State of New South Wales v Delaporte (Final)

[2022] NSWSC 1004

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Delaporte (Final) [2022] NSWSC 1004

Hearing dates:

13 July 2022

Date of orders:

27 July 2022

Decision date:

27 July 2022

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

(1) Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act2006 (NSW) (the Act), the defendant is subject to an extended supervision order for a period of three years from 29 July 2022.

(2)   Pursuant to s 11 of the Act, I direct that the defendant, for the period of the extended supervision order, comply with the conditions set out in the Schedule to this judgment.

(3)   Access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without leave of a Judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

Catchwords:

HIGH RISK OFFENDERS – Extended supervision orders – Unacceptable risk of committing a serious offence – Relevance of conditions to risk

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW)

Cases Cited:

Cornwall v Attorney General for New South Wales [2007] NSWCA 374

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

State of New South Wales v Ali [2010] NSWSC 1045

State of New South Wales v Delaporte [2022] NSWSC 436

State of New South Wales v Grooms [2019] NSWSC 353.

State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483.

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Jason Aaron Delaporte (Defendant)

Representation:

Counsel:
D New (Plaintiff)
G T S Marsden (Defendant)

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

File Number(s):

2021/356714

Publication restriction:

Access to Court file not permitted without leave of this Court.

Judgment

1. By way of an amended summons which I granted leave to file on 13 July 2022, the plaintiff, the State of New South Wales (the State) brings proceedings against the defendant, Jason Aaron Delaporte, pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act).

2. There was a preliminary hearing before Garling J on 4 April 2022. As set out in his Honour’s judgment of 27 April 2022,^[1] orders were made requiring the defendant to attend examinations by qualified psychiatrists and psychologists and that the defendant be subject to an Interim Supervision Order (ISO) for a period of 28 days.

   1. State of New South Wales v Delaporte [2022] NSWSC 436.

3. Those orders were extended such that the ISO expires on 29 July 2022.

4. On the final hearing before me, the defendant did not dispute that he should be subject to an Extended Supervision Order (ESO) for a period of three years but, opposed a limited number of the conditions sought by the State.

5. Prior to the final hearing and in accordance with the orders of Garling J, the defendant was examined by Dr Chelsey Dewson, a Forensic Psychologist, who prepared a report dated 15 June 2022 and Dr Antony Henderson, a Consultant Forensic Psychiatrist, who prepared a report dated 16 June 2022.

6. In addition to the reports obtained in accordance with the orders of Garling J, the State relied on a number of affidavits which essentially provided a mechanism for attaching documents, including the affidavits of Ellen Southwood dated 15 December 2021, James Palmer dated 11 February 2022 and 28 March 2022 and Jessica van Lieven dated 21 June 2022.

7. The defendant did not seek to rely on any evidence.

8. On the hearing of the matter, Ms New of counsel appeared for the State and Ms Marsden of counsel appeared for the defendant. I received helpful written and oral submissions from both parties.

9. The focus of the hearing was on the conditions which the State sought. Although the defendant did not oppose the imposition of an ESO, it is necessary that I form an independent satisfaction that an ESO should be imposed.

Legislative scheme

10. As set out in s 3 of the Act, the primary object of the Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders, so as to ensure the safety and the protection of the community. Another object of the Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation. In making any orders under the Act, I would have regard to the objects of the Act.

11. Section 5B of the Act specifies the circumstances in which the Court may make an ESO:

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.

12. Being satisfied to a high degree of probability means something beyond more probable than not. The existence of the risk, that is, the likelihood of the defendant committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof although not to the criminal standard of beyond reasonable doubt. ^[2]

    2. Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21] (Mason P, Giles and Hodgson JJA).

13. The meaning of “unacceptable risk” was considered in Lynn v State of New South Wales:^[3]

“As the respondent pointed out in its submissions, by reference to dictionary definitions, the word ‘unacceptable’ requires context in which, or parameters against which, the ‘unacceptable’ risk can be measured. Thus, according to the Macquarie Dictionary, that which is unacceptable is ‘so far from a required standard, norm expectation, etc as not to be allowed’. The Oxford Dictionary defines the word by reference to its antonym ‘acceptable’. Something is ‘acceptable’ if it is ‘tolerable or allowable, not a cause for concern; within prescribed parameters’.

What the court, therefore, must find to be unacceptable is the ‘risk’ that the offender poses ‘of committing a serious violence offence if … not kept under supervision’. The respondent accepted that the precise parameters or standard or norm against which that determination is to be made are not immediately evident from the text of the provision. That must be so. A determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made.”

3. (2016) 91 NSWLR 636; [2016] NSWCA 57 at [50]–[51] (Beazley P).

14. Importantly, the impact that an ESO may have on the defendant’s liberty is not a relevant consideration for the purposes of assessing whether the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision but, the Court may take that factor into account in determining whether to exercise its discretion pursuant to s 9 of the Act. ^[4]

    4. Ibid at [44], [56]–[58] (Beazley P), [126]–[128] (Basten JA), and [148]-[149] (Gleeson JA).

15. Section 9(2) of the Act requires that in determining whether or not to make an ESO, the safety of the community must be the paramount consideration of the Court.

16. Further, in determining whether or not to make an ESO, I must have regard to the factors as set out in s 9(3) of the Act.

Threshold requirements

17. The defendant accepts that the threshold requirements set out in ss 5B(a), (b) and (c) of the Act are satisfied.

18. The defendant is a person who has served a sentence for a serious offence (s 5B(a)) and is a supervised offender within the meaning of s 5I of the Act. Further, an application has been made in accordance with s 5I.

19. For the reasons set out in this judgment, 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 and s 5B(d) is thus also satisfied.

20. Having regard to the focus of the issues between the parties, it is not necessary that I recite all of the evidence presented on the final hearing. I have considered all of the evidence and have regard to the factors set out in s 9(3) of the Act.

The defendant’s personal circumstances

21. The defendant is currently 52 years of age. On 4 May 2000 he was sentenced to a term of imprisonment of 16 years for a number of serious sex offences committed in 1998.

22. In August 2014, after he was released on parole on 2 July 2014, the defendant committed further offences, including offences of break, enter and steal. He was sentenced to a further term of imprisonment of 5 years and 6 months.

23. On 13 October 2014, Button J made a continuing detention order of 4 months followed by an ESO of 2 years, which was to commence on 20 February 2015.

24. As required by s 10(2) of the Act, the ESO was suspended until such time he was again released into the community. He was released on 3 May 2018 and thus his ESO commenced on that date.

25. However, he was subsequently charged with a breach of the ESO (drug-related) and was returned to custody. He was released on 29 October 2019 but was later rearrested on 21 January 2021 and charged with failing to comply with the conditions (being accessing pornography and social networking sites without approval). He was sentenced to a further 18 months imprisonment and was released on 16 January 2022.

26. The 2014 ESO expired on 26 April 2022 and he has been subject to an ISO since that time.

27. The defendant has spent most of his adult life in custody. Prior to his offending as an adult, he had a troubled and difficult childhood. He was hyperactive at school and was expelled from school. By 15 years of age, he was homeless. He undertook child prostitution for a period of three years. By 16 years of age, he was a resident at Cobham Youth Justice Centre. He says that he was sexually abused while he was there.

28. He says he only had two significant relationships, one whilst he was in custody. He appears not to have any friends and, indeed, has been diagnosed with antisocial personality disorder.

29. He has been complying with the conditions of the ISO, even though as Ms Marsden points out, it is arguable that his DSO has been adopting a somewhat restrictive approach to the conditions.

30. Having spent most of his adult life in custody, he has struggled to adapt to life outside of prison, even under supervision in the sense that he has, very quickly on being released, engaged in further offending or failed to comply with the conditions of supervision imposed upon him.

The defendant’s criminal history

31. In the period August to October 1998 the defendant committed a number of serious sex offences, sometimes involving robbery.

32. On 17 August 1998, he broke into the home of a 17 year old girl, held a knife to her throat and forced her to engage in sexual intercourse.

33. On 25 August 1998, he attempted to force a female victim into his car. When unsuccessful he pushed her against the wall and forced her to masturbate him, threatening the victim that he had a knife.

34. On 6 September 1998, he attempted to assault a victim as she was walking through Surry Hills whilst claiming to have a knife. On 22 September 1998, he approached two women from a hiding place armed with a broom handle and demanded money.

35. On 24 September 1998, he entered a jewellery store in possession of a blood-filled syringe and demanded money.

36. On 18 October 1998, he returned to the same jewellery store, stole money and forced a female worker to undertake fellatio on him on two occasions.

37. On 5 October 1998, he broke into the first floor of a home. He confronted a female victim, tied her wrists, stuffed a sock in her mouth and tied a shirt around her head. He forced the victim to masturbate him and forced her to have sexual intercourse with him.

38. As observed by the sentencing judge, the nature of the offending fell within the higher category of offences of the type. It was sexual offending accompanied by very serious acts of violence.

39. Approximately two months after being released on 2 July 2014, the defendant was again arrested in relation to offences of break, enter and steal which included forcing entry into the victim’s home.

40. Prior to the serious sex offending in 1998, the defendant had a lengthy criminal history commencing when he was 13 years of age in 1983.

41. Much of the earlier offending involves stealing and driving type offences.

42. The offender has also been found guilty of failing to comply with the terms of his ESO, both in October 2018 and January 2021.

Risk assessment reports

43. I am in receipt of risk assessment reports from Sarah Wright, a Senior Psychologist within the Serious Offenders Assessment Unit, whose opinions and recommendations are supported by Cherice Cieplucha, a Chief Psychologist from Risk Management Programs.

44. The defendant’s risk of sexual reoffending is estimated to be in the well-above average risk category relative to other men who have offended sexually.

45. The following factors have been identified as indicative of an increased acute risk of sexual reoffending:

1. A return to substance abuse such as amphetamines or methamphetamines;

2. Medication non-compliance and decline in mental health stability;

3. Loss of positive social influences;

4. Increased sexual preoccupation such as increased focus on sexual thoughts and behaviours, using sex as a coping strategy, increase in deviant sexual fantasies and excessive use of pornography;

5. Increased hostility such as over-expressions of anger and hostility;

6. Rejection of supervision; and

7. Victim access (when combined with some of the other acute risk factors).

46. I have regard to these factors in assessing whether an ESO should be imposed and the type of conditions that should be imposed.

Expert evidence obtained recently

47. Dr Dewson is a Forensic Psychologist. She assessed the defendant by AVL on 7 June 2022. She found the defendant difficult to interview. He was superficially compliant and responded to questions in vague terms. She had previously met the defendant whilst offering treatment as part of the Custody-Based Intensive Treatment (CUBIT) programme, both in 2011 and 2015.

48. The defendant first participated in that CUBIT programme in 2010. However, his treatment was suspended due to continued reports of physical and verbal aggression towards staff and other offenders. He resumed treatment in 2011 but presented as resistant and exhibited difficulties managing his behaviour. He was given an opportunity to participate further in CUBIT in 2015 but initially declined the offer. He resumed CUBIT again for the final time in March of 2015 but was discharged on security grounds after he threatened a custodial officer and a fellow participant in the programme.

49. He has engaged with other treatment programmes whilst in custody but denies obtaining any benefit from these programmes. He informed Dr Dewson that he has recently developed a friendship with a female in the community (albeit that has ended) but he generally has no friends and does not feel that he needs peer support. He is not looking for a new romantic relationship.

50. He has recently moved into a private residence in Western Sydney where he shares accommodation. He believes that an ESO is unnecessary for managing his risks and that his risk factors would be best mitigated by people leaving him alone.

51. Dr Dewson considered that the defendant presents as having a very high risk of general reoffending and a high risk of sexual recidivism. The primary factors relating to his risk of recidivism included hypersexuality, unhealthy attitudes towards sex, intimacy deficits, poor social connections, antisocial attitudes, substance abuse, impulsivity, poor coping and living an unrestructured lifestyle.

52. Dr Dewson believes that the defendant will have difficulty managing his risks in the absence of an ESO. He could quickly return to drug use and become dysregulated, impulsive and unstable.

53. Dr Antony Henderson is a Consultant Forensic Psychiatrist. He examined the defendant in person on 31 May 2022. He noted that he was informed that the defendant had previously been diagnosed with attention deficit hyperactivity disorder (ADHD) at around the age of 9. He was further diagnosed with a personality disorder and ADHD whilst a resident of the Cobham Juvenile Justice Home. The defendant informed the doctor that he had previously experienced a traumatic head injury but denied experiencing a personality or cognitive change thereafter.

54. Dr Henderson diagnosed:

1. Antisocial personality disorder;

2. ADHD;

3. Stimulant use disorder;

4. Unspecified paraphilic disorder; and

5. A provisional diagnosis of complex post-traumatic stress disorder.

55. Dr Henderson undertook the STATIC-99R risk assessment tool. Having regard to all of the information available to him, he assessed the defendant as having above average risk relevant to the typical sex-offender population or moderate to high risk of engaging in further sex offending. He considered the defendant’s criminogenic factors could be adequately addressed in the community under an ESO but that he could not be adequately managed without an ESO. He generally agreed with the conditions relating to his psychiatric diagnoses which had been imposed for the purpose of the ISO.

Conclusion as to ESO

56. The defendant has spent most of his adult life in custody. In 1998, he committed various serious sex offences, and almost immediately on being released on parole in 2014, he reoffended by way of a break and enter offence. He was returned to prison. Since being released from prison, he has shown himself unable to comply with the conditions of the ESO first imposed in 2014. There has been some improvement this year in the sense that he has not breached the conditions of the ISO. However, he has only been in the community for a short period. Hopefully, that improvement will continue.

57. Both the experts who examined him for the purposes of these proceedings are quite clearly of the view that he requires supervision in the community and that his risk could not be adequately managed unless he is under supervision.

58. On a review of all of the evidence, 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 the supervision of an ESO.

The conditions

59. The central dispute between the parties relates to the conditions which should be imposed. For the purposes of the final hearing, the State provided a new set of conditions, in some respects reflecting the conditions imposed as part of the ISO, as well as reflecting the agreement between the parties.

60. Most of the conditions are not in dispute. I was provided with a helpful summary of the conditions in dispute and the alternative proposed conditions. There are only five conditions in dispute.

61. The Court is permitted to impose such conditions as it considers appropriate (s 11 of the Act). That necessarily involves the striking of a balance between relevant considerations so as to provide an outcome which is fit and proper (State of New South Wales v Ali). ^[5] The conditions must not be unnecessarily onerous. They must address identified risk factors but the risk factors must be considered in a realistic way (State of New South Wales v Ley Thomas Baker (No 2)). ^[6] The conditions must be related to the mitigation of the unacceptable risk (State of New South Wales v Grooms). ^[7]

    5. [2010] NSWSC 1045 at [88] (Johnson J).

    6. [2015] NSWSC 483 at [36] (N Adams J).

    7. [2019] NSWSC 353 at [79] (Fullerton J).

59. Importantly, any condition must have the capacity to reduce or mitigate the risk which is unacceptable, rather than merely being a condition which may be generally appropriate in respect of a serious violent or serious sex offender. Identifying the possibility that a particular condition might reduce or eliminate the risk without regard to the particular offender’s specific risk factors would not suffice. It is important to keep these principles in mind in assessing the conditions which the State imposes.

Condition 7: Deviation from approved schedule of movements

63. The defendant agrees that he should provide a schedule of movements to his DSO and that he must not deviate from the approved schedule of movements except in certain circumstances. The State submits that Condition 7 should include an exception in the following terms “except in case of any circumstances which can reasonably be regarded as being an emergency. In such circumstances, the defendant is to notify the DSO of that deviation without delay.”

64. The defendant submits that the exception should be in terms that “except in case of any circumstances which the defendant reasonably regards as being an emergency. In such circumstances the defendant is to notify the DSO of that deviation without delay”.

65. The defendant’s wording is part subjective and part objective in that it depends on what the defendant regards as an emergency but it must be reasonable. On the other hand, the State puts forward an objective test being “which can reasonably be regarded”. It is not clear who might be the determiner or assessor of what is reasonable in all the circumstances. Presumably the assessment would be undertaken by the DSO after the event, that is, after the deviation.

66. The same issue was before Garling J on the preliminary hearing. I am not bound to follow his Honour’s approach but I share his Honour’s views. Compliance with the condition is not determined entirely by the views of the defendant. The belief that there was an emergency needs to be reasonable. I prefer the defendant’s wording.

Condition 23: Not to enter any licensed premises without the prior approval of a DSO

67. The State seeks a condition restricting entry to licensed premises and clubs except for the purpose of participating in lawn bowls and whilst in the company of his mother. Any other attendance could only be with the prior approval of the DSO. The defendant submits there should be no such condition.

68. The defendant’s offending has not been related to the consumption of alcohol. Dr Henderson does not support the imposition of such a condition and Dr Dewson is not fulsome in identifying the need of the condition.

69. Further, the State’s condition would even restrict him from entering premises for the purposes of lawn bowls unless in the company of his mother. The defendant is currently 52 years of age. The idea that he could only play lawn bowls with his mother standing by is unnecessarily restrictive. It must be borne in mind that the defendant is required to provide a schedule of movements that would necessarily include any intention to enter licensed premises, whether to participate in lawn bowls or for other social reasons.

70. I am not satisfied that Condition 23 proposed by the State is necessary or that it addresses the relevant risk factors. Condition 23 is deleted.

Condition 24: Requirement to participate in drug and alcohol rehabilitation

71. This condition relates to the requirement that the defendant participate in drug and alcohol programmes, including one-on-one counselling sessions in relation to substance misuse as reasonably directed by a DSO. The defendant submits that the condition should be limited to the requirement to participate in one-on-one counselling sessions in relation to substance misuse. The State puts forward a broader condition which would include other programmes for drug and alcohol rehabilitation.

72. The defendant is resistant to group-based therapy. It may be part of his antisocial disorder. Dr Dewson supports one-on-one sessions and suggests that group sessions may not be beneficial to him as it would increase his exposure to antisocial influences and individuals who are currently engaged in drug use. Dr Henderson also recommended one-on-one sessions.

73. Again, the defendant’s approach is consistent with the expert evidence which has been recently obtained. I adopt the defendant’s wording.

Conditions 44A and 44B: Access to pornographic, violent and classified material

74. These conditions relate to the defendant’s possible use of pornography, that is, restricted material. Whilst I raised a concern that the defendant would not be able to understand the various classifications and categories when viewing such pornography, I was assured by the State that the descriptions of the categories are in fact classifications which would apply to any form of what is commonly known as pornography.

75. I am satisfied that such a condition is appropriate. The State does not propose a blanket ban on assessing such pornography. It is just that the defendant must notify his DSO within 24 hours if he has purchased or been in possession of or accessed such material. The defendant opposes the DSO having any entitlement to giving any directions to him about accessing or possessing such material.

76. I favour the State’s approach. I understand that DSOs are provided with guidelines in respect of this type of material. There must be a wide range of material available to the defendant on the internet. In circumstances in which he has spent most of his adult life in custody, it may be that he would benefit from some direction from the DSO in relation to access, viewing, possession or purchase of the material. Again, I observe that any directions must be reasonable directions.

Condition 53: Prescribed medication

77. This condition relates to the defendant stopping or declining to take medication which is prescribed to him. The State seeks to impose a time limit of 24 hours on the defendant in terms of notifying his DSO that he is no longer taking the medication. The defendant suggests that there should be no precise limit but the term should be “without delay”.

78. I agree with the defendant’s proposal in respect of the condition. Whilst “without delay” may be a broad term, it must necessarily involve some effort on the part of the defendant to provide the information to the DSO as soon as possible. There could be many things that might happen in the 24 hours after the defendant has ceased medication and I am concerned that the placing of a mandatory time limit on the defendant may be unnecessarily restrictive and, again, may create the risk of inadvertent breach of the condition. I am satisfied that the defendant’s proposed condition provides adequate protection and sufficient requirement in respect of a notification to the DSO.

79. In all the circumstances, the conditions which I impose will be as set out in the schedule to this judgment. Each of conditions 7, 23, 24, 44 and 53 have been included in accordance with the comments that I have just made.

80. In the circumstances, I make the following orders:

1. Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders Act 2006 (NSW) (the Act), the defendant is subject to an extended supervision order for a period of three years from 29 July 2022.

2. Pursuant to s 11 of the Act, I direct that the defendant, for the period of the extended supervision order, comply with the conditions set out in the Schedule to this judgment.

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

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SCHEDULE OF CONDITIONS OF SUPERVISION

JASON AARON DELAPORTE

Departmental Supervising Officer (DSO)

Corrective Services NSW (CSNSW)

In these conditions:

“CSNSW” means Corrective Services NSW.

“Commissioner” means Commissioner for Corrective Services

“Defendant” means Jason Aaron Delaporte, also known as Jason Aaron Salis, the defendant in these proceedings and the subject of the order.

“Digital Blueprint” has the same meaning as in the Weapons Prohibition Act 1998 (NSW) and means any type of digital (or electronic) reproduction of a technical drawing of the design of an object.

“Electronic Identity” means each of the following:

(a)   an email address,

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

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

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

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

“Material” includes:

1. any written or printed material;

2. any picture, painting or drawing;

3. any carving, sculpture, statute or figure;

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

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

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

“NSWPF” means NSW Police Force.

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

“Search” includes:

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

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

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

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

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

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

Electronic Monitoring

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

Schedule of Movements

1. If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start.

2. If the defendant wants to change anything in his schedule of movements once it is approved by a DSO, he must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period.

3. The defendant must not deviate from his approved schedule of movements except in case of any circumstances which the defendant reasonably regards as being an emergency. In such circumstances, the defendant is to notify a DSO of that deviation without delay.

Part B: Accommodation

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

2. If the defendant resides at a residential facility, the defendant must obey all reasonable instructions given by the residential facility staff that are necessary to ensure the good order of the residential facility or the safety and welfare of residents, staff or visitors to the facility.

3. The defendant must allow a DSO to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.

4. The defendant must not spend the night anywhere other than his approved address or any alternative approved addresses (if relevant) without the approval of a DSO.

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

Part C: Place and travel restrictions

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

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

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

4. The defendant must not attend any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment, without the prior approval of a DSO.

Part D: Employment, finance and education

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

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

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

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

Part E: Drugs and alcohol

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

2. The defendant must submit to drug and alcohol testing.

3. Deleted.

4. The defendant must attend and participate in one-on-one counselling sessions in relation to substance misuse as reasonably directed by a DSO, and must not cease attending those sessions without prior approval of a DSO.

Part F: Non-association

Associations with Others (not children)

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

2. Without limiting condition 25, the defendant must not:

a.   associate with any people who he knows are consuming or under the influence of illegal drugs.

b.   associate with any person held in custody without prior approval of a DSO.

1. The defendant must not engage the services of sex workers, without the prior approval of a DSO.

2. The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary to address a risk of the commission of a serious offence. Before any disclosure is made, the defendant must first be so informed and given the opportunity to make the disclosure himself.

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

Part H: Weapons

1. The defendant must not possess or use any of the following:

1. a firearm, firearm part or ammunition within the meaning of the Firearms Act 1996,

2. a prohibited weapon within the meaning of the Weapons Prohibition Act 1998,

3. a spear gun,

4. an explosive substance intended, by the defendant, to be used in an explosive device,

5. a fuse capable of use with an explosive substance, device or a detonator;

a.   a knife (other than one possessed for use in connection with food preparation), machete, sword or any other device that consists of a single-edged or multi-edged blade or spike that is designed or adapted to inflict violence, whether actual or threatened

b.   any other implement made or adapted for use for causing injury to a person; or

c.   anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property.; or

Part I: Access to the internet and other electronic communication

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

2. The defendant must not use any alias, electronic identity, log-in name, name other than Jason Aaron Delaporte or any email address other than those known to a DSO. The defendant must give a DSO a list of all devices, services and applications he uses to communicate with or to access the internet and advise a DSO of any change to the list without delay. This includes phones, tablet devices, data storage devices or computers.

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

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

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

6. The defendant must not use any message application or service which he knows, or ought reasonably to know, is coded or encrypted. If the defendant is unsure whether a messaging application or service is encrypted, he can ask his DSO first.

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

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

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

10. The defendant must not by any positive act delete or alter any applications, email, text messages, any electronic message, call history, any data, internet search, internet or application search history, any application, chat or communication history from his phone, computer, tablet nor any other electronic device without the prior consent of a DSO.

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

Part J: Search and seizure

1. The defendant must submit to a search by a DSO (or any other person as directed by the DSO) of his person or residence, or any vehicle in which he is travelling or which is under his control, or any computer, electronic or communication device, storage facility, garage, locker or commercial facility in his possession or under his control; and to the seizure of any object located during the search.

2. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out and pursuant to this Order.

Part K: Access to pornographic, violent and classified material

44A.   The defendant must notify his DSO within 24 hours if he has purchased, is in possession of or has accessed or obtained material, whether by electronic or other means, that is classified or could be classified as Refused Classification, X18+, Restricted Category 2 and Restricted Category 1.

44B.   The defendant must obey any reasonable directions of his DSO in relation to the access, viewing, possession or purchase of the material identified in condition 44A above.

Part L: Personal details and appearance

1. The defendant must not change his name from Jason Aaron Delaporte or use any other name without notifying a DSO.

1. The defendant must not significantly change his appearance to the extent that he cannot be easily recognised without first notifying a DSO.

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

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

Part M: Medical intervention and treatment

1. The defendant must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction. If the whole cost thereof is not met by Medicare or by other Commonwealth or State funding then any cost which the defendant himself will be required to bear must reasonably be within his means.

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

3. Deleted.

4. The defendant must take medications that are prescribed to him by his healthcare practitioners only in the manner prescribed.

5. If the defendant ceases to take, or declines to commence taking, any medication referred to in the above condition, the defendant must notify a DSO of the missed dosage without delay.

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

7. The defendant must agree to any information being shared between those persons and agencies that are directly or indirectly involved in his supervision.

8. The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him to the extent that it is relevant to his risk of reoffending or rehabilitation. Before any disclosure is made, the defendant must first be so informed and given the opportunity to make the disclosure himself.

Endnotes

Decision last updated: 27 July 2022