use to be appropriate, having regard to his risk?
A. Once again Ms Matsuo says, I think, that there has not been a history of internet abuse with Mr Carr. I think with people who have committed sexual offences we are also concerned about the use of internet in the terms of contacting vulnerable people, in terms of accessing internet pornography, particularly because access to pornography, even legal pornography, might be used as a way to deal with sexual pre-occupation, or increased sexual pre-occupation.
HIS HONOUR
Q. Is there any evidence of sexual pre-occupation of which you are aware?
A. There has not been in the time I have known Mr Carr, but it is one of the things we worry about, internet pornography. Also that it portrays sexuality in a different way to the normal sexuality, so expectations are created."
It is of course to be borne in mind that this defendant committed sexual offences against a young child of a most serious kind. That offence was described as opportunistic. It was committed when he himself was a child. The opportunistic nature of the offences is a matter of concern when assessing the safety of the community, now, in circumstances where the defendant has failed, in many and varied ways, to comply with the strictures of the ESO.
The concern is that if he is permitted to wander around the community unsupervised and if he comes across a vulnerable victim he may offend sexually again.
The other concern, which is related, is that the original offences were committed whilst intoxicated. In that instance the intoxication was by the consumption of alcohol. There is no evidence that the defendant has an alcohol problem at this stage or has used alcohol since his release. Some of the case notes show him actively avoiding the use of alcohol even when it was offered to him. However, his addiction to, or abuse of, hard drugs and even his use of cannabis is a matter which gives rise to concerns for the safety of the community. However, there is no evidence that his use of drugs has led him into the commission of criminal offences, apart from the breaches of the ESO.
The primary purpose of the legislation, set out in s 3 of the Act, is to protect the public from serious offenders, particularly (although not exclusively) serious sex offenders. "Serious sex offender" was a description that certainly applied to the defendant when he was 16 years of age. Whether it applies to him now that he is 29 is, to my mind, quite unclear. The preponderance of evidence is to the contrary.
ELECTRONIC MONITORING
The most concrete dispute between the parties is the re-introduction of electronic monitoring.
The plaintiff contends that the reintroduction of electronic monitoring will provide the defendant with incentive to comply with the restrictions as to his movements. It will also allow the people responsible for monitoring him and enforcing the order to know quickly whether he is in compliance. He points to the fact that Hall J was particularly persuaded or assisted by the opinion of Dr Roberts. The original report of Dr Roberts enthusiastically supported the use of electronic monitoring and suggested it should be implemented for a period of 18 months. Hall J imposed the condition for 12 months and the plaintiff points out that, because of the interruptions to the defendant's period in the community, the defendant has not been subject to electronic monitoring for the whole period of 12 months (as ordered) or 18 months (as recommended by Dr Roberts).
The defendant, who was represented ably by counsel, submits that the reintroduction of electronic monitoring would be a retrograde step and likely to increase the frustrations that the defendant has expressed throughout the period of supervision. She submits it is likely to be counter-productive. The defendant also relies on the fact that the use of the electronic monitoring is not warranted in view of the history which includes the absence of any suggestion of offending other than the breaches of the ESO to which I have referred.
In cross-examination Ms Sutton gave the following evidence: -
"Q. Do you accept that, given that Mr Carr is already the subject as part of this order to provide a schedule of movements, that his supervisors already have fore knowledge of his movements?
A. Yes. We receive a schedule of movements, and we are aware of where Mr Carr should be.
Q. Do you accept that the department already have the capacity to carry out random drug testing without the imposition of electronic monitoring?
A. We do have that capability of conducting that testing.
Q. And during the course of the order, those that supervise Mr Carr have in fact carried out unannounced visits to Mr Carr's residence?
A. Yes.
Q. And during the course of those visits, they could require Mr Carr to comply with a random drug test, correct?
A. Yes.
Q. So electronic monitoring is not required for the department and those that supervise Mr Carr to actually carry out random drug testing, is it?
A. No, but it provides information to departmental supervising officers that Mr Carr is at the residence in accordance with the schedule that's been provided.
Q. That same information could be obtained by a simple phone call to the premises to check that he is there, is that right?
A. Yes, it could.
Q. And that in fact has been a process that the department has engaged in to find out whether Mr Carr is actually at his premises in the past, correct?
A. Yes.
Q. And in fact you did something similar in the last couple of days when you were aware that Mr Carr or had information in relation to a breach?
A. Yes.
Q. And you didn't want Mr Carr to be advised, you made enquiries with the premises as to whether he was there?
A. Yes.
Q. And you advised the people who supervise the premises not to tell him of potential visits or information that the police might be coming to arrest him, correct?
A. No, I didn't. At that time, I didn't know that we were proceeding to breach. So I didn't speak about the police coming. The I had just asked that Mr Carr not be made aware."
Mr Keane gave the following evidence in relation to electronic monitoring:
"Q. At paragraph 79 of his affidavit, Mr Abedine describes electronic monitoring as being an important deterrent to the commission of further sexual offences as well non compliance with the conditions of the order, correct?
A. Yes.
Q. Mr Carr as a part of the order, as part of the existing order, spent 12 months on electronic monitoring, do you agree with that?
A. Yes.
Q. You accept that, notwithstanding the breaches, that he has been off electronic monitoring longer than he was actually on electronic monitoring?
A. Yes.
Q. And you accept that, during that time, there have been no allegations of sexual offending?
A. Yes.
Q. And do you accept that, during that time, there is no allegations of any other criminal conduct, other than breaches of the order?
A. Yes."
And:
"Q. Mr Keane, at paragraph 81 of his affidavit, Mr Abedine notes one of the benefits of electronic monitoring is the ability to carry out random drug tests due to fore knowledge of the whereabouts of Mr Carr, correct?
A. Yes.
Q. Do you accept that, given that Mr Carr is already the subject as part of this order to provide a schedule of movements, that his supervisors already have fore knowledge of his movements?
A. Yes. We receive a schedule of movements, and we are aware of where Mr Carr should be.
Q. Do you accept that the department already have the capacity to carry out random drug testing without the imposition of electronic monitoring?
A. We do have that capability of conducting that testing.
Q. And during the course of the order, those that supervise Mr Carr have in fact carried out unannounced visits to Mr Carr's residence?
A. Yes.
Q. And during the course of those visits, they could require Mr Carr to comply with a random drug test, correct?
A. Yes.
Q. So electronic monitoring is not required for the department and those that supervise Mr Carr to actually carry out random drug testing, is it?
A. No, but it provides information to departmental supervising officers that Mr Carr is at the residence in accordance with the schedule that's been provided.
Q. That same information could be obtained by a simple phone call to the premises to check that he is there, is that right?
A. Yes, it could.
Q. And that in fact has been a process that the department has engaged in to find out whether Mr Carr is actually at his premises in the past, correct?
A. Yes.
Q. And in fact you did something similar in the last couple of days when you were aware that Mr Carr or had information in relation to a breach?
A. Yes.
Q. And you didn't want Mr Carr to be advised, you made enquiries with the premises as to whether he was there?
A. Yes."
Similar circumstances arose in the case of NSW v Hill (No 5) (supra). On the issue of electronic monitoring Rothman J said at [27]-[31]:
"27. The Court must balance the desire to ensure structure in Mr Hill's life and the protection of the community associated with that structure against the imposition of conditions restricting a person's liberty.
28. In the particular and peculiar circumstances associated with Mr Hill, the question arises as to what benefit is obtained by the imposition of a condition as to electronic monitoring during the curfew that is otherwise imposed. It certainly gives greater certainty that Mr Hill is complying with his curfew. But the risk, in Mr Hill's case, is the consumption of alcohol and illicit drugs.
29. As earlier stated and recited in these proceedings absent that consumption Mr Hill does not pose a significant risk. However, Mr Hill poses a significant risk overall because of the risk that alcohol and drugs will be consumed.
30. The imposition of a condition relating to electronic monitoring of compliance with the curfew, while ensuring such compliance or, more accurately, notifying the CCMG of a breach of that compliance, does not guarantee or affect the capacity of the CCMG to ensure Mr Hill does not consume problematic substances. At the same time, the CCMG can check on Mr Hill's whereabouts by telephone to the approved accommodation or by random visit. Drug and alcohol tests will continue to be administered and Mr Hill continues to be required to comply with any request for urine sample.
31. In all of the circumstances, I am not persuaded that an extension of the electronic monitoring of curfew compliance is warranted and I refuse that aspect of the order ..."
The approach taken by Rothman J is equally applicable in the defendant's case. I accept the submissions made on behalf of the defendant. In my opinion, the electronic monitoring is not at this stage desirable. It is likely to be counter-productive. It is likely to exacerbate the defendant's frustrations and, as both witnesses conceded in cross-examination, unlikely to provide any more protection to the community than other orders that can be made in relation to the monitoring and supervision of the defendant's conduct.
Accordingly I decline to make an order for the re-introduction of electronic monitoring.
OTHER CONDITIONS UPON WHICH AGREEMENT WAS REACHED
When the matter came back to this Court today, the parties had reached agreement in relation to all but three of the remaining conditions. The conditions upon which there was agreement had been simplified to a significant degree. The conditions are, or should be, readily understandable to Mr Carr.
Before moving on, I congratulate those who instruct Mr Kelly on their flexibility and willingness to agree to orders which are far removed from the standard form of orders usually made in cases under the Act. I congratulate them for recognising that this is a most unusual case requiring sensitivity and flexibility.
I also congratulate the legal practitioners for their efforts.
I am satisfied that each of the agreed conditions is appropriate and I propose to make them.
I now turn to the three orders which are not agreed between the parties.
MOVEMENTS
The plaintiff seeks an order in the following terms:
"Daryl must truthfully answer questions from his DSO, or anyone else supervising him, about where he is and where he is going."
Mr Carr opposes this order on the grounds that it has the potential to criminalise his conduct; particularly in circumstances where there may be some change in his plans or movement schedule. It is also put that there may be some issue surrounding the question of truthfulness. It is submitted that the other conditions relating to his movements are sufficient and that this is an example where the addition of verbiage will unnecessarily complicate things.
The plaintiff submits that there is nothing confusing about a condition requiring the defendant to be truthful about where he is and where he intends to go. The plaintiff says that, in this case, the condition will be important to allow those supervising Mr Carr to be aware of his movements. This is an important condition to ensure the safety of the community. Reliance is placed upon the judgment of RA Hulme J in State of NSW v Green (Final) (supra) at [43]-[45].
I accept the submissions of the plaintiff. I can see nothing confusing in the order. I am convinced that this condition is particularly important in circumstances where I have declined to re-introduce electronic monitoring. In coming to the conclusion in that regard, I took into account the cross-examination of Ms Sutton and Mr Keane in relation the ability of those supervising Mr Carr to call him to check upon his movements. If that happens, Mr Carr should be under an obligation to tell the truth.
ASSOCIATION (BUT NOT WITH CHILDREN)
There are agreed conditions restricting the people with whom the defendant can associate with and form relationships. The plaintiff seeks an order in the following terms:
"Daryl must not associate with any people who [he knows] are drunk, or under the influence of illegal drugs."
The defendant submits that this term is unworkable and undesirable. Ms Hall gives examples of circumstances where ordinary social interaction might become criminalised. The best given example was a family Christmas dinner where the defendant's relatives are drinking.
The plaintiff points to the background of the matter and the fact that Mr Carr is (or has been) susceptible to the influence of others who have been consuming drugs or alcohol. The evidence on this issue goes both ways. On most, if not all, occasions he has resisted the temptation to drink alcohol. However on other occasions he has been influenced by other users to take drugs. Mr Kelly also points out that there is a difference between "having a few drinks" and being drunk. While that is true, there is a difficult judgment call to be made and there is a point at which somebody who has, to that point, just had a few drinks but then might become drunk.
I have found resolution of this issue difficult. Because Mr Carr's current problem seems to be more concerned with illicit drugs than with alcohol, and because such drugs are, in any event, illegal, I have decided to impose a condition directed towards non-association with people who are using illegal drugs. In doing this, I am conscious of the fact that Mr Carr's original offending resulted from or was associated with the consumption of alcohol. However, another condition specifically prohibits him from consuming alcohol and to this point he has managed to comply with that condition.
I will imposed the following condition:
"Daryl must not associate with any people who he knows intend to take illegal drugs."
SEARCH AND SEIZURE
The plaintiff seeks a condition in the following terms:
"Daryl must allow the DSO to search him, or any part of, or anything in, his house or car, if the DSO thinks that search needs to be done for the safety of another person, or because they think that Daryl might have breached this order."
There would be notes to the order, directed to the supervising officers, to the following effect:
"If the DSO thinks that Daryl needs to be searched, and the DSO is not a man, the DSO will ask a man to search Daryl. Anyone searching Daryl is only allowed to search any clothes that Daryl is wearing and to do a pat down search of Daryl while he is wearing clothes."
The defendant opposes the order. Ms Hall emphasises the history of the defendant's behaviour being criminalised as a result of breaches and the underlying issues surrounding the defendant's feeling that his life is being unduly interfered with by those administering the ESO. She makes the point that there is nothing in the history that suggests the defendant would be carrying a weapon, house breaking implements or similar items associated with crime, and that the condition is clearly directed, at least in its practical effect, to the defendant's use of drugs. She submits that the other, agreed, conditions concerning his drug use, drug testing and requirement that he attends rehabilitation programmes amply control the defendant's behaviour when it comes to the use of drugs.
I accept those submissions. I decline to make the order in relation to search and seizure.
CONCLUSION AND ORDERS
For those reasons, I make the following orders:
(1) Pursuant to s 13 of the Crimes (High Risk Offenders) Act 2006 I vary the terms of the Extended Supervision Order made by Hall J on 14 August 2009.
(2) All existing conditions are hereby vacated and replaced by the following conditions:
Monitoring and Reporting
(1) Daryl must accept the supervision of Corrective Services NSW (CSNSW) until the end of the Order.
(2) Daryl must report to the Department Supervising Officer (DSO) or any other person nominated by them if told to.
(3) Daryl must follow all reasonable directions by his DSO or anyone else who might be supervising him.
Schedule of Movements
(4) If he is asked for a schedule, Daryl must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start.
(5) If Daryl wants to change his weekly plan after he has given it to his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period or in the case of an emergency.
(6) Daryl must truthfully answer questions from his DSO, or anyone else supervising him, about where he is and where he is going.
(7) Daryl must not go to a place if his DSO tells him he cannot go there.
Accommodation
(8) Daryl must live at an address approved by his DSO.
(9) Daryl must be at his approved address between 9pm and 6am unless other arrangements are approved by his DSO.
(10) An Officer of CSNSW may visit Daryl at his approved address at any time and Daryl must allow them to enter.
(11) Daryl must not spend the night anywhere other than his approved address without the permission of his DSO.
(12) Daryl must not leave New South Wales without the permission of CSNSW.
Employment and Other Activities
(13) Daryl cannot start any job, volunteer work or educational course without the approval of his DSO.
Drugs and Alcohol
(14) Daryl must not possess or use alcohol, illegal drugs or prescription medication that is not prescribed to him.
(15) Daryl must be tested for drugs and alcohol if asked by his DSO or anyone else supervising him.
(16) Daryl must not enter any licensed premises without the permission of his DSO.
(17) Daryl must attend and participate in programs and courses for drug and alcohol rehabilitation as directed by his DSO.
Association with Children
(18) Daryl must not approach or have contact with anyone he knows is under 18 unless his DSO tells him he can and he has someone his DSO has approved in advance with him.
Associations with Others (not children)
(19) Daryl must not associate with people that his DSO tells him not to.
(20) Daryl must not associate with any people who he knows intend to take illegal drugs.
(21) If Daryl starts an intimate relationship with someone, he has to tell his DSO who may want to tell the person about his criminal history.
Access to the Internet & Telecommunications Devices
(22) Daryl must tell his DSO of any devices he uses to communicate with or to access the internet. This includes phones, tablet devices, data storage devices or computers. This may include the details of telephone numbers, service provider account numbers, email addresses or other user names used by Daryl and the nature and details of the internet connection.
(23) Daryl must obey any reasonable directions by his DSO about the use of phones, computers and his access to the internet.
(24) Daryl must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use.
(25) Daryl must allow his telephone and/or internet service provider to share information about his accounts with his DSO.
Personal Details and Appearance
(26) Daryl must not change his name from Daryl Edward Carr or Darryl Edward Carr without the approval of his DSO.
(27) Daryl must not change his appearance without the approval of his DSO.
(28) Daryl must let CSNSW photograph him.
Medical Intervention & Disclosure
(29) Daryl must notify his DSO of the identity and address of any healthcare practitioner that he consults.
(30) Daryl must attend all psychological and psychiatric assessments and treatment that his DSO tells him to attend.
(31) Daryl must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his DSO.
(32) Daryl must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to his DSO and CSNSW.
Grievance Procedure
If Daryl is unhappy about a decision of his DSO, he can tell someone else who can write down the problem and give it to the Commissioner of CSNSW, who must consider Daryl's comments and make changes to Daryl's supervision, if the Commissioner thinks those changes should be made.
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Decision last updated: 04 October 2014
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