State of New South Wales v Howard

[2022] NSWSC 456

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Howard [2022] NSWSC 456

Hearing dates:

11 April 2022

Date of orders:

19 April 2022

Decision date:

19 April 2022

Jurisdiction:

Common Law

Before:

Harrison J

Decision:

(1)  Order that Kevin Howard be the subject of an extended supervision order for a period of three years commencing on 28 April 2022.

(2)  Direct that Kevin Howard, for the period of the extended supervision order, comply with the conditions set out in the Schedule.

Catchwords:

HIGH RISK OFFENDER – convictions for serious sexual and violence offences – application for extended supervision order pursuant to Crimes (High Risk Offenders) Act 2006 (NSW) – whether unacceptable risk of re-offending if not supervised – whether the duration and conditions proposed by the plaintiff are appropriate

Legislation Cited:

Crimes Act 1900 (NSW), ss 61M(2), 66A, 91G(1)(a), 91H(3)

Crimes (High Risk Offenders) Act 2006 (NSW), ss 5B, 5I, 9(1)(a), 11

Cases Cited:

State of NSW v Howard (Preliminary) [2022] NSWSC 41

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Kevin Howard (Defendant)

Representation:

Counsel:
L Gallagher (Plaintiff)
D Bhutani (Defendant)

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

File Number(s):

2021/283698

Publication restriction:

Nil

Judgment

1. HIS HONOUR: By summons filed on 5 October 2021, the State of New South Wales seeks final orders against Kevin Howard pursuant to the Crimes (High Risk) Offenders Act 2006 ss 5B, 9(1)(a) and 11. Mr Howard is currently subject to an interim supervision order imposed by Button J on 3 February 2022: see State of NSW v Howard (Preliminary) [2022] NSWSC 41. Familiarity with that decision is assumed.

2. The State now seeks the imposition of an extended supervision order for a period of five years subject to certain conditions. Although I am required independently to exercise a discretion concerning the question of whether to impose any such order and on what terms, Mr Howard has uncontroversially accepted for present purposes, and I otherwise find, that:

1. He has served a period of imprisonment for a serious sexual offence: s 5B(a);

2. He is a supervised offender: s 5B(b); and

3. The present application has been made in accordance with the requirements set out in s 5I: s 5B(c).

3. I am also required to be satisfied to a high degree of probability that Mr Howard poses an unacceptable risk of committing another serious sexual offence: s 5B(d). Mr Howard is not able to consent to any decision by me on that issue but specifically noted in writing that he did not wish to make any submissions about it. Accordingly, it is only the following matters that remain for determination by me:

1. Can I be satisfied that Mr Howard poses an unacceptable risk of committing another serious sexual offence if not kept under supervision under a continuing supervision order? [Issue (1)]

2. If yes to (1),

1. what should be the duration of any such continuing supervision order [Issue (2)(a)], and

2. what conditions are appropriate to be imposed [Issue 2(b)]?

Issue (1)

4. In accordance with the orders made by Button J, a psychologist, Mr Patrick Sheehan and a psychiatrist, Dr Danny Sullivan, each examined Mr Howard and furnished reports to the Court.

Mr Sheehan

5. Mr Sheehan’s report is dated 18 March 2022. His Conclusions and Recommendations are as follows:

“88. Mr Howard is a 69-year-old Australian man with a history of sexual violence against females (aged between 4-57 years) between 1978 and 2006. His sexual offending has been diverse and persistent, showing a transition from adult stranger attacks to offences against children. He is considered a ‘serious offender’ as per the Crimes (High Risk Offenders) Act 2006 and is currently subject to an interim supervision order.

89. Mr Howard has participated in extensive sex offender treatment since 2014 and has had the benefit of a lengthy period of community supervision, having recently completed a five-year ESO, made in 2015. However, his community reintegration has encountered several setbacks due to Mr Howard breaching the terms of his order on three occasions, most recently in August 2020. His supervision team has been rightfully concerned about Mr Howard’s tendency to collect child related visual stimulus (DVD programs and movies) and his lack of self-regulation in managing similar correlates of risk. Whilst his arrest and imprisonment for these breaches may have served the purpose of interrupting any risk escalation process, it has also had the effect of interrupting his continuity in the community, and impaired his ability to progress through stages of reduced supervision intensity over the length of his order. He has now been back in the community for 13 months and continues to be subject to electronic monitoring and scheduling, which is not an optimal situation at the conclusion of a lengthy supervision order, as it makes any transition to independence jarring, requiring a more dimensional shift from external to internal regulation.

90. Having regard to all the available evidence, I would estimate Mr Howard’s risk of sexual reoffence to be in the above average or moderate-high range relative to other men convicted of sexual offences. His potential risk is broad in scope due to the diversity of his offending history, but the evidence points towards a primary risk to young female children. In my view the risk extends to a serious sex offence as defined in the Crimes (High Risk Offenders) Act 2006.

91. Whilst Mr Howard has remained largely cooperative with supervision, has achieved independent residence, and is engaging in regular age-appropriate recreational activity, I believe there is sufficient reason to doubt that Mr Howard has demonstrated readiness to self-manage his risk of a serious offence in the absence of external controls and support. I would envisage increased alcohol use and poor decision making, bringing him closer to scenarios associated with offending. In this regard, my view is that the risk could not be managed adequately in the community without external support and supervision. An extended supervision order could provide this support. The imposition of a Child Protection Prohibition Order (CPPO) could also offer some level of protection by imposing rules around associations, technology and travel, but there is no capacity for case management under CPPO. That is, the CPPO could only hope to provide a list of restrictions but not assist Mr Howard to live positively under those restrictions.

92. I understand that the State of NSW seeks an extended supervision order of five years duration. Given the chronic nature of Mr Howard’s risk factors, an order towards the upper range would seem logical, were an order to be made. However, given the need to gain Mr Howard’s effortful participation in the supervision process, there is a risk that the maximum term might discourage him and promote disengagement from supervision. Similarly, the terms of his order should permit hope and provide a clear understanding of what Mr Howard needs to achieve in order to have no further orders sought.”

Dr Sullivan

6. Dr Sullivan’s report is dated 29 March 2022. The following findings and opinions should be noted:

“[100] I consider that Mr Howard poses a risk of committing a further serious offence in the community as defined in the Act. This risk relates to the following issues which are strongly correlated with sexual offending:

•   High sexual drive, which may have attenuated somewhat with age but remains present.

•   Deviant sexual arousal, which is associated with Mr Howard considering a broader range of victims to be eligible for sexual interaction. Deviant sexual arousal also includes cognitive distortions about victims’ willingness, capacity to consent, agency, sexualisation as children, and the level of harm they suffered.

•   Intimacy deficits which are associated with both a desire for affiliation, and difficulties meeting social needs.

[101] Alcohol has been significantly involved in several of Mr Howard’s previous offences and is likely markedly disinhibiting and also increase his sexual arousal. The combination of disinhibition through neurocognitive disorder, increased sexual arousal and impaired judgment associated with intoxication provides a strong concatenation of risk factors.

[102] Mr Howard has a lengthy history of both general and sexual offending, predominantly sexual. Over the duration of his offending career, the age of his victims has decreased and the level of physical engagement and additional capturing of visual images for fantasy has increased. This is contrary to the overall trend in sexual offending trajectory, in which there is usually a significant decline from the mid-twenties in sexual offending rates, with an increasing decline from the early forties.

[103] Although Mr Howard has engaged in offence-specific intervention and subsequent relapse prevention and maintenance psychological treatment, he is somewhat dismissive of the benefits. He was considered to have engaged in the original CUBIT program, but somewhat superficially. Although he is mandated to attend FPS, he does not appear to consider that this brings benefit or is helpful to him.

[104] Mr Howard has been offered anti-libidinal medication and been assessed for this but does not consider this indicated and is reluctant to take anti-libidinal medication lest this interfere with his capacity to form a future relationship. Such attitudes are common among sexual offenders and consistent with prioritisation of sexual agency over risk reduction.

[105] Also noted is Mr Howard’s reluctance to countenance further intervention for prostatism although this causes him some impairment. It appears that some of his reluctance may be related to the fear of adverse sexual side-effects from surgery, which are not infrequent.

[106] Mr Howard’s conduct during the previous ESO involved several breaches. One was for intoxication and two for possession of DVDs which were not permitted under the conditions of his order. Mr Howard exhibited some minimisations about the details of these and their association with sexual arousal or fantasy, although case notes demonstrate that he has acknowledged this previously.

[107] In other senses, Mr Howard has complied well with the ESO, without effort to abscond, complying with geographic limitations and other restrictions upon his movement, and not clearly engaging in any significant reported situations of risk to others. Furthermore, he has developed some preliminary community links and activity, and stable accommodation.

[108] Mr Howard’s age is a protective factor against future offending. General sexual offending reduces with age unless cognitive impairment results in disinhibition and increasing offending. In Mr Howard’s case, ageing is a protective factor. It is also noted that he retains an interest in forming future relationships and although he is able to impose some criteria and rules which would reduce the risk to others, it remains of concern that his sexual interests remain prominent.

[109] Mr Howard’s most recent offending occurred 15 years ago, and his risk has since reduced. However is still likely that he remains capable of sexual offending and in specific circumstances, would not necessarily desist from this if the opportunity presents. The time since past offending is protective but remains offset by the fact that all of this time has been in custody or under supervision, during which time he has not engaged in further sexual offending.

[110] Risk factors for future offending would include intoxication, unrequited sexual desire, and opportunity. The other relevant issues are set out in [100] and are also targets for treatment interventions. Intimacy deficits are in part related to an antisocial personality structure and are best addressed through psychological interventions such as the FPS.

[111] Deviant sexual arousal and high sexual drive or, preoccupation are considered strong risk factors for sexual reoffending. Mr Howard’s risk would be decreased by the prescription of anti-libidinal medication. He might also experience some reduction in sexual preoccupation were he to be prescribed an SSRI (selective serotonin reuptake inhibitor) medication. This might be more acceptable to him due to few adverse effects, reversibility and some reported efficacy in reducing sexual offending risk.”

Criminal history – Index Offences

7. The expert views of Mr Sheehan and Dr Sullivan need to be seen in the light of Mr Howard’s relevant criminal history.

8. On 20 September 2007, Mr Howard was convicted and sentenced by Armitage QC ADCJ, for the following offences after pleas of guilty:

1. For the two offences of sexual intercourse with a person under the age of 10 years contrary to s 66A of the Crimes Act 1900, imprisonment for 9 years with a non-parole period of 6 years and 9 months commencing on 8 October 2006 and expiring on 7 October 2015.

2. For the 10 offences of indecent assault where the victim was under the age of 10 years contrary to s 61M(2) of the Crimes Act, imprisonment for 4 years commencing on 8 October 2006 and expiring on 7 October 2010.

3. For one offence of possess child pornography contrary to s 91G(1)(a) of the Crimes Act, imprisonment for 2 years with a non-parole period of 18 months commencing on 8 October 2011 and expiring on 7 October 2013.

4. For one offence of use child under 14 years for pornographic purposes contrary to 91H(3) of the Crimes Act, imprisonment for 4 years with a non-parole period of 3 years to be served concurrently with the possess child pornography offence.

9. The maximum penalties for each offence at the time of the sentence were as follows:

1. Section 66A of the Crimes Act – 25 years imprisonment (currently life imprisonment).

2. Section 61M(2) of the Crimes Act – 10 years imprisonment.

3. Section 91G(1)(a) of the Crimes Act – 14 years imprisonment

4. Section 91H(3) of the Crimes Act – 5 years imprisonment.

10. The sexual assault offences occurred on 10 separate occasions between 20 June 2006 and 23 September 2006 when Mr Howard was living in a caravan at Teralba Caravan Park. The victim was a five-year-old girl who lived at the caravan park with her parents. Her mother became friendly with Mr Howard and she would play with Mr Howard’s 15-year-old son when he stayed with his father. Over a period of a few months the girl began to visit Mr Howard’s caravan without her mother. On occasions when she visited Mr Howard’s caravan without her mother, he sexually assaulted the child and took photographs of those assaults. The sexual assaults included touching the outside of the child’s vagina with his hand or erect penis, having her touch his penis, cunnilingus (on four occasions) and fellatio (on two occasions).

11. Each occasion of sexual abuse that was photographed by Mr Howard was the subject of an offence of possess child pornography (that was eventually rolled up into one offence) and the offence of use child for pornographic purposes.

12. In addition to the images of the sexual abuse of the girl, there were other images on Mr Howard’s phone of him engaged in sexual acts with another child or children, including a baby. One of the images was of Mr Howard’s penis in the hand of a toddler. The other was of a penis between the buttocks of a baby. It appears that each of these images was originally the subject of a separate charge which were all later rolled up into one charge prior to sentence.

13. Police also located sexual images of an older child aged 16 years at the time the photos were taken with the cognitive capacity of a 14-year-old child.

14. Mr Howard admitted the activity in a recorded interview with police on 1 November 2006. He sought to blame the young girl for instigating the sexual offending. He said that the offending started because she had “flashed me, right in front of me and I…touched her and from then on she wanted me to do it more… and I did”, “she just lifted her top and her bottom right in front of me and I…touched her fanny with my finger”, “she wanted to play, we played. Just that I was fucking weak”. This young girl would come into Mr Howard’s caravan and they would do drawing and “after a while she’d say ‘do you want to play?’, meaning this sort of sexual play and I’d say Yes”. When the girl “wanted to do this…it was the easy way for me to be”. He stated that she asked to touch and kiss his penis and asked him to lick her vagina. He took the photos so that later he could “sit back and get me rocks off without actually having sex with a child”. He said that he “never forced her to do anything”.

Mr Howard’s custodial and extended supervision history

15. Mr Howard has generally been compliant with custodial rules and routines and settled well in custody. He has spent about 17 years in custody and during that time has committed three relatively minor, and presently irrelevant, infractions.

16. Mr Howard was due to be released on parole for the Index offences on 7 October 2014. Parole was not recommended by the Long Bay Parole Unit because Mr Howard had not completed the CUBIT Sex Offender Program. Parole was refused by the State Parole Authority for that reason.

17. Following completion of CUBIT on 14 May 2015, a request for reconsideration of release on parole was lodged. Parole was reconsidered on 3 September 2015 but refused.

18. As already noted, on 24 August 2015, Button J ordered the appointment of two specialists to examine Mr Howard and prepare reports. His Honour concluded that Mr Howard had “an entrenched proclivity to commit very grave sexual offences against women and girls … (over) a period of almost 30 years” and “has repeatedly committed those grave crimes whilst subject to more than one form of conditional liberty”, with only very limited insight into his offending.

19. Mr Howard was released from custody after serving his full term on 7 October 2015.

20. An extended supervision order of five years duration was made on 1 December 2015 by Hall J, who found that no period less than five years supervision was justified and that Mr Howard’s risk of committing a further serious sex offence was long term.

21. An interim supervision order was made by Button J on 3 February 2022 following a preliminary hearing on 31 January 2022. The order was renewed by his Honour on 28 February 2022 and commenced from midnight on 3 March 2022. It was last renewed by his Honour on 25 March 2022 for a period of 28 days from midnight on 31 March 2022. The interim supervision order will expire on 28 April 2022 and may not be renewed after that date.

Conclusion

22. Having regard to the material upon which the State relies, I am satisfied to a high degree of probability that Mr Howard poses an unacceptable risk of committing another serious sexual offence unless kept under supervision of an extended supervision order. Mr Sheehan and Dr Sullivan have expressed effectively unqualified views that are not the subject of challenge. Their opinions also draw upon a wealth of historical material, including several of the significant matters to which s 9(3) of the Act draws attention. Their views are consistent with the results of other suitably qualified medical specialists who have expressed views upon the likelihood of Mr Howard committing a further serious offence. I have otherwise expressly taken account of the matters that s 9(3) mandates that I must have regard to in determining whether to make the extended supervision order sought by the State.

Issue 2(a)

23. The State has sought an order for a period of five years. Mr Howard has submitted that the order should be for a period not exceeding three years. In my opinion, Mr Howard should be the subject of an extended supervision order for a period of three years. My reasons for coming to that conclusion are as follows.

24. Mr Howard has a long history of serious offending against both female adults and children. His first criminal conviction for a sexual offence was in 1978, an indecent assault against an adult woman. His most recent sexual offending was committed in 2006, against a five-year-old girl, over a period of about three months. The offending against the child involved sexual intercourse, indecent assault and the production of child pornography. Mr Howard was 55 years old at the time.

23. Mr Howard has previously been the subject of an extended supervision order of five years duration imposed by Hall J on 1 December 2015. That followed upon Mr Howard’s release from prison for the index offending, having served the full term of his sentence of imprisonment. Clearly enough, that order came into effect when he was approximately seven years younger than he is today and in circumstances where the likelihood that Mr Howard would comply with the obligations of an extended supervision order was still unknown. Since then, Mr Howard has completed his period of supervision, which was marked by three breaches of conditions of the order. Two of the breaches related to Mr Howard’s possession of either pornographic video tapes or child focussed video tapes, such as those designed to instruct parents in the care of very young babies and the “Dance Mom” series, featuring pre-pubescent girls. Mr Howard admitted possessing this material for the purposes of sexual arousal. The third related to his possession and consumption of alcohol. He served sentences of imprisonment for these breaches.

24. As Dr Sullivan has observed, Mr Howard’s offending covers the greater part of his adult life. For this reason, Dr Sullivan considers that he requires support and supervision to reduce the likelihood of a reoccurrence of similar offending. Dr Sullivan considers that a five-year supervision order is therefore called for in the circumstances to reflect the potency of risk factors, his lengthy history of offending and his response to treatment. Dr Sullivan accepts that Mr Howard’s risk “may reduce with ageing” but cautions that “unless there are significant shifts in attitude and cognitive distortions, his risk of committing a serious sexual offence will persist” if not otherwise overtaken by incapacity.

25. In the present context, the following paragraphs from Dr Sullivan’s report should be noted:

“[125] Mr Howard would likely be disenchanted by further supervision and consider this unnecessary. It is possible that supervision could be reduced in intensity leaving him with geographic monitoring through GPS ankle bracelet, case management support, and maintenance FBS.

[126] Any further period of supervision is likely to reduce Mr Howard’s reintegration into community. His recovery goals include participation in lawn bowls, formation of a relationship, opportunities for fishing and residing in a different location. It is noted that although subject to an ESO, Mr Howard has been able to pursue and sustain these goals.

[127] Nevertheless, despite relative stability, Mr Howard has on three occasion[s] breached the previous ESO and these breaches have been associated with risk factors for future sexual offending. Consequently, attention from the management team can be directed to these breaches and their significance for Mr Howard.”

28. Both Dr Sullivan and Mr Sheehan consider that the risks posed by Mr Howard cannot be managed in the community without the imposition of an extended supervision order. In slightly different ways, each practitioner recognises the inverse relationship between the severity of any restrictions imposed and the period during which they might apply, on the one hand, and the prospect that Mr Howard will ever progress to remaining in the community unsupervised, on the other hand. However, having regard to the extensive material upon which the State relies in this application, the prospect that Mr Howard will ever be able successfully to remain in a community setting without some supervision appears remote.

29. Notwithstanding that somewhat pessimistic conclusion, compliance with conditions that may be imposed is an essential and critical consideration in the assessment of the appropriate length of an extended supervision order. It is to be hoped that a three-year extended supervision order will encourage the prospect of compliance by offering Mr Howard some small recognition of confidence in his prospects of rehabilitation.

Issue 2(b)

30. By the time these proceedings were heard by me, there was significant agreement between the parties, particularly in the light of the medical opinions of Mr Sheehan and Dr Sullivan, which by then were available, about what I might consider to be appropriate conditions to impose if an extended supervision order were indicated. The following areas of disagreement about those conditions remain to be considered.

Schedule of Movement

31. The State suggests that the following conditions, currently in force in relation to the interim supervision order imposed by Button J, should continue unamended:

5. 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.

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

7. The defendant must not deviate from his approved schedule of movements except in an emergency.

32. Mr Howard submits that these conditions should be replaced with the following conditions:

5. 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. The schedule of movements is limited to places he intends to travel to, the means of his travel to those places, and the dates of travel.

6. If the defendant wants to change anything in his schedule of movements once he has notified a DSO, he must notify the DSO about the changes 24 hours in advance, unless a DSO approves a shorter period.

6A. A DSO must not give a direction prohibiting the defendant’s attendance at any location unless attendance would give rise to a risk of committing a serious offence or a risk of breach of another condition of this order.

7. The defendant must not deviate from his approved schedule of movements except in an emergency.

33. Mr Howard proposes what he contends is a variation from an approval-based model to a notification-based model. If adopted, this would permit Mr Howard to go wherever he chose, without restriction, unless specifically directed otherwise by his DSO. A direction not to attend a particular location would also have to be informed by a likelihood, not a mere possibility, of the kind of risk referred to in proposed condition 6A.

34. Mr Howard emphasises that he has so far been subject to conditions attaching to a supervision order for some six years without any breaches of the existing conditions concerning his movements. He submits that the variation proposed by him fairly represents a balance between minimising risk and his personal liberty. Moreover, drawing upon Mr Sheehan’s analysis, Mr Howard contends that a relatively minor reduction in the stringency of the movement schedule would provide him with a compliance incentive while simultaneously reducing the risk that he may disengage entirely or become chronically discouraged.

35. Having regard to the level and nature of risks identified by the experts, it seems to me that the variations proposed to these conditions are appropriate. On one view, proposed condition 6A in all probability does no more than expressly describe the type of considerations that a DSO acting reasonably would in any event bring to account when considering whether to approve Mr Howard’s proposed movements.

Access to pornographic, violent and classified material

36. Mr Sheehan’s report at [85] deals with the wisdom or otherwise of restricting or limiting Mr Howard’s access to material of this type. He said this:

“[85] There is merit in prohibiting Mr Howard from collecting child-related visual material as he has shown poor ability to self-regulate this independently. I do not agree with a broad prohibition against Refused Classification, X18+, Restricted Category 2 and Restricted Category 1 material. There is no established connection between Mr Howard’s history of pornography use and his episodes of offending. Adult material may assist his masturbatory reconditioning away from child themes. Pornographic DVDs have an advantage over online pornography because it is more controllable in terms of staying clear of deviant themes.”

37. Mr Howard has proposed that the following conditions should be adopted to meet the identified risks related to pornographic material:

38. The defendant must not purchase, possess, access, obtain, view, participate in or listen to any material as directed by a DSO with respect to concerns related to risk of committing a serious offence.

39. If the defendant is going to 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 he must first notify his DSO.

38. The apparent point of difference between these conditions and those that I consider should be imposed is not significant in practical terms. Neither approach entirely, nor even substantially, restricts Mr Howard’s access to a large range of material for his own personal use. Proposed condition 38 is agreed between the parties. Condition 39, listed below, appears in my opinion more closely to conform to the concerns expressed by Mr Sheehan.

Conclusion

39. It follows in my opinion that Mr Howard should be made subject to an extended supervision order for a period of three years commencing on 28 April 2022, subject to the conditions of supervision set forth in the Schedule to these reasons.

**********

SCHEDULE OF CONDITIONS OF SUPERVISION

KEVIN HOWARD

Departmental Supervising Officer (DSO)

Corrective Services NSW (CSNSW)

In these conditions:

“CSNSW” means Corrective Services NSW.

“Commissioner” means Commissioner for Corrective Services

“Defendant” means KEVIN HOWARD, the defendant in these proceedings and the subject of the order.

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

“Electronic Identity” means each of the following:

(a)  an email address,

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

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

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

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

“Material” includes:

1. any written or printed material;

2. any picture, painting or drawing;

3. any carving, sculpture, statue or figure;

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

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

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

“NSWPF” means NSW Police Force.

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

“Search” includes:

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

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

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

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

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

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

Electronic Monitoring

4.   The defendant must wear electronic monitoring equipment as directed by a DSO. Any such direction must be reviewed at three-monthly intervals and the defendant’s DSO must satisfy himself or herself that further electronic monitoring is necessary in order to ensure compliance with conditions imposed under the ESO.

Schedule of Movements

5.    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. The schedule of movements is limited to places he intends to travel to, the means of his travel to those places, and the dates of travel.

6.    If the defendant wants to change anything in his schedule of movements once he has notified a DSO, he must notify the DSO about the changes 24 hours in advance, unless a DSO approves a shorter period.

6A.    A DSO must not give a direction prohibiting the defendant’s attendance at any location unless attendance would give rise to a risk of committing a serious offence or a risk of breach of another condition of this order.

7.    The defendant must not deviate from his approved schedule of movements except in an emergency.

Part B: Accommodation

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

9.   The defendant must be at his approved address between 9pm and 6am unless other arrangements are approved by a DSO.

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

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

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

Part C: Place and travel restrictions

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

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

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

16.   Without limiting condition 16 above, the defendant must not go to any of the following without the prior approval of a DSO:

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 aged under 18 years ordinarily reside; and

j. Businesses which provide public access to the internet either for payment or for no charge (other than employment agencies).

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

Part D: Employment, finance and education

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

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

Part E: Drugs and alcohol

20.   The defendant must not:

a. Possess or consume alcohol without the prior approval of a DSO.

b. Possess or use prohibited drugs or abuse drugs lawfully obtained.

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

22.   The defendant must not enter any licensed premises including hotels, bars, racecourses and licenced clubs, but excluding cafes and restaurants, without the prior approval of a DSO.

23.   The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as reasonably directed by a DSO and must not discharge himself from such programs and courses without prior approval of a DSO.

Part F: Non-association

Association with Children

24.    The defendant must not associate with anyone who he knows or reasonably should know is under 18, other than Incidental contact in a public place in the course of the duties of the minor; or with the written permission of a DSO and in accordance with any requirements reasonably determined by a DSO, including that the contact takes place in the presence of an adult who has been approved in writing by a DSO.

Associations with Others (not children)

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

26.   Without limiting condition 32, the defendant must not:

a. associate with any people who he knows are consuming or under the influence of alcohol without the prior approval of a DSO.

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

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

d. associate with any person who has a pre-pubescent female child without prior approval of a DSO.

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

28.   The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary. Before disclosing the defendant’s criminal history, a DSO must first inform the defendant of their intention to disclose his criminal history and the reason for the disclosure.

29.   If the defendant starts a relationship with someone, he must notify a DSO who may disclose his criminal history to that person. Before disclosing the defendant’s criminal history, a DSO must first inform the defendant of their intention to disclose his criminal history and the reason for the disclosure.

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

Part G: Weapons

31.   The defendant must not possess or use any of the following, without a DSO’s prior approval:

a. a knife, machete, sword or any other device that consists of a single-edged or multi-edged blade or spike that is designed or adapted to inflict violence, whether actual or threatened

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

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

Part H: Access to the internet and other electronic communication

32.   The defendant must give his DSO a list of all devices he uses to communicate with or to access the internet and advise the DSO of any change to the list immediately. 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 usernames used by the defendant and the nature and the details of the internet connection, as directed.

33.   The defendant must obey reasonable direction 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.

34.   The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO.

Part I: Search and seizure

35.   If a DSO forms a reasonable suspicion that a search is required, either to monitor the defendant’s compliance with this Order, or for the safety and welfare of any other person, or because a DSO suspects the defendant of having engaged in behaviour or conduct associated with an increased risk of committing a serious offence, the defendant must submit to the search of any item or place in his possession or under his control, including his residence, any vehicle in which he is traveling or which is under his effective control, or any storage facility, garage, locker or commercial facility, and the seizure of any items object located during the search.

36.   The defendant must submit to the search of any computer, electronic or communication device in his possession or under his control and to the seizure of such devices.

37.   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 this Order.

Part J: Access to pornographic, violent and classified material

38.   The defendant must not purchase, possess, access, obtain, view, participate in or listen to material any material as directed by a DSO with respect to concerns relating to committing a serious offence.

39.   The defendant may, with prior approval by a DSO, purchase, possess, access, obtain, view, listen or participate in Restricted Category 2 and Restricted Category 1 material.

Part K: Personal details and appearance

40.   The defendant must not change his name from “KEVIN HOWARD” or use any other name without notifying a DSO.

41.   The defendant must not significantly change his appearance without the approval of a DSO.

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

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

Part L: Medical intervention and treatment

44.   The defendant must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction, including for the purposes of a Mental Health Care Plan or Community Treatment Order.

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

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

47.   The defendant must notify a DSO immediately if he ceases to take or declines to commence taking any medication as referred to in the above condition.

48.   The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with those persons and agencies that are involved in his supervision including, but not limited to, a DSO, NSWPF and CSNSW.

49.   The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him.

Decision last updated: 20 April 2022