State of New South Wales v De Vries (Final)

[2022] NSWSC 247

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v De Vries (Final) [2022] NSWSC 247

Hearing dates:

28 October and 24 November 2021, 7 March 2022

Date of orders:

28 October 2021 and 7 March 2022

Decision date:

11 March 2022

Jurisdiction:

Common Law

Before:

Wright J

Decision:

(1)   On 28 October 2021:

(a) An order pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) that the defendant be subject to an extended supervision order (‘the extended supervision order’) for a period of three years from the date of the order; and

(b) An order pursuant to s 11 of the Act, directing that the defendant, for the period of the extended supervision order, comply with the conditions in the terms set out in paragraphs 1-4 and 8-51 of the conditions annexed to the amended summons.

(2)   On 7 March 2022, an order that the conditions imposed by order 1(b) made on 28 October 2021 be varied from 7 March 2022 so as to read as set out in the conditions in the schedule attached to this judgment.

Catchwords:

HIGH RISK OFFENDERS – extended supervision order – conditions – content of conditions to reflect First Nations cultural heritage and understanding of the person to whom the conditions apply – form of conditions to reflect cognitive needs of person to whom the conditions apply – use of simplified language and visual cues

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 5B, 5D, 5H, 5I, 6, 7, 9, 10 and 11

Cases Cited:

State of New South Wales v Devries (Preliminary) [2021] NSWSC 949

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Glen Roy John De Vries (Defendant

Representation:

Counsel:
S Love (Plaintiff)
E Sullivan (Defendant)

Solicitors:
Crown Solicitor of New South Wales (Plaintiff)
Legal Aid Commission of New South Wales (Defendant)

File Number(s):

2021/169062

Judgment

The application and the course of the proceedings

1. By a summons filed on 11 June 2021, the plaintiff, the State of New South Wales, sought an extended supervision order (ESO) under the Crimes (High Risk Offenders) Act 2006 (NSW) (CHRO Act) in respect of the defendant, Mr Glen Devries, as well as interim orders pending the final determination of the matter.

2. A preliminary hearing took place on 27 July 2021. On 2 August 2021, R A Hulme J made the following orders:

“(1) Two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) as agreed by the parties are to conduct separate psychiatric and/or psychological examinations of the defendant and are to furnish reports to the Court on the results of those examinations by a date agreed by the parties.

(2) The defendant is directed to attend those examinations.

(3) The defendant is to be subject to an interim supervision order from midnight on 4 August 2021 for a period of 28 days.

(4) The defendant is directed to comply with the conditions of the interim supervision order for the period of that order, the conditions being based upon the defendant’s current conditions of parole in a form to be settled by the parties.

(5) Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), there is to be no publication of any information disclosed in this proceeding pertaining to offences committed by the defendant when he was under the age of 18 years. Such order is made on the ground in s 8(1)(e) of that Act; is to apply throughout the Commonwealth of Australia; and is to remain in force for five years.”

3. His Honour’s reasons for making these orders are to be found in State of New South Wales v Devries (Preliminary) [2021] NSWSC 949.

4. The interim supervision order (ISO) was extended on a number of occasions with the result that it was due to expire at midnight at the end of 4 November 2021.

5. In accordance with the orders of R A Hulme J, the defendant was examined by Ms Thea Gumbert, psychologist, on 31 August 2021 and by Dr Calum Smith, forensic psychiatrist, on 3 and 13 September 2021. Each of those experts provided a report and a supplementary report on the defendant. It can also be noted here that the defendant provided a report of Dr Sally McSwiggan, neuropsychologist, which dealt principally with the form of the conditions which would be most appropriate for the defendant given his cognitive condition and his ability to understand, recall and comply with the proposed conditions.

6. The matter came on for final hearing before me on 28 October 2021. On that day, the plaintiff filed, by leave, an amended summons which sought essentially the same relief but with revised conditions proposed for inclusion in the ESO that was sought. These revised conditions were prepared with the considerable benefit of Dr McSwiggan’s observations and comments and reflected a commendable level of interaction and consultation on the part of both the plaintiff and the defendant and their legal representatives.

7. One or two days prior to the hearing on 28 October 2021 and on the day of the hearing itself, the parties filed and served a number of new or updated expert’s reports and affidavits. In particular, the defendant filed on the morning of the hearing an expert report dated 27 October 2021 from Aunty Glendra Stubbs, an Aboriginal woman of the Wiradjuri People of New South Wales with long experience in issues affecting the wellbeing of Aboriginal people. As I was informed, this was the first occasion when such a report has been put in evidence before the Court in relation to the conditions to be included in an extended supervision order sought to be imposed on an Aboriginal person under the CHRO Act.

8. On my initial reading of Aunty Glendra’s report, it included significant information and insights into the types of conditions that might be appropriate and inappropriate for an Aboriginal person such as the defendant and the support and management that might assist him to comply with any conditions imposed. In section 9 of her report, Aunty Glendra wrote in relation to the conditions that might be imposed as part of an ESO as follows:

“My knowledge, skills and long experience with First Nations family and community life tell me that the best way forward for this matter, in terms of meeting the dual aims of re-connection, and protection of the community, would be for it be deferred long enough for a management plan as outlined in Section 8 above to be developed.”

9. This and related matters could not be properly considered if the parties were not given a sufficient opportunity to review Aunty Glendra’s report and the other more recent material and to attempt to develop appropriate conditions which might be included in an ESO and a plan to provide support for the defendant to comply with those conditions.

10. The defendant did not contend that the preconditions for the making of an ESO were not satisfied in this case or that an ESO was not appropriate in the circumstances. On the basis of the evidence admitted as at 28 October 2021, I was satisfied that the statutory requirements had been met and an ESO should be made.

11. Nonetheless, it appeared to me that the final form of any conditions to be included in the ESO and its duration should not be determined until after the parties had a sufficient opportunity to consider Aunty Glendra’s report and the other more recent material and to attempt to develop appropriate conditions which might be included in the ESO in light of that report and material. In the interim, the parties were content for conditions 1 to 4 and 8 to 51 in the form annexed to the amended summons to be included in the ESO and for it to be made for 3 years. Having regard to all of these matters, I made the following orders and directions on 28 October 2021:

“1.   An order:

a. Pursuant to ss.5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) that the defendant be subject to an extended supervision order (‘the extended supervision order’) for a period of three years from the date of the order; and

b. Pursuant to s.11 of the Act, directing that the defendant, for the period of the extended supervision order, comply with the conditions set out in paragraphs 1-4 and 8-51 of the Schedule to these orders [which were in the same terms as conditions 1 to 4 and 8 to 51 in the conditions annexed to the amended summons].

2.   Grant leave to the parties to apply to vary the duration or the conditions applicable in respect of the extended supervision order by notice of motion filed and served on or before 15 November 2021.

3.   Any party seeking to vary the duration or conditions is to file and serve any evidence on which he or it relies on or before 15 November 2021.

4.   Any evidence in reply is to be filed and served on or before 19 November 2021.

5.   Any notice of motion filed under order 2 of these orders is listed for hearing on 24 November 2021.”

12. On 11 November 2021, with the consent of the parties, the Court amended the times for compliance with the orders so as to allow time for proper consultation involving Aunty Glendra Stubbs and other support persons.

13. On 18 November 2021, the plaintiff filed a notice of motion in effect seeking to have changes made to the conditions with which the defendant was directed to comply as part of the ESO. There was no application to vary the duration of the ESO. As I understood it, this was to reflect what had been discussed in the consultation process and it also included expressing the conditions in language more readily understandable and suitable for the defendant. It was common ground that all of the conditions were then agreed between the parties except for conditions 5 and 6. Those two conditions related to scheduling, which was designed to operate in conjunction with electronic monitoring to which the defendant agreed.

14. The plaintiff proposed that those scheduling conditions be as follows:

“5. If a DSO asks Glen, he must provide a summary of the places he plans to go, when he plans to go to those places and what activities he plans to do during the week. Glen must provide this summary on or before Friday each week.

6. If Glen wants to change where he is going or what he is doing, he must tell a DSO before doing so unless there is an emergency.”

15. The defendant opposed the making of the scheduling conditions in that, or any other, form.

16. On 24 November 2021, at the hearing of the matter, it was noted that some of the documentation had been filed the day before the hearing. As a result of that, as well submissions by the parties and discussions between the Bench and counsel concerning scheduling and potential appropriate alternatives, both parties indicated that they would appreciate an opportunity for further discussion and the obtaining of any necessary instructions. Consequently, on that day, the Court made the following orders:

“1.   The Plaintiff is to file and serve any further affidavits on or before 21 January 2022.

2.   The Defendant is to file and serve any further affidavits on or before 11 February 2022.

3.    The Plaintiff is to file and serve any written submissions, not exceeding 3 pages, on or before 18 February 2022.

4.   The Defendant is to file and serve any written submissions, not exceeding 3 pages, on or before 25 February 2022.

5   The matter is stood over for hearing on 7 March 2022.”

17. With commendable good sense and cooperation, the plaintiff and the defendant filed all their material and reached agreement as to all conditions to which Mr Devries’s ESO should be subject by the time the matter came on for hearing on 7 March 2022. I was satisfied that the form of conditions agreed between the parties was appropriate and, consequently, on 7 March 2022, I ordered, in relation to the ESO imposed on Mr Devries by order 1 made on 28 October 2021, that the conditions be varied from 7 March 2022 so as to read as set out in the form of conditions which I initialled and dated and placed with the papers. The conditions so imposed are attached as a schedule to these reasons. At that time, I reserved my reasons for judgment.

18. In all the circumstances and given the agreement of the parties, my reasons for making the ESO and directing that the defendant comply with conditions as varied can be more shortly stated than might otherwise be the case.

Background

Defendant’s antecedents

19. From the evidence in this matter, including various psychological and psychiatric reports, it appeared that the defendant is a 32 year old Indigenous man who comes from the area of Bourke and Brewarrina and he is of the Gamillaraay people. He was born in Brewarrina and lived there until he was about three years old when his family moved to Liverpool in Greater Sydney. His parents were unable to care for him and the adults in the house where he grew up were his grandmother, Nan, and his uncle and auntie. He had a number of brothers and sisters and there were about 10 children in the house.

20. The defendant reported that his father abused alcohol and cannabis and engaged in domestic violence. He sustained beatings and, in addition to physical abuse and neglect, he reported having experienced child sexual abuse but did not want to talk about it. One of the incidents was said to have happened “at the creek” when he was nine or 10 years old and on another occasion it was said that three officers from Juvenile Justice were involved.

21. The defendant attended primary school in Liverpool and was suspended for fighting with other students. According to the defendant, he was expelled from high school in Year 9 as a result of hitting the Principal because the Principal had hit the defendant’s brother, spat on his face and lifted him. The defendant commented that he was into sports including swimming, football and a bit of athletics when at school and he follows Rugby League, being a South Sydney Rabbitohs supporter.

22. In about 2004, when the defendant was about 15 years old, his Nan died. After her death, the applicant said that he became homeless and lived on the streets between periods under Juvenile Justice supervision. He reported spending much of his time associating with what one of the experts described as “an antisocial peer network”. It appears, however, that at about this time he went to Queensland and worked on the trawlers where he reported that he got on “okay with other boys” at this time. He eventually returned to New South Wales. Since late 2007, almost the whole of the defendant’s life has been spent in custody.

23. The defendant’s criminal record, prior to the index offence, included (without attempting to be exhaustive) convictions for common assault, being armed with intent to commit an indictable offence, stealing property in a dwelling house, and two offences of aggravated sexual assault with infliction of actual bodily harm. The latter two offences resulted in the defendant being sentenced to imprisonment for six years and three months commencing on 20 May 2011 (with a non-parole period of four years) and seven years and three months commencing on 20 May 2012 (with a non-parole period of four years and three months), respectively. The defendant was released to parole on 22 February 2018, 24 September 2018 and 15 March 2019 but in each case returned to custody after only a short period.

Index offence

24. The circumstances of the index offence, together with an unrelated assault offence, were recorded by Magistrate Abdul-Karim, when sentencing the defendant on 23 November 2020, as follows:

“The defendant enter[ed] pleas of guilty to two matters … an allegation of intentionally sexually touch a child over the age of ten and under the age of 16. The maximum penalty for this offence is imprisonment for ten years, two years and 100 penalty units when dealt with in this Court.

The facts indicate that the victim, who is 13 years and 11 months old, was in her bedroom. The defendant is a childhood friend of the victim’s father. He was allowed into the home so that he could use the bathroom. He walked into the victim’s bedroom. The victim was lying on her bed at the time using her mobile phone. The defendant put his hand in his pants and then started to touch his penis and asked the child if she wanted to have sex with him. He then touched the child on the thigh and the groin over her pants. The child then notified another person and told the defendant to go away. He was arrested. The offence took place on 27 October 2019.

The defendant is also before the Court for sentence; in terms of that matter I assess the objective criminality to sit slightly below the midrange. The offence took place at the child’s home, in her bedroom.

The other matter is an allegation of assault occasioning actual bodily harm on 15 March 2020. The maximum penalty for this offence is imprisonment for five years, two years when dealt with in this Court. The agreed facts indicate that the victim and the offender are known to each other. There was an argument between the victim and the offender. The offender hit the victim on the body with his elbow. The victim picked up an object, the offender then hit the victim on the back of the head causing a small laceration. I find that there was a degree of provocation in that matter and I assess the objective criminality to sit below the midrange.

The offender has been in custody and is serving a period of time. His sentence expired on 13 October and he is currently on parole until 13 March 2021. The offender’s record indicates a history of matters including matters of sexual violence and matters of violence. I have had regard to the contents of the sentencing assessment report. I accept the offender was under the influence of illicit drugs at the time and has been addicted to illicit drugs. I accept that Bugmy issues arise in this matter. He is assessed at a high risk of reoffending, and there is a need for him to undergo drug rehabilitation so as to reduce the risk of reoffending.”

25. The learned magistrate imposed an aggregate sentence of 12 months imprisonment commencing on 5 August 2020 and expiring on 4 August 2021, with a non-parole period of eight months expiring on 4 April 2021. After allowing a discount of 25% for the pleas of guilty, the indicative sentences nominated by the sentencing magistrate were 11 months for the sexual touching offence and four months for the assault offence.

The ISO

26. As has been noted above, an ISO was imposed on the defendant commencing on the expiration of his sentence on 4 August 2021.

Relevant statutory provisions

27. In the present case, the parties accepted that the defendant was a “supervised offender” within the meaning of s 5I of the CHRO Act, that the prerequisites in s 5B(a), (b) and (c) of that Act were satisfied and that the requirements of ss 5H, 5I, 6 and 7 had been complied with. I am satisfied that this acceptance was well founded, particularly in light of the circumstances referred to above.

28. As to the making of an ESO in such a case, ss 5B and 5D relevantly provide:

“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:

…

(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.”

…

5D   Determination of risk

For the purposes of this Part, the Supreme Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence.”

29. The Court’s determination of the application for an ESO was governed by s 9 of the CHRO Act which provides:

“9   Determination of application for extended supervision order

(1)  The Supreme Court may determine an application for an extended supervision order:

(a)  by making an extended supervision order, or

(b)  by dismissing the application.

(2)  In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court.

(2A)    (Repealed)

(3)  In determining whether or not to make an extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant:

(a)    (Repealed)

(b)  the reports received from the persons appointed under section 7 (4) to conduct examinations of the offender, and the level of the offender’s participation in any such examination,

(c)  the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment,

(d)  the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence,

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

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

(e1)  options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time,

(e2)  the likelihood that the offender will comply with the obligations of an extended supervision order,

(f)  without limiting paragraph (e2), the level of the offender’s compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order,

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

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

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

(i)  any other information that is available as to the likelihood that the offender will commit a further serious offence.

(4)  In determining whether or not to make an extended supervision order in respect of an offender, the Supreme Court is not to consider any intention of the offender to leave New South Wales (whether permanently or temporarily).”

30. In the present case, the parties were agreed that the ESO should be for a period of three years, as is permitted by s 10(1A)(a) of the CHRO Act.

Determination

Should an ESO be imposed?

31. In determining whether I was satisfied to a high degree of probability that the defendant posed an unacceptable risk of committing another serious offence if not kept under the supervision of an ESO, and whether to make such an order, I had regard to the safety of the community as the paramount consideration in accordance with s 9(2), the matters identified in the relevant paragraphs of s 9(3) of the CHRO Act and to the relevant provisions of the CHRO Act including those identified above and the two objects of that Act stated in s 3.

32. Since there was no dispute as to the appropriateness of the imposition of an ESO, I shall not refer in detail to all of the material I have considered. It is sufficient to set out in these reasons the most relevant aspects of the reports from Ms Gumbert and Dr Smith, which fall within par (b) of s 9(3) of the CHRO Act and which helpfully refer to the most pertinent other material within pars (d) to (i), some of which has also already been noted above.

33. Ms Gumbert’s report of 17 September 2021 notes, in relation to his recent relationship with his family, that the contact had been intermittent and that he would mostly see family during the periods when he was released. He reported that his mother now resides in Erskineville and that he had not had contact with her in the last year or two because “she rang the coppers on me”, but he was reluctant to discuss the incident further. The defendant told Ms Gumbert that he did not believe he would resume contact with his mother. He said that his brothers were “in and out of jail” but one of them currently lived in Liverpool and he described his sisters as not being involved in crime but they live in Queensland, Nowra and Liverpool and he speaks to them on the phone often although he had not seen them since 2004. The defendant saw his father, who died in August 2020, and his father’s new partner and son as family members and has a positive relationship with them. The defendant also has two sons and a daughter by three different mothers. In relation to his family generally, he said to Ms Gumbert “it kills me I can’t go and see them” due to his supervision orders and that “family is everything to me”.

34. Ms Gumbert recorded that the defendant had been assessed using the Static-99R actuarial measure of relative risk for sexual offence recidivism and his score placed him in the highest nominal risk category, which could be interpreted as his presenting a “well above average” risk of sexual recidivism. It was said:

“Compared to other adult male sex offenders, [the defendant’s] score is in the 99.9^th percentile. Taking into account that 0.28% of offenders shared the same score as [the defendant], the percentile means that roughly 99.7% of offenders scored lower than [the defendant], and only 0.02% scored higher.

The rate of sexual recidivism over five years for the ‘routine’ sample of male sexual offenders, within the Static-99R normative samples, who had the same total score as [the defendant] was between 22.8% and 37.2% over five years, at a 95% level of confidence. …”

35. Using the Assessment of Risk and Manageability of Individuals with Developmental and Intellectual Limitations who Offend – Sexually (ARMIDILO-S) tool, Ms Gumbert concluded that the defendant’s risk rating overall was moderate. She also noted the previous risk assessments carried out by Ms Cieplucha, which were consistent with Ms Gumbert’s conclusions.

36. After describing the defendant’s dysfunctional, deprived and traumatic upbringing, Ms Gumbert noted that his education had to be viewed against a backdrop of borderline intellectual functioning and possible learning disability. She noted his substance abuse which served in part as a maladaptive means to cope with trauma and emotional distress. It was also recorded that that the defendant denied the most serious offences on his record, particularly those of a sexual nature, maintaining that he has been repeatedly “set up” in relation to the offences and that he had admitted to sexual offences and participated in treatment solely for pragmatic reasons. It was noted that his progress in community supervision had been poor. Ms Gumbert referred to the defendant’s acknowledgement of his extant diagnosis of schizophrenia and history of psychosis and mood instability but noted that he did not regard himself as in need of treatment or medication. He indicated resistance to receiving support as he disliked discussing personal matters or areas of difficulty. He also expressed resentment towards and a sense of injustice regarding the prospect of further community supervision under an ESO.

37. Ms Gumbert noted the defendant’s extant diagnosis of schizophrenia and expressed the opinion that he would require medium to long-term psychiatric review and management in that regard. She also concurred in the diagnosis of antisocial personality disorder previously made by Dr Richard Furst, psychiatrist, and was of the opinion that the defendant’s symptoms were consistent with a diagnosis of cannabis use disorder which would be classified as severe. Ms Gumbert was of the view that he may be able to reduce or cease cannabis use if provided with appropriate support which might include any combination of residential rehabilitation programs, community-based drug and alcohol counselling self-help groups, and cannabidiol replacement treatment. The possibility that the defendant may meet the criteria for diagnosis with a recurrent depressive disorder was also acknowledged.

38. Ms Gumbert was of the opinion that the defendant posed a significant risk of committing a further serious offence of a sexual and/or violent nature. The scenarios associated with particularly high risk was said to include those where the defendant was unsupervised in the community, was regularly using alcohol or other drugs, was experiencing increased emotional distress in relation to psychosocial factors and was non-compliant with his medication. Ms Gumbert relevantly concluded:

“As he does not acknowledge his areas of risk or show meaningful motivation to address them, he is unlikely to be able to self-manage in a way that would avoid risky situations for him. He also admits that he would be unlikely to participate in treatment or remain medication compliant in the absence of ongoing supervision. Given the above, it is my opinion that an ESO should be in place to manage [the defendant’s] risk in the community.”

39. In relation to the proposed conditions, Ms Gumbert concurred with the opinion of Dr McSwiggan that the defendant’s cognitive limitations would be more salient considerations than his cultural background with regard to his capacity for understanding and complying with an ESO. Nonetheless, Ms Gumbert said:

“it is recommended that future supervision and care plans for [the defendant] continue to prioritise the involvement of culturally-specific services wherever possible brackets for instance, the Aboriginal Medical Service, Tharawal Aboriginal Corporation) and that Aboriginal support persons participate in the process of explaining [the defendant’s] supervision conditions, and the base sees for these, to him.”

40. In her supplementary report, Ms Gumbert adhered to her earlier views and noted that she remained of the opinion that the defendant would require “external support in order to arrange and attend treatment”. She also expressed her agreement with the recommendations of Dr Smith in regard to provisions for the defendant to visit his family and children whose support was important to him, and it was noted that undue restrictions on visiting his family may increase his risk of breaching an ESO.

41. Dr Smith provided a psychiatric report in which he diagnosed the defendant with complex post traumatic stress disorder, antisocial personality disorder, substance use disorder and cognitive impairment. It can also be noted that Dr Smith recorded that the defendant had been previously diagnosed with borderline intellectual disability and his clinical impression was broadly in keeping with this although a low level of formal education, which may have significant implications, was also noted.

42. Dr Smith did not, however, see any compelling evidence that the defendant had schizophrenia, a major mood disorder or bipolar disorder. He was of the opinion that there were past symptoms of psychosis in the presence of substance use that may indicate a substance induced psychotic disorder that is in remission, although he did note that the defendant was on treatment which may be masking the symptoms.

43. Dr Smith was of the opinion that the defendant could be categorised as presenting a high risk of violence and moderate to high risk of sexual offending. The doctor referred to previous risk assessments to a similar effect with which he concurred. Dr Smith was of the opinion that in this case substance misuse appeared to be very strongly correlated with the offending and if that substance misuse could be ameliorated then the defendant’s risk would ameliorate.

44. Dr Smith was of the opinion that the defendant should have contact with his family and should be supported to have a relationship with his children, given that there was nothing to suggest that the defendant would be a particular risk of offending against his own children. The doctor was also of the view that the defendant’s substance misuse was required to be addressed, that he needed to be followed up by a local community mental health team, that he needed to be compliant with medication and a long-acting injectable medication may be appropriate as well as an antidepressant. In addition, Dr Smith was of the view that there would be psychological benefits to him through understanding his experiences of sexual assault.

45. It was also noted that, as a result of his intellectual disability, the defendant has difficulties in impulse control, struggles with understanding complex issues and appears to have difficulties maintaining behavioural change for a prolonged period of time stop. In addition, this disability impacts on the defendant’s ability to understand restrictions and rules and therefore to follow them.

46. Dr Smith was also of the opinion that if the defendant engaged with structured week planning, was medication compliant and attended appropriate support groups, then some of the risk factors should be attenuated.

47. In Dr Smith’s supplementary report dated 27 October 2021, he indicated that his views had not changed but he did make a number of additional comments including the following in relation to written planning:

“It was clear during my review that [the defendant] was struggling to comprehend (or at least communicate his understanding), of the limitations that had been placed on him. He repeatedly appeared to confuse the restrictions of the state-wide covid lockdown, and the limitations of his supervision order. Apart from the times they were confused, he seemed to state that he wasn’t allowed to do things that he seemed, at least to my understanding, he was able to do.

…

The third aspect is the time in advance that [the defendant] needs to let people know of his intentions.… In addition to the issues regarding [the defendant’s] cognitive functioning discussed above and in other reports, another crucial aspect is habit. [The defendant], in common with institutionalised people with minimal education and limited occupational history, and with those with the cognitive limitations picture [the defendant] presents with, has never really had experience of planning weeks or months ahead.

There may be a small amount of gain in that placing a framework on him in this manner. It could be said to motivate and mould behavioural change to help him learn to think and plan ahead. However, to develop the skills to be able to do so takes time. Making requirements too far ahead of his capacity to act on them – in this case his capacity to think and plan ahead – would likely fail. So again, simple requirements, that take into account his bespoke needs i.e. an inability to plan too far ahead, is important.”

48. Dr Smith also endorsed Dr McSwiggan’s approach to the formulation of appropriate conditions in language readily comprehensible for the defendant.

49. In relation to the other material described in pars (c) to (i) of s 9(3), the parties did not draw my attention to anything that was inconsistent with the views of Ms Gumbert, Dr Smith and Dr McSwiggan and I did not discern that any of that material called into question in any way the opinions of those experts. In summary, all of that other material supported the making of an ESO in the defendant’s case.

50. In all the circumstances:

1. I accepted that the preconditions in s 5B(a), (b) and (c) and the requirements in s 5H, 5I, 6 and 7 of the CHRO Act were met in this case; and

2. I was also satisfied to a high degree of probability that the defendant posed an unacceptable risk of committing another serious offence if not kept under supervision under an ESO.

Duration of ESO

51. As has been noted above, the parties were agreed that the ESO should be for a period of three years. I accepted that this period was appropriate, in the light of the psychological and psychiatric evidence, the defendant’s circumstances and history of offending, and the nature and extent of the risk posed by the defendant.

Conditions of ESO

52. As noted above, the parties reached agreement as to the conditions to be included in the defendant’s ESO after submissions and discussion between the Bench and counsel on a number of occasions. I accepted that these agreed conditions were appropriate since they covered, in a comprehensive way, the matters which were likely to ensure the immediate protection of the community and, at the same time, encourage the rehabilitation of the defendant, which is also likely to protect the community in the longer term. There were a number of additional considerations which supported the form of the conditions imposed which deserve specific recognition in this case.

53. First, the conditions deliberately did not mirror the wording of s 11(1)(a) to (n) of the CHRO Act or the standard formulation of some conditions often seen in ESOs. The report of Dr McSwiggan drew particular attention to the fact that the defendant’s cognitive limitations, in part developmental and in part the result of impoverished educational opportunities, meant that if conditions were expressed in a form which the defendant was able to understand and recall, he would be more likely to be able to comply with the conditions. Ms Gumbert agreed in large measure with Dr McSwiggan’s suggestions in this regard. In light of this material, the advisers of both the plaintiff and the defendant co-operatively developed a form of conditions with simplified language and pictures to illustrate what the conditions required, in order to enhance the effectiveness of the conditions.

54. Secondly, the Court and the parties had the considerable benefit of the two reports from Aunty Gledra Stubbs, as well as her input in discussions concerning the form and content of the conditions. Her evidence, obtained by the defendant’s legal advisers, was particularly helpful in coming to an appreciation of the cultural, family and social implications of the defendant’s Aboriginal heritage and background as a man of the Gamillaraay people and how the contents of the conditions could best be formulated and expressed to take these matters into account in an appropriate way. The plaintiff responded positively and constructively to Aunty Glendra’s evidence and input.

55. As a result, the agreed conditions contain a preamble which makes clear, in simple language, the nature and purpose of the conditions, as well as the fact that the defendant can obtain the benefit and assistance of an Indigenous support person in understanding the conditions and in talking to his Departmental Supervising Officer (DSO). The preamble also makes clear, in simple terms, that there are adverse legal consequences if the defendant does not comply with the conditions.

56. In addition, Aunty Glendra’s evidence was also of particular assistance in determining the nature of the defendant’s obligations in relation to scheduling or planning his activities. In the defendant’s specific case and having regard to the cultural appreciation of time, the cultural and social significance of family, and the defendant’s cognitive and literacy limitations, conditions requiring the preparation of and adherence to a weekly schedule, which would normally accompany and complement electronic monitoring conditions, were not included. This was so even though the defendant readily accepted that electronic monitoring was reasonably appropriate. In place of the more usual scheduling conditions, the parties agreed to conditions 5 and 6 which required the defendant to work with a DSO on developing a case management plan for things he might do during the day including such matters as going to rehabilitation programs and meetings, working with his NDIS support workers, visiting health professionals, learning skills and exercising. These conditions included the statement that the defendant “should make every effort to attend or take part in any activities in the [case management] plan.” In my view, these conditions were better adapted to the defendant’s cultural, family and cognitive circumstances and needs, and were more likely to assist in achieving both the protection of the community and the rehabilitation of the defendant.

52. I also noted that since his release from custody and up to the hearing on 7 March 2022, the defendant has made a very commendable effort to co-operate, as required, with his supervising officers and comply with the conditions of his ESO. He has not always been successful. The evidence, including the defendant’s affidavit of 15 February 2022, established that the defendant breached the conditions when he consumed prohibited drugs and acted aggressively. As I understood it, he pleaded guilty to breaching the conditions of his ESO, acknowledged his wrongdoing and has shown a positive attitude to abstaining from drugs in the future. In particular, I noted that he has asked his DSO to test him for illicit drugs every week to help him stay clean. In addition, I accepted that:

1. various reports and notes indicated that the defendant has a positive mindset and has expressed motivation to do well in the community;

2. his recent drug tests have been negative;

3. the defendant has provided thoughtful assistance to other residents in his present accommodation;

4. his DSO has noted significant change in the defendant’s attitude towards interventions from six months ago; and

5. the defendant has made ongoing efforts to find appropriate accommodation, has continued to engage with Gundangarra Medical Service, has been managing to save money and has been motivated and engaged in his attendances at AA (NA).

58. Finally, I accepted that the defendant’s increased insight and motivation to make the ESO a positive step in his life were demonstrated by the following evidence in his affidavit:

“I feel like this ESO would be most helpful for me and the community:

a. If I can stay off schedules so that I can still go to the beach, have my free time and see my family when I feel like it; my lawyer has told me that the State don’t want to put schedules back on and I am very happy about that;

b. If I get help with staying away from drugs;

c. If I could get my own accommodation and have a support worker come help me daily with activities and my health. It would be helpful if someone could pick me up.”

59. In my view, the conditions in the form imposed on 7 March 2022 were appropriate and well adapted to the purposes they should serve.

Conclusion and orders

60. For all these reasons, orders to the following effect were made in the proceedings:

1. On 28 October 2021:

1. An order pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) that the defendant be subject to an extended supervision order (‘the extended supervision order’) for a period of three years from the date of the order; and

2. An order pursuant to s 11 of the Act, directing that the defendant, for the period of the extended supervision order, comply with the conditions in the terms set out in paragraphs 1-4 and 8-51 of the conditions annexed to the amended summons.

2. On 7 March 2022, an order that the conditions imposed by order 1(b) made on 28 October 2021 be varied from 7 March 2022 so as to read as set out in the conditions in the schedule attached to this judgment.

**********

SCHEDULE

CONDTIONS OF SUPERVISION - GLEN DEVRIES

Preamble

These rules are written so they are easy to read. Glen's supervising officer is called a "DSO".

Glen can talk to his lawyer if he has questions about these rules.

Glen can talk to his lawyer if he does not understand what his DSO tells him.

If Glen wants to talk to an Indigenous person about these rules, Glen can tell his DSO.

If Glen wants an Indigenous person to be with him when he talks to his DSO, he can ask his DSO.

Glen must follow these rules from now until 27 October 2024.

Glen might get in more trouble with the law if he does not follow these rules.

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

1. Glen must accept the supervision of a DSO. Glen must do what a DSO tells him to do.

2. Where a DSO tells Glen something in writing, such as by SMS, this will also be explained either in person or in a phone call as soon as possible.

3. Glen must honestly answer questions from a DSO, or another person supervising him, about where he is, where he is going, what he is doing, who he is with and the people he has contact with.

Electronic Monitoring

1. Glen must wear electronic monitoring equipment if a DSO tells him to and cannot damage it or take it off.

Daily Activities

1. Glen must work with a DSO on developing a case management plan for things he might do during the day. Glen should make every effort to attend or take part in any activities in the plan. These activities may include:

   a.   Going to rehab programs and meetings

   b.   Working with his NDIS support workers (if any) and taking part in activities or attending appointments

   c.   Visiting doctors, psychologists and counsellors when he has an appointment

   d.   Learning new skills or hobbies

   e.   Doing some exercise

2. If Glen has told a DSO what he is planning to do and wants to change where he is going or what he is doing, he should try and tell a DSO before doing so, unless there is an emergency.

3. [Deleted]

Part B: Accommodation

1. Glen must live at an address approved by a DSO (home) unless he becomes homeless. If Glen becomes homeless, he needs to tell a DSO within 24 hours.

2. Glen must be at his home between 10pm and 6am unless a DSO approves other times.

3. Glen must let a DSO visit his home at any time and let them enter.

4. Glen must not spend the night anywhere other than his home unless a DSO says he can.

5. Glen must not let any person enter and stay, or stay overnight, at his home (or room, if staying at supported accommodation) without permission of a DSO.

6. If Glen is living with other people and they let someone enter and stay at his home, or if they invite someone to stay overnight, Glen must tell a DSO as soon as possible that there is a visitor. Glen must follow all directions from a DSO about the visitor.

Part C: Place and travel restrictions

1. Glen must not leave New South Wales without the approval of the Commissioner of CSNSW.

2. Glen must not go to any place or district that a DSO tells him not to go.

3. Glen must not go to a school or any house (other than his home) where he knows that a person under 18 lives unless a DSO tells him he can. Glen is allowed to go to any house where his children, namely [XXX], [YYY] and [ZZZ], live and does not need the permission of a DSO to do so, unless a DSO tells him he cannot go to there.

Part D: Employment, finance and education

1. Glen must try and take part in any training or job programs a DSO suggests.

2. Glen must not start any job, volunteer work or educational course without the permission of a DSO.

1. Glen must give a DSO information about how much money he has, and what he spends it on, and show any bank documents, if asked to by a DSO.

Part E: Drugs and alcohol

1. Glen must not possess or use illegal drugs or abuse drugs.

2. Glen must not buy, drink or have alcohol unless a DSO tells him he can

3. Glen must do drug and alcohol tests if required by a DSO.

4. Glen must not enter any licensed premises without the permission of a DSO.

5. Glen must do drug and alcohol rehab courses if a DSO tells him to.

Part F: Non-association

Association with Children

1. Glen must not be with children who are under 18 unless a DSO tells him he can in writing. Glen is allowed to approach and have contact with his children, namely [XXX], [YYY] and [ZZZ], and does not need the permission of a DSO to do so, unless a DSO tells him he cannot approach or contact them.

Associations with Others (not children)

1. Glen must not have contact with any person that a DSO tells him not to.

2. Glen must not have contact with any people who are taking illegal drugs or drinking alcohol unless a DSO tells him he can.

3. Glen must not visit or call anyone in custody unless his DSO tells him he can.

4. Glen must agree to a DSO telling another person about his criminal history if that person needs to be told.

Part G: Weapons

1. Glen must not have or use a gun or any other weapons.

2. Glen must not have or use knives (except the knives that are used in the kitchen or around the house).

Part H: Access to the internet and other electronic communication

1. Glen must do what a DSO tells him about phones, computers and the internet. Glen must give a DSO the information they ask him for.

2. Glen must use his own name on his phone, the internet and any computer he uses.

3. Glen must not delete anything from his phone or any computer he uses.

4. If a DSO asks Glen, he must give his phone number to a DSO. Glen must agree to the phone or internet company giving his information to a DSO.

5. Glen must tell a DSO if he gets a new phone number.

6. Glen must tell a DSO if he gets a computer.

7. A DSO, or someone else a DSO tells to, is allowed to look at Glen's phone, computer or internet in person or remotely.

Part I: Search and seizure

1. Glen must let a DSO (or any person as directed by a DSO) search:

   a.   him or his clothes (doing a pat down search);

   b.   his bags or wallet;

   c.   his home or any place where Glen stores his belongings;

   d.   any car he is in;

   e.   his computer, tablet, phone or other electronic device.

A DSO (or any person as directed by a DSO) can take any item they find during the search.

1. Glen must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out under this Order.

Part l: Personal details and appearance

1. Glen must not change his name from "Glen Devries" or "Glen De Vries" or use any other names without the approval of a DSO.

2. Glen must not make a big change to his appearance without the approval of a DSO.

3. Glen must let a DSO photograph him, dressed, within one week of the start of this Order and following any big change to his appearance.

4. Glen has to tell a DSO if he gets any ID. An example of an ID is a driver's licence or a Medicare card.

Part K: Medical intervention and treatment

1. If a DSO asks Glen and he knows the answer, he must tell that DSO:

   a.   the name of his doctor and any other person he sees for his health.

   b.   about any people he sees for his mental health. Examples of mental health problems can be anxiety, depression or drug and alcohol matters.

2. Glen must take reasonable steps to go to all mental health appointments a DSO tells him to.

3. Glen must take medications that a doctor tells him to take in the way that he is told.

4. Glen must notify a DSO within two days if he stops taking medication the doctor has given him.

5. Glen must agree to his doctors and anyone treating him for his health, sharing information about him with a DSO.

NOTE: It is understood that a relationship of trust and confidentiality with healthcare practitioners is fundamental to the defendant's engagement with and treatment by healthcare practitioners.

1. Glen must agree to any information being shared between people who are treating or supervising him, including his DSO, NSWPF and CSNSW.

2. Glen agrees that his doctors and anyone treating him for his health can have a copy of his criminal history.

Definitions

In these conditions:

A reference to the Glen's "home" in these conditions is a reference to any accommodation approved under condition 8. If Glen is living in supported accommodation, such as the Nunyara Community Offender Support Program. a reference to "home" refers to his room.

A reference to "tells" in these conditions includes telling by speaking or writing.

"Contact" for the purposes of conditions 25, 26 and 27 means being in company with, or communicating with by any means, including by post, facsimile, telephone, email or any other form of electronic communication does not include incidental contact in a public place.

"CSNSW" means Corrective Services NSW.

"Commissioner" means Commissioner for Corrective Services.

"DSO" means Departmental Supervising Officer, that is, any Corrective Services Officer supervising Glen under the order.

"Glen" means "Glen Devries", also known as Glen Roy John Devries, Glen De Vries and Peter De vries Goodgabar, the Defendant in these proceedings and the subject of the order.

"Licensed premises" means hotels, bars, racecourses and licensed clubs, but excludes cafes and restaurants.

"NSWPF" means NSW Police Force.

"Search" means:

1. A garment search, being a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body; and

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

Decision last updated: 11 March 2022