State of New South Wales v Fernando

Supreme Court

New South Wales

Case Name:	State of New South Wales v Fernando
Medium Neutral Citation:	[2016] NSWSC 1665
Hearing Date(s):	23 November 2016
Date of Orders:	25 November 2016
Decision Date:	25 November 2016
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	See paragraph [132]
Catchwords:	CRIMINAL LAW – Crimes (High Risk Offenders) Act 2006 – application for extended supervision order – final hearing – defendant poses unacceptable risk of committing serious sex offence – consideration of factors in s 9(3) of Crimes (High Risk Offenders) Act 2006 – extended supervision order made for maximum period
Legislation Cited:	Child Protection (Offenders Registration) Act 2000 (NSW), s 17(1) Crimes Act 1900 (NSW), s 61J Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 4, 5, 5B, 5C, 5I, 7, 9, 10, 10A, 11, 12, 13, 21, 21A, 25
Cases Cited:	Lynn v State of New South Wales [2016] NSWCA 57 State of New South Wales v Donovan [2015] NSWCA 280 State of New South Wales v Fernando [2016] NSWSC 1427 Wilde v State of New South Wales [2015] NSWCA 28
Texts Cited:	Nil
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) Kevin Todd Fernando (Defendant)
Representation:	Counsel: H Bennett (Plaintiff) D O’Neil (Defendant) Solicitors: Crown Solicitor’s Office (Plaintiff) Legal Aid Commission of NSW (Defendant)
File Number(s):	2016/269248
Publication Restriction:	Nil

JUDGMENT

Introduction

By summons filed on 7 September 2016, the State of New South Wales (the plaintiff) sought an extended supervision order (ESO) under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) in respect of Kevin Fernando (the defendant) for a period of five years, on the conditions set out in the schedule annexed to the summons. Except where otherwise stated all references to legislative provisions in these reasons are to the Act. The plaintiff also sought an interim supervision order (ISO) against the defendant pursuant to s 10A pending the final hearing of this matter and an order pursuant to s 7(4) appointing either two psychiatrists or a psychiatrist and a psychologist to examine the defendant and report to the Court on the examinations.
On 4 October 2016 Beech-Jones J granted leave to the plaintiff to file an amended summons to reflect changes in the conditions set out in the schedule annexed to the summons. On that day his Honour made orders under s 7(4) and ordered an ISO to commence on 19 October 2016, being the day on which the defendant’s sentence expired: State of New South Wales v Fernando [2016] NSWSC 1427. An. A further amended summons was filed at the commencement of the hearing on 23 November 2016, which reflected further changes in the conditions.
The ISO has since been renewed. The renewed ISO is due to expire on 13 December 2016.
Mr O’Neil, who appeared on behalf of the defendant, accepted that it was open to the Court to be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if not kept under supervision. However, Mr O’Neil contended that, if an ESO was made, it ought not be for the maximum period of five years. He submitted that an ESO of four years’ duration would be sufficient. Mr O’Neil also took issue with some of the conditions, which will be referred to in more detail below.

Evidence

The plaintiff relied on the following evidence:
(1)Affidavits of Azam Bulbulia affirmed 7 September 2016 (including Exhibit AYB-1) and 16 September 2016;
(2)Affidavits of Paul Nash affirmed 29 September 2016, 3 November 2016 and 23 November 2016 (which annexes a victim statement pursuant to s 21A(4));
(3)Affidavit of Dr Richard Parker sworn 3 November 2016;
(4)Affidavit of Amanda Carden affirmed on 9 November 2016; and
(5)The following reports of the experts appointed by the order under s 7(4) referred to above: a report of Dr Jeremy O’Dea dated 3 November 2016 and a report of Mr Patrick Sheehan dated 29 October 2016.
Mr O’Neil did not object to any of the plaintiff’s evidence, much of which comprised material that had been produced pursuant to orders under s 25 of the Act (referred to below) and was therefore admissible under s 25(3). He required Ms Carden and Mr Sheehan to attend for cross-examination. Their evidence will be addressed below.
The defendant adduced no evidence. It is not appropriate for me to draw any inference against the defendant by reason of his not giving evidence as the Act does not displace the privilege against exposure to a penalty, save for the obligation upon an offender to be examined by the two independent experts: State of New South Wales v Donovan [2015] NSWCA 280 at [115]-[119] per Beazley P and Macfarlan and Leeming JJA.

The applicable law

The Act

Section 3 of the Act provides:
“Objects of Act
(1) The primary object of this 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 protection of the community.
(2) Another object of this Act is to encourage high-risk sex offenders and high-risk violent offenders to undertake rehabilitation.”
The legislative purpose of the Act is protective, not punitive. The protective purpose is fundamental, as is evident from the wording of s 3(1).
Section 4 of the Act relevantly contains the following definitions:
serious sex offence—see section 5(1).
sex offender means a person over the age of 18 years who has at any time been sentenced to imprisonment following his or her conviction of a serious sex offence.
The definition of “serious sex offence” in s 5(1) includes: an offence under Division 10 of Part 3 of the Crimes Act 1900 (NSW), where the offence is punishable by imprisonment for 7 years or more: s 5(1)(a)(i). An offence against s 61J of the Crimes Act (which is contained in Division 10 of Part 3) is punishable by imprisonment for 20 years and is, accordingly, a “serious sex offence” within the meaning of s 5(1).
Section 5B provides:
“High risk sex offender
(1) An offender can be made the subject of a high risk sex offender extended supervision order or a high risk sex offender continuing detention order as provided for by this Act if and only if the offender is a high risk sex offender.
(2) An offender is a high risk sex offender if the offender is a sex offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision.
(3) The Supreme Court is not required to determine that the risk of a person committing a serious sex offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious sex offence.”
Section 5C confers power on this Court to make an ESO in respect of a high risk sex offender. Implicit in s 5C is that the supervision provided by an ESO is sufficient to counter what would otherwise be an “unacceptable risk”. Supervision can only be regarded as “adequate” if it is effective to reduce the risk such that the offender no longer poses an unacceptable risk.
Section 5I(1) provides that an application for a high risk sex offender ESO may be made only in respect of a supervised sex offender. A person who is under supervision while serving a sentence of imprisonment (whether in custody or on release on parole) for a serious sex offence is, relevantly, a supervised sex offender: s 5I(2).
Section 7 deals with pre-trial procedures and what is to occur following the preliminary hearing. It relevantly provides:
“(4) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders:
(a) appointing:
(i) 2 qualified psychiatrists, or
(ii) 2 registered psychologists, or
(iii) 1 qualified psychiatrist and 1 registered psychologist, or
(iv) 2 qualified psychiatrists and 2 registered psychologists,
to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and
(b) directing the offender to attend those examinations.
(5) If, following the preliminary hearing, it is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must dismiss the application.”
Section 9(3) provides that the following (as well as any other matter I consider to be relevant) are to be taken into account in determining whether to make an ESO:
“(a) the safety of the community,
(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 relevant 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 relevant 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,
(f) 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 2000http:// - /view/act/2000/42 or the Child Protection (Offenders Prohibition Orders) Act 2004http:// - /view/act/2004/46,
(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 in future commit offences of a sexual nature (in the case of an application for a high risk sex offender extended supervision order) or serious violence offences (in the case of an application for a high risk violent offender extended supervision order).”
Section 10 provides that an ESO can be made for a total of five years. Section 11 provides for the conditions that may be imposed on an ESO. Section 12 provides that a person who fails to comply with the requirements of an ESO or ISO is guilty of an offence. Section 13 provides that an ESO or ISO may be varied or revoked.
These proceedings are civil proceedings and, to the extent to which the Act does not provide otherwise, are to be conducted in accordance with the law (including the rules of evidence) relating to civil proceedings: s 21.
Section 21A provides for notice to be given to each registered victim of the offender (defendant). Each such victim may provide a statement, which “may be placed before the Supreme Court for consideration in respect of the application” for an ESO: s 21A(4).
Section 25 provides that the Attorney-General, on behalf of the plaintiff, may, by written order, require the production of documents that relate to the behaviour, or physical or mental condition, of any offender. Any document produced in answer to an order is admissible in proceedings under this Act.

Background facts

If the threshold test in s 5B is met, the matters to be considered are listed in s 9. Before addressing these matters, I propose to set out a narrative derived from the evidence adduced by the plaintiff.

Background

Offences committed as a minor

The defendant was born in 1962. In 1974, when the defendant was twelve, he was convicted in the Children’s Court of the first of several property-related offences. The defendant was subject to supervision on remand in 1976, which was recommended by Anthony Cole, a psychologist, who reported on 16 March 1976 that the defendant was mildly mentally retarded and had difficulties learning, as a result of which the defendant felt victimised by his peers. Mr Cole commented on the lack of parental supervision and the “definite delinquent orientation” of the defendant. On 21 April 1976 a District Officer of the Department of Youth, Ethnic and Community Affairs at Narrabri (H. Fenton) commented that the defendant’s behaviour had improved under supervision.
On 11 July 1978 the defendant was assessed by Bruce Bowmaker, a psychologist, who reported as follows:
“Kevin is a part-aboriginal lad of below average intelligence. From his reports it seems that he comes from a socially deprived environment where the parents have little idea of supervision and guidance. He is a frank and confident lad but of poor social skills. He expresses little remorse for his anti-social activities and is unconcerned about his committal. He is an immature lad who usually offends with his cousins who are some years younger than himself.
He should not be disruptive in the training school and could benefit from remedial education as he is retarded in this area. He could also benefit from a programme aimed at instituting controls in order to resist peer pressure”
Between 1980 and 1990, the defendant was subject to a number of short sentences, monetary fines and good behaviour bonds for various offences, including: malicious injury (11 April 1980; 4 May 1981); stealing (11 April 1980); receiving (2 December 1980); break enter and steal (5 December 1980; 27 March 1990); break and enter with intent to steal (5 December 1980); goods in custody (4 December 1984); steal from person (22 June 1987); larceny (27 March 1990; 24 September 1990); assault occasioning actual bodily harm (24 September 1990); assault (24 September 1990); steal motor vehicle (27 September 1989); robbery in company x 2 (31 August 1989) and assault with intent to rob (31 August 1989). On 31 August 1989, the defendant was sentenced to three years and ten months in custody for the charges of robbery in company (two counts) and assault with intent to rob. He was released to parole on 28 June 1991 after having served the non-parole component (16 months) of his sentence.
The defendant breached his parole in November 1991 through failure to maintain contact with Community Corrections. His parole was revoked and he was returned to custody to serve the remainder of his sentence. He was released in March 1992.

Offending conduct

First sexual offence: January 1993

On 17 January 1993 the defendant committed aggravated sexual assault and armed robbery, for which he was later indicted and to which he pleaded guilty. The sentencing judge, O’Reilly DCJ, recorded the circumstances of the offences in the remarks on sentence which are summarised as follows.
The victim, a 30-year-old mother of two, was at home on Sunday night when she was threatened by the defendant with a knife, which he shoved into her ribs. The defendant told her of his intention to rob her. She responded that he could take what he wanted but begged that he not hurt her as she had two babies. She was in a state of “abject terror”. He inquired whether she would promise not to report him. She agreed on condition that he not harm her or her children. He reminded her that he knew where she lived and threatened to return and would “do your kids first”. The defendant used the knife to cut the swimsuit which the victim was wearing and remove it from her body. He continued to threaten her with a knife while engaging in oral sex with her. He then had penile intercourse with her. He told her to pray that her children “stay asleep”. He demanded to know where her money was and left with $150 of the victim’s money. As soon as the defendant left, the victim called her mother. Her parents came immediately and found the victim to be very distressed. While they were there the offender rang the victim’s phone number. The phone was answered by the victim’s mother who heard the defendant say: “I am the one who did it to you”. When the victim heard what the defendant had said she became hysterical with fear that she or her children would suffer retribution at his hands.
The evidence at the sentence hearing
Before the defendant was sentenced by O’Reilly DCJ (which occurred on 10 June 1994) he was examined by Dr Yvonne Skinner on 24 March 1994 at the Remand Centre, Long Bay Gaol. He gave a history of drug and alcohol abuse from a young age (at least from 12 years of age). Dr Skinner concluded:
“He has a major problem of alcohol and drug (benzodiazepine and anti-depressant medication) dependence/abuse. He is suffering from physical signs of alcohol abuse, particularly central nervous system damage. He claims to have suffered “black outs (that is complete amnesia for events which occurred during periods of heavy drinking).
He comes from a background of severe emotional and material deprivation and a model of parent alcoholism and domestic violence, and this has affected his self-perception and also his perceptions as to expected and acceptable behaviour.
…
His control of aggression is directly linked to his alcohol abuse, as he loses control of his aggressive impulses when affected by alcohol. Thus if he could successfully complete a rehabilitation program and abstain from alcohol and drugs, he would be unlikely to re-offend.
His prognosis must be considered guarded in view of the long standing nature of the problem.”
The sentencing remarks
The sentencing judge described the facts as “quite appalling”. His Honour noted that the defendant was in a de facto relationship and referred to a statement from the defendant’s half-brother, to whom he had donated a kidney. The sentencing judge said that, but for the plea of guilty, he would have imposed a sentence of 12-14 years but has discounted that “substantially”. His Honour found special circumstances. The sentence imposed is set out in the following table.

Date of offence	Offence	Sentence	Commencement/ expiry
17.1.93	Aggravated sexual assault	9 yrs, with non-parole period of 6 yrs	27.1.93; non-parole period expires 26.1.99; term expires 26.1.02
17.1.93	Armed robbery	3 yr fixed term	27.1.93/ 26.1.96

As a result of his time on remand and the sentence, the defendant was in custody from 27 January 1993 until 26 January 1999.

Release to parole on 26 January 1999

The defendant was released to parole on 26 January 1999. One of the conditions of his parole was that he reside with a teacher, T, working within the correctional system whom he met while in custody and with whom he had an intimate relationship. T had two children, a daughter and a son, who also lived at the residence with the defendant. In May 1999 the defendant moved out of the home but returned to reside there between July and September 1999.
Offences committed in October 1999 (which include the index offences)
Offences on 12 October 1999
On 12 October 1999 the defendant returned to T’s home to steal various items for the purpose of pawning them to obtain funds for drugs. No one was home when he stole the property, a CD player and stereo system which belonged to T’s daughter. That afternoon, the defendant came back to T’s house, went into T’s bedroom and stripped to his boxer shorts. When T’s daughter came home from school, she asked the defendant about her stereo, which she noticed was missing. He then dragged her into her mother’s room and began to masturbate his erect penis and told her to sit on the bed. She was terrified. He asked her for her assessment of the size of his penis. She was too frightened to reply. He abused her and pinned her down on the bed. In an attempt to distract the defendant, T’s daughter kept asking him about the stereo. Later he picked up a kitchen knife and threatened to kill himself if she told anyone what had occurred. She asked for the stereo system to be returned, to which he agreed on condition that she would have sex with him. When she refused, he began to yell abuse at her. He grabbed her and pushed her to the floor. He sat on her stomach and held a knife to her throat. A knock was heard at the door. The defendant left the room. When he returned he told T’s daughter that he had to tie her up to make it look as if the house had been robbed. He bound and gagged T’s daughter and exposed his penis to her. He knelt over her and pulled her underpants down, which had the effect of making his penis erect. She continued to struggle, at which point the defendant said, “What have I done?” He cut her loose and apologised for his conduct. He pushed her to the floor and threatened her again with the knife. He told her that if she told anyone what had happened he would kill her family and deny it in court.

The defendant allowed her to go to the bathroom and when she returned, he embraced her and told her that he loved her, T and her brother. He apologised again and told her that he did not mean to hurt her. He rubbed cream onto her wrists and then blamed the drugs he was on for his conduct. He again pulled his jeans down and started to masturbate. He instructed T’s daughter to lie on the bed and asked her if she was a virgin and whether his penis would fit into her vagina. At this point, someone knocked on the door. When T’s daughter answered the door, she saw that it was one of her school friends. They both ran away to the friend’s place. T’s daughter was crying and shaking. By the time the police and ambulance arrived, the defendant had located the spare key to T’s car and departed with it. He drove T’s car to a nearby home, ransacked the premises and stole various belongings and money. He abandoned T’s car there. That night, he telephoned T and apologised for what he had done.
Offences on 16 and 18 October 1999
On Saturday 16 October 1999 the defendant stole a Holden Commodore. On 17 October 1999 he filled up the Holden Commodore with petrol, for which he did not pay and took various items from the service station store without paying for them. The value of the petrol and various items was $84.40.
On Monday 18 October 1999, the defendant was driving the Holden Commodore at 8.45am when he saw V3, who was fifteen years old and wearing a school uniform. He stopped the car and forced her into it. He covered her with a blanket and threatened her with a screwdriver which he forced into her neck. He said, “If you don’t do as I say I’ll kill you.” What then ensued was described by Williams DCJ (the sentencing judge) in the following terms in the remarks on sentence:
“The prisoner drove to bushland in the P6 and stopped the car. He told V3 to get up and lent across and reclined the passenger seat. He told her not to scream. He then unbuttoned her school blouse and removed her bra and underpants. Rolled her school skirt up and then pulled down his jeans and underpants exposing his erect penis.
He then got on top of V3, pulled her legs apart and then pushed his penis against V3’s vagina ignoring her pleas for him to stop as it hurt. He said “It’s only halfway up” and then pushed his penis forcefully into the child’s vagina causing considerable pain and bleeding. He had intercourse with V3 for a few minutes, she being too frightened to speak but crying throughout.
After ejaculating the prisoner removed his penis and told her to dress. She saw that she was bleeding and noticed there was blood on the car seat and on her clothes. He drove off with her in the car and as he drove he told V3 not to tell anyone. He said “I should kill you now.” When V3 promised [not, sic] to tell anyone he said “Alright I won’t kill you.” He said he would drop V3 near her home.
The prisoner stopped the car at a location within a short walk of V3’s home. He demanded her money and she gave him the four dollars she had in her school bag. The prisoner then directed V3 to get out of the car and he drove off.
He then drove the vehicle to a park in P7 where he stopped the car and set it alight. It was partially destroyed in the fire.
V3 dishevelled, pale and shaking, went home and showered and changed. Shortly afterwards she approached a neighbour and asked if she could use a telephone as she had just been raped. The neighbour suggested telephoning police, but the victim asked her not to as her assailant said he would kill her. She telephoned her mother and police were subsequently called.”
On 19 October 1999 the defendant’s parole was revoked as his offending conduct constituted a breach of the conditions of his parole.
Offences on 20 October 1999
On 20 October 1999 the defendant went to a residence and forced the driver’s side door lock of a Saab motor vehicle owned by V4 and stole a M5 motorway card. He went inside and stole money, a driver’s licence, two keycards and a set of house keys. He left through a sliding door. V5 was in the shower at the time and came out to discover the defendant standing at the side of the house. V5 noticed that two vehicles had been broken into, the Saab and a Suburu. Items had also been taken from that car by the defendant. A Sierra 4-wheel drive was also broken into and various items taken.
Police were called. The defendant was located a short time later and arrested and charged.
The defendant’s plea of guilty and the sentence imposed
As a result of the events of 12, 16, 18 and 20 October 1999, the defendant was arrested and charged with several offences, to which he pleaded guilty and was sentenced by Williams DCJ on 25 October 2000. The material before the sentencing judge included a victim impact statement made by V3’s mother on behalf of her daughter, which said:
“Details of personal harm suffered as a direct result of the offence(s):
I make this statement on behalf of V3 who is my daughter. She is unable to make the statement due to her present emotional and mental state. She cannot speak of the incident at all, let alone make a written statement of the impact on her.
The attack against V3 had had an enormous effect on her in very many different ways. As far as I know she has been unable to speak with anyone at all about the incident since giving her statement to the police. She has refused all counselling and becomes extremely distressed if the subject is brought up. When I have had to tell her about court dates she will listen and then just walk away, she will not talk about it at all.
We had to move house, as V3 did not feel safe. She told me that he might know where she lived and that she had fears that he would come and kill her because she had told police about the attack.
V3 will not leave the house by herself at all. Someone has to take her to school and pick her up. Wherever she goes someone in the family must be with her. The family have willingly done this. Apart from going to school, V3 leaves the house far less than previously. She no longer goes to friend’s houses to visit, and will not go to school functions like dances and other social occasions.
V3 will not leave the house wearing a skirt tor dress as she did previously. She will only wear long trousers when outside of the house. Apart from her father and grandfather, I have noticed that she avoids all conversation and interaction with males. She gets extremely nervous if approached without warning, even inside the house, and jumps nervously at the slightest touch.”
In the remarks on sentence, Williams DCJ said of the danger the defendant poses to the community:
“Whilst it is true that to some extent one can mitigate the requirements of general and specific deterrence where a person does not have the appropriate mental capacity to deal with life and the circumstances that give rise to offending, that mitigation in the light of repeat offending must give way to a recognition that ultimately a person is responsible for his own acts, that when someone has so behaved in a certain way in the past and been significantly punished for it and that person re-offends in a similar way at a later point of time, that person’s inability to make appropriate decisions and act appropriately must be considered to be less relevant. My concern in this matter is that there is really nothing substantial before me to suggest that upon release Mr Fernando will not be likely to re-offend. In my view there is a high risk of re-offending.”
His Honour also addressed the gravity of the offences against V3 and the extent to which, if at all, the plea of guilty ought result in a discount in the sentence imposed. His Honour said:
“In my view the offences against V3 fall into that category [where the sentence ought not be discounted]. This was an offence that is objectively in the worst category of such offending. The effects on the victim will be permanent and only time will tell how dramatically this event will impinge on her ability to lead a normal life. It is an offence that deserves the greatest community condemnation and for which a sentence should be imposed to reflect the community’s outrage at the offending behaviour and which is likely to protect the community from such behaviour from the prisoner for some considerable period in the future.”
The offences, maximum penalties and sentences imposed are set out in the following table:

Date	*Offence/ Crimes Act* section**	Maximum penalty	Sentence imposed
12.10.99	Forcible abduction with intent to carnally know/ s 89	14 years	7 years commencing 20.10.99 with non-parole period of 5 years
12.10.99	Assault with intent to have sexual intercourse with a child under 16/ s 66D	8 years	5 years (20.10.99-19.10.04)
12.10.99	Commit act of indecency with a child under 16/ s 61N(1)	2 years	1 year (20.10.99-19.10.00)
12.10.99	Assault occasioning actual bodily harm/ s 59	5 years	3 years (20.10.99-19.10.02)
12.10.99	Assault/ s 61	2 years	1 year (20.10.99-19.10.00)
12.10.99	Larceny/ s 117	5 years	1 year (20.10.99-19.10.00)
12.10.99	Break, enter and steal/ s 112	14 years	3 years (20.10.99-19.10.02)
12.10.99	Take and drive conveyance/ s 154A(1)	5 years	3 years (20.10.99-19.10.02)
16-18.10.99	Sexual intercourse without consent with a child under the age of 16/ s 61J	20 years	12 years commencing 20.10.04 with non-parole period of 9 years
16-18.10.99	Detain for advantage/ s 90A	14 years	6 years (20.10.04-19.10.10)
16-18.10.99	Aggravated robbery/ s 95(1)	20 years	6 years (20.10.04-19.10.10)
16-18.10.99	Obtain property by false pretences/ s 179	5 years	1 year (20.10.04-19.10.05)
16-18.10.99	Steal motor vehicle/ s 154A(1)	10 years	3 years (20.10.04-19.10.07)
20.10.99	Break enter and steal/ s 112	14 years	4 years (20.10.04-19.10.08)
20.10.99	Three offences of larceny/ s 117	5 years	1 year (20.10.04-19.10.05)
20.10.99	Possess housebreaking implements/ s 114(1B)	7 years	2 years (20.10.04-19.10.06)
Form 1	Goods in custody/ s 527C	6 months	[included on Form 1]

The effective total sentence was 17 years, commencing on 20 October 1999 and expiring on 19 October 2016. The first day on which the defendant became eligible for release to parole was 19 October 2013, although he was not in fact released to parole until May 2016.

Period in custody from 1999 to 2016

During his substantial period in custody, the defendant was, as was later noted by Dr Parker, generally regarded as a “well-behaved prisoner”.
Assessment by Helen Haywood in August 2000
In August 2000 the defendant was assessed, on the request of the Parole Board, by Helen Haywood, a registered psychologist at the Junee Correctional Centre where the defendant was imprisoned. At that stage his parole for the 1993 offence had been revoked and he had not yet been sentenced for the 1999 offences (which occurred on 25 October 2000). At the assessment he admitted the sexual offence on 12 October 1999 but denied the one committed on 18 October 1999 (to which he subsequently pleaded guilty). Ms Haywood noted:
“The nature of the second offence appears to involve an escalation of his deviant behaviour and contains a high level of sexual deviance and criminality.”
Ms Haywood also noted the following:
“He attempted to explain his sexual offending as being “racially based” and as a form of revenge against “white people” since he was sexually assaulted himself when an adolescent.”
CUBIT program and report dated 23 December 2010
Between 25 June and 12 November 2009, the defendant took part in the “PREP” preparatory sex offender program at Long Bay gaol. Between 9 February and 3 December 2010 the defendant participated in the Custody-Based Intensive Treatment (CUBIT) program. The defendant’s attitude to his sex offending in 1999 was recorded in the report dated 23 December 2010 prepared by Miriam Wyzenbeek, a forensic psychologist, following his completion of the CUBIT program:
“29. In the lead up to his sexual offending, Mr Fernando experienced heightened feelings of sexual inadequacy. He blamed the victim’s mother for these inadequacies (e.g., “Is there something wrong with the way I make love? What have I got to do to satisfy this woman?”). He began telling himself that he should pursue sex with someone with nil/limited sexual experience and became fixated on the victim. During this time, he sexualised the behaviours of pubescent girls, particularly those in school uniforms. He would fantasise about the victim during sex with the mother and self-masturbation. In these fantasies, the victim was impressed with Mr Fernando’s penis size and sexually satisfied. Mr Fernando would interpret the victim’s behaviours as evidence that she was interested in experimenting sexually with him. On the day of the primary offence, Mr Fernando cited revenge against the victim’s mother as the trigger for his sexual offending (e.g., “I may as well give her [the mother] something to be really mad at”; I’ll teach the victim’s mother for treating me the way she does”). Mr Fernando stated that his subsequent offending was triggered by his failure to engage in sex during the primary offence.
30. Following failure of the primary offence, Mr Fernando feelings of sexual inadequacy were even more exaggerated. During this time, he coped by increasing his substance use and involvement in crime. He also continued to masturbate to fantasies about sex with the primary victim. In these fantasies however he imagined using force “To show her that I know how to have sex”. He would drive around during times that children were making their way to and from school. During the day, he would park in front of school playing fields and masturbate whilst watching school girls interact or play sport. Based on Mr Fernando’s account, the subsequent offence was opportunistic. He reported imaging the victim of the primary sexual offence during perpetration of this offence. He described being aggressive and threatening towards the victim “More so than I’ve even been, more so than I needed to be” and acknowledged being aroused to the anger. Mr Fernando emphasised the fast escalation of his anger and aggression towards the victim.”
Ms Wyzenbeek recommended that, on release, he participate in a community-based maintenance program; and that he initially reside at a Community Offender Support Program (COSP) Centre. She also recommended the following restrictions:
“86. Mr Fernando’s residence should not be with a female child under the age of 16 years, he should not have unsupervised access to female children, and he should not be in positions of authority for children. Should he be in a position where he may be in the presence of a minor, it is recommended that this contact be monitored by a responsible adult who is aware of his potential risk and who is able to provide him with feedback about unhelpful behaviours if necessary.”
Ms Wyzenbeek also recommended that the defendant be assessed for possible treatment with anti-libidinal medication “given his arousal to deviant sexual interests”.
Community Treatment Order
In August 2014 the defendant stopped taking his medication for schizophrenia (with which he was diagnosed while in custody) and became psychotic as a result of which he was admitted to the Long Bay Hospital on 22 August 2014 for assessment. He displayed behaviour such as disorganised speech, aggression and was hearing voices.
Justice Health applied to the Mental Health Tribunal (the Tribunal) for a Forensic Community Treatment Order (FCTO) to mandate his compliance with treatment and medication. A report of Dr Shweta Sharma, a Registrar in Forensic Psychiatry, dated 10 September 2014 was provided to the Tribunal. Dr Sharma was part of the team responsible for the defendant’s treatment at the Long Bay Hospital. Dr Sharma made the following diagnosis:
“DIAGNOSIS
Mr Fernando suffers from Chronic Schizophrenia, which is a mental illness, characterised by thought disorder, persecutory delusions, auditory hallucinations and bizarre behaviour. Despite first documentation of his psychotic symptoms in 1999, it appears that he has been suffering from psychotic illness long before, which went unnoticed due to his long spells in the custody.”
Dr Sharma’s opinion and recommendations were as follows:
“OPINION AND RECOMMENDATION
Mr Fernando suffers from Paranoid Schizophrenia which has responded well to antipsychotic medications. He will need to continue his prescribed medication in the longer term. He will also benefit from ongoing support and Psychoeducation.
However, Mr Fernando has a well-documented history of poor medication compliance and secondary relapse requiring hospitalisation. His partial insight remains of a concern and is likely to affect his medication compliance.
Mr Fernando was referred to MSPC and was accepted for Forensic CTO. He will be under care of Dr Furst. The treating team respectfully recommends that Mr Fernando to be transferred back to Metropolitan Specials Program Centre (MSPC), Long Bay Goal under Forensic community treatment order for ongoing care and treatment”.
On 18 September 2014 the Tribunal granted the FCTO and determined that the defendant was mentally unwell. Since that time further FCTOs were ordered. Upon his release, a CTO was ordered. The current community treatment order (CTO) is due to expire in March 2017. The effect of such orders is that the defendant can be compelled to take medication (including anti-psychotic medication to control the schizophrenia) and receive treatment.
Courses in addition to CUBIT completed in prison
The defendant has undertaken several courses in prison. He began the CALM Male Australian Adaptation program on 31 January 2012 and attended 9 out of the 29 sessions. The course was discontinued before he could complete the remaining sessions. He completed Equips Addiction Program in 2015 to assist him with drug, alcohol and gambling addictive behaviour.
Pre-release conduct
After the defendant’s hospitalisation in September 2014, there appeared to be a significant change in the defendant’s behaviour. As noted above, he had been eligible for release on parole since 2013 but had been adjudged to be unsuitable having regard to his failure to co-operate. In November 2014 the defendant discussed with officers the reasons for his parole being declined. He put his name down for courses and agreed to take anti-libidinal medication. He told officers that he was settled on his new medication (anti-psychotic) and that he wanted to work towards getting out of gaol. This heralded a marked change in the defendant’s attitude and led to his release to parole on 11 May 2016.
Employment in prison
On 19 January 2015 the defendant commenced employment with Corrective Service Industries in Textiles. He transferred to the bakery on 2 February 2015. His supervisor described him as “a good worker who always tries his best when he is here working at the bakery”. It was also noted that the complied with the direction of the team leader and had a good working relationship with the officer and other inmates.
Risk assessment report dated 29 January 2016 by Dr Parker and Ms Matsuo
On 29 January 2016 the defendant was interviewed by Dr Parker (a Senior Psychologist with the Serious Offenders Assessment Unit of Corrective Services) and Ms Matsuo (a Forensic Psychologist and State-wide Manager Programs), who conducted a risk assessment for the purposes of the Act (s 9(3)(c)) and who prepared a report dated 3 February 2016. They addressed the connection between the defendant’s general offending and his sex offending as follows:
“Summary of Sexual Offending
14. Mr Fernando’s sexual offences have all been committed against post-pubescent females. They all occurred in the context of substance abuse and more general criminality. He did not know two of his three victims before the offences, and probably only decided to sexually assault them shortly before committing the offences. It is possible the offence against his ex-partner’s daughter involved a similar lack of forethought, although he admitted obsessing about her in the period leading up to that offence.
Timeline of non-sexual offences
15. Mr Fernando has an extensive history of general offending, ranging in seriousness from theft to armed robbery. The long-standing nature, and frequency of this offending pattern, suggests that he held a generalised attitude, which gave him permission to take whatever he wanted. It is likely that his sexual offending fits within this same pattern.”

The defendant’s score on the Static-99R (a risk assessment tool based on static factors) was 5 which placed him in the medium-high risk category with respect to other male sexual offenders. He was in the 88th percentile compared to other male sexual offenders. Dr Parker and Ms Matsuo explained that this means that, taking into account that about 7% of sex offenders shared the same score, about 85% of such offenders scored lower than the defendant and 8% scored higher. He scored in the highest risk category by reference to the Violent Risk Appraisal Guide-Revised. He also obtained a high score by reference to the Stable 2007 risk assessment tool (an actuarial took developed to assist clinicians to identify stable dynamic risk factors for sexual reoffending). This placed the defendant in the high risk category relative to other male sexual offenders.
Dr Parker and Ms Matsuo assessed the general pattern of the defendant’s sex offending and considered that the sex offending was part of the overall pattern of rule-breaking behaviour and the “extreme end of a pattern of generalised offending”. They identified the following risk factors: drug and alcohol abuse; gambling; tendency to be violent towards women and have a sense of entitlement to their bodies; lack of pro-social influences; and non-compliance with mental health treatment and anti-libidinal medication.
Dr Parker and Ms Matsuo considered the reasons for the escalation in the seriousness of the defendant’s offending over time but were unable to come to a concluded view. They postulated the following possibilities:
(1)His continuing anti-social behaviour has alienated his usual supports;
(2)His time in custody has hardened him and lessened his connection with social norms;
(3)His cognitive processes have reduced his capacity for self-reflection (the defendant’s good behaviour in gaol was noted as being inconsistent with (3)); and
(4)He has become desensitised to anti-social behaviour and thus he did not regard the index offences as particularly shocking.
Dr Parker and Ms Matsuo postulated the following pattern were the defendant to re-offend:
“47. Were Mr Fernando to reoffend, this would be almost certainly be proceeded by him abusing alcohol and/or other drugs. At, or around the same time, he would cease taking his medication. If he is allowed to continue on this path, it would likely be followed fairly quickly by property offences, and then violent and/or sexual offences as the substance use escalated.
48. Prior to any of this, Mr Fernando would likely exhibit some psychological warning signs. These would include giving up hope of a good future, and/or hostility towards supervising authorities. This may be evident in the breaking of supervision conditions or simply complaining about the restrictions placed upon him”.
Report of Dr Scott Clark, forensic psychiatrist, dated 19 February 2016
Dr Scott Clark, a forensic psychiatrist, prepared a report dated 19 February 2016 for the State Parole Authority, which was considering whether the defendant ought be released to parole. Dr Scott noted that the defendant had been diagnosed as suffering from: schizophrenia characterised by psychotic symptoms, including paranoia, disorganisation and auditory hallucinations; substance abuse/ dependence; and paedophilia. He also recorded that the defendant was taking Depo-Provera, an anti-libidinal medication.
Dr Scott opined that the defendant would require close medical monitoring as well as access to psychological support and counselling. He considered that the defendant ought be required to refrain from illicit drugs and alcohol. Dr Scott also noted (with reference to the period in August 2014-September 2014 when the defendant failed to take anti-psychotic medication):
“Medical adherence is important considering his mental condition markedly deteriorated following a period of non-adherence.”
Risk management report of Teresa Sartor dated 1 March 2016
Ms Sartor, a Senior Community Corrections Officer in the ESO Team, interviewed the defendant and had regard to the documentary material, much of which has been referred to above. She noted the following pattern which emerges from a consideration of the defendant’s conduct following release from custody:
“With regards to community supervision, CSNSW [Corrective Services NSW] records would indicate that his initial response is usually positive however this soon deteriorates leading to breach action for either disengaging with his parole supervision or committing further offences. His risk factors have been identified as breakdown in relationships, substance abuse and gambling.”
Ms Sartor also performed a calculation of the length of time the defendant had spent in custody and expressed her concerns about his institutionalisation in the following terms:
“Mr Fernando was first incarcerated in August 1989 – twenty seven (27) years ago. Since that time he has only been at liberty for a period of approximately two years and 20 days. Due to his having spent a significant period of time in custody there may be issues around institutionalisation and he may experience some difficulties in adapting to normal community life post release.”
Ms Sartor addressed the risks identified by Dr Parker and Ms Matsuo and set out the ways in which she considered each risk could be addressed and managed. Her recommendations are largely reflected in the conditions in the schedule to the further amended summons and include regular meeting, field visits, electronic monitoring, referral to psychological services and alcohol and drug testing. She annexed to her report a document which provides details of the administration of an ESO.
Community Management Program at Forensic Psychology Services
On 20 April 2016 the defendant was accepted to start the Community Maintenance Program at Forensic Psychology Services (FPS), which initially required fortnightly attendances at FPS. While he was still in custody, he was accompanied by a custodial officer to the premises for his appointments. According to his “Reintegration Case Plan” dated 15 April 2016:
“The primary aim of the Maintenance Program is the successful reintegration of offenders into the community, the initial stages to desistance process.”

Release from custody in May 2016

In May 2016 the defendant was released to parole and taken to the Nunyara COSP where he continues to reside.
The defendant is subject to the conditions associated with being a registrable person under the Child Protection (Offenders Registration) Act 2000 (NSW) (CPOR Act). These conditions include declaration of “carriage services”, which include mobile phones.
On 3 June 2016 detectives from Maroubra police station found an undeclared phone in his room at the COSP facility where he is living. It was also discovered that was using a social networking address which had not been registered with police and was therefore in breach of the conditions under the CPOR Act. He was eventually charged under s 17(1) of the CPOR Act. He pleaded guilty. The Magistrate imposed a bond for 12 months under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Since the defendant’s release, the case management notes have recorded instances of his reporting that he has heard voices. On 29 June 2016 he reported that he heard an evil voice telling him to touch a woman on a bus. His medication was changed and on 5 July 2016 the defendant reported that he was no longer hearing voices.
Interim Supervision Orders
As referred to above, on 19 October 2016 the defendant became subject to an ISO which was due to expire on 15 November 2016. The ISO was renewed and is due to expire on 13 December 2016.
Since the commencement of the first ISO on 19 October 2016 the defendant’s Departmental Supervising Officer (DSO) has been Ms Carden, who was required for cross-examination. Ms Carden is a Community Corrections Officer within the ESO team and is based in Blacktown. She has been employed as a Community Corrections Officer since May 2014 and began working in the ESO team on 11 October 2016. Her training and qualifications include a Bachelor of Criminology and Criminal Justice with Honours from the University of New South Wales. Before commencing employment as a Community Corrections Officer she completed 12 weeks of training at the Brush Farm Corrective Services Academy. She also completed a Certificate IV in Correctional Practice.
Ms Carden gave evidence about her view of particular conditions, which will be referred to below when I address the conditions that are contested by the defendant. She also gave evidence in cross-examination that the defendant had asked her to accompany him to the Salvation Army or the Smith Family to see if they could put together a package deal for him to furnish a flat, which would include a lounge suite, a fridge, a television and so on. Ms Carden indicated her preparedness to help the defendant with this. She also expressed her concern about the defendant’s gambling and said that, although there was a condition prohibiting it and also a condition that he be monitored electronically, it would be relatively easy for the defendant to visit a TAB outlet en route to another approved location.
Court-appointed experts
On 4 October 2016 the Court ordered that the defendant be examined by Dr O’Dea and Mr Sheehan for the purposes of each preparing a report pursuant to s 7(4) of the Act.
Report of Dr O’Dea
Dr O’Dea interviewed the defendant in his rooms on 17 October 2016 and prepared a report dated 3 November 2016. He considered the defendant to pose a high risk of future sex offending. His view as to the causes of the offending appears from the following extract from his report:
“79. Rather, Mr Fernando’s history of offending in general is likely to be best understood in the context of his history of social disadvantage, his history of extensive alcohol and other drug abuse from a young age, and the financial implications of his alcohol and other drug abuse and dependence, and his gambling, in the context of his limited employment history.
80. His history of sex offending in particular is likely to be best understood in the context of combinations of his general offending history, his Paraphilic Disorders, the disinhibiting effects of his alcohol and other drug abuse and dependence, and the impulsive acting on his sexual urges and fantasies, when the opportunity arose.”
He considered there to be a significant risk that the defendant would engage in further sex offending in the community if he were to resume use of alcohol or illicit substances. He opined that the risk was long term and “potentially of at least 5 years’ duration”. He considered that the risk could be managed by an ESO and that the CTO could continue to address the defendant’s requirements for psychiatric treatment.
Report of Mr Sheehan
Mr Sheehan is a psychologist with extensive experience in the administration of ESOs. He worked for Corrective Services as part of the ESO team from 2006 until 2014. In his report he assessed the defendant’s risk of sex offending to be high. He suggested an ESO of “four to five years duration would be realistic given the chronic nature of his risk related issues”. This assessment appears in context in the following passage:
“Despite his ongoing efforts at rehabilitation, abstinence from substances and treatment compliance, his adjustment remains very tenuous and his risk of reoffending sexually would be considered to be in the high range. The possibility that a sexual re-offence would be a serious sexual offence is realistic given the offence dynamic evident in Mr Fernando’s case. I would suggest that an ESO of four to five years duration would be realistic given the chronic nature of his risk related issues.”
Mr Sheehan gave oral evidence as he was required for cross-examination by Mr O’Neil. Mr Sheehan emphasised the importance of a CTO by which the defendant could be forced to take medication and noted the importance of his taking medication in accordance with the prescription. Mr Sheehan also stressed the distinction between a person such as the defendant being appropriately managed by restrictions and controls such as those contained in a CTO, ISO or ESO and such a person who is living in the community without restrictions or oversight. He said:
“It looks like they are doing all right but as soon as the shackles are off things go pear‑shaped very quickly.”
Much of the cross-examination of Mr Sheehan was directed to the length of any ESO and, in particular, whether it should be four years (as contended for by the defendant) or five years (as contended for by the plaintiff). Mr Sheehan opined that one would be in a better position to know how the risk was being managed by any ESO after four years and that giving the defendant a shorter ESO than the maximum might serve to engender trust. However, Mr Sheehan noted that applications for ESOs (particularly further ESOs) tended to be destabilising, although he commented that this defendant appeared to have “taken it in his stride”.
Mr Sheehan also explained his view of the conditions which should be specified for an ESO in the following terms:
“In my view these schedules are best when they have no fat on them at all, when they are just what is the most important, because if you have things in there that are not directly relevant to risk they might be focused on by a supervising person and at the detriment of other aspects of the order that are directly relevant to offending, to risk of offending.”
Mr Sheehan considered, in effect, that conditions which were not directly relevant to risk would be an affront to the person’s autonomy and that it would be counterproductive to include them as conditions. For this reason, Mr Sheehan generally opposed conditions relating to employment and training.
Although Mr Sheehan stressed that gambling was not a principal issue, he described its significance as follows:
“It is one of the red flags to suggest that there's disarray, he is starting to have disarray in other aspects of his life and there may be mania.”
Mr Sheehan explained in his oral evidence the relationship between the defendant’s general offending and his sexual offending as follows:
“At times when he has committed those offences there was, I think I have referred to it in the body of my report, general disarray in his life and it seems that everything has gone, goes badly for him at those points.
He, he feels bad; he is using drugs he is engaging in other criminality. There's an atmosphere of him feeling hopeless, that there's no future. That he is feeling bad about himself, having unstable mood with his psychotic symptoms being more prominent. Feeling internal distress, wanting to resolve that distress. Relying on sexual fantasy to offset some of that distress. The fantasy then goes towards scenarios where he can feel sexually dominant and oppressive. That facilitates the fantasy and gives him some relief during the fantasy and those feelings of dominance and mastery. And that in turn facilitates the introduction of schoolgirl fantasies because they are a target he can imagine would be more easily impressed and can offset his, what he refers to as penis envy.
And then the fantasy becomes less fulfilling and he, the transition from a really intense repeating fantasy to an actual offence becomes less of a giant step. The gap between the fantasy and the reality become less and less and less. Driving around in his car, stopping outside schools, looking at pornography, fantasising about the schoolgirls. It's getting closer and closer to a point where he would offend.”
The statement of V3
V3’s mother provided a statement dated 15 November 2016 pursuant to s 21A. She said that she and V3 supported the plaintiff’s application for an ESO. She also said:
“4. Amanda and I are of the view that the conditions to which the Extended Supervision Order may be subject should include:
a. Mr Fernando is not to go anywhere between Parramatta and the Blue Mountains.
b. Mr Fernando is to be ankle monitored
c. Mr Fernando is not to go near any schools
d. Mr Fernando is not to go anywhere near any children under 16 years of age without supervision.”

Relevant matters

The matters referred to in s 9 are to be taken into account in determining whether to make an ESO. I propose to address each relevant matter in turn, although I will address the safety of the community (s 9(3)(a)) last as this factor largely derives from the others.
I am also obliged to consider the victim statement which has been placed before the Court pursuant to s 21A.

The reports from experts appointed under s 7(4) of the Act and the level of the defendant’s participation in such examination (s 9(3)(b))

The reports of Dr O’Dea and Mr Sheehan are considered above. They both consider the defendant to pose a high risk of sexual re-offending, which can adequately be controlled by an ESO with appropriate conditions such as those proposed by the plaintiff. Mr O’Dea considered that the maximum term provided by the Act, five years, would be an appropriate duration for an ESO, there being no real prospect of the risk attenuating (other than through the ESO) during that period. He was not cross-examined. Mr Sheehan opined “4-5 years” would be an appropriate length. The basis for his opinion is set out above.

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 relevant offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment (s 9(3)(c))

The risk assessment report of Dr Parker and Ms Matsuo referred to above assessed the risk posed by the defendant to be high by reference to static and dynamic risk factors.

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 relevant offence (s 9(3)(d))

The risk assessment report of Dr Parker and Ms Matsuo referred to above included the defendant’s scores by reference to various statistical measures. Each such measure indicated that the defendant poses a high risk of future offending, having regard to static and dynamic factors.

Any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community (s 9(3)(d1))

In the report referred to above, Ms Sartor addressed the ways in which the offender could reasonably and practicably be managed in the community. She set out the mechanisms that could be put in place through conditions imposed on an ISO or ESO which, in her view, could reasonably and practically manage the otherwise unacceptable risk posed by the defendant.

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 (s 9(3)(e))

The narrative set out above indicates that the defendant has undertaken several programs, including the CUBIT Program which he completed in 2010. By and large the defendant has engaged in such programs and his participation has been regarded as substantial.

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 ESO (s 9(3)(f))

The defendant was on still on parole for the sentence imposed for the offences committed in 1989 when he offended in January 1993. He was released to parole in January 1999 and offended again in October 1999 when he was still on parole. This history tends to indicate that the offender is incapable of complying with conditions of his parole and that such constraints as have applied to him when on parole have been insufficient to control the risk he poses or to prevent future offending. It is also of concern that there has been an escalation in the degree of sexual violence over this period.

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 (S 9(3)(g))

As referred to above, the defendant was charged with an offence under the CPOR Act relating to his failure to declare a mobile phone and also his use of social media. These offences were committed within two months of his release from custody while he was in the highly regulated environment of the COSP facility. The defendant’s conduct does not engender confidence in his ability to manage his own risk or abide by directions or conditions. It also provides some indication that, although his intelligence is not high, he is capable of acting in a way that cannot readily be detected by his DSO.

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 (s 9(3)(h))

The defendant has a lengthy criminal history which has been detailed above. The circumstances of his offending conduct are summarised in the narrative. Of the past 27 years the defendant has spent over 24 years in custody. For those relatively short periods when he has been out of custody, he has been under supervision (whether on release to parole or subject to an ISO).
The defendant’s offending reveals that when he is disinhibited by alcohol or drugs, he feels entitled to help himself to what he desires, including the bodies of his female victims. He tends to choose young or vulnerable women, apparently on the basis that they are more easily silenced and on the mistaken assumption that they will be impressed by the size of his penis or his sexual prowess. His sexual offending appears to reflect a distorted sense of entitlement and a desire for dominance as much as a sexual desire.

The views of the sentencing court at the time the sentence of imprisonment was imposed on the offender (s 9(3)(h1))

The sentencing remarks of O’Reilly DCJ extracted above indicate the extent to which the defendant poses a danger to the community. As referred to above his Honour described the defendant’s prognosis as guarded and the facts as “quite appalling”. His Honour said that the defendant’s conduct called for a heavy sentence.
The sentencing remarks of Williams DCJ which are set out above indicate a concern about the danger posed by the defendant to the victim and the extent to which the public needs to be protected from him. I note in particular his Honour’s assessment that the defendant posed a high risk of re-offending.

Any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature (in the case of an application for a high risk sex offender extended supervision order) (s 9(3)(i))

The evidence before me has been sufficiently addressed in relation to the other matters to be taken into account under s 9(3).

The safety of the community (s 9(3)(a))

The matters referred to above tend to establish that the defendant, if released without supervision, or without adequate conditions as to supervision, would pose an unacceptable risk to the safety of both adult and post-pubescent females. Those girls and women who happen to be in the defendant’s path when he is abusing substances are at particular risk. The defendant’s predilection for young post-pubescent girls (on the grounds that they are likely to be sexually unexperienced and impressed by his prowess) places those in that category at particular risk, although his offending conduct includes violent sexual assaults against adult women as well.

The victim statement: s 21A

I have also had regard to the concerns of V3 as expressed in her mother’s statement referred to above. Although I have not included conditions in the identical terms to those proposed by V3’s mother, I am satisfied that the conditions which are imposed will adequately address the victim’s concerns. I do not regard it as either practical or necessary to exclude the defendant from the area between Parramatta and Blacktown. Many of the potential locations for affordable accommodation are in that area, as well as places where it is reasonable to expect the defendant to obtain treatment and assistance from Corrective Services and other authorities. Further it is a substantial geographical area, which includes most of the population of Sydney.

Conclusion

The defendant is a sex offender within the meaning of the Act, having been sentenced to imprisonment following his convictions for offences including a serious sex offence, being the offence against s 61J of the Crimes Act against V3, which was committed on 18 October 1999. The summons was filed within six months of the expiry of his sentence for that offence.
As referred to above, the defendant suffers from schizophrenia, substance abuse/ dependence and paedophilia. His mental health is unstable, although it can, to some extent, be controlled by medication as long as he is compliant. He has recently experienced symptoms (hearing voices) consistent with uncontrolled schizophrenia, which have a sexual component (the voice told him to touch a woman on the bus). Actuarial and other risk factor tests place him in a high risk category. He has a long history of offending related to poly-substance abuse. He has a complex psychiatric and medication presentation. The seriousness of his offending (both as to violence and sexual content) has increased over time.
Having considered the factors in s 9(3) of the Act addressed above, in the context of the narrative of facts, I am satisfied that the defendant, being a sex offender, poses an unacceptable risk of committing a serious sex offence in the absence of any supervision: State of New South Wales v Donovan at [24] and Lynn v State of New South Wales [2016] NSWCA 57 at [55].
Accordingly, I am satisfied that the defendant is a high risk sex offender within the meaning of s 5B of the Act. I note that, although the extent to which the defendant’s liberty is constrained by proposed conditions is a relevant consideration in formulating such conditions, it is irrelevant to the determination of whether the defendant poses an unacceptable risk: Lynn v State of New South Wales at [44], [55]-[58] (per Beazley P), [128] (per Basten JA) and [148] (per Gleeson JA).
I am persuaded that it is appropriate, and necessary, to protect the safety of the community, to make an ESO pursuant to ss 5C and 9(1)(a) of the Act on the conditions which have been agreed by the parties (referred to below). I am not satisfied that there are any factors personal to the offender which would militate against the making of the order.

The duration of the ESO

The parties’ submissions

It was contended on behalf of the defendant that it was not necessary for an ESO to be made for the maximum period of five years permitted pursuant to s 10(1A). Mr O’Neil submitted that the objects of the Act could be met with a supervision order of four years’ duration. He contended that a period of four years would be sufficient time to determine the course of the defendant’s rehabilitation. He also submitted that an ESO of this length would provide sufficient time from the expiry of the current CTO (assuming it is not extended) to ascertain whether the defendant is capable of administering his medication as prescribed so as to avoid a repetition of what occurred in August 2014.
Ms Bennett, who appeared on behalf of the plaintiff, contended that there was no warrant for supposing that the risk posed by the defendant would be significantly lessened in a period of five years, having regard to the long-standing causes of his offending conduct.

Consideration

The long-term risk that the defendant poses to the community is not to be underestimated. The opportunistic impulsivity of his offending behaviour if he is under the influence of substances is an important feature of the defendant’s offending. I regard the prospect that the risk posed by the defendant to the community (and in particular to post-pubescent girls and adult women) could be adequately managed by the defendant himself (by reference to risks and rewards) as remote, if not entirely fanciful.
These observations ought not be understood as undermining the important role played by the Departmental Supervising Officer in moderating particular conditions as time goes on to give greater latitude to the defendant if his compliance with the ESO is adjudged to warrant it. I understand this flexibility to be a significant means by which the risk posed by persons such as the defendant is ameliorated and managed by Departmental Supervising Officers.
I do not consider the present case to be one where it is appropriate to wait and see what progress, if any, is made over a lesser period, such as four years. The duration of an ESO is to be determined as a matter of judgment, having regard to the wording of the Act. The defendant’s offending conduct is connected with his sexual offending. His criminal history dates back to his childhood. His mental health is compromised and depends on compliance with medication. He has spent almost all of his adult life in custody. These matters do not augur well for a speedy rehabilitation. Mr Sheehan has noted that a risk that can be well-managed under supervision can result in offending conduct when the constraints are removed. There is no reason to suppose that there will be any significant amelioration of what I have found to be the unacceptable risk posed by the defendant in the next five years. It would not, in my view, be appropriate in these circumstances to grant an ESO for a period less than the five-year maximum permitted by the Act.

Conditions

As a result of objections raised by Mr O’Neil to conditions proposed by the plaintiff, the plaintiff has amended its summons twice to propose amended conditions. I propose to address the conditions which remain in the annexure to the further amended summons which was filed in Court on 23 November 2016 which are in dispute.
Section 11 of the Act provides for conditions to be imposed. In general terms, to be appropriate, conditions must be germane to the risk posed by the defendant or ancillary to the management of the risk posed by the defendant. Conditions which cannot be characterised in this way might be regarded as ultra vires if they are not related to the purpose of s 11 of the Act in the context of the Act as a whole. Therefore it is necessary to consider the connection between the condition and the risk in order to assess whether the condition ought be imposed: see Lynn v State of New South Wales at [141] and Wilde v State of New South Wales [2015] NSWCA 28 at [53]. It is also relevant that breach of a condition renders the defendant liable to criminal sanctions. Accordingly, there is an additional requirement that a condition must be clear such that breach can be judged objectively.
I note Mr Sheehan’s general views that the conditions imposed ought be confined to the bare minimum required; that each condition ought be plainly related to the risk imposed by the particular defendant; and that the defendant’s personal autonomy ought be given as much scope as possible. Although I accept, in general terms, that the defendant ought not be unduly restricted, the primary purpose of an ESO is the protection of the public. Conditions which are related to risk management, including in an ancillary way, are also appropriate, depending on the circumstances. I accept the plaintiff’s submissions that it ought be assumed that the power of the DSO to make directions will be exercised lawfully: that is, for a proper purpose and not capriciously.

Part D of the conditions: employment, finance and education

Condition 21: direction to engage in employment, education, training or personal development program

Condition 21 as proposed in the schedule to the further amended summons is:
“If the defendant is unemployed, the defendant must enter available employment if and as directed by the DSO or make himself available for employment, education, training or participation in a personal development program as directed by the DSO.”
The defendant opposed this condition on two bases. First, Mr O’Neil submitted that it was otiose since it was fanciful to suggest that the defendant, having regard to his hearing impairment, cognitive difficulties and receipt of Disability Support Pension, could ever obtain employment. Further, he submitted that it would be counter-productive for the defendant to be required, upon penalty of criminal conviction for breach, to engage in employment, when such matters were best dealt with as part of “case management” which did not expose the defendant to the penalty of breach.
Ms Carden said, of the reason for the condition:
“Part of Mr Fernando's reintegration into the community could involve gaining employment, therefore this condition would assist Community Corrections in steering Mr Fernando in that direction if the time was right and it appeared to be necessary or something that he would benefit from.”
In cross-examination, Ms Carden accepted, in effect, that the defendant was unlikely to obtain employment in the open labour market (an assessment which she accepted in re-examination that she had no expertise to make). She also accepted that matters such as employment were best approached through a “case work” method, rather than a direction, non-compliance with which could lead to a breach of the ESO, with criminal consequences.
Mr Sheehan agreed that it was unlikely that the defendant would ever work. He did not endorse condition 21 in its present terms. He said:
“It seems to be a pathway to breach not really directly related to his offending, particularly in his case where he is on disability and from his presentation it seems unlikely that he will work again, and he will tell you that he doesn't think that he is going to be able to work again”.
I accept the plaintiff’s submissions that the condition ought be imposed. Although I accept that it is unlikely that the defendant will be able to obtain remunerative employment on the open labour market, I would not readily conclude that there is no work, whether of a voluntary nature or otherwise, in which he could engage. That he has been able to work satisfactorily in the prison system as a baker provides some indication that, if some work, whether paid or not, at an appropriate level could be found for him, it would be desirable that he engage in it. Of course, if the defendant were willing to engage in such employment, or indeed in any education or training or personal development program that was thought to be in his interests, there would be no need for his DSO to give him a direction to that effect. However, it is reasonable to envisage that circumstances might arise where a DSO considers that the defendant ought engage in such activities and the defendant is not prepared to do so without a direction. I accept Ms Carden’s view as to the rationale for the condition and consider it to be reasonable. If the defendant can be suitably occupied and challenged, the risks of his lapsing into drug or alcohol abuse are diminished. As this abuse is usually the precursor to his offending behaviour, there is, in my view, a sufficiently close connection between the condition and the risk he poses.
Condition 24: prohibition on signing an instrument giving the defendant control over another’s assets without prior approval of DSO
Condition 24 as proposed in the schedule to the further amended summons is:
“The defendant must not sign any legal instrument that gives the defendant control of any money or assets of another person or organisation, without prior approval of the DSO.”
The defendant opposed this condition on the grounds that there was no demonstrated need for it and it was purely speculative. Mr O’Neil relied on Ms Carden’s acceptance in cross-examination that she was not aware of anything that would suggest that he would be in such a position. However, she considered that such a condition was reasonable and necessary having regard to the defendant’s propensity to gamble. I am persuaded that condition 24 is reasonable. It is notable that, when the defendant was released from custody in January 1999 he moved in with a woman who worked within the correctional system. They lived together for some months in an intimate relationship. The woman presumably knew of his criminal history (since they had met while he was in gaol). Despite this, she was prepared to live with him and have him reside in the same house as her two children, one of whom was a young girl.
These facts illustrate that the defendant has, in the past, demonstrated a significant capacity to engender love and trust. In different circumstances, this capacity might operate to incline someone to entrust the defendant with money. As Ms Carden explained, it would not be in the defendant’s interests to have access to any substantial sum of money, at least at this stage, having regard to his inexperience with managing money.
Condition 25: prohibition on signing certain documents without prior approval of DSO
Condition 25 as proposed in the schedule to the further amended summons is:
“The defendant must not sign any lease, mortgage, contract for sale for goods or services above the value of $500, hire agreement, power of attorney, deed, or any instrument relating to obtaining any credit, opening of any account held at a bank, credit union, building society or similar institution, without prior approval of the DSO.”
[Emphasis added.]
The defendant opposed the words “mortgage” and “opening of any account held at a bank, credit union, building society or similar institution” as highlighted in italics in the proposed condition set out above. Ms Carden gave evidence of her concerns about the defendant’s capacity for financial management in the following exchange in her cross-examination:
“Q. You don't think he could make that determination [whether to enter into a lease] himself?
A. At present I have concerns about his financial management given that recently he was encouraged by his psychologist to listen to music to help him relax on public transport as he experiences anxiety. In discussion with him I suggested perhaps he might like to purchase a CD from a music store the next time he went to the shops. Instead, Mr Fernando informed staff at COS that he had spent approximately $250 on a whole host of CDs that he had seen on TV. Therefore I am concerned that perhaps he might impulsively enter into a lease without thinking about whether or not it would be affordable for him on a Q. Could he not afford the $250 worth of CDs?
A. I'm not sure. He was able to purchase them however I know that at the moment his goal is that he is saving money so that he can move out. He'll need to buy furniture, have money for a bond, things like that. And the CDs would have had an impact on his savings for that”.
The word “mortgage” extends beyond mortgages of real property and extends to chattels and other property. In these circumstances, it is, in my view, reasonably necessary to require that any mortgage be approved by the DSO before it is granted. If the defendant has a bank account of which the DSO is unaware it cannot be monitored. In light of the concerns about the defendant’s capacity to manage money; his propensity to gamble when under stress or when abusing alcohol or substances; and the connection between his offending conduct and disorder in his life, I consider the condition as proposed to be reasonably necessary.

Part L of the conditions: personal details and appearance

The defendant opposed each of conditions 53-57 as proposed in the schedule to the further amended summons. These proposed conditions are:
“Part L: Personal details and appearance
53. The defendant must not change his name from “Kevin Todd Fernando” or use any other name without the approval of his DSO.
54. The defendant must not use any alias, log-in name, or a name other than “Kevin Todd Fernando” or use any email address other than those known to the DSO under condition 42 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email.
55. The defendant must not change his appearance without the approval of his DSO.
56. The defendant must let CSNSW photograph him.
57. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details.”

Mr O’Neil contended that such conditions may be unnecessary as there is no suggestion that the defendant has ever sought to conceal or change his identity. He submitted that given the close contact between the DSO and the defendant during any ESO any change in appearance would be immediately recognisable by the DSO.
I am satisfied that proposed conditions 53-57 ought be made. In 1991 the defendant failed to report in accordance with parole conditions, as a result of which his parole was revoked. He could not be located for a considerable period, during which time he re-offended. It is within reasonable contemplation that, if the defendant were to abuse drugs or alcohol, he might leave his approved address. If he did so during a period when he was subject to electronic monitoring it would be relatively easily to detect his whereabouts and bring him back to the residence. However, if he were not subject to electronic monitoring, it could be difficult to find him.
Condition 56 obliges the defendant to permit Corrective Services to photograph him. If there was no photograph of the defendant and he absented himself, it would be difficult to disseminate a reliable image to those who might be able to locate him. These conditions appear to me to be necessary ancillary conditions to the management of the risk posed by the defendant.
The identification of the defendant and the location of his whereabouts at any given time are fundamental to risk management. It is particularly important that the defendant can be located quickly since if he does not take prescribed medication and if he abuses alcohol or substances, his life can become “chaotic” (as Mr Sheehan has described it) which tends to lead to offending, including sex offending. The escalation of criminal conduct during a short period was demonstrated in October 1999 when the worst and most violent of his offending, that committed against V3, was committed on 18 October 1999, less than a week after the first episode of his spree (stealing from T and offending against her daughter on 12 October 1999) took place.

Orders

For the reasons set out above, I make the following orders:
(1)Order pursuant to ss 5C and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (the Act) that the defendant be subject to a high risk sex offender extended supervision order (“the extended supervision order”) for a period of 5 years from the date of this order.
(2)Order 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 the Schedule.
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SCHEDULE

CONDITIONS
EXTENDED SUPERVISION ORDER
KEVIN TODD FERNANDO
Departmental Supervising Officer (DSO)
Corrective Services NSW (CSNSW)

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting
1.   The defendant must accept the supervision of Corrective Services NSW (CSNSW) until the end of the Order.
2.   The defendant must report to the Department Supervising Officer (DSO) or any other person supervising him as directed by the DSO.
3.   The defendant must follow all reasonable directions by his DSO or any other person supervising him.
Electronic Monitoring
4.   The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him.
5.   If the defendant is not charged with any offence of breaching the ESO, or with any other criminal offence, for a period of 12 continuous months from the date of the commencement of the ESO, the defendant will no longer be required to wear the electronic monitoring equipment and condition 4 will cease to apply.
6.   If electronic monitoring is removed because of condition 5 and the defendant is then charged with any offence of breaching the ESO, or with any other criminal offence, the DSO or any other person supervising the defendant may reapply condition 4.
Schedule of Movements
7.   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.
8.   If the defendant wants to change anything in his schedule of movements once it is approved by his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period
9.   The defendant must follow his approved schedule of movements except in an emergency.
10.   The defendant must truthfully answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing.

Part B: Accommodation

11.   The defendant must live at an address approved by his DSO.
12.   The defendant must be at his approved address between 10:00PM and 6:00AM unless other arrangements are approved by his DSO.
13.    The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.
14.   The defendant must not spend the night anywhere other than his approved address without the approval of his DSO.
15.   The defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO.

Part C: Place and travel restrictions

16.   The defendant must not leave New South Wales without the approval of CSNSW.
17.   The defendant must surrender any passports held by the defendant to the Commissioner.
18.   The defendant must not go to a place if his DSO tells him he cannot go there.
19.   Unless his DSO approves it before he goes there, the defendant must not go to any:
a.   Day-care centres, pre-schools and schools;
b.   Amusement parlours, amusement parks and theme parks
c.   Cinemas;
d.   Libraries and museums;
e.   Camping grounds and caravan parks;
f.   Children’s playgrounds, parks, and areas with play equipment provided for the use of children;
g.   Pools, playing fields and sporting facilities;
h.   Concerts, theatre shows, movies, events and activities intended for the entertainment of children;
i.   Residences where the defendant knows that persons under 18 ordinarily reside;
j.   Internet cafes or other businesses which provide public access to the internet either for payment or for no charge (other than employment agencies) unless he has received prior approval from his DSO.

20. 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, or where alcohol or drugs are illegally sold.

Part D: Employment, finance and education

21.   If the defendant is unemployed, the defendant must enter available employment if and as directed by the DSO or make himself available for employment, education, training or participation in a personal development program as directed by the DSO.
22.   The defendant must not start any job, volunteer work or educational course without the approval of his DSO.
23.   The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by his DSO.
24.   The defendant must not sign any legal instrument that gives the defendant control of any money or assets of another person or organisation, without prior approval of the DSO.
25.   The defendant must not sign any lease, mortgage, contract for sale for goods or services above the value of $500, hire agreement, power of attorney, deed, or any instrument relating to obtaining any credit, opening of any account held at a bank, credit union, building society or similar institution, without prior approval of the DSO.

Part E: Drugs and alcohol

26.   The defendant must not possess or use alcohol or illegal drugs, and he must not possess or use prescription medication other than as prescribed.
27.   The defendant must submit to testing for drugs and alcohol as directed by his DSO.
28.   The defendant must not enter any licensed premises, except cafes and coffee shops, without the approval of his DSO.
29.   The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as directed by his DSO, and must not discharge himself from such programs and courses without prior approval of his DSO.

Part F: Non-association

Association with Children
30.    The defendant must not approach or have contact with anyone who he knows is under 18 unless his DSO tells him he can and he is with someone who has been approved in writing by his DSO.
31.   The defendant must not communicate with anyone who he knows is under 18 unless his DSO tells him he can.
Associations with Others (not children)
32.   The defendant must not associate with people that his DSO tells him not to.
33.   The defendant must not associate with any people who are consuming or, who he knows, are under the influence of illegal drugs.
34.    The defendant must not associate with any people who he knows are consuming or under the influence of alcohol, unless he has received prior approval from his DSO.
35.   The defendant must not engage the services of sex workers without prior approval from his DSO.
36.   If the defendant starts a relationship with someone, he has to tell his DSO who may want to tell the person about his criminal history.
37.   The defendant must obtain written permission from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service

Part G: Gambling

38. The defendant must not gamble.
39. The defendant must, seek assistance in controlling his or her gambling, including any compulsion to gamble, if directed by the DSO.

Part H: Weapons

40. The defendant must not possess or use any firearm within the meaning of s.4 of the Firearms Act 1996 or prohibited weapon as defined in s.4 and Schedule 1 of the Weapons Prohibition Act 1998.
41. The defendant must not carry on his person, at any time he has left his residence, any knife, syringe or other cutting instrument.

Part I: Access to the internet and other electronic communication

42.   The defendant must give his DSO a list of all devices, services and applications he uses to communicate with or to access the internet. This includes phones, tablet devices, data storage devices or computers. This includes the details of telephone numbers, service provider account numbers, email addresses or other user names and relevant passwords and codes, used by the defendant and the nature and details of the internet connection, as directed.
43.   The DSO (or any other person requested by the DSO) may remotely inspect any internet account used by the defendant, including the defendant's email addresses, in monitoring compliance with this order.
44.   The defendant must obey any reasonable directions by his DSO about the use of phones, tablet devices, data storage devices, computers and other devices, including any reasonable directions relating to his access to the internet.
45.   The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO.
46.   The defendant must provide a list of communication devices and data storage devices in the defendant’s possession and advise the DSO of any change to the inventory immediately.

Part J: Search and seizure

47.   If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to f below) is necessary:
a.   for the safety and welfare of residents or staff or persons present at the defendant’s approved address;
b.   to monitor the defendant’s compliance with this order; or
c.   because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious sex offence;

then the DSO may direct, and the defendant must submit to:
d.   search and inspection of any part of, or any thing in, the defendant’s approved address;
e.   search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant;
f.   search and inspection of any part of, or any thing in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or
g.   search and examination of his person.

48.   For the purposes of the above condition:
a.   a search of the defendant means a garment search or a pat-down search.
b.   to the extent practicable a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO.

NOTE:
"Garment search" means 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.
"Pat-down search" means a search of a person where the person's clothed body is touched.
49.   During a search carried out pursuant to condition 47 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise:
a.   the safety of residents or of staff at the defendant's approved address;
b.   the welfare or safety of any member of the public or any other person; or
c.   the defendant's compliance with this order;
or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence.

50. The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use.
51. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions 47 to 50 above.

Part K: Access to pornographic, violent and classified material

52. The defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification, X18+, Restricted Category 2 and Restricted Category 1, or any other material as directed by the DSO.

Part L: Personal details and appearance

53.   The defendant must not change his name from “Kevin Todd Fernando” or use any other name without the approval of his DSO.
54.   The defendant must not use any alias, log-in name, or a name other than “Kevin Todd Fernando” or use any email address other than those known to the DSO under condition 42 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email.
55.   The defendant must not change his appearance without the approval of his DSO.
56.   The defendant must let CSNSW photograph him.
57.   If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details.

Part M: Medical intervention and treatment

58.   The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults.
59.   The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend.
60.   The defendant must take all medications that are prescribed to him by his healthcare practitioners.
61.   If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify the DSO within 24 hours of ceasing to take the medication.
62.   The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his DSO.
63.   The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW.
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Amendments

29 November 2016 - Amend coversheet

[2016] NSWSC 1665

25 November 2016

Key Legal Topics

Areas of Law

Criminal Law

Legal Concepts

Criminal Liability

Mens Rea & Intention

Sentencing