State of New South Wales v Currie (Final)

[2021] NSWSC 676

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Currie (Final) [2021] NSWSC 676

Hearing dates:

3 June 2021

Date of orders:

10 June 2021

Decision date:

10 June 2021

Jurisdiction:

Common Law

Before:

Walton J

Decision:

The parties shall file and serve any further submissions as to condition 4 by 10.00am on Friday, 11 June 2021.

Upon receipt of those submissions, the Court shall provide to the parties the ruling of the Court as to that condition without further reasons for judgment (unless reasons are requested by the parties).

Upon the receipt of that ruling, the State shall bring in short minutes of order reflecting this judgment and the Court’s ruling.

In the event the parties reach an agreement as to the proper approach to condition 4 then that agreement shall be communicated to the Court by 10.00am on Friday, 11 June 2021, together with short minutes of order reflecting this judgment and that agreement. If appropriate, the Court will make orders in the terms proposed.

Catchwords:

CIVIL – high risk offender – application for extended supervision order – s 5B(d) – unacceptable risk – assessment must be absent the existence of “protective measures” – the Court is to take into account that which would be applicable in the absence of an ISO or ESO – National Disability Insurance Scheme support package applicable to defendant – NDIS support package as an “indirect” means of risk management – imposition of extended supervision order – duration – conditions – directions

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW)

Mental Health Act 2007 (NSW)

Cases Cited:

Currie v R [2013] NSWCCA 267

Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57

R v Currie [2002] NSWCCA 126

R v Currie (Unreported, Court of Criminal Appeal, 31 October 1997)

State of New South Wales v Ceissman [2018] NSWSC 508

State of New South Wales v Currie (Preliminary) [2021] NSWSC 175

State of New South Wales v Dillon (Final) [2018] NSWSC 1626

State of New South Wales v Farringdon [2018] NSWSC 874

State of New South Wales v French (Final) [2017] NSWSC 1475

State of New South Wales v Golding (Final) [2018] NSWSC 1437

State of New South Wales v Holloway (No 2) [2017] NSWSC 1517

State of New South Wales v Kamm (Final) [2016] NSWSC 1

State of New South Wales v Pacey [2015] NSWSC 1983

State of New South Wales v Richardson (Final) [2020] NSWSC 1809

State of New South Wales v Rigby (Final) [2021] NSWSC 472

State of New South Wales v Simcock (Final) [2016] NSWSC 1805

State of New South Wales v Sleeman (Preliminary) [2018] NSWSC 562

State of New South Wales v Strudwick [2018] NSWSC 1798

State of New South Wales v Thurston [2018] NSWSC 421

State of New South Wales v TT (Final) [2018] NSWSC 358

State of New South Wales v TT (Preliminary) [2017] NSWSC 1797

State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367

State of NSW v Hardy [2021] NSWSC 323

State of NSW v Tiggelen [2018] NSWSC 1399

State of NSW v Weribone [2016] NSWSC 1474

Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Desmond Currie (Defendant)

Representation:

Counsel:
K Curry (Plaintiff)
C Goodhand (Defendant)

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

File Number(s):

2020/343274

Judgment

INTRODUCTION

1. HIS HONOUR: By amended summons filed on 1 March 2021, the State of New South Wales (“the State”) sought an extended supervision order of 5 years under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) in relation to Mr Desmond Currie (“the defendant”). A related order was sought pursuant to s 11 of the Act directing the defendant to comply with the conditions set out in the Schedule accompanying the amended summons.

Preliminary Hearing

2. The amended summons was the subject of preliminary hearing before
   Davies J on 5 March 2021. On that occasion, his Honour made orders, which included, inter alia, the appointment of one psychiatrist and one psychologist to assess the defendant’s risk of reoffending and furnish their reports to the Court. His Honour published his reasons for decision on 9 March 2021: State of New South Wales v Currie (Preliminary) [2021] NSWSC 175.

Position of the Defendant

3. Counsel for the defendant, Ms C Goodhand, conceded that the defendant is a person in respect of whom an extended supervision order could be made, subject to otherwise satisfying the applicable test. However, it was contended that an extended supervision order was not required to manage the defendant’s risk as it can be managed by the support he receives through his approved National Disability Insurance Scheme (“NDIS”) support package and, if required, under the Mental Health Act 2007 (NSW) (“MHA”).

4. The defendant contended that the Court’s assessment as to any unacceptable risk must be assessed taking the existing NDIS support into account. At the hearing, counsel for the State, Mr K Curry, accepted that position and cited the two recent decisions of Rothman J: State of New South Wales v Rigby (Final) [2021] NSWSC 472 (“Rigby”) at [40]-[41]; State of New South Wales v Richardson (Final) [2020] NSWSC 1809 (“Richardson”) at [73]. (I will return to those authorities in a discussion of the relevant principles).

5. In written submissions, counsel for the defendant conceded that if the defendant were not receiving an appropriate therapeutic dose for his serious mental illness and was not receiving NDIS support, “he would pose an unacceptable risk of committing a further serious sex offence”.

THE INDEX OFFENDING

6. The victim of the offending was a 24-year-old woman from Estonia who was travelling around Australia on a working holiday. The offending consisted of the following:

1. two counts of aggravated sexual intercourse without consent, contrary to s 61J of the Crimes Act 1900 (NSW) (“the s 61J counts”); and

2. one count of indecent assault, contrary to s 61L of the Crimes Act (“the s 61L count”).

7. The following summary of the index offending adopts the summary provided by Johnson J in Currie v R [2013] NSWCCA 267 at [16]-[34].

1. On 23 September 2005, the victim travelled to Byron Bay to celebrate her birthday. She met the defendant who was 42 years old at the time. He offered her a lift to Sydney for $60. The victim accepted and they left that evening.

2. After driving for approximately 40 minutes, they stopped and shared a joint. The defendant then drove to a remote property under the guise he was taking a shortcut. The defendant told the victim he wanted “to make love” to her, to which the victim responded that she was not interested. The defendant responded, “we can do this the easy way or we can do it the hard way”. A struggle ensued as the victim attempted to get out of the vehicle. The defendant put a knife to the victim’s neck. The victim told the defendant she would do “whatever” if he put the knife away, which he did.

3. The defendant then exposed his penis and asked the victim to give him “a blow job”. He forced the victim’s head onto his groin and forced his penis into her mouth causing her to retch (the first s 61J count).

4. The defendant pulled up the victim’s shirt and sucked her breasts (the s 61L count).

5. He then pulled down her pants and placed his penis into her vagina. He continued to have sexual intercourse with her until he ejaculated (the second s 61J count).

6. The defendant returned to his vehicle and said, now that he had what he wanted from her they would continue driving. He then drove for some time before stopping to get some “weed”.

7. Once she arrived in Sydney, the victim reported the matter to the police. The defendant was arrested in relation to these offences on 27 July 2006 and was granted conditional bail.

8. On 29 August 2008, following a trial at which the defendant pleaded not guilty, the defendant was sentenced to concurrent terms of imprisonment for the
   s 61J counts comprising of an overall sentence of 13 years 4 months, with a non-parole period of 10 years. On the s 61L count, the defendant was sentenced to a fixed term of imprisonment of 18 months, which sentence was subsumed in the sentences of the s 61J counts.

STATUTORY SCHEME

Objects

9. The Act’s primary object is ensuring the safety and protection of the community in relation to high risk offenders: s 3(1). Another object of the Act is to encourage, inter alia, high risk offenders to undertake rehabilitation. The safety of the community “must be the paramount consideration” when determining an extended supervision order application: s 9(2).

Preconditions

10. Section 5B of the Act is in the following terms:

5B Making of extended supervision orders—unacceptable risk

The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if:

(a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and

(b) the person is a supervised offender (within the meaning of section 5I), and

(c) an application for the order is made in accordance with section 5I, and

(d) the Supreme Court is 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.

11. I accept the position of the parties that the first three preconditions (s 5B(a)-(c) above) were met in the present matter. In particular, the defendant is a “supervised offender” set out in s 5I(2)(a)(i), because for an offence of aggravated sexual assault contrary to s 61J(1) of the Crimes Act; the offender served a term of imprisonment comprising a non-parole period of 10 years expiring 12 November 2017. The total term of this sentence was 13 years 4 months’ imprisonment and the sentence expired on 12 March 2021.

Interim Orders

12. On 5 March 2021, the matter was listed for preliminary hearing before
    Davies J. His Honour made orders that the defendant be the subject of an interim supervision order from 12 March 2021 for a period of 28 days pursuant to ss 10A and 10C(1) of the Act; and that, pursuant to s 11 of the Act, for the period of the interim supervision order, the defendant is to comply with the conditions in the Schedule attached to the amended summons. The order was extended twice by Bellew J and once by the Court as presently constituted. It remains operational at the time of the publishing of this judgement and will expire on 12 June 2021.

13. The defendant has been compliant with the conditions of the interim supervision order.

Section 5B(d)

14. The unacceptable risk requirement in s 5B(d) essentially replicates the repealed definitions of “high risk violent offender” and “high risk sex offender” as existed prior to the 6 December 2017 amendment: Crimes (High Risk Offenders) Amendment Act 2017 (NSW). The authorities applicable before the amendments continue to be relevant (see State of New South Wales v Thurston [2018] NSWSC 421 at [116]-[117] (per Garling J); and, more generally, State of New South Wales v TT (Preliminary) [2017] NSWSC 1797 at [56]-[60]).

15. As to those principles, I adopt the statement of principles in State of New South Wales v Dillon (Final) [2018] NSWSC 1626 at [20]-[39] (see also, State of New South Wales v French (Final) [2017] NSWSC 1475 (“French”) (at [43]-[54])). By way of emphasis or elaboration, some further observations may be made.

16. First, there may be instances when a person is held to pose an unacceptable risk, even if the likelihood of them committing a further serious offence is low, such as when a low risk of recidivism is balanced against the likely “drastic” consequences to a victim if particular offending occurs (see State of New South Wales v Kamm (Final) [2016] NSWSC 1 (“Kamm”) at [41] and [43] (per Harrison J)).

17. Secondly, I accept the passage of the judgment of Adams J in State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 at [127]-[128], adopting the observations of Harrison J in State of New South Wales v Pacey [2015] NSWSC 1983 (“Pacey”) and Wilson J in State of New South Wales v Simcock (Final) [2016] NSWSC 1805, as follows:

[127] In considering the question of whether the defendant poses an “unacceptable risk” of committing a “serious sex offence” if he is not kept under supervision, I give the words “unacceptable risk their ordinary meaning. I also have regard to the observations of Harrison J concerning the question of “unacceptable risk” in State of New South Wales v Pacey at [43] as follows:

“It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable.”

[128] Similarly, Wilson J observed in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71]) that, “Unacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate.”

18. Reference may also be made to the discussion of the test under s 5B(d) in State of New South Wales v Ceissman [2018] NSWSC 508 at [26] as follows:

[26] It is further necessary for the Court to deal with the construction of the term, “unacceptable risk”, within the context of the HRO Act. Ordinarily, a risk is the possibility, chance or likelihood of “harm, hazard or loss”. In many areas of the law, risk assessments are undertaken that identify and evaluate an injury that may be sustained as a result of a possible (and usually foreseeable) occurrence. In assessing a risk and whether it is unacceptable, there is a matrix of considerations that are required to be taken into account. First, there is the probability that the risk will manifest. Secondly, there is the seriousness of the harm that will ensue if the risk were to manifest.

19. I also refer to the judgment of Harrison J in Pacey (at [53]):

[53] It goes without saying that the safety of the community is a matter of great importance both generally and as a central theme in the inspiration for, and implementation of, applications such as the present. That does not however equate either to an indication by the legislature or to a necessary acceptance by me that offenders who have in all relevant respects served their sentences and become entitled to be released on parole should be made subject to supervision orders simply because their release is associated with some risk. Indeed, rates of recidivism indicate that a high percentage of offenders who are released into the community are by definition at some risk of reoffending. In contrast to the general prison population, what the Act makes abundantly clear is that only those offenders who are at risk of reoffending in a particular way are to be subjected to the prospect of continuing or extended supervision following their release.

20. Finally, the evaluation of unacceptable risk involves consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate. Thus, unacceptable risk involves a consideration of the type and nature of offences that may be committed absent supervision and balancing those factors. That assessment must be absent the existence of “protective measures”: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (“Lynn”) at [126].

21. In Rigby at [41]-[42], Rothman J dealt with the construction of the phrase “if not kept under supervision under the order” and Basten JA’s construction of the test vis-à-vis unacceptable risk in Lynn at [126]. The relevant passages are extracted below (Rigby at [41]-[42]):

[41] His Honour refers to that assessment as having to be based “on an absence of protective measures”. But the assessment of the unacceptability of the risk is an assessment of the risk posed by the defendant, if an ESO (or, at an earlier stage, an ISO) were not to issue. The Court is entitled, if not required, to take into account that which would be applicable in the absence of an ISO or ESO.

[42] To use an example that the Court as presently constituted utilised on an earlier occasion: if there were legislation which validly required all offenders, who had committed a crime of the kind committed by the defendant in these proceedings, to be handcuffed to a police officer at all times, once they had been released into the community, then that circumstance would inform the necessity for an ESO or ISO otherwise to apply. The assessment is necessarily to be made on the basis that no ISO, nor ESO, governs the conduct or activity of the defendant. However, other regimes applying independently of the Act are factors to be considered in determining whether an offender or defendant represents an unacceptable risk, as well as when it comes to the point of an exercise of discretion as to whether to make or not to make the order.

[Footnotes omitted. Emphasis added.]

(See also Richardson at [73] (per Rothman J)).

22. I agree with his Honour’s analysis of the provision in that respect.

FINDINGS OF FACT AND CONCLUSIONS AS TO FACTORS IN S 9(3)

Evidence Before the Court

23. The Court received in evidence a substantial amount of documentary material pursuant to s 25 of the Act. This included, inter alia, the following:

1. reports and records produced by Corrective Services NSW (“CSNSW”), including the Risk Management Report (“RMR”) dated 2 September 2020, prepared by Ms Shantelle Hodgkinson, Community Corrections Officer in the Extended Supervision Order Team of CSNSW and endorsed by Ms Kelli Grabham, HRO Applications and Operational Governance Officer in the Extended Supervision Order Team for CSNSW.

2. reports from the court appointed experts:

1. Ms Carollyne Youssef, Forensic Psychologist, dated 19 April 2021; and

2. Dr Richard Furst, Consultant Forensic Psychiatrist, dated 24 April 2021;

3. a Risk Assessment Report (“RAR”) dated 17 July 2020, produced by Ms Mandy Lau, A/Senior Psychologist with the Serious Offenders Assessment Unit, Department of Communities and Justice, which report was supported by Ms Cherice Cieplucha, Psychologist with the Risk Management Programs, Department of Communities and Justice.

24. Both Dr Furst and Ms Youssef (collectively, “the court appointed experts”) were required for cross-examination. Their evidence was taken, by consent of the parties, concurrently.

25. In support of the present application, the State relied upon the following evidence:

1. affidavit of David Yang, affirmed on 19 November 2020 together with Exhibit DY-1, consisting of one volume comprising the State’s tender bundle in the proceedings;

2. affidavit of David Yang, affirmed on 3 May 2021; and

3. affidavits of Kelli Grabham affirmed on 21 December 2020, 3 May 2021 and 27 May 2021.

26. At the final hearing, the State tendered a redacted version of Ms Graham’s affidavit of 27 May 2021 (the passages were redacted by agreement of the parties).

27. The defendant relied upon the following evidence:

1. Affidavits of Vivian Marc Walsh affirmed on 11 February 2021 and 18 May 2021;

2. Affidavits of Kerrie George affirmed 15 February 2021 and 17 May 2021;

3. Affidavit of Reta Latimore affirmed on 17 May 2021;

4. Affidavit of Luke Downing affirmed 17 May 2021; and

5. Affidavit of Olivia Freeman affirmed on 23 February 2021.

28. The material relied upon by the parties was tendered without objection.

Personal Background

29. The defendant is a 57-year-old Aboriginal man who has a lengthy history of offending and limited exposure to community life. He was released to supervised parole on 11 December 2019 to the Nunyara Community Offender Support Program Centre (“COSP”), after spending approximately 11 years in custody.

29. The RAR notes that two generations in the defendant’s maternal family suffered early life trauma where they were removed from their homes and placed in institutions. The defendant’s grandmother was one of 16 siblings from the South-West Rocks Aboriginal Reserve, all of whom were removed and placed in institutions. His mother was also taken into care at the Cootamundra Girl’s Home but escaped when she was 11 years old and returned to the north coast. When she was 14 years old, she was sexually assaulted by the defendant’s father and gave birth to the defendant when she was 15 years of age. His parents separated when he was approximately nine months old. He has several stepsiblings from his parent’s other relationships, but he does not have contact with most of them.

30. The defendant’s childhood was marred by violence and early exposure to dysfunctional behaviour. He moved to Sydney with his mother and grew up believing his father forcibly removed him when he was three years old, resulting in him not having contact with his mother for many years. Recently, however, he has learnt that his mother in fact sent him away to his father in Queensland.

31. His father was reported to be violent and an uncontrollable alcoholic. He was cared for by members of his father’s extended family until he became a ward of the State when he was eight or nine years old. He was sexually abused repeatedly by workers at a Juvenile Justice Centre during his teenage years. He also reported that he was sexually abused by two priests at BoysTown Children’s Home (“BoysTown”).

32. The defendant met his wife in 1990 and they married in 1992. She was reported to have been a positive influence on his life. They had four children and he was generally reported to be a loving father, although he was noted to have the propensity to act violently when in a binge drinking pattern. The defendant reported that it was likely his wife feared him and referred to himself as a jealous partner. The defendant’s eldest daughter and son both committed suicide while he was in custody in November 2012 and November 2016.

33. The defendant reportedly graduated Grade 10 whilst in BoysTown and stated in 2008 that he could read reasonably well but did not write well. At a later stage, the defendant received training at the Australian Music Academy in Brisbane, but this was halted due to his incarceration. Psychometric testing was completed on 29 April 2019 and determined that the defendant did not present with any indications of intellectual disability or low cognitive functioning.

34. He has not had a significant employment history. He appears to have had an interest in music and supplemented his income from playing the didgeridoo and busking. He has also taught school students Aboriginal culture, gave talks to tourist groups, and has taken part in overseas tourist commercials where he played the didgeridoo. He was reputed to have a sound knowledge of Aboriginal culture, and to be a talented singer, dancer, and musician. The defendant is currently receiving the Disability Support Pension due to his mental health. He was residing in the Nunyara COSP until mid-May 2020 when he moved to a boarding house in Woolooware. On 11 September 2020, he relocated to Port Macquarie to be closer to his family. The defendant also has family who reside in Queensland.

35. On 31 March 2020, the defendant’s mother stated that she was not comfortable with the defendant residing with her as she did not want to take responsibility for “all of that” and that it was “all too much” as she was 72 years old. She was noted to lack an understanding of the defendant’s current and historical offending and his mental illness. She was described as appearing shocked when advised about his criminal history and stated that she was “completely unaware what he served a term of imprisonment for”. While the defendant has seen his mother since his relocation to Port Macquarie, he has stated he no longer wishes to see her as she got angry with him. The defendant has reported that his mother is suffering from dementia.

36. The defendant is currently supported through the NDIS. His current funding plan allows for 34.5 hours a week of direct support (increased from 27 hours). The defendant has a support worker, Mr Walsh, who attends five to six hours per weekday and assists him with exercise, cooking, leisure activities, and appointments.

37. In written submissions, and as earlier mentioned, counsel for the defendant conceded that, if the defendant were not receiving an appropriate therapeutic dose for his serious mental illness and was not receiving NDIS support, “he would pose an unacceptable risk of committing a further serious sex offence”. However, it was submitted that:

the defendant’s increased stability under his mental health treatment regime, his on-going compliance with that regime and the support he receives through the NDIS are relevant to the evaluation of the defendant’s risk of recidivating by the commission of a further serious sex offence.

39. That submission was supported with reference to the following recent authorities: State of New South Wales v Love [2020] NSWSC 165 at [133] (per Lonergan J), a case involving an offender with schizophrenia; Richardson at [72]-[105] (per Rothman J). Reference was also made to Attorney General for NSW v Peckham (Final) [2019] NSWSC 1775 at [100] (per Cavanagh J), although in the context of an extension of forensic status application, in that case the existence of an NDIS support package, was permitted to be taken into account in assessing “unacceptable risk”.

Substance Use

40. The defendant has a history of binge drinking and smoking marijuana. He is reported to have had a heavy dependence on marijuana and to a lesser extent alcohol, which he used to “help him relax and stay calm”. Mrs Currie reported to police that the defendant had assaulted her when he drank and that he could not control himself.

41. The defendant has previously acknowledged that his abuse of alcohol has led to him becoming more disinhibited and aggressive. However, he maintained that smoking marijuana did not cause him harm as it calmed him down. He had some ambivalence towards ceasing marijuana as he had a lengthy reliance on this drug. He reported that prior to his incarceration he was smoking around nine cones of cannabis daily. He stated that he had been abstinent whilst in custody but that he had never been abstinent whilst in the community.

42. The RAR noted that the defendant shared cannabis with his victims whilst socialising with them shortly before his offending. In respect of the relationship between his substance abuse, violence and reckless behaviour, the RAR observed that the defendant was intoxicated when he assaulted his wife in 1993 and he was under the influence of alcohol and illicit substances when he caused a traffic incident in 1986 while fleeing from police pursuit, which resulted in the death of another driver. He was also noted to have reported occasions where he used sex to cope and engaged in risky sexual behaviour when he was intoxicated.

43. The defendant has received counselling to address his substance abuse at various stages over the years. He told Ms Lau that he has been abstinent from drugs and alcohol since being convicted of the index offence and that the severity of his sentence motivated him to make positive changes. The defendant told Dr Elliott he did not believe he would relapse upon release as he no longer craves the drug and perceives it was one of the reasons for his offending.

44. Since leaving custody, upon being tested, the defendant has consistently returned nil and/or negative results:

1. OIMS Case Note Reports demonstrate that the defendant has been breath tested on a number of occasions since his release from custody, with each test returning a nil reading.

2. Random drug oral wipes administered on 5 February 2020 and 15 February 2021 returned a negative result for all drugs.

Mental Health Issues

Overview of Diagnoses

45. The defendant has received the following mental health diagnoses:

1. bipolar disorder in July 2004;

2. Dr Bruce Westmore provided a provisional diagnosis of schizoaffective disorder, with a likelihood of antisocial personality disorder, in 2008;

3. Dr Gordon Elliott diagnosed the defendant with chronic psychotic illness and chronic psychotic symptoms that appeared treatment resistant, following an assessment in 2018;

4. Dr Sunny Wade confirmed the defendant’s primary diagnosis is schizophrenia in 2019; and

5. Dr Furst diagnosed the defendant with Schizoaffective Disorder on 9 April 2021. He also considered that the defendant met criteria for the diagnosis of a substance use disorder in remission.

46. I will now turn to a summary of the defendant’s mental health difficulties between 2004 and 2021, save for the opinion of Dr Furst, which I will return to at a separate juncture.

Bipolar Disorder Diagnosis

47. The defendant was diagnosed with Bipolar Disorder in July 2004 and prescribed medication. He had two psychiatric admissions in 2004 and 2005 in the community. His symptoms were described as including an elevated mood, grandiosity, irritability and talking loudly. He was also noted to be psychically overactive, sleeping less, talking fast and had an increased desire for sex.

Community Treatment Order

48. Prior to the index offending, the defendant was reported to have stopped taking his medication in around August 2005 which appeared to have a noticeable impact on his behaviour and mental state.

49. Following an involuntary hospital admission in October 2005 he was discharged on a community treatment order (“CTO”). He was also scheduled under the MHA in 2007 because he was refusing treatment and believed his food was poisoned. During his incarceration, he spent time in the Long Bay Prison Hospital and in the Mental Health Screening Unit. He was noted to have a history of non-compliance with his medication both in custody and in the community.

50. The defendant is not presently subject to a CTO.

Assessment by Dr Westmore

51. Dr Westmore assessed the defendant on 7 August 2008 and prepared a report for the purposes of sentencing following the index offences. He provided a provisional diagnosis of schizoaffective disorder but noted that a bipolar disorder with psychotic symptoms needed to be considered. He also expressed the opinion there was a likelihood that the defendant also suffered from an antisocial personality disorder.

52. Dr Westmore stated the defendant had a “history of poor insight and poor compliance with medication”. He observed that the marijuana use occurring around the time of the index offences would have aggravated his mental state.

53. Dr Westmore stated that, while the defendant denied that he had a mental illness, he reported that there were “times when his thoughts got very fast” and that he gets “paranoid against a lot of things, ASIO following me”. The defendant reported hearing male voices which were internal and messages from the television and radio. He also reported an increase in his sex drive during periods when he was non-compliant with his mental health treatment. Dr Westmore stated:

Mr Currie requires long term psychiatric support and supervision and he should be on an extended community treatment order. He requires regular monitoring of his mental state and it is essential that he remain on antipsychotic medication.

Assessment by Dr Elliot

54. The defendant was assessed by Dr Elliott in August 2018. Dr Elliott stated that the defendant assertively told him that he believed he had a mental illness. He opined that the defendant had an unequivocal diagnosis of a chronic psychotic illness and chronic psychotic symptoms that appeared treatment resistant.

55. Dr Elliott observed that the defendant gave a convincing history of psychotic symptoms including that, when he is unwell, he received messages from the television that people are trying to kill him. He also stated that he heard voices threatening him or warning him that he is going to be harmed by white people. Dr Elliott noted:

Mr Currie admitted that he has frequently grown concerned that white people are trying to harm him. He said he believes this as a result of his voices and also because he believes he knows too much about culture and because he stands up for aboriginal rights. He said every few months he becomes worried for several days about being harmed by white people.

56. At the final hearing, whilst it was accepted that Dr Elliot had previously considered the defendant’s condition to be “treatment resistant” and the Dr Furst had cited those observations, the defendant’s present diagnosis is not considered treatment resistant.

Dr Wade – Treating Doctor at Correctional Centre

57. On 8 October 2019, the defendant’s treating doctor at the Long Bay Correctional Centre stated his mental state was relatively stable. Dr Wade noted that he continued to experience significant difficulties relating to planning, motivation, and organisational skills and this was unlikely to change over the long term. In her opinion, the defendant had a “severe and persistent mental illness that seriously impacts on his day to day functioning. This will be a lifelong illness that requires indefinite treatment”.

Risk Assessment Report

58. The defendant told Ms Lau that he had remained compliant with his psychiatric medication since his release. He did, however, admit that he continued to experience residual symptoms of auditory hallucinations but stated they were manageable whilst he remained on his treatment.

59. I will return to consider the RAR in further detail under the heading “Risk Assessment Report” (see below).

NDIS Support

60. Since 15 December 2020, the defendant was approved an NDIS package. That package was increased in May 2021. The defendant is receiving up to 37.5 hours per week support and, it was submitted by counsel for the defendant, will continue to receive this support, irrespective of whether an extended supervision order is made. That submission was supported by reference to the affidavits of Ms George affirmed on 17 May 2021 and Ms Freeman affirmed on 23 February 2021.

Criminal Offending

61. The defendant’s criminal record has been described by the Court of Criminal Appeal as “extensive”, dating back to 1976 when he was a child.

62. His offending continued into adulthood, with offences occurring almost every year that he was residing in the community. Despite being in and out of custody, the frequency and repetition of the defendant’s offending behaviour continued. This suggests that he was not responsive to sanctions.

63. The defendant’s criminal history primarily relates to property and violence offences; however, he has previous convictions for sexual offences prior to the index offending. The defendant’s record includes:

1. 8 counts of aggravated sexual intercourse without consent committed in 1994;

2. 47 break and enter, stealing, receiving or other property-related crimes;

3. 3 offences involving assault;

4. 41 driving or motor vehicle-related offences, including dangerous driving causing death for which a sentence of three years and nine months imprisonment was imposed in the Brisbane District Court in 1986; and

5. 8 drug related offences.

64. In October 1993, his wife reported an incident that occurred at a music festival where the defendant became violent after seeing her talking to a young male. The defendant’s wife stated that the defendant grabbed her by the hair and dragged her along the ground before kicking her several times in the head and upper chest area and punching her. She stated that he had assaulted her previously, but she had never reported it.

65. At the time of the index offending, the defendant was subject to conditional liberty, having been sentenced to a suspended term of imprisonment for 12 months on 21 February 2005 for driving whilst disqualified.

66. After being sentenced for the index offences on 29 August 2008, the defendant was sentenced on 16 October 2008 for two unrelated offences of aggravated break and enter and commit serious indictable offence. He was sentenced for the unrelated offences to an effective non-parole period of 3 years and 3 months commencing on 16 October 2008 and expiring on 15 January 2012, with a balance of term of nine months commencing on 16 January 2012 and expiring on 15 October 2012. These sentences were entirely subsumed by the sentences imposed for the index offences.

Sexual Offending

67. The defendant has a prior history of sexual offending which includes, as mentioned above, a conviction in 1994 of aggravated sexual intercourse for which he received a sentence of seven years imprisonment with a minimum term of 4 years (“the 1994 offences”). The State submitted there is a “striking similarity” between the defendant’s sexual offences suggesting a pattern of behaviour.

68. The following summary of offending incorporates the remarks on sentence of Viney DCJ on 16 March 1994.

69. On 14 January 1994, when the defendant was 31-years-old, he entered the 19-year-old victim’s flat in the early hours of the morning. He said he was there to meet an acquaintance of the victim. He shared some cannabis with the victim and then offered her money for sex which she declined. The victim told the defendant to leave but he grabbed a kitchen knife and forced her into the bedroom with the knife at her throat and told her not to make any noise. Despite the victim’s pleas to leave her alone, the defendant repeatedly assaulted her sexually by way of penile vaginal and anal intercourse, digital anal penetration, and fellatio. When the defendant fell asleep, the victim fled in a distressed state and made an immediate complaint to a neighbour.

70. He was charged with eight offences of sexual intercourse without consent. He pleaded not guilty to those charges and was found guilty following a trial in February 1995. The evidence was that the defendant was intoxicated at the time of the offending. His defence at trial was that the intercourse was consensual.

71. The defendant was sentenced by Viney DCJ on 16 March 1995 to a total effective sentence of 7 years’ imprisonment, comprising a non-parole period of 4 years and an additional term of 3 years. His Honour noted this was a very serious sexual assault upon a girl in her own home. He found that alcohol and the smoking of marijuana were “significant features” of the entire incident. His Honour had regard to a Pre-Sentence Report which stated:

He presents as an insecure and angry man who is deeply resentful of having experienced a disruptive upbringing. Indications are that he has a serious cannabis and alcohol dependency and he has been known to become aggressive and at times violent when intoxicated … it is felt that Mr Currie might benefit from a period of post custodial supervision to assist him reintegrate back into the community and address his drug and alcohol intake.

72. In sentencing the defendant, his Honour stated:

Clearly he will need a lengthy period of supervision in my view to make good on that rehabilitation, to adjust to a law abiding life after his emergence from prison and to ensure that he does make a positive and lasting rehabilitation in regard to his alcohol and drug problem. Clearly that is a problem that will have to be addressed at length in order for Mr Currie to reintegrate into society.

73. An appeal to the Court of Criminal Appeal against conviction and sentence was dismissed: R v Currie (Unreported, Court of Criminal Appeal, 31 October 1997). Smart J (Hunt CJ at CL and Bruce J agreeing) said:

The offence was a serious one involving uninvited entry to the complainant’s home in the early hours of the morning, threatening her with a knife and raping her. The judge said, correctly, that it was difficult to find any mitigating features in the objective facts. The judge found that alcohol and smoking marijuana were significant features of the entire incident. The judge accepted that the offence was one which was out of character for him. The appellant’s record does not entitle him to leniency.

The Acquittal of the 2000 Charge

74. On 13 January 2000, whilst on parole for the previous offence, the defendant was again charged with an offence of aggravated sexual assault (“the 2000 charge”). The defendant was released on parole on 12 May 1999 and the offence was alleged to have occurred between 20 and 22 December 1999. He was remanded in custody bail refused from 13 January 2000.

75. The defendant pleaded not guilty to this offence and was acquitted in relation to this charge but found guilty of an offence of sexual intercourse without consent. The circumstances in this case were similar to the earlier offences. The victim was living in Grafton with her three young children. She met the defendant on two separate occasions at her home in November 1999. On the second occasion, the defendant asked the victim to have sex with him, but she declined.

76. On 20 December, she was asleep with her three children on a mattress in the loungeroom. She was awoken as she was being dragged from the loungeroom into the hallway, with her eyes and mouth being covered by a person’s hand. She bit this person’s hand and he removed it from her mouth. She was then dragged into the bedroom and dropped on the floor. While the victim gave evidence that the offender had a knife, the jury by virtue of their verdict, were not satisfied of that fact beyond reasonable doubt. The victim gave evidence that she recognised the defendant as her attacker. She stated that she was forced to undress, and that penile sexual intercourse took place without her consent.

77. On 27 April 2001, Twigg DCJ stated the following when sentencing the defendant:

The victim was attacked in her home in a violent manner whilst she was there with her three children … the circumstances of his return to the premises show a degree of planning and consciousness of the offence that he was committing. He abused the victim’s body by forcing her to submit to intercourse in different ways for his own gratification.

78. The defendant was sentenced to 5 years’ imprisonment, however, five months into his sentence his conviction was quashed by the Court of Criminal Appeal and a retrial was ordered. Reasons for that decision were published at a later juncture: R v Currie [2002] NSWCCA 126. The appeal was successful on the basis of the way the statutory alternative was left to the jury by the trial judge resulting in unfairness. In his judgment Dowd J stated at [90]:

[90] In my view, cumulatively, of all the matters raised collectively as well as individually, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the offence of sexual intercourse without consent. For the reasons expressed above I do not have doubt as to the guilt of the appellant.

79. Following the retrial, the defendant was acquitted.

80. Whilst the defendant was not ultimately convicted of the 2000 charge, the Court has previously considered for the purposes of applications under the Act matters where the allegations of criminal offending did not result in convictions, subject to the weight to be afforded to it. In State of NSW v Tiggelen [2018] NSWSC 1399 Harrison J stated at [102]:

[102] … The Court can consider any alleged criminal conduct even if that conduct has not resulted in a conviction for any offence in the evaluative task under s. 5B(d): Attorney General for the State of New South Wales v Steadman [2016] NSWSC 174 at [27], [124] per Adamson J; State of New South Wales v Sleeman (Preliminary) [2018] NSWSC 562 at [14] per RA Hulme J.

(See also, French at [20]-[23] and [79]-[81]).

81. In State of New South Wales v Sleeman (Preliminary) [2018] NSWSC 562, R A Hulme J stated (at [14]):

[14] An issue arises in this case as to whether regard may be had to alleged criminal conduct of the defendant that did not result in conviction for any offence. Such material may be relevant, subject to the weight to be afforded to it, as evidence falling under the category of material described in s 9(3)(i) of the Act ("any other information that is available as to the likelihood that the offender will commit a further serious offence"). This was the approach taken by Adamson J in Attorney General for the State of New South Wales v Steadman [2016] NSWSC 174 at [27], [124]. It may also be relevant to "the safety of the community" (s 9(2) of the Act) which was the approach taken by Walton J in State of New South Wales v French (Final) [2017] NSWSC 1475 at [46] in relation to the former similar provision in s 9(3)(a).

82. In this instance, given the original conviction, and the remarks of Dowd J, the State submitted that the 2000 charge should be considered as part of the Court’s overall assessment of the defendant’s risk. I accept that submission. In my view, the evidence of the 2000 charge is only demonstrative of the risk of reoffending.

Behaviour in Custody

83. As to behaviour in custody, Ms Hodgkinson reported:

Perusal of CSNSW records indicated that during Mr Currie's most recent period of incarceration he received 10 institutional misconduct charges. Majority of these charges were considered minor and for failing to comply with directions. Mr Currie did have two charges in 2013 for fight or other physical combat and indecency however this behaviour would appear to be linked with a decline in his mental health at the time.

84. Ms Hodgkinson’s noted the defendant’s willingness to undertake the HISOP whilst in custody. I will return to her opinion of the defendant’s participation in that program under the heading “Treatment and Rehabilitation Programs”.

Parole

Prior to the Index Offending

85. The defendant was first supervised in the community in May 1994 when he was the subject of 12-month recognisances with probation supervision. He committed his first sexual offences whilst he was subject to this supervision.

86. Following the sexual offences in 1994, the defendant was released to parole on 12 May 1999. His period in the community was brief, however, with a breach report being submitted on 10 November 1999 due to re-offence. Records indicate that the defendant had been reporting satisfactorily and attempts were made for him to participate in a residential rehabilitation program. The defendant’s parole was revoked on 3 February 2000.

87. The defendant was released from custody on 27 February 2002 when his conviction was quashed. In 2005, he was sentenced to a suspended term of imprisonment for 12 months for a driving offence. It was under conditional liberty that he committed the index offences.

After the Index Offending

88. The defendant was first eligible for parole on 12 November 2017. On 3 October 2017, the defendant was refused parole by the State Parole Authority (NSW) on the following basis:

Reasons: Need to complete a program to address offending behaviour of sex offending, need for psychiatric report regarding discharge plan, need for structured post release plans and/or accommodation to be finalised, needs to participate in external leave program and Serious Offenders Review Council does not consider the release of the offender is appropriate.

89. The defendant completed the High Intensity Sex Offender Program (“HISOP”) on 8 May 2019. The defendant was granted parole in relation to the index offences on 26 November 2019 and released on 11 December 2019. On release to parole the defendant resided at the Nunyara COSP until 18 May 2020. Additional parole conditions were imposed that prohibited him from using prohibited drugs or substances, to attend Forensic Phycology Services (FPS), to comply with the directions of the mental health team, to submit a schedule of movements and to electronic monitoring.

90. In the RMR, as to performance on parole as at September 2020, Ms Hodgkinson reported:

… Mr Currie is subject to a supervised parole order with conditions including electronic monitoring and a weekly schedule of movements. Mr Currie is supported in the Community via NDIS support coordinators and attends his appointments in the company of a support worker.

Whilst Mr Currie's response to supervision has been considered satisfactory, he has been subject to breach action on his order since his release. Several Parole Notifications were submitted to the State Parole Authority due to Mr Currie deviating from his approved schedule. Mr Currie has been issued a verbal warning for these deviations.

91. The defendant moved to his current residence in Port Macquarie in 2020 and has been living in his own accommodation since that time.

92. The defendant’s parole period expired on 12 March 2021.

93. (I will return to consider both the HISOP Treatment Report and the RMR, in further detail below, when considering the response of CSNSW as to the management of the defendant in the community).

Progress on Parole

94. A progress report prepared in March 2020 noted that the defendant had attended all interviews as directed and appropriately engaged in intervention. He was reported to have been a compliant resident at the Nunyara COSP and had maintained compliance with his mental health treatment. He was referred to FPS and initially engaged with the service on 19 December 2019. His weekly attendance was confirmed, and he was noted to provide positive contributions to group discussions and has demonstrated insight into his offending. The defendant currently engages in individual counselling sessions through the Aboriginal Medical Service. He started seeing this counsellor in 2021 monthly.

95. On 23 March 2020, the defendant’s Alcohol and Other Drugs (“AOD”) counsellor confirmed that the defendant had been attending appointments on a weekly basis. He stated they had engaged in “deep discussions” regarding his drug use. He reported that the defendant had demonstrated insight by identifying cannabis use as his biggest risk. There appears to have been a period between 30 April 2020 and 2 July 2020 where the defendant lapsed in attendance. The defendant stated that he had been attending appointments via phone due to the pandemic, however, this was not confirmed by his counsellor. When the defendant resumed his appointments, his counsellor reported that no concerns were identified.

96. Ms Lau noted that since his release from custody, the defendant has engaged in some minor rule violations. In her opinion, the frequency and repetition of these behaviours suggests that the defendant continues to struggle with problem solving and impulse control. She observed that ongoing difficulties in these areas may increase his risk of further offending, particularly if his current support network collapses.

97. In relation to these violations, the defendant’s supervising officer noted that Community Corrections considers that he has been generally compliant with supervision and there were no significant concerns about his risk to the community.

98. Since the imposition of the interim supervision order the defendant has reported that he was “happy with how things were currently going and that he has no issues complying with the many conditions”.

99. In support of the defendant’s positive conduct in the community, the defendant relied upon the affidavit material of Mr Walsh, Kerrie George, Reta Latimore, Luke Downing and the letter from his current Community Corrections Officer (Annexure B to the affidavit of Mr Dean Fernandez sworn on 19 May 2021).

Sentencing Remarks

100. Black DCJ noted that, while the index offence involved some planning, it was also an offence of opportunity because it involved the defendant inveigling the victim into his vehicle and driving to a remote area. A significant part of the sentencing exercise was the determination of the extent to which the defendant’s mental illness should be taken into account. The Court had regard to the report of Dr Westmore who considered that the defendant was suffering to some degree from his mental illness at the time of the offending. His Honour found that while this was a relevant consideration, he could not be satisfied it was the trigger or cause of what happened.

101. The report of Dr Westmore observed:

I do note the existence of a previous sexual offence, which I am presuming at this time occurred in the absence of a hypomanic episode. If that is the case, then it reflects longer standing behavioural problems of a sexual offending type and those problems are likely to be multidetermined in their aetiology, including the presence of aggressive sexual urges and his inability to control them and issues arising from his personality.

102. Dr Westmore further noted:

Mr Currie has in the past demonstrated dangerous behaviour as reflected in his criminal history and the matters now before the court. He has had problems in the past with insight and compliance and while in a manic state, his risks to the community will increase.

Remarks of the Court of Criminal Appeal

103. On 14 October 2013, the Court of Criminal Appeal heard an appeal against the sentence imposed by Black DCJ. On 12 November 2013, the Court refused an application for an extension of time to appeal: Currie v R [2013] NSWCCA 267. Johnson J (with whom Hoeben CJ at CL and Bellew J agreed) noted that the offences were of “considerable objective gravity”. His Honour, relevantly, stated (at [74]-[79]):

[74] … The Applicant “inveigled” the victim, a younger woman whom he had just met, into travelling with him in a motor vehicle to a remote area. Although it may be accepted that the Applicant's judgment was affected to some extent by the onset of a mental illness, the condition did not impact upon his capacity to converse coherently and apparently reasonably with the victim and to drive a motor vehicle long distances for the purposes of conveying the victim to and from the scene of the sexual assaults.

…

[76] The Applicant took the victim to a remote location, a no doubt frightening scenario, where he threatened her at knifepoint and then sexually assaulted her in different ways. …

…

[78] There was, and continues to be, no expression by the Applicant of contrition or remorse for his grave offences against the victim.

[79] … The present offences were committed by the Applicant at a time when he was subject to a court order requiring good behaviour on his part and his offences constituted grave breaches of his conditional liberty.

104. Further, his Honour stated that since his incarceration the defendant had not always been compliant with his medication noting specific occasions in 2008, 2011 and September 2013. In this regard his Honour stated (at [88]):

[88] … Although some progress has been made, concern remains with respect to the risk of reoffending and protection of the community. The Applicant continues to lack insight into his sexual offending conduct, which has seen grave crimes of this type committed against separate victims in 1994 and 2005. The Applicant has expressed willingness to undertake a sex offender's program in custody. It is to be hoped that he is given this opportunity in the balance of his non-parole period.

Attitude towards offending

105. At various times the defendant has articulated conflicting views regarding his sexual offending. He is reported to have remained in denial of his offending for a significant period, claiming that the sexual activities with the victims were consensual.

106. During his sentence for the 1994 offences, the defendant was noted to initially be hostile towards the victim and was reported to attempt to “demean her”. Whilst his attitude seemed to shift it was noted by the psychologist to be in line with what would “be expected of him for parole presentation”. The report stated:

His current belief is that the offence was a result of the abuse of alcohol. This cognitive distortion is difficult to shift as he seems to be supported by other treatment providers. He believes as long as he remains abstinent he will not reoffend.

107. More recently, whilst receiving treatment in the HISOP, he was reported to have given a vastly different account of his 1994 offending. He stated that he met the victim at a nightclub and then offered the victim a lift home. He said they had both been drinking and went back to her residence to smoke cannabis. He stated they had consensual sex and he believed the victim called her boyfriend claiming to be raped as she did not want him to find out she was cheating.

108. In relation to the index offence, he reported that he found the victim attractive, but wanted to seek revenge for what happened to his ancestors. He was noted to have impulsively decided to take his anger out on the victim and reported that he told the victim he committed the assault “because that’s what your people did to my people”.

109. Ms Lau notes that during the interview for the RAR, the defendant expressed “patriarchal beliefs, such as men should be responsible for decision making in a relationship or family” and attributed these beliefs to be part of his cultural values. The RAR noted:

He described his wife to endorse more Westernised beliefs despite her Aboriginal heritage but stated that she developed those beliefs during their relationship. Mr Currie stated that at the time he assaulted his wife in 1993, she had been talking to other men at the festival that they were both attending. He stated that he felt disrespected by his wife as he believes that women who are in a relationship should not socialise with other men, particularly when their partner is not in close proximity.

110. The defendant reported to Ms Youssef that he pleaded not guilty to the sexual offences as he did not want to go to prison. He said that in relation to the first offence, he broke into the house with the intention to steal money but found the woman on her own and decided on the “spur of the moment” to rape her after they smoked marijuana together. In relation to the index offences he said he grabbed a knife and “just” raped her, noting it was another impulsive decision to offend.

REPORTS OF THE COURT APPOINTED EXPERTS

111. The court appointed experts unanimously opined that the defendant remains a risk of committing a further serious sexual offence. Both independent experts assessed the defendant as falling in the “Well Above Average” risk category for sexual reoffending.

Report of Ms Youssef dated 19 April 2021

112. Ms Youssef conducted an interview with the defendant on 6 April 2021.

113. Ms Youssef identified the particularly salient risk factors for the defendant as limited insight into other risk factors beyond mental health, poor general self-regulation, intimacy deficits, difficulties in relationships, deficits in sexual self-regulation and limited insight regarding internal processes. She noted that these risk factors were exacerbated by the defendant’s mental health, particularly when unmanaged and will require ongoing support given his chronic mental illness. In her opinion the defendant’s risk is likely to increase rapidly should he cease his medication. She described the defendant’s awareness of his risk factors as “rudimentary” and “limited only to managing his mental illness”. Ms Youssef opined that if the defendant were to reoffend it was likely to be “relatively opportunistic and impulsive, with the victim being someone be has recently become acquainted with or does not know” is alone or “someone he can isolate”. Further she stated:

The defendant may break and enter with the intention of stealing but take the opportunity to offend if he finds a lone female. The victim would be an adult female, most likely someone who appears to have an Anglo-Saxon ethnic background. The offence could occur in a private place such as a bedroom or within some other enclosed placed and be intrusive in nature (e.g., sexual touching, sexual intercourse). The defendant is likely to use a weapon, such as a knife to gain victim compliance, but is unlikely to use it to injure the victim provided there is victim compliance.

114. Ms Youssef noted that, while it was difficult to ascertain the exact impact of the defendant’s mental health on his offending behaviour, there was a general connection between a deterioration in his mental stability and his risk of reoffending. She stated:

… a deterioration in his mental stability, persecutory delusions, thoughts of raping ‘white’ women and impulsivity, places Mr Currie in situations whereby risk for reoffending is markedly increased, particularly if he has access to potential victims, in combination with other risk factors relevant to him such as substance abuse.

115. The defendant reported to Ms Youssef that, while the medication reduces the voices, he still hears them usually late at night when his is on his own. In relation to the “highs” he experienced in the past, he stated that these occurred every couple of years and would last approximately a month at a time. He said that, when he experienced these “highs”, he just wants to “break the law against white people, steal, rape white women”. The defendant reported to Ms Youssef that he consciously needs to “tell himself not to entertain these thoughts”.

116. Ms Youssef undertook the following assessments on the defendant:
     STATIC 99-R, Risk of Sexual Violence Protocol (“RSVP”), STABLE-2007 and Structured Assessment of Protective Factors for Violence Risk – Sexual Offence Version. As to those assessments, the following results are, relevantly, noted:

1. the defendant as a “Well Above Average” risk of sexual recidivism as measured on the STATIC-99R; and

2. the defendant’s dynamic risk factors using the RSVP and STABLE-2007 as highlighting significant outstanding dynamic risk factors.

117. Based on that risk assessment, Ms Yousef opined that the defendant does pose a risk of committing a further serious sex offence. She opined that
     “Mr Currie’s risk can be adequately managed in the community under an ESO and is likely to be best managed within a supportive multidisciplinary, staged approach aiming towards the reduction of restrictions and monitoring over a period of several years”.

118. Ms Youssef formed the opinion that the defendant met the DSM-V diagnostic criteria for Schizophrenia, Cannabis Use Disorder and Alcohol Use Disorder. She noted that although the defendant reported that he had not used cannabis since his arrest for the index offence, this appeared more a consequence of restricted access rather than of his own volition. Ms Youssef commented in her opinion the same was true in relation to abstinence from alcohol. She stated, “it is imperative that Mr Currie abstain from cannabis and alcohol use, considering their disinhibiting effect on Mr Currie’s behaviour”.

119. Ultimately Ms Youssef opined:

I believe Mr Currie’s risk can be adequately managed in the community under an extended supervision order and is likely to be best managed within a supportive and multidisciplinary, staged approach aiming towards the reduction of restrictions and monitoring over a period of several years.

120. In relation to specific case management strategies Ms Youssef noted:

Considering Mr Currie’s chronic mental health condition, adherence to his medication and ongoing consultation with medical and mental health staff monitoring and managing his condition and medication is imperative. Effective case management, inter-service transparency and regular communication between service providers (e.g., psychiatrists, mental health nurses, psychologists, NDIS providers) involved in Mr Currie’s case is essential for the effective management of his risk and for consistency. Inconsistent messages between service provides to Mr Currie is likely to confuse him and increase his stress, possibly increase the risk of his using maladaptive coping that may further increase his recidivism risk. Communication with Mr Currie needs to be clear, concise, and consistent, particularly given the various stakeholders that will be involved in his management.

121. Ms Youssef acknowledged that, whilst the defendant would have support via the NDIS package, the role of the NDIS services is to support his mental health, not specifically his offending behaviour, unlike the conditions of an extended supervision order. She also referred to the fact that the gains made in custodial treatment were somewhat limited and any further offence-specific treatment would ideally be delivered individually. She recommended engagement with a forensic psychologist in the community with expertise in working with sex offenders for ongoing psychological and reintegrative support.

122. Ms Youssef provided an extensive opinion as to a “desirable risk management plan” in the circumstances of the defendant:

101.6.2. A ‘risk management plan’ is recommended for Mr Currie to prepare for the trajectory of support if subject to an ESO, with the view to reduce external controls within a staged approach. Risk management can be a dynamic process and new information, developments or arrangements may occur at any given point, which requires a reassessment of a management plan. Risk management frameworks for managing offenders in the community and assisting them with reintegration emphasise the importance of individual (i.e., attitudes, appraisals, beliefs), situational (i.e., lifestyle, circumstances) and environmental (i.e., familial, social) factors on post-release behaviour (Shuker & Bates, 2014).

101.6.3. A management plan for Mr Currie should emphasise the importance of information sharing, including which service providers need to be informed and about what. The imposition of external controls and the risk-focused orientation of interventions and community management geared to the development of internal controls, may be important but they are not in themselves sufficient to support long term change. Desistance factors should be incorporated so approaches have a broader integrative strategy promoting social inclusion and the development of social capital and opportunities to expend it. Desistance research highlights the relational and psychological mechanisms involved in the process of giving up crime and lends support to some of the identified protective and promotive factors that can serve to mitigate negative influences, as mentioned in the SAPROF-SO. It is increasingly recognised that interventions for high-risk offenders, such as Mr Currie, should aim to strengthen and develop these protective and promotive factors alongside other measures to promote external and internal controls (Weaver, 2014).

101.6.4. It is recommended that Mr Currie be referred to a local community forensic psychologist who has expertise in working with those who have sexually offended. Mr Currie would likely be more transparent with someone from the community, and he would benefit from supportive therapy that can focus on his self-management, emotional regulation, and identity transformation as he (re)integrates into the community. Furthermore, the development of social and communication skills may improve Mr Currie’s opportunities to meet others and expand his social network. In interview Mr Currie expressed a willingness to see a community forensic psychologist for ongoing support, on an individual basis. This can be funded via his NDIS plan, given his offending behaviour is correlated with his mental health condition.

[Footnotes omitted.]

Report of Dr Furst dated 24 April 2021

123. Dr Furst assessed the defendant on 9 April 2021. In his opinion, as earlier mentioned, the defendant’s most likely diagnosis is one of “Schizoaffective Disorder”. He stated that the defendant also met criteria for the diagnosis of a substance use disorder in remission based upon his persistent history of cannabis and alcohol abuse.

124. Dr Furst stated that the relevance of the defendant’s mental illness in relation to risk is that he is “prone to elevated mood, grandiosity, racing thoughts and increased libido…increased sexual drive and promiscuity”. He also noted that it impacts on the capacity for self-control, and that “disinhibition, behavioural disturbance and poor judgement are also typical features of manic episodes”. In his opinion inadequate control of the defendant’s mental illness is associated with his future risk of serious offending.

125. Dr Furst also noted that the defendant has “a fairly low level of intellectual function…and evidence of cognitive slowing/affective blunting on mental state examination”, which he stated is relevant to the defendant’s capacity to learn from mistakes, make sound decisions/choices and avoid risky scenarios in the future. He observed that a low level of intellectual functioning is associated with higher rates of serious offending and an increased need for external controls and supervision.

126. Dr Furst commented on the early onset of the defendant’s sexual offending and its opportunistic nature leading to innumerable victim access. In his opinion, the risk of the defendant drinking, and smoking cannabis remains. He recommended that any alcohol and drug counselling should focus on relapse prevention.

127. Dr Furst assessed the defendant on the STATIC-99R as a 6, placing him in a group of offenders considered to be risk level II, which placed the defendant well above the risk of reoffending seen in the average male sex offender. He also assessed the defendant’s risk or reoffending in a sexual manner in the
     5-year period post release as well above 12%. During cross-examination,
     Dr Furst further opined that recent studies suggest that, when released, people tend to offend in the first year or two, rather than later on.

128. Ultimately Dr Furst opined the defendant:

…does not have sufficient insight, intelligence or independent living skills to manage his criminogenic risk factors, including his mental illness, risk of relapsing into substance abuse and his access to numerous potential victims in the community [adult female strangers, of which there are literally millions residing in NSW] without long-term structure, oversight, monitoring and tight supervision. Accordingly, the defendant cannot be managed safely in the community without an order being opposed and he required an extended supervision order (ESO) to do so adequately.

129. Dr Furst recommended the following treatment plan under an extended supervision order:

1. He is managed under a Community Treatment Order (CTO) through his local community mental health team, initially the Port Macquarie Community Mental Health Team, or delegated service.

2. He attends appointments with his case manager/care coordinator, as allocated, at a place and frequency as directed, most likely fortnightly in the first instance.

3. He attends appointments with his treating psychiatrist, as allocated, at a place and frequency as directed, most likely monthly in the first instance.

4. He attends upon his treating doctor at the Werin Aboriginal Corporation Medical Clinic, 14 Lake Road, Port Macquarie, or delegated service, for his general medical needs, prescriptions and specialist referrals.

5. He accepts psychotropic medication as directed by his treating psychiatrist, currently:

Seroquel (Quetiapine) 900mg daily in divided doses

Clopixol Depot (Zuclopenthixol Decanoate) 400mg injections each fortnight

N.B. may require medication given in depot [injectable form], depending on his level of compliance in the community, and/or a trial of Clozapine, as clinically indicated.

6. He accepts recommendations to engage in drug and alcohol counselling, as clinically indicated, most likely with the focus on relapse prevention through local drug and alcohol treatment services.

7. He accepts random but regular urine drug screens and breathalyser testing to ensure abstinence from alcohol and illicit drug use.

8. He engages in broader rehabilitation interventions, including referrals to non-government mental health support agencies and case management under the National Disability Insurance Scheme (NDIS).

9. He engages in psychoeducation and counselling in relation to his offending behaviour, coping skills and decision-making is probably also indicated.

130. During cross-examination, Dr Furst opined that “mental health” is only one of a multitude of factors relevant to the assessment of risk. As to the significance of mental health treatment, he opined it would only “marginally help”. Ms Youssef agreed with that opinion.

131. Additionally, as to the significance of the recent increase in hours on the defendant’s current NDIS support, namely, from 25 to 35 hours, Dr Furst opined that such an increase would not impact upon his assessment of risk. Whilst he accepted that he recommended the program under the proposed treatment plan, he described NDIS support as “indirect management of risk”. Both experts opined that the package will help manage mental health problems and assist with daily living, however, the impact in terms of the defendant’s risk of recidivism is “marginal”.

THE RESULTS OF ANY STATISTICAL OR OTHER ASSESSMENTS

Report of Dr Gordon Elliott dated 21 August 2018

132. Dr Elliott assessed the defendant on 15 August 2019. His report summarised the defendant’s mental state and his treatment whilst in custody. Dr Elliott noted that the defendant was likely to be institutionalised and that his release to the community would be a high-risk period for relapse. Dr Elliott recommended that should the defendant’s mental health deteriorate on release from custody he should be considered early for admission to a mental health facility. He noted that he should receive assertive and close follow up by a community mental team. Dr Elliott stated that it was essential that he comply with all prescribed medications, avoid all illicit substances, and submit to regular random urinary drug screening. He further recommended the defendant comply with broader rehabilitation interventions.

The HISOP Treatment Report by Janelle Holden 10 July 2019

133. A HISOP Treatment Report dated 10 July 2019 was produced by Janelle Holden.

134. The defendant was assessed using actuarial risk assessment tools during HISOP. His score on the STATIC-99R was 6, placing him in the Well Above Average risk category. His score on the STABLE-2007 was 15, suggesting a High density of criminogenic needs relative to other male sexual offenders.

135. The following dynamic risk factors were identified by Ms Holden:

1. general self-regulation;

2. cooperation with supervision;

3. intimacy deficits;

4. sexual self-regulation; and

5. significant social influences.

136. When combining the STABLE-2007 with the STATIC-99R to generate a composite assessment of risk/needs, the defendant was in the Well Above Average level of risk. On average, individuals within this category are estimated to have roughly three to four times the rate of recidivism compared to the average individual convicted of a sexually motivated offence.

RISK ASSESSMENT REPORT

137. Ms Lau interviewed the defendant for two hours on 3 July 2020. He was assessed as posing a “Well Above Average” risk for sexual offending, based upon actuarial measures.

138. On 20 January 2020, the defendant was assessed on the LSI-R, which provides an indication of a level of risk of general and violent recidivism within 12 months post-release. He was assessed as falling in the medium risk category for general and violent offending.

139. The defendant was assessed on the STATIC-99R on 12 September 2019 and received a score of 6. This placed him as being a well above average risk of sexual recidivism.

140. The defendant was assessed on the STABLE-2007 on 13 July 2020 as having a high density of criminogenic needs relative to other male sexual offenders. The risk areas of clinical concern most relevant to the defendant were general self-regulation and relationship skills deficit.

Criminogenic Needs

141. Based upon the actuarial assessments, Ms Lau identified the following dynamic risk factors, as potentially relevant when considering the defendant’s risk of reoffending (which were largely consistent with Ms Holden’s assessment):

1. General self-regulation:

1. Poor problem-solving and lack of planning were identified as significant risk factors. This was evident from his tendency to engage in avoidant coping strategies and making spur of the moment decisions in most aspects of his life.

2. It was also noted that during periods of poor mental health, his behaviour would become more erratic, increasing his likelihood of engaging in risky behaviour such as dangerous driving, substance abuse and engaging in sexual activities with strangers.

3. The defendant appears to experience an increase in thoughts about perceived harm from non-indigenous people when his mental health destabilises, and he can act in an aggressive or sexually aggressive manner to such perceived victimisation. For this reason, deterioration in his mental health can exacerbate this risk area.

2. Intimacy deficits:

1. The defendant has weak connections with others outside of his family. Despite a lengthy marriage, it appears that he has demonstrated limited capacity for relationship stability. He has also expressed other attitudes which were problematic and appeared suggestive of controlling behaviour.

2. Although he recognised some links between these unhelpful attitudes and the assault against his wife in 1993, he appeared to dismiss this as cultural differences rather than recognising his jealousy and accepting responsibility for controlling behaviour in his relationship.

3. Outside of the context of his relationship, the defendant also expressed hostility towards certain non-indigenous females. In relation to his sexual offending, he stated that he offended against the victims because they were white. He stated that at the time he justified his behaviour with historical injustice and mistreatment of Aboriginal people by white people and wanted to inflict similar treatment on a white person for retribution. The defendant claimed that all the victims of his offending, including both sexual and non-sexual offences, were white people and reported a lack of remorse for inflicting harm upon them.

3. Sexual self-regulation:

1. The defendant reported using sex to cope on some occasions.

2. He also admitted that he was more likely to engage in risky sexual behaviours, such as having sex with a stranger, when under the influence of substances.

3. Further, he was noted to behave erratically, engaging in high-risk behaviours, including becoming violent during poor periods of mental health. Although the defendant’s mental health appears to be stable currently and he has articulated his understanding of the importance of adhering to his mental health treatment, this remains an area that would require ongoing monitoring as deterioration in his mental health may directly impact on his sexual self-regulation.

4. Significant social influences: His relocation to Port Macquarie may impact on the level of professional support services he is able to access.

5. Cooperation with supervision: The defendant appears to have developed anti-authority attitudes, particularly towards authority figures who he perceived to be white, due to his family history and his personal experience in institutes and with law enforcement. These attitudes have contributed to a history of defiant behaviour in the community and in custody.

Protective Factors and Community Supports

142. The defendant has some extended family members who provide various levels of emotional assistance. In addition, the defendant has also established a network of professional supports including Aboriginal Medical Services and a NDIS service provider. These services have assisted him in maintaining abstinence, managing his mental health, and navigating challenges with practical issues.

Risk Scenarios & Overall Risk

143. Ms Lau noted that the defendant did not endorse any deviant, unusual or inappropriate sexual interest. She observed that, while a knife was used in his sexual offending, the primary function of his actions was to force compliance by the victim, and he was noted to move the weapon away from the victim upon the victim’s request once compliance had been demonstrated. Ms Lau stated:

His poor insight into his own behaviours also reinforced his belief that any negative consequences he experienced from others were a result of racial discrimination. During the periods when Mr Currie was mentally unwell, this theme of thoughts appears to have been particularly prominent. Whilst intoxicated or when his mental health has destabilised, he would also become less inhibited and more sexually preoccupied …The effects of his mental health deterioration, increased preoccupation with sex and cultural injustice, and the effects of substances appears to have been the precipitating factors to his sexual offending.

5. Reliance was also placed upon s 14 of the MHA, namely, the power to detain the defendant as an involuntary patient pursuant to s 14 of the MHA.

173. Turning to the MHA, the defendant submitted:

34. It is further submitted that the concept of ‘continuing condition’ used in s 14(2) MHA also has significance in the present case, whereby the defendant could be managed as an involuntary patient or under a CTO under s 14 MHA.

35. Section 14(2) MHA extends the power to detain a person as an involuntary patient, at a lower threshold, there being no requirement that the patient be exhibiting ongoing active symptoms of his mental illness. It introduces the concept of ‘continuing condition’ which means the defendant’s health does not need to completely deteriorate before he could be detained in a mental health facility.

UNACCEPTABLE RISK

174. The evaluation of unacceptable risk involves consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate. Thus, unacceptable risk involves a consideration of the type and nature of offences that may be committed absent supervision and balancing those factors. That assessment must be absent the existence of “protective measures”.

175. Having regard to the following factors, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an extended supervision order:

1. The defendant’s history of sexual offending. To date, he has engaged in a series of serious sexual assaults against different victims. His criminal history reveals a pattern of sexual offending against young women in a similar manner. The defendant has been unanimously assessed by the court appointed experts and Ms Lau as posing a “well above average risk” of future sexual offending. He has previously offended despite being subject to conditional liberty and supervision. This demonstrates that those measures were not sufficient mechanisms to manage his risk.

2. Both the HISOP Treatment Report and the RAR expressed concerns regarding the views held by the defendant in relation to women. The defendant is not presently in a relationship; however, this may become an issue were he to enter one in the near future.

3. The defendant has an extensive history of substance abuse issues and mental illness. Save for his most recent release into the community, the defendant has previously never achieved a period of abstinence in the community. Substance abuse has been linked to his offending behaviour as has non-compliance with his medication resulting in an increased desire for sex. Both experts identified the risks associated with the defendant relapsing.

4. The court appointed experts were in agreement as to the following:

1. the defendant poses a risk of committing a further serious sexual offence;

2. the significance of the risk of relapse, particularly in the context of safety to the community;

3. the defendant is highly institutionalised and has limited experience in living offence free in the community;

4. mental health management is only one means of assisting and helping the defendant, management of it alone will not address the risk posed by the defendant.

5. As discussed below, I do not consider the existence of measures or support under the NDIS package and MHA warrant any alternative conclusion, particularly in the light of expert opinion as to the limitations in mitigation of the relevant risk via mental health treatment and support under an NDIS package.

176. The opinions expressed by the court appointed experts and in the RAR were instrumental in reaching that conclusion.

IMPOSING AN EXTENDED SUPERVISION ORDER

177. In my view, on the evidence, the State has brought a compelling case for the making of an extended supervision order, in particular, over the mere continuance of the NDIS support package or possible implementation of measures under the MHA, for the following reasons:

1. Non-compliance with his mental health regime has been linked to serious sexual reoffending:

1. While the defendant appears to have made some progress in his reintegration and treatment to date, this is still in its early stages.

2. Ms Youssef observed that in her opinion, the defendant did not have any specific self-management methods or strategies in relation to how he would maintain his current stable state.

3. The defendant is yet to be significantly tested in the community and given the chronic nature of his offending coupled with his history of substance abuse and mental illness, he is vulnerable to relapse. Thus, absent supervision as to rehabilitation or mental health management, there is a risk that the defendant will relapse into substance abuse.

2. I accept the opinion of Dr Furst, that effective management of the defendant’s mental health issues only “marginally” addresses the risk posed.

3. Further, I accept both experts’ description of the NDIS support package as an “indirect” means of risk management, namely, in and of itself it is an insufficient means to address the objects of the defendant’s rehabilitation and concerns as to the safety of the community. In particular, in that respect, I have had regard to the opinion of
   Ms Youssef that “the role of the NDIS services is to support Mr Currie’s mental health, not specifically his offending behaviour, unlike the conditions of an ESO”.

178. In reaching that conclusion, I had regard to the opinions expressed by court appointed experts and Ms Lau. As well as the combination of factors referred to above, with respect to the finding of unacceptable risk. Those factors indicate that there is a risk of further sexual offending and that the gravity of the risk that eventuated is high and substantial.

DURATION

179. Both court appointed experts are of the opinion that the defendant will require monitoring for the foreseeable future and that an extended supervision order for a period of 5 years is reasonable. Ms Youssef recommended a duration of 4 years but noted the maximum period of 5 years would not be considered excessive. She stated:

… This period would allow sufficient time to put in place community measures and supports that will ideally lead to Mr Currie progressing through his reintegration and desistance process, bearing in mind that he has been in the community for over a year now. While Mr Currie will have support via the NDIS, the role of the NDIS services is to support Mr Currie’s mental health, not specifically his offending behaviour, unlike the conditions of an ESO. An ESO period of at least 4 years provides an opportunity for Mr Currie’s conditions to be gradually, but steadily reduced with an opportunity to be supported whilst under the order. Bearing in mind Mr Currie’s institutionalisation, this would also allow for a sufficient period of adjustment to community living, whilst simultaneously highlighting the importance of not continuing with restrictive or containment focussed strategies too long into his order, otherwise the risk of maintaining those controls will impact adversely on his reintegration, possibly reducing the chances of desistance. Furthermore, this takes into account Mr Currie’s historical survival time in the community and provides an opportunity for him to be monitored and supported in the first few years post-release which can be the highest risk period

180. Dr Furst noted that the defendant has multiple identified static and dynamic risk factors, including his risk of future serious offending. He stated the defendant:

[i]s unlikely to develop sufficient insight, intelligence or independent living skills to adequately manage his criminogenic risk factors, including his mental illness, risk of relapsing into substance abuse and his access to potential females in the community without long-term structure, oversight, monitoring and tight supervision. Accordingly, I am of the opinion that Mr Currie will require a long-term extended supervision order (ESO), probably of 5 years duration in the first instance.

181. As to duration, the State submitted the defendant’s history of unpredictable behaviour whilst mentally unstable, presents a significant risk to the safety of the community in those circumstances and, therefore, a longer period of intensive supervision and staged reintegration would assist in guarding against that risk.

182. Given the totality of the matters arising on the evidence before the Court, it was submitted, there is a real and unacceptable risk of the defendant committing another serious offence if not kept under supervision. Having regard to the paramount consideration of community safety, and the need to ensure the defendant’s reintegration both for the safety of the community and for his own rehabilitation, therefore, it would be appropriate that an order for 5 years be made under s 10(1A) of the Act.

183. Counsel for the defendant did not develop submissions as to the appropriate duration for an extended supervision order, if imposed, save for maintaining opposition to the order and placing reliance upon the need for ongoing mental health support vis-à-vis the NDIS support package and, if required, application of provisions under the MHA.

184. Whilst the defendant has demonstrated some progress in terms of his response to treatment and supervision over the course of his interim supervision order and NDIS support, in light of my findings as to the factors underpinning the risks I have found and the position adopted by both court appointed experts, a longer order should be imposed. Thus, I find that an extended supervision order of 5 years duration is required in order to appropriately address the risks of reoffending as well as encourage the defendant to continue to make positive steps with respect to rehabilitation.

Conclusion

185. The Court must exercise its discretion in this respect having regard to the objects of the Act (see s 3). On balance, in light of my reasons set out above, I consider the appropriate duration to be 5 years and particularly having regard to, in my view, the sound appraisal by the court appointed experts as to why a longer duration was available for both protective as well as rehabilitative reasons.

CONDITIONS

186. The Court of Appeal in Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 (“Wilde”) held that s 11 vests the Court with a “broad” discretion but one which must be exercised having regard to the scope and purpose of the Act and its objects (at [47]). As mentioned, the purpose and statutory objects are those specified in s 3 whilst the scope is that found in ss 9(3) and 11 (being non-exhaustive matters) (at [48]).

187. Although s 3(2) specifies the encouragement of offenders to undertake rehabilitation as an objective, it is permissible to impose conditions that are directed to “facilitating rehabilitation” even when they do not personally require an offender to “undertake” rehabilitative steps (at [49]).

188. The Court of Appeal further held at [53]-[54]:

[53] Care always needs to be taken with use of language which is different from the statutory text. Section 11 does not require that there must be a specific demonstrated link to the past offending which is the basis of the order made under the Act. Rather, 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.

[54] As the cases to which we have referred correctly state, it is not appropriate for the court under s 11 to impose conditions on a person directed to general future criminal conduct. But the condition does not have to have a ‘demonstrated’ link to the past offending in the sense submitted by the appellant. Conditions C(19) and E(30) provide a good example of conditions that may be appropriate notwithstanding that the past sex offences did not involve conduct of the type constrained by such conditions. Here, the appellant’s serious sex offences had no connection with any association with an Outlaw Motorcycle Gang. Nonetheless, for the reasons we explain below, at [69]-[70], there was no error in his Honour imposing conditions prohibiting the appellant’s association with such groups.

189. In Lynn, the Court of Appeal found that a balancing exercise is required so that the Court will impose the least intrusive conditions, consistent with its assessment of the risk posed by the defendant and a further assessment as to what conditions are likely to be effective with the interests of the defendant in liberty and privacy being properly treated as relevant considerations in ensuring that unjustifiable conditions are not imposed.

General Submissions

190. In written submissions, counsel for the defendant advanced the following submissions:

1. The potential consequences of making the extended supervision order are grave. The orders involve the substantial curtailment of a citizen’s liberty without conviction. Further, if the defendant fails to comply with the requirements of an extended supervision order in circumstances where his mental health stability may decline, he will be exposed to potential prosecution, conviction and a maximum penalty of imprisonment of 5 years and/or a fine of $55,000: s 12 of the Act.

2. The prospect of criminalising non-compliant conduct of the defendant, which may not otherwise amount to criminal conduct, is a factor relevant to the question of whether the power to order the extended supervision order should be exercised in the Court’s discretion (my earlier conclusion in that respect took into account this consideration).

191. It may be noted, during the course of concurrent evidence, both experts agreed that imprisonment for breach of an extended supervision order may have the consequence of hindering the defendant’s rehabilitation. However, Dr Furst qualified his answer stating that he could not categorically provide an opinion in the absence of knowing the exact condition breached.

192. The RMR described how the risk the defendant poses can be managed in the community via an extended supervision order with conditions. The State submitted the conditions are appropriate to address the defendant’s identified risk factors and, on this basis, there would be considerable utility to the conditions proposed.

Areas of Dispute

193. The areas of dispute with respect to conditions were clearly and helpfully delineated in documented titled “Comparative Table of Proposed Conditions”, save as to the position of the parities which was clarified or modified in oral submissions, in particular, with respect to condition 26(a). As to condition 26(a), an alternative was put forward by the defendant in oral submissions, namely, the deletion of words “or under the influence of”. which was agreed between the parties. I accept the appropriateness of that agreed position and the other agreed positions between the parties as to the proposed conditions.

194. The remaining disputed conditions concerned the following proposed conditions:

1. electronic monitoring – condition 4;

2. access to the internet and other electronic communications – Part I;

3. medical intervention – conditions 53 and 55-56.

Electronic monitoring

195. As to monitoring and supervision, generally, Ms Youssef opined:

Monitoring and supervision as part of an ESO is likely to be helpful in the early stages of the defendant’s reintegration, including assisting with ensuring abstinence from substance; however longer term, monitoring and restrictions should be gradually reduced to provide an opportunity, ideally under supervision, for the defendant to self-manage without the aid of electronic monitoring (EM) or traditional containment approaches. An ESO falls within a containment model of risk management and for an individual to be able to manage their own risk, there needs to be opportunities where they are required to manage their own ‘live risk’ by being exposed to the environment, situation and external factors that would otherwise be considered a high-risk situation. While a longer-term goal, the decision to reduce restrictions should ideally be made in consultation with other service providers. The overuse of exclusion zones and restrictions can be problematic, preventing employment/education and reducing access to supportive or family networks in the longer term (Weaver & Barry, 2014)

[Emphasis added].

196. During cross-examination, the experts have the following evidence in this respect:

GOODHAND: In terms of the electronic monitoring system, if you assume an ESO order were to be made, in terms of the necessity of having both scheduling and electronic monitoring, do you have a view in terms of the continuation of electronic monitoring at this juncture?

WITNESS YOUSSEF: I think I would look at electronic monitoring being normally how it normally is in terms of the first year or so, having electronic monitoring and then phasing that out. So I think schedules are helpful in terms of from a reintegrative perspective and having him schedule his time, but I think EM possibly should be present just until we have that initial period go through.

GOODHAND: And Dr Furst, do you have an opinion?

WITNESS FURST: I tend to agree with that.

[Emphasis added.]

197. Dr Furst also opined that in the future there may be scope for reducing supervision, however, that should be reviewed at the completion of any extended supervision order, in light of the then available data.

198. Counsel for the defendant submitted, in light of the expert evidence, in particular the concurrent evidence, if the Court was satisfied that an extended supervision order was required, “that scheduling continue but electronic monitoring be removed as a condition”. The defendant contended that conditions providing for a schedule of movements, which is agreed to by the defendant, “addresses any similar risk concerns that electronic monitoring would”.

199. In reply, counsel for the State submitted that electronic monitoring “is a tool that is used to monitor the defendant in order to protect the community and also to the extent protect himself and to promote his rehabilitation by assisting him and deterring him from engaging in risky behaviours, and acting impulsively which has been a factor relevant to his previous offending”. It was further contended that electronic monitoring would assist in monitoring whether or not the defendant is leaving his home in the evening when his support worker is not present with him.

200. Turning to issues of flexibility within the condition, in light of the evidence of the experts supportive of electronic monitoring being phased out, the State relied upon the words “as directed by a DSO” within condition 4 and the evidence of Ms Grabham, namely, her reference to the “stages of monitoring”. The combined effect of that evidence, it was submitted, is that “if a decision was made that the defendant had been sufficiently progressed through the stages of electronic monitoring, he would simply not be directed to have the electronic monitoring device being worn at that point in time”.

201. Counsel for the State was questioned as to why the Court should permit the DSO to have that discretion over the course of the duration of an extended supervision order, when the opinion of the experts is that it should not extend beyond 1 year. The following submission was advanced:

HIS HONOUR … Is there any basis on the evidence before the Court that would have be me acting contrary to that opinion.

CURRY: Your Honour, there is evidence before the Court that Mr Currie is prone to potential relapse. It may be that within that one year period everything is fine, the DSO is decides, and there has been the assessments done and the electronic monitoring is removed.

What the discretion allows is that if Mr Currie was to revert or regress or relapse, this is a condition that could then be or a direction that could be given pursuant to this condition to provide an added mechanism of supervision at a time when Mr Currie may very well need that due to a relapse into substance abuse, for example.

202. Notwithstanding the expert evidence supporting the provision of electronic monitoring for only 1 year, neither party advanced submissions as to the utility of a “sunset” provision. This Court had previous imposed sunset clauses, see example, State of New South Wales v Holloway (No 2) [2017] NSWSC 1517 (R A Hulme J) and State of NSW v Weribone [2016] NSWSC 1474 (Bellew J). This Court has also declined to include such a limitation (see for example, State of New South Wales v Farringdon [2018] NSWSC 874 (Button J); State of New South Wales v Golding (Final) [2018] NSWSC 1437 (R A Hulme J); State of New South Wales v Strudwick [2018] NSWSC 1798 (Button J); and State of New South Wales v TT (Final) [2018] NSWSC 358 (Johnson J).

203. In my view, in light of the defendant’s prior offending, the requirements that he be subject to electronic monitoring and provide a schedule of movements are warranted in the circumstances. However, having particular regard to the opinion of the court appointed experts, there must be a real question as to whether a sunset provision should be applied.

204. One approach to a sunset provision would be that under Part A, condition 4 would remain unchanged and a new condition 4A and 4B may be inserted, as follows:

4A. Upon the commencement of electronic monitoring under the ESO, if the defendant is not found guilty of any offence of breaching the ESO, or of any other criminal offence, for a period of 12 continuous months while in the community, the defendant is no longer required to wear the electronic monitoring equipment and condition 4 will cease to apply.

4B. If, upon electronic monitoring being removed, the defendant is found guilty of any offence of breaching the ESO, or of any other criminal offence, the DSO or any other person supervising the defendant is at liberty to reapply condition 4.

205. I have not heard the parties as to the appropriateness of a sunset provision and if no such provision were to be imposed ultimately what order should be made. Given the extremely limited time for the disposition of this matter, I shall provide the parties until no later than 10.00am tomorrow to file short written submissions (no longer than 1 page) as to the final disposition of the issue regarding this condition.

Access to the internet and other electronic communications

206. As to the suite of conditions appearing at Part I of the proposed schedule of conditions, Dr Furst opined:

Part I provisions in relation to the use of the Internet and other communication devices generally applies to people at risk of Internet- based offending, such as offences involving procuring/accessing child exploitation material, and/or people at risk of making contact with specific identified victims, including children, none of those areas being identified risks in relation to the defendant. He has no history of Internet-based offending. The same would apply to Part K for accessing pornographic material, as such restrictions would not appear to be relevant in relation to mitigating his future risk of reoffending.

207. During concurrent evidence, Dr Furst affirmed that opinion and was joined by Ms Youssef, that evidence is extracted below:

GOODHAND: … In your report you expressed a view about the additional conditions relating to internet and the DSO being able to be access the internet. Are you able to explain that opinion?

WITNESS FURST: Yes. I think my understanding of the risk factors and the particular risk, and certainly from the facts in the briefing documents, is that the victims were real people and not internet victims or child victims from pornography and that type of thing or grooming offences, so my concern is more about the potential for, say, a random stranger female adult being targeted when he is manic. I don't think that restricting the internet will negate that at all. In fact it could actually make it worse because having no access to internet might make him go out of the house more and put the community more at risk.

GOODHAND: Ms Youssef, do you agree with Dr Furst's opinion in that regard?

WITNESS YOUSSEF: Yes, I do.

[Emphasis added.]

208. In light of that expert evidence, counsel for the defendant contended that the conditions proposed in Part I “are not required in this case to manage the defendant's specific risk”. In the alternative, whilst maintaining disagreement with conditions 32-42 proposed, the defendant proposed an amended version of condition 32 (in lieu of the entirety of Part I):

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

209. Counsel for the State accepted the evidence of the experts and conceded that the suite of conditions that appear at Part I do not go to prior offending. However, notwithstanding that concession, it was submitted that those conditions provide an additional means of “scrutiny” by which the DSO may monitor the defendant and, thereby, the conditions go to the risk posed. It was contended that the conditions work as a “suite” or “package” which work together to achieve the following:

1. enable the DSO to monitor the defendant's contact with potentially antisocial influences or activities;

2. enable the DSO to scrutinise communications to determine, for example, if he is engaging in risky behaviour, risky communications, contacting potentially a female that he is starting a relationship with;

3. provide the DSO with “an important mechanism” to monitor for ongoing compliance with other conditions, for example, reviewing an internet search history might reveal that the defendant has been conducting searches that could provide a warning or some insight into some potentially risky behaviour or a decrease in his mental stability.

210. The State’s submissions, in this respect, incorporated the view expressed by Ms Grabham in her affidavit of 21 December 2021 at paras 79-80. Reliance was also placed upon Ms Grabham’s affidavit of 3 May 2021 at paras 11-12.

211. During the course of oral submissions, as to the perception that the position of the State was contrary to the expert evidence, counsel for the State submitted that the court appointed experts and Ms Grabham are “looking at it from a completely [different] perspective”. In particular, as to the perspective of Ms Grabham, it was submitted:

What is supporting Ms Grabham's affidavit is this alternative way in which the conditions are relevant to risk and relevant to managing the risk and other conditions that the defendant is subject to. So I would not say it is contrary or in contrast to, I would say it is approaching the questions in a different angle.

212. In response to why the Court would not readily adopt the alternative condition proposed by the defendant, the State relied upon the effectiveness of Part I conditions (in other cases) working as a package. It was submitted:

CURRY: … when in the past attempts have be made to, I guess, tinker with these conditions or rewrite these conditions, what has been found is that certain elements have been left out or are not reflected, and therefore that is why I made the submission that they do work as a suite.

213. Whilst there need not be a demonstrated link to past offending, in my view, it would be inappropriate in the circumstances of the defendant, in particular having regard to the circumstances giving rise to his risk of reoffending, to impose the suite of conditions proposed by the State. As identified by Dr Furst the imposition of the full suite of conditions may “make it worse because having no access to internet might make him go out of the house more and put the community more at risk”. That said, having regard to the evidence of Ms Grabham, in my view, the defendant’s alternative condition 32, provides the DSO with sufficient scope to adequately manage risks that may arise in the course of supervision. The object of the Act, in my view, is more closely pursued with the imposition of a refined condition that is appropriately tailored to the risk and circumstances of the defendant.

Medical intervention

214. Dr Furst opined:

The provisions under Part M are both reasonable and necessary in relation to the defendant’s mental health, psychiatric and psychological needs, in accordance with the recommendations outlined in answer to question 6(a) above.

(it may be noted that the “answer to question 6(a)” is a reference to Dr Furst’s recommended treatment plan, which was extracted in the earlier summary of his expert report).

215. During concurrent evidence, both experts gave evidence as to the importance of conditions allowing for the sharing of information. That evidence is extracted below:

WITNESS YOUSSEF: I think it would depend on what information is being relayed or shared between the service providers, so I think information pertaining to, say, offending and whatnot if it is not deemed as necessarily relevant to the service providers that may be problematic, but in terms of management of mental health I think that's essential for effective management.

GOODHAND: Dr Furst, do you have an opinion?

WITNESS FURST: I would think the more transfer of information the better in this case and in most cases with the kind of risk issues involved. One reason relates to the possibility of relapse into mania, for example. So if someone becomes elevated it may not be apparent to a non trained person that that person is becoming unwell, but if there are exchanges of information then it is more likely that someone will pick it up early and have hospital treatment or medication treatment earlier on, rather than relying on the defendant to flag that he is unwell.

GOODHAND: Do you think that is something that could adequately be done between the DSO and the health care providers?

WITNESS FURST: I just think there is more likelihood of it being adequately done if there is a free exchange of information. I don't see any need for secrecy in this case.

…

WITNESS FURST: … I think clause 56 is worthwhile because there may be the need for police to be involved or corrective services to be aware. I honestly don't think that there is any merit in restricting the exchange of information whatsoever in this case.

GOODHAND: Ms Youssef, do you have a view in that regard?

WITNESS YOUSSEF: No, I would concur with what Dr Furst is saying in terms of, yeah. It is important to manage risk if there is something coming up, so even if Mr Currie is unwell or becoming manic it may be necessary for the New South Wales Police to be aware of that.

216. Turning to the conditions under Part M, counsel for the defendant advanced the following submissions:

1. As to condition 53, it was submitted that is has the effect of criminalising the defendant’s conduct of not taking medication, in an instance of breach, which “is a step too far”. It was contended that condition 54 “would suffice insofar as if the defendant ceased taking medication he would be obliged to notify his DSO, and then the mental health regime could pick up on that in conjunction with the DSO, adequately manage that risk, i.e. by him being arrested or escorted with an ambulance under the Mental Health Act”.

2. As to conditions 55-56, whist noting that both experts were in agreement as to the “helpful” nature of the conditions, counsel for the defendant contended they were “quite invasive”: State of NSW v Hardy [2021] NSWSC 323 at [48]. The primary position of the defendant, in that respect, is that both condition 55-56 go “too far” and are “unnecessary”. However, in the alternative, it was submitted that condition 55 would be adequate.

217. In reply, the State submitted:

1. As to condition 53, it is a “vital” condition, particularly in the light of the evidence before the Court as to the defendant’s “previous offending whilst not taking medication, and the way his mental health is linked to his risk”.

2. As to condition 55-56, reliance was placed upon the “emphatic” opinion of Dr Furst. Additionally, as to the extended scope of condition 56, reference was made to the defendant’s relocation to the regional areas of Port Macquarie and, the fact, that “other people from New South Wales Police Force or Corrective Services New South Wales are needed to assist in regional areas”. That is, the defendant will not only be supervised by the DSO.

3. As to the “sharing of information” condition, the State also relied upon the evidence of Ms Grabham in her affidavit of 27 May 2021 at paras 24-27, which sets out “the way in which there is a discretion that in breach action, and the way, that the views of the actual DSO and the ESO teams are taken into account”. Whilst “prosecution” is one potential outcome, it was submitted that not every breach would necessarily result in a prosecution. For example, the DSO has the discretion to give warnings and/or further directions.

218. In my view, the conditions as proposed by the State as to these conditions are necessary in all the circumstances to address the risk posed by the defendant. In reaching that view I have had particular regard to the opinion of the court appointed experts, who reached a joint position at the time of concurrent evidence, which included an emphatic stance as to the importance of not limiting the sharing information in order to mitigate and manage the risks posed by the defendant. The balance of Part M was also identified as a necessary part of effective mental health management.

219. The conditions proposed by the State as to conditions 53 and 55-56 should be imposed.

CONCLUSION

220. For the reasons set out in this judgement, 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. The precondition in s 5B(d) of the Act is satisfied.

221. It is appropriate for the Court to make, in the circumstances and in the exercise of its discretion, an extended supervision order. That order shall operate for a period of 5 years upon the conditions found appropriate by the Court in this judgment, subject to the receipt of further short submissions by the parties as to proposed condition 4.

DIRECTION

222. The parties shall file and serve any further submissions as to condition 4 by 10.00am on Friday, 11 June 2021.

223. Upon receipt of those submissions, the Court shall provide to the parties the ruling of the Court as to that condition without further reasons for judgment (unless reasons are requested by the parties).

224. Upon the receipt of that ruling, the State shall bring in short minutes of order reflecting this judgment and the Court’s ruling.

225. In the event the parties reach an agreement as to the proper approach to condition 4 then that agreement shall be communicated to the Court by 10.00am on Friday, 11 June 2021, together with short minutes of order reflecting this judgment and that agreement. If appropriate, the Court will make orders in the terms proposed.

**********

Decision last updated: 11 June 2021