State of New South Wales v HT (Preliminary)

[2023] NSWSC 249

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of New South Wales v HT (Preliminary) [2023] NSWSC 249

Hearing dates:

21 February 2023

Date of orders:

9 March 2023

Decision date:

21 March 2023

Jurisdiction:

Common Law

Before:

Walton J

Decision:

1) Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006:

(a) appointing two qualified psychiatrists, psychologists (or any combination of such persons) to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and

(b) directing the defendant to attend those examinations.

(2) Pursuant to ss 10A and 10C of the Crimes (High Risk Offenders) Act 2006 that the defendant be subject to an interim supervision order for a period of 28 days, operating from the expiration of the defendant’s parole on 12 March 2023.

(3) Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006, directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in Schedule A to this Short Minutes of Order, noting that the Court rejected the contention by the defendant that the conditions would be the present conditions of parole.

Catchwords:

HIGH RISK OFFENDER – Crimes (High Risk Offenders) Act 2006 (NSW) – preliminary hearing – s 5B(d) – criminal history and pattern of offending – single serious sex offence – psychiatric reports – auditory hallucinations – disputed conditions

Legislation Cited:

Child Protection (Offenders Registration) Act 2000 NSW

Crimes Act 1900 (NSW), ss 61M, 112

Crimes (Administration of Sentences) Regulation 2014

Crimes (High Risk Offenders) Act 2006, ss 5, 5B, 5I 7, 9, 10A, 10C, 11

Terrorism (High Risk Offenders) Act 2017

Cases Cited:

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

New South Wales v Darrego [2011] NSWSC 360

New South Wales v Naaman (No 2) (2018) 365 ALR 179; [2018] NSWCA 328

State of New South Wales v Boney(Final Hearing) [2020] NSWSC 1375

State of New South Wales v Fisk [2013] NSWSC 364

State of New South Wales v Heness(Preliminary) [2019] NSWSC 1710

State of New South Wales v Hyde (Preliminary) [2022] NSWSC 540

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

State of New South Wales v Lee [2017] NSWSC 1766

State of New South Wales v Sturgeon [2019] NSWSC 559

State of New South Wales v Wilde [2014] NSWSC 305

State of NSW v CD (Preliminary) [2021] NSWSC 1396

State of NSW v Kaiser [2022] NSWCA 86

State of NSW v McGorm(Final) [2019] NSWSC 484

State of NSW v PS(Preliminary) [2022] NSWSC 1740

State of NSW v Wilkinson (Preliminary) [2020] NSWSC 1813

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

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
HT (Defendant)

Representation:

Counsel:
P Aitken (Plaintiff)
G Marsden (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
12 Wentworth Selborne Chambers (Defendant)

File Number(s):

2022/375883

REASONS FOR DECISION

1. By an Amended Summons filed in this Court on 21 February 2023, the State of NSW (“the State”) sought an order pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (“the Act”) that HT (“the defendant”) be the subject of an extended supervision order (“ESO”) for a period of three years and orders pursuant to s 11 of the Act directing the defendant for the period of the ESO to comply with conditions set out in a Schedule accompanying the Amended Summons.

2. The State also sought interim and interlocutory relief which are the subject of this judgment. The State sought an order pursuant to s 7(4) of the Act appointing two qualified psychiatrists or psychologists (or any combination of such persons) to conduct separate examinations of the defendant and to provide reports to this Court on the results of those examinations by a date to be fixed by the Court and directing the defendant to attend those examinations. The State also sought, pursuant to ss 10A and 10C of the Act, that the defendant be the subject of an interim supervision order (“ISO”) for a period of 28 days from the expiration of his parole with accompanying orders that the defendant comply with the conditions set out in the schedule to the Amended Summons.

3. The application for interim and interlocutory relief was the subject of a preliminary hearing on 21 February 2023. The Court made the interim and interlocutory orders sought by the State on 9 March 2023. These are the reasons for that decision.

4. The defendant is a 42-year-old First Nations man of the Dunghutti and Kamilaroi people. The defendant’s early life involved removal from his parents at three years of age due to concerns about neglect and exposure to abuse, drugs and alcohol use. He lived with an aunt until age 13, moved in briefly with another aunt, and then reunited with his father and brother at age 15 for a short period before leaving and living in whatever circumstances he could arrange. He completed year 10. His first criminal offending occurred between 1995-1996. Since 1999, his longest period in the community has been for 9 months from October 2003 to July 2004. He has two children to a former relationship and has had very little employment history. The Risk Assessment Report (“RAR”) stated that the defendant reported having 6 daughters.

5. The defendant has been assessed as suffering from schizophrenia and this in part led to him only partly completing Custody-Based Intensive Treatment (“CUBIT”) Program in 2013/14. He was estimated to be of borderline intelligence in 2012. In 2015, the defendant was formally assessed as having below average intellectual functioning. I agree with the submission of the State that a transcript of his evidence on sentence on 4 March 2010, together with an affidavit tendered in a sentencing proceedings (for the below mentioned offence contrary to s 112(2) of the Crimes Act 1900 (NSW) which involved aggravated break and enter and commit robbery in company in 2016 in an office and living area of a motel), was capable of suggesting reasonable verbal fluency and expression of concepts.

6. The defendant is presently serving a sentence of five years imprisonment for aggravated break and enter (in company) and commit armed robbery, which commenced on 13 March 2018 and expired on 12 March 2023, with a non-parole period of three years (“the s 112(2) offence”). The defendant was released to parole on 23 September 2022. The sentence was imposed partly concurrently and partly cumulatively with other break and enter sentences, the total term commencing 13 September 2016.

7. Whilst in custody, the defendant was charged with sexual offences which were resolved by a plea of guilty to one charge of indecent assault of a child under 16 (the repealed s 61M(2) of the Crimes Act). That offence was committed on 2 August 2016 (“the serious sex offence”). The defendant was sentenced on 3 April 2020 to a fixed term of six months imprisonment, backdated to commence on 2 September 2019 (“the serious sex offence sentence”). As such, the total term had already expired when it was imposed. That offence is a “serious sex offence” for the purposes of ss 5(1)(a)(i) and 5(1)(d) of the Act, carrying a maximum penalty of 10 years imprisonment.

8. The serious sex offence involved the defendant approaching a 15-year-old in the street and saying he would pay him $80,000 to do things to him as he had not “gotten any arse” since his release from custody. The defendant then hugged the child and pushed him down by his shoulders and told him to get on his knees and “suck my dick”. The victim managed to push the defendant and run away. It is alleged that two hours earlier, the defendant had also approached a 14-year-old boy, offering him a way to make money.

9. The defendant’s record includes a series of Form 1 offences for obscene exposure to females and one aggravated act of indecency from February 2000 and 2009, as well as offensive conduct (masturbating in the presence of a female). More seriously, he has a conviction for a house-breaking offence in 1999 where he is alleged to have approached a female in her bedroom, unzipped his pants, said “you know what I want” and pushed her down and lain on top of her, before fleeing when her husband returned. The precise facts of this allegation were in issue at sentence and were not ultimately decided by the Sentencing Court. There was a contest in these proceedings as to the weight the Court may place upon these alleged, unresolved circumstances.

10. In the early hours of the morning in 2009, the defendant entered the house of a woman he had previously approached, after saying he wanted to spend time with her and that he would be “really gentle” with her. After entering her house uninvited, he pushed her against her kitchen bench and touched her breasts and chest under her robe before fleeing when she screamed and yelled to her neighbour.

11. Separately, the defendant has convictions for assault occasioning actual bodily harm, robbery of an acquaintance using a knife, and burglary offences. He has a lengthy history of burglary offences. Whilst in custody, the defendant has had a number of reports of inappropriate conduct towards females and unwelcome sexual interactions with males. He has spent most of the past 13 years in custody, reoffending relatively quickly upon release.

12. It was not suggested by the State that any of aspects of the criminal history other than the serious sex offence itself would constitute a serious sex offence, however they were relied upon to support the State’s arguments concerning the existence of an unacceptable risk of further serious offending that it was submitted the Court would find is established, on the whole of the material before the Court in the preliminary hearing.

The Positions of the Parties

13. The State submitted that the statutory preconditions in s 5B of the Act had been met in the present case. In particular, it was submitted that:

1. The defendant may be regarded as an “offender” for the purposes of s 4A of the Act and relying on the extended definition of serious sex offence in ss 5(1)(a)(ii) and (d) of the Act, for his 2020 indecent assault conviction.

2. That the Court would be satisfied of the high degree of probability that the offender posed an unacceptable risk of committing another serious offence if not kept under supervision under the order pursuant to s 5B(d).

14. It was submitted that the Court should, therefore, make the s 7(4) orders, exercise its discretion to make an ISO and make the conditions attached to the operation of the ISO in accordance with the State’s position laid out in a Schedule produced by the parties on 24 February 2023, stipulating agreed and disputed conditions (“the agreed Schedule”).

15. For the purposes of the preliminary hearing, the defendant made the following submissions:

1. The Court could be satisfied that the statutory preconditions in s 5B(a)-(c) are met, including, specifically, that the defendant was a supervised offender within the meaning s 5I.

2. The defendant did not accept that the statutory precondition in s 5B(d) was met.

3. In the event that the Court exercises its discretion to make an ISO, the defendant opposed the conditions sought by the State in the Amended Summons and submitted that the conditions ought to reflect his present parole conditions. Further, if the Court was minded to make conditions of the kind found in the Schedule to the Amended Summons, the defendant made particular submissions as to the disputed conditions in the agreed Schedule.

Statutory preconditions: s 5B(a)-(c)

16. There was no dispute that the Court may find that these conditions are satisfied for the purposes of this preliminary hearing, but some further short observations should be made in this respect, commencing with an analysis of the defendant’s status as a supervised offender. The State’s submissions in this respect have been broadly accepted and form the foundation for my analysis which follows below.

17. The State may only apply for an ESO where at the time of filing the application the offender is a “supervised offender” (s 5I(1) of the Act). There are four categories of supervised offender provided for under the Act in s 5I(2), each of them providing for an offender who is serving a sentence of imprisonment. The categories of supervised offender serving a sentence of imprisonment are, respectively, (i) for a serious offence: (ii) for an offence of a sexual nature; (iii) for an offence under s 12 of the Act; or (iv) for another offence (whether under a law of this State or another Australian jurisdiction) that is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraphs (i), (ii) or (iii).

18. In the defendant’s case, the sentence for the serious sex offence commenced during the currency of his existing, unexpired, sentence the s 112(2) offence. The sentence for the serious sex offence commenced on 2 September 2019 and the sentence for the s 112(2) offence commenced on 13 March 2018. The serious sex offence sentence also expired during the currency of his existing sentence, on 1 March 2020. Accordingly, the present s 112(2) offence sentence should be regarded as being served partly concurrently and partly consecutively with the serious sex offence sentence, thus complying with s 5I(2)(a)(iv).

19. Whilst the defendant’s circumstances differ from those of the appellant in the State of NSW v Kaiser [2022] NSWCA 86 (“Kaiser”), the decision of the Court of Appeal in that case nonetheless provides support for the interpretation contended for by the State in this case. In Kaiser, Simpson AJA, with whom Bell CJ and Beech-Jones CJ at CL agreed, determined that s 5I(2)(a)(iv) embraced a situation where the relevant serious offence sentence (manslaughter) was still unexpired (but the offender was out on parole) when further non-serious offences were committed and when the defendant was returned to gaol and sentenced for those new offences. The non-serious offences resulted in three sentences being imposed, the first of which was concurrent with the unexpired portion of the manslaughter sentence and the second of which was partly concurrent and partly consecutive with the manslaughter sentence. The third sentence imposed commenced after the expiry of the manslaughter sentence.

20. The State in Kaiser had filed its initial summons during the currency of the manslaughter sentence. It then filed an Amended Summons during the currency of the second non-serious sentence. Her Honour determined (at [33]) that the Amended Summons was filed in accordance with s 5I(2)(a)(iv). Her Honour further observed that the third non-serious sentence would not be caught by s 5I(2)(a)(iv), as it was neither partly concurrent nor partly cumulative with the manslaughter sentence (commencing, as it did, after the expiry of the manslaughter sentence).

21. Her Honour’s finding is sufficient support for the State’s contention that, in the defendant’s case, an application filed within 9 months of the expiry of the current s 112(2) offence sentence falls within s 5I(2)(a)(iv). It is a sentence which “is being served” at the time of the filing of the application. Further, in Kaiser, the subsequently imposed sentences were imposed in separate proceedings from the manslaughter offence, as is the case with the defendant’s sentences (as between the s 112(2) offence sentence on the one hand and the serious sex offence sentence on the other). Whilst in the defendant’s case the serious sex offence sentence was imposed after the other sentences (whereas in Kaiser it was the other way around), this does not, in my view, make any practical difference, when interpreting the language used in s 5I(2)(a)(iv). Further, a finding that the provision applies is consistent with the objects of the Act, whereas a finding that it does not is apt to produce an anomalous result, inconsistent with that purposive construction.

22. An “offender” means a person over 18 years who has at any time been sentenced to imprisonment following his conviction for a “serious offence”: s 4A of the Act. A “serious offence” (s 4) for this defendant relevantly means a serious sex offence via s 5(1)(a)(i) where, in the case of an offence against an adult or a child, the offence is punishable by imprisonment for 7 years or more. The indecent assault offence under s 61M(2) carried a maximum penalty of ten year imprisonment. Notwithstanding the repeal of s 61M(2) of the Crimes Act, the offence is still caught by the terms of s 5(1) of the Act, as it is also an offence which can be regarded as “any other offence that, at the time it was committed, was a serious sex offence for the purposes of this Act.”

S 5B(d): Relevant Principles

23. There is no dispute as to the relevant principles of the unacceptable risk test in s 5B(d) proffered by the State. The State’s submissions as to relevant principles represent a convenient statement of principles for present purposes, and I propose to adopt them in what follows:

1. Guidance as to how the Court might approach its task under s 5B can be found in the decision of Beech-Jones J (as his Honour then was) in State of New South Wales v Fisk [2013] NSWSC 364 at [84], where his Honour observed (as to the wording of the Act when it only referred to serious sex offenders) that:

…the criteria in s 9(3) appear to be relevant to an assessment of whether a person falls within the definition of “high-risk sex offender” and especially to whether they pose an unacceptable risk “unless kept under supervision.

2. That approach was followed by Hall J in State of New South Wales v Wilde [2014] NSWSC 305, at [111] and by Harrison J in State of New South Wales v Kamm (Final) [2016] NSWSC 1, at [48].

3. In Lynn v State of New South Wales [2016] NSWCA 57, the Court of Appeal considered the unacceptable risk test. Justice Beazley P gave further guidance on what risk meant in terms of protection of the community. Her Honour observed at [59]-[61]:

[59] In Thomas (Preliminary) R A Hulme J made the following observation, at [20]: “Whilst bearing in mind the second of those two objects, I would regard the test in s 9(2) as being satisfied if there is a risk that the person will commit a serious sex offence which is present to a sufficient degree so that the safety and protection of the community cannot be ensured unless an order is made.”

… [60] In Darrego [2011] NSWSC 360 McCallum J commented, at [8], that: “…a formulation in these terms puts a gloss on the precise words of the test stated in the section, which does not require, in terms, that protection of the community be ‘ensured’ (although that is an object of the Act).”

[61] For my part, I do not understand that R A Hulme J, in using the words of the objects clause, intended to mean that “unacceptable risk” is to be determined in the sense of guaranteeing the safety and protection of the community. Rather, as the respondent has submitted the word “ensure” itself has shades of meaning and, in the context of the Act, the evaluation to be made under s 5E(2) is directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection. As the respondent pointed out, were it otherwise, every risk would be unacceptable.

4. It should be noted that in State of New South Wales v Kamm(Final) [2016] NSWSC 1, Harrison J at [41] repeated a submission made by the State in his Honour’s judgment which has relevance, namely:

The determination of what is an unacceptable risk may require consideration of various factors (such as the perceived likelihood of recidivism and the type and nature of offences that may be committed absent supervision), and may entail a balancing of factors in cases where they might point towards differing outcomes (such as a low risk of recidivism versus likely drastic consequences to the victim if an offence occurs). Clearly, any analysis of the concept of unacceptable risk involves recognition that there will be a range of factors affecting risk and some cases that are more obvious examples of unacceptability than others.

5. This jurisprudential approach has been followed in a number of subsequent decisions and in broad terms has been applied by the NSW Court of Appeal in a decision under the similar provisions of the Terrorism (High Risk Offenders) Act 2017. (See New South Wales v Naaman (No 2) (2018) 365 ALR 179; [2018] NSWCA 328 at [29].)

6. Having regard to the wording of s 5D, it is possible for the Court to legitimately find that an offender poses an unacceptable risk, even if the likelihood of them committing a further serious offence is determined to be something less than high.

24. To that summary of principles may be added my observations in State of NSW v McGorm (Final) [2019] NSWSC 484 at [189]-[204]:

[189]   As to Sancar, the following comparisons were made:

“(1) the defendant had one conviction of a serious violence offence, namely, murder;

(2) the defendant also had disciplinary breaches linked to the use of illicit drugs and disciplinary offences. That position also applies in this case;

(3) reference was made to the observation at [83] by Garling J that the defendant in Sancar represented risk because of the length of his incarceration, institutionalisation, lack of strong peer support in the community outside family but, having regard to the relevant test of unacceptable risk, there was not a risk of serious violence offending.”

[190] Turning to the defendant's written submissions regarding the application of s 5B(d), the defendant made the following submissions:

“(1) To order an extended supervision order, the Court must be satisfied on the evidence before it to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if he is not kept under supervision. Given the defendant's background, the only relevant serious offences about which there is any risk is the risk of further serious violence offences.

(2) The defendant submitted that the Court could not be satisfied to a high degree of probability that the defendant poses such an unacceptable risk.

(3) As an initial observation, the defendant accepted that there are aspects of the evidence against him which must disclose some risk of re-offending in a general sense. The defendant also accepted that, as a general proposition, supervision may be desirable to mitigate risk. However, a Court must not obfuscate the actual test to be applied in order for an order to be imposed. As his Honour Harrison J stated in Pacey (at [53]):

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

(4) In determining the ‘unacceptable risk’ test pursuant to s 5B(d), the Court is required to consider: ‘First, there is the probability that the risk will manifest. Secondly, there is the seriousness of the harm that will ensue if the risk were to manifest’: Rothman J in State of NSW v Ceissman [2018] NSWSC 508 at [26].

…

Consideration

Unacceptable Risk: Section 5B(d)

[191] The decision to make or refuse an application for an extended supervision order is discretionary and requires an evaluative judgment to be undertaken by this Court according to the individual circumstances of the case and having regard to the objects of the Act: Lynn at [51].

[192] Section 5B of the Act provides the Court may make an extended supervision order if: the person is an “offender” who is serving or who has served a sentence of imprisonment for a serious offence (see s 4A of the Act); the person is a “supervised offender” (see s 5I of the Act); the application for the order is made in accordance with s 5I of the Act; and this Court is satisfied to “a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order”.

…

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

[198] As to those principles, I adopt the statement of principles in State of New South Wales v Dillon (Final) [2018] NSWSC 1626 at [20]-[39] (see also, State of New South Wales v French (Final) [2017] NSWSC 1475 (at [43]-[53])). By way of emphasis or elaboration, some further observations may be made.

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

[200] Secondly, I accept the passage of the judgment of Adams J in State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 at [127]-[128], adopting the observations of Harrison J in Pacey and Wilson J in Simcock, as follows:

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

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

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

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

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

[202] Thirdly, the requisite finding under s 5B(d) may be made, in an appropriate case involving a single serious offence. In Kamm, Harrison J observed (at [44]):

“[44] … while it is necessary to bear in mind the limitations of attempting to draw comparisons with the factual circumstances of other cases, in State of New South Wales v McQuilton [2014] NSWSC 11, R A Hulme J imposed an ESO in respect of a sexual offender who had experienced pervasive rape fantasies, but had only been convicted of a single serious sex offence.”

[203]   Finally, the defendant accepted that there were aspects of the evidence against him, which must disclose some risk of re-offending in a general sense. The defendant also accepted that - as a general proposition - supervision may be desirable to militate risk. However, it was contended, such a consideration must not “obfuscate the actual test to be applied in order for an order to be imposed”. Reliance, in this respect, was placed upon the judgment of Harrison J in Pacey (at [53]):

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

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

25. Counsel for the defendant placed significant reliance on the fact that the defendant had only been convicted of a single serious sex offence. While this is a relevant consideration, it does not preclude the Court from concluding that the State has met its onus and that the statutory test for imposition of an ISO has been satisfied when all of the relevant matters are considered, including the defendant’s criminal history and other factors under ss 9(2) and (3) of the Act (see State of New South Wales v Hyde (Preliminary) [2022] NSWSC 540 (“Hyde”), per Schmidt AJ, at [20], [21] and [25]) and also the authorities bearing upon that issue above.

Preliminary Hearing Principles

26. As to the principles for a preliminary hearing, I refer to the judgment in State of NSW v PS(Preliminary) [2022] NSWSC 1740 where the following principles were stated:

[56]   There was no dispute as to the statement of principles appearing in the written submissions for the State. In that light, it is sufficient to state the following principles for the purposes of this preliminary hearing and the applications for interlocutory and interim relief.

(1) The Court is not required to predict the outcome of the final hearing, rather the Court determines whether it would be reasonably open to make an extended supervision order at final hearing assuming proof of the matters. This involves a consideration to which I will turn shortly of the satisfaction of the conditions in s 5B of the Act and whether the Court might exercise a discretion under s 9(1) of the Act.

(2) If the Court is satisfied of the making of the extended supervision order in the circumstances the Court is mandated to make an order under s 7(4).

(3) Assuming that s 7(4) orders are made whether an interim order ought to be made is to be considered under s 10A of the Act. That provision is enlivened if it appears the defendant's supervision will expire before the final determination of the extended supervision order.

(4) In determining those matters the Court is required to consider the objects of the Act insofar as they concern the safety and protection of the community.

(5)   Finally, it is appropriate to give weight at this stage of the proceedings to risk avoidance.

27. I note that the State also referred to various aspects of the judgment of Garling J in State of New South Wales v Sturgeon [2019] NSWSC 559 at [5]-[6] which was in the following terms:

[5] A preliminary hearing does not require the Court to be satisfied that the matters in the supporting documentation will be proved. The Court is only required to be satisfied that if those matters are proved, an order would be justified, bearing in mind the elevated standard of proof, namely “a high degree of probability”: s 5B and s 5C of the HRO Act.

[6]   The Court, in undertaking this exercise, is not involved in weighing up the documentation or resolving any conflicts, inconsistencies or uncertainties which appear in the documentation. It is no part of the Court's function to predict the ultimate result, or assess the likelihood of the ultimate result. If on the matters alleged in the supporting documentation it is open to the Court at a final hearing to make a CDO or and ESO, then a conclusion that the Court would be justified in making the order, is inevitable. The issue is to be resolved without considering what evidence might be called by the defendant at a final hearing, and without taking into account any evidence which may be called by a defendant at an interim hearing, because such evidence would not cast light upon what is alleged in the supporting documentation: Attorney-General of NSW v Tillman [2007] NSWCA 119 at [98].

28. Further, the State referred to the judgment of Fullerton J in State of New South Wales v Heness (Preliminary) [2019] NSWSC 1710 at [28]-[29] as follows:

[28]   In the hearing, I determined that the evidence relating to the 1997 charges was admissible in that it was capable, even if in a very limited way, of bearing upon the likelihood of the defendant committing a serious sex offence in the future and, in that way, capable of informing the question whether the acceptable risk precondition is satisfied. I also determined that this was not a forum where the discretion in s 135 of the Evidence Act had any meaningful application. Here the Court is engaged in an evaluative exercise (both as the tribunal of fact and the tribunal of law) as to whether a statutory test has been met so as to engage the jurisdiction of the Court to make orders for the extended supervision of the defendant if satisfied of that fact at a prima facie level. Viewed in that way, there is no practical sense in which the risk of the unfair prejudice with which s 135 is concerned has any meaningful operation in deciding that question in a preliminary hearing.

[29]    I was, however, unprepared to accede to Mr McGorey's submission that the evaluative exercise engaged on this application eschews considerations of the weight of the supporting documentation. While it is true that in a preliminary hearing the Court is not to “weigh” the documentation for the purposes of predicting the ultimate outcome of the proceedings, in my view the evaluative exercise in which the Court is engaged in the preliminary hearing necessarily involves an assessment of the “weight” of particular aspects of the evidence, equally as it does the “weight” of the supporting documentation as a whole, when determining whether the State has evidence capable of discharging the burden of establishing that “the unacceptable risk precondition” is met such that interim orders might be made subject to the exercise of discretion.

CONSIDERATION OF FACTORS UNDER S 9(3)

Section 9(3)(h) Criminal history and pattern of offending behaviour disclosed by that history

29. For the purposes of the preliminary hearing, the State’s summary of the defendant’s criminal history was broadly accepted by counsel for the defendant. However, the defendant disputed the State’s characterisation of the defendant’s pattern of offending and the inferences concerning the risk of serious offending which the State sought to draw from aspects of the defendant’s criminal history. In those circumstances, I shall adopt below the State’s description of the criminal history before addressing the defendant’s five arguments concerning how that history should be interpreted with respect to the assessment of risk of serious offending.

Early Offending

30. The defendant’s first criminal activity occurred in February 1995 and involved possession of house breaking implements, break and enter with intent, steal motor vehicle and attempt steal. Further offences of breaking with intent and break enter and steal (8 counts) were committed in January 1996 and then a further break enter and steal offence in April 1996. Probation orders and then control orders were imposed.

31. Further offences of steal motor vehicle and attempt to steal vehicle, break enter and steal, driving unlicensed and receiving stolen goods were committed in 1996. In 1998, the defendant was convicted of several counts of break and enter, and common assault and wield knife in a public place (convicted, warrant to issue). The police facts for the assault and knife offence describe an altercation with others where the defendant had gone home and come back with kitchen knives, one of which he threw at the group being assaulted. In 1999, he was dealt with for resist officer in execution of duty and two further counts of break and enter with intent to steal. His first gaol sentence was imposed in August 1999 and involved a break and enter where he turned the power off to a home occupied by a female known to him, opened a locked security door with a knife and searched bedrooms where occupants were sleeping.

32. In 2000, the defendant was sentenced for an offence (committed on 15 December 1999) of breaking and entering a house and stealing and a second offence of entering a house with intent to commit assault occasioning actual bodily harm. The two offences were committed at the same house. The facts for the offences reveal that the defendant entered the house in the early hours of the morning after the parents and their three children had moved in the previous day. The female adult woke at 4:45 AM to see a man standing at the foot of her bed holding something sharp in his right hand, and, when she challenged him, he ran from the room. The female’s partner chased after the man and got into his car to try and find him. The female victim then heard noises again in the house and saw the same man back in her bedroom and asked him “what do you want?” and the defendant said: “you know what I want” and undid his fly.

33. The female alleged that when she went to go to the door, the man grabbed her shoulders and threw her onto the floor and lay on top of her, at which point her partner returned in the car and the man got off her and ran out of the bedroom. In remarks on sentence for this offence, Christie QC D CJ said that the version of what occurred is not entirely on all fours with the version put forward by the defendant (who denied unzipping his fly or uttering those words) and that the female victim formed the very definite view that the intentions of the defendant towards her were at least partially of a sexual nature. His Honour went on to say that the defendant had pleaded guilty to a break and enter with intent to commit an assault occasioning actual bodily harm offence, so that he was to be sentenced on that basis, with the intent of assaulting the female victim. His Honour added that it is not to say that he did not accept the victim's belief that she was in immediate peril by reason of an attack of a sexual nature.

30. I note here the submission by counsel for the defendant that the Court could not place weight on an unproven fact, namely the defendant’s intention to commit a serious sexual offence in circumstances of offending where no serious sexual offence occurred, or to commit a serious sexual offence of greater severity than that which eventuated. I will return to this submission later.

31. At sentence for the break and enter offences, the defendant was dealt with for four counts of wilful and obscene exposure, one count of aggravated act of indecency, goods in custody, and two counts of offensive conduct, on a Form One schedule. The facts for those matters were as follows. For the aggravated act of indecency, on 6 February 2000 the defendant jogged past the female victim in a laneway leading to a park and jumped on her and grabbed her on the groin area with both his hands and squeezed and said: “I want you baby”. The victim took evasive action but fell to the ground with the defendant on top of her, and she kicked him and screamed “help, help, somebody help me”, at which point the defendant got up and ran. She suffered minor bruising and soreness to her hip and shoulder.

32. On the same day, the defendant jogged past another female victim and shouted “hey” and the victim turned around and saw the defendant expose his penis. The same day, the defendant jogged up to a third female victim and said “hello” and then pulled his penis out of his shorts and exposed it and said: “do you want this babe?”.

33. On 22 February 2000, a 13-year-old female victim was delivering the local paper and was approached by the defendant who said: “I'm Beau, give me the paper”. The victim turned away and the defendant said: “give me a kiss goodbye”. He then exposed his penis and commenced to wave it at the victim. On 25 February 2000, the defendant was standing in the laneway near an adult female victim’s house and, after hearing a smashing sound, she saw him looking at her. She put her children in her vehicle and drove out of the driveway, at which point she saw him exposing his penis with both hands on it. The ages of the female adult victims were 44, 54 and 35.

34. On 21 February 2000, the defendant went to a Video Ezy store and stood in the adult video section and put both his hands down the front of his pants and started to play with his penis while looking at the female shop assistant. On 27 February 2000, the defendant went to the same store and the same adult section and chose an adult video and then put his hands down the front of his pants and started to play with his penis while looking at a different female shop assistant.

35. The State noted that the aggravated act of indecency (the repealed s 61O Crimes Act 1900) and indecent assault would arguably be offences “of a sexual nature” pursuant to s 5(2)(a) of the Act, but the obscene exposure and offensive conduct offences would not be. However, it was submitted that they are relevant to an assessment of risk as demonstrating significant sexual preoccupation and a preparedness to demonstrate that to strangers in public.

36. The defendant was sentenced to 4 years and 6 months imprisonment on 20 October 2000 and 18 months concurrent for the break and enter offences. On 24 March 2002 the defendant escaped custody at the Glen Innes Correctional Centre, having some five months of his sentence for the property offences remaining.

37. On 14 December 2002, the defendant assaulted a stranger in a service station in the early hours of the morning, after demanding that the victim buy him a packet of cigarettes. The defendant punched the victim in the face, breaking his nose and cheek bone. He was convicted of assault occasioning actual bodily harm and received a total sentence of 12 months imprisonment commencing 17 December 2002.

38. On 6 May 2005, the defendant was sentenced in Armidale District Court for one count of robbery whilst maliciously inflicting actual bodily harm and, on a Form One schedule, two offences of aggravated break enter and steal, and one offence of break enter and steal were taken into account. The robbery occurred on 17 April 2004 when the defendant and a friend were drinking alcohol with the victim and two other friends of the victim in the victim’s flat. The defendant became verbally aggressive and walked into the kitchen, picked up a knife, waved it round and made threats about stabbing the victim and his friends. The defendant then punched the victim in the mouth and then headbutted him in the face. The defendant also punched the victim's friend in the face and demanded money from the victim and held a knife to his neck, and subsequently stole some alcohol, swords and a small amount of cash. The victim received sutures to a laceration on his wrist. The defendant received a total sentence of 6 years 5 months with a non-parole period of 3 years 6 months.

39. On 4 March 2010, the defendant was before Toner SC DCJ for an offence of break and enter dwelling house and commit indecent assault. At the time the defendant committed this offence he was on parole, having been released from the robbery offence summarised immediately above. His parole was revoked as a consequence of the fresh offence.

40. The facts of that offending are as follows. On 21 April 2009 the victim was at her home in Armidale when she heard a knock at the door and answered it to the defendant, who asked if someone called Mark lived there. The defendant said: “I just got out of gaol, I've been out of touch for a while and need somewhere to stay”. The defendant asked to use her phone to call a friend and she was handed an ad from a newspaper, for a sex worker. She dialled the number and he said: “there's no answer” and left.

41. At around 2:00 AM on 26 April 2009, the victim woke to what she thought was a knocking sound on the door and saw the defendant at the door who said: “can you help me?” and said he needed somewhere to stay. He was told he couldn't stay there. He said: “I'm sorry I want to spend time with you. I promise I'll be really gentle with you”. She shut the door and told him to go away. The defendant then came to the lounge room window and asked to be let in and was again told to go away, and then she found him in the kitchen. She dialled 000. The defendant pushed her against the kitchen bench and then put his hands under her robe and touched her breasts and chest, while she was saying no and screaming and yelling and calling out for a neighbour. When she screamed the defendant ran out of the door and the victim went and sought assistance from neighbours.

42. The following further matters were dealt with at sentence on a Form One schedule. At around 8:30 AM on 23 April 2009 the defendant approached a female walking her dog in Armidale and ask for directions to the cemetery. The victim then walked on and heard the defendant from behind her calling out “miss, miss”. The victim turned around and saw the offender with his pants down and his penis exposed, playing with it. He apologised and said he had turned his life to Christianity.

43. The defendant was charged for an offence on 30 April 2009 at around 8:45 AM when another female victim was walking in Armidale. As she passed him, he stood up and said: “hi miss could I talk to you for a bit?”. He said he had just been released from gaol and was having a panic attack. He asked if he could go to where she lived and she said no, but he followed her home and asked to come in, to which she said no. The victim then walked to a friend’s house and called the police. The defendant was charged with commit act of indecency for the first Form One offence and stalking for the second offence. On sentence, the defendant received a total sentence of 5 years 7 months and 24 days, to commence on 1 April 2010, to be followed by the balance of his term for the robbery (as a result of the parole revocation). On appeal, the sentence was reduced to a non-parole period of 3 years 10 months with an additional term of 2 years 6 months. The defendant was in fact released from custody on 5 February 2016.

The Index s 112(2) Offence

48. On 5 April 2017, the defendant was sentenced in relation to three offences. The first was an offence of breaking and entering with intent to steal, committed on 19 August 2016 at a gymnasium. The second was an offence of aggravated break and enter and commit robbery in company, committed on 8 September 2016 at the office and living area of a motel and involving the operators of the motel as the victims. The third offence on 4 September 2016 involved aggravated breaking and entering and stealing in company at a laundry service.

49. In the s 112(2) offence, the defendant was armed with a large knife and a pole, while a second offender had two knives. Cash was stolen during the robbery. The defendant struck the male victim on the face at one point, causing a split lip.

50. The defendant was sentenced for the s 112(2) offence to a total term of 5 years imprisonment with a non-parole period of 3 years, commencing on 13 March 2018. For the break and enter with intent to commit a serious indictable offence, a fixed term of 15 months imprisonment commencing on 13 September 2016 and expiring 12 December 2017 was imposed, and for the offence of aggravated breaking and entering and committing a serious indictable a fixed term of 18 months imprisonment was imposed, commencing 13 March 2017 and expiring 12 September 2018.

The Serious Sex Offence

51. I shall expand upon the brief summary of the facts of this offending given at the beginning of the judgment (with some repetition in order to maintain the integrity of the narration).

52. The offence occurred on 2 August 2016, some 23 days after the defendant had been released from prison. The 15-year-old male victim was walking in a public street when the defendant approached and asked him if he knew where he could “get on it” and then asked him if he wanted to make some money. The victim agreed to go with the defendant to somewhere a bit private. The defendant took him to the basketball court in the local high school grounds, where he told him he had been released from gaol for murder and “I haven’t gotten any arse since then, so I was thinking I could pay you $80,000 and I could do some things to you.” The victim declined this offer, which the defendant raised to $120,000 and then offered $80,000 if the victim gave him a blow job, which the victim also declined.

53. The defendant suggested they walk to a brick wall, where he put both hands beside the victim’s head and leant in and said: “If I had a million dollars, I’d have my way with you”. The victim feared he would be killed, while the defendant told him he was a good looking and handsome boy. The victim then tried to walk away but the defendant grabbed his shoulder and pulled him in close, saying “give me a hug” and put both arms around him. The defendant then pushed the victim down by the shoulders and said “Well you’ve got no choice now. You’re going to get on your fucking knees and suck my dick”. The victim pushed the defendant in the stomach and ran away, but dropped his phone. The defendant called out to him that he’d dropped it, and the victim managed to persuade him to return it through a hole in a gate adjacent to them, with the defendant then saying: “Can I get a blow job before you go?”.

54. In an interview with arresting police, the defendant claimed that some “tribal stuff” was going on (people who had died) and that he had been born bad but had read the Bible and was now cleansed so he did not have any dirty thoughts or sexual thoughts anymore and that rock spiders were telling him to do things.

55. The agreed facts disclosed that the defendant was identified having approached a 14-year-old boy in the same area and striking up a very similar conversation some two hours prior. The defendant was also identified as the person who had approached another young man fifteen days later in another town, striking up an almost identical conversation, including sexually propositioning the young man for the same amount of money.

56. On sentence, Priestley SC DCJ found that the indecent assault was constituted by the words used and the fact of seeking to force the victim into a position to perform fellatio.

The Defendant’s Submissions Concerning Criminal History and Pattern Of Offending

57. In response to the defendant’s criminal history and pattern of offending presented above, counsel for the defendant submitted that, when properly understood, the history should not result in the Court being “satisfied to a high degree of probability” that the defendant “poses an unacceptable risk of committing another serious offence if not kept under supervision” under an order for the following six reasons. I have derived these reasons from the defendant’s written and oral submissions, and I will return to them later in my judgment:

1. Even though the Court may be satisfied that the defendant will commit another offence, the defendant’s criminal history does not support the Court being satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence.

2. The defendant has only been convicted of one “serious offence” as defined under the Act, namely the “serious sex offence”. I have earlier discussed how such a submission should be approached as a matter of principle.

3. When considering the range of offences which meet the statutory definition of a “serious sex offence”, the offence committed by the defendant is at the lower end of that range as regards its maximum penalty. It is an offence which carries a maximum penalty of 10 years’ imprisonment when dealt with on indictment and can also be dealt with summarily with a maximum penalty of two years’ imprisonment. Other offences which meet the statutory definition of a “serious sex offence” carry the maximum penalty of imprisonment for life (presumably this refers to offences such as aggravated sexual assault in company, persistent sexual abuse of a child and sexual intercourse – child under 10).

4. The “serious sex offence” committed by the defendant was assessed by the sentencing judge as being in the low range of objective seriousness for offences of its type. This was one factor which contributed to the defendant being sentenced to a fixed term of six months’ imprisonment for the offence served wholly concurrently.

5. The State mischaracterised the defendant’s pattern of offending by inferring that the defendant poses a significant risk of sex offending of greater seriousness than the offences which he committed. The Court should not draw the inferences which the State sought to draw about the possible consequences of the defendant's conduct (i.e.. serious sex offending of greater severity) from the defendant’s expressed state of mind and actions.

6. Each of the examples relied upon by the State to characterise the defendant as possessing an intention to commit a more serious offence involved the defendant voluntarily ceasing the offending following an interruption. These were not situations where the intervention of a third party was required to prevent the offence from continuing; rather, the defendant made an active decision to cease the offending in response to the victim’s reaction.

58. I will now address each of these aspects. On the material before the Court, I do not consider that the defendant’s submissions may be accepted as having the effect of significantly diminishing the defendant’s risk of re-offending for serious sex offences in the manner proposed by the defendant, for the following reasons:

1. Counsel for the defendant conceded that, if the defendant’s previous patterns of offending continue, there is a strong likelihood that he will have future involvement with the criminal justice system, (that is, that he will commit another offence). However, that criminal history does not indicate, it was contended, a sufficient likelihood that the defendant will commit another serious offence in future. As I foreshadowed in my discussion of the relevant principles at [23] above, I have taken into account that only a single serious sex offence has been committed by the defendant, but this must be weighed against the other factors I am required and permitted to take into account under ss 9(2) and (3) of the Act which indicate there is a sufficient risk that the defendant will commit another serious offence. I will address the following factors in more detail later in my judgment, but I note here four particular factors (enumerated (i)-(vii)) that support a finding of a risk of committing a serious offence, notwithstanding the defendant’s commission of only one serious sex offence:

1. Dr Elliott’s psychiatric report finds that the defendant was undergoing auditory command hallucinations when he committed the serious sex offence. Auditory hallucinations are an ongoing “chronic” symptom for the defendant, who stated that they were present on 12 December 2022 during a consultation with psychologist Ms Melanie Rowe. On 19 January 2022, Ms Kirrin Farrant noted that the defendant’s support worker Tayla stated that the defendant had been experiencing “increased voices” and “increased paranoia, as he frequently believes he can hear someone trying to get into the house.” It is possible that the severity of the defendant’s auditory hallucinations may fluctuate, as he reported to Ms Melanie Rowe on 4 January 2023 that “his voices continue to be improved after the cultural ceremony at the beach.” However, there is an ongoing risk that the defendant may undergo auditory hallucinations, including the command hallucinations he previously experienced, which caused him to commit, or contribute to his commission of, another serious sex offence.

2. On 19 January 2023, the defendant reportedly admitted to Ms Kirrin Farrant that he has used cannabis on four occasions since leaving custody. He has once tested positive for drug use after smoking cannabis with his brother after his father’s funeral. Because much of the defendant’s past offending has been in the context of drug use, the defendant’s recent relapses into drug use, illustrate the defendant is at risk of both future drug use and offending. Given the defendant’s pre-existing diagnosis of schizophrenia, there is a significant risk that future drug use by the defendant, including potentially cannabis use, may be associated with an increased risk of psychosis. This was raised by the State in cross-examination of the defendant’s NDIS-funded behavioural psychologist Mr Justin Clark, who affirmed that this was his understanding.

3. At the time that Mr Clark wrote his report praising the defendant’s progress in the community, he was not aware that the defendant had used cannabis on four occasions rather than the one occasion he admitted to Mr Clark. Mr Clark stated that he would not “rate” cannabis use “as a high risk factor” in comparison to methylamphetamine, which the defendant has not recently tested positive for. In this preliminary hearing it is not my role to assess precisely how much of a risk factor cannabis, or to assess the risk of cannabis use in comparison to other drugs the defendant has used in the past. In my view, the defendant’s four occasions of cannabis use contribute to the satisfaction of the threshold of substantial risk for several reasons, including the availability of medical evidence such as Dr Elliott’s psychiatric reports linking the defendant’s drug-taking generally with the risk of further serious offending. The RAR similarly found that the defendant’s “substance abuse and mental health appears to perpetuate his risk of sexual offending.” The following excerpt from the RAR expands upon the defendant’s risk of serious sexual offending associated with his substance abuse:

Substance abuse has been a risk factor identified to be directly related to [HT]’s risk of serious sexual, violent and general offending.

[HT] has admitted to intravenous drug use during his current incarceration despite prescribed monthly buvidal injections. [HT's] substance use has a direct effect on his mental health stability and experiences of psychosis. It is also likely that his general offending (e.g., break and enter) is to meet the need of funding illicit substances. As noted in [HT's] criminal history, he has engaged in or attempted to engage in sexual offending during the commission of break and enters. [HT's] access to potential victims would be considered a high-risk situation for impulsive sexual offending.

(My emphasis in italics.)

4. Indeed, counsel for the defendant conceded generally that “the use of illicit substances poses a risk factor for the defendant.” I correspondingly evaluate the defendant’s use of cannabis as a relevant risk factor. Given the role that auditory command hallucinations have played in the defendant’s commission of a serious sex offence, there is a possible link between the risk of drug-induced psychosis and future commission of a serious offence.

5. On 4 January 2023 the defendant communicated to Ms Melanie Rowe “that when his order ends, he would like to stop all NDIS supports and live independently of all services except for Centrelink and the bank.” Under the NDIS the defendant lives in supported accommodation, receives behavioural psychological therapy and is currently receiving 24/7 supervision by two support workers. As the State submitted, this support appears to have been essential in assisting the defendant to manage his mental illnesses, temptations to use drugs, and to support the defendant to live in the community without reoffending, including serious reoffending. If the defendant were to follow through with his expressed intention to cease all support services, which he would be at liberty to do once his parole ends if no other orders (such as an ESO or community treatment order) are implemented, this would increase his risk of reoffending, including committing another serious sexual offence.

6. It was also submitted by the State that the defendant had made various inconsistent statements concerning his intention to relocate to Nambucca (recorded on 30 January 2023 by Ms Kirrin Farrant) and to Glen Innes (a location where the defendant had committed a robbery – a statement recorded on 02 February 2023 by Ms Farrant), both of which would entail departing from his present NDIS supports including supported accommodation.

7. In cross-examination the defendant’s NDIS-funded behavioural psychologist Mr Justin Clark stated that he would “expect” “somebody like” the defendant to “make statements off the cuff … plans coming and going change all the time”. Mr Clark attributed the defendant’s inconsistent statements about his plans as being “More likely the personality than the primary mental health condition.” Regardless of whether this behaviour is characteristic for the defendant and a feature of his psychological disposition, it remains an indicia of risk that the defendant coulda commit a further serious sexual offence if he acts upon his expressed intentions to remove himself from his present supports. For the purposes of this preliminary hearing, the State has provided sufficient documentary basis for an indicia of risk which I am entitled to and should, in my view, take into account, without resolving conclusively at this preliminary stage complex questions of fact such as the precise cause of the defendant’s inconsistent statements and the likelihood that he will act upon them.

59. With regards to the significance of the serious sex offence committed by the defendant being “at the lower end of that range [of serious sex offences] as regards its maximum penalty”, I accept the State’s submission, following Schmidt AJ in Hyde at [23]-[24], that the definition of a serious sex offence in s 5 of the Act does not provide for any distinction to be drawn between the specified offences such that the maximum penalty for an offence is not in itself a significant consideration under the Act.

60. With regards to the assessment by the sentencing judge that the serious sex offence was at the lower range of objective seriousness, this Court has before it additional or new material which was not before the sentencing judge. Notably, during oral submissions the State submitted that the defendant had disclosed to a community corrections officer after the serious sex offence that his intentions were more serious with respect to the 15-year-old victim than the outcome that eventuated. I note that on 30/11/2022 the case note report of Ms Kirrin Farrant, Kempsey Community Corrections, records the defendant as stating:

[...] he takes solace in the fact that the extent of his offending against the 16 y/o male, was nowhere near as serious as what his mind wanted him to do in that moment. He said he was by no means excusing or lessening his behaviour, just trying to indicate it could have been much worse.

61. When this intention to commit a more serious offence is taken into account alongside the defendant’s history of auditory command hallucinations, there is a risk that the defendant’s mind may in the future “wan[t] him to do” actions constituting a serious sex offence, and that the defendant will actually engage in such behaviour.

62. Counsel for the defendant contended that it would not be appropriate for the Court to draw inferences from such evidence concerning the defendant’s state of mind to conclude that the defendant’s previous offences might have been of greater severity. Counsel for the defendant submitted that the Court is to take the past offences on their facts. However, evidence concerning the defendant’s state of mind during previous offending which reveals that his mind desired, or he experienced auditory command hallucinations or some other form of compulsion, to carry out sexual offending of greater severity is relevant to the risk of commission of future serious offences at this stage of the Court’s assessment of the States application.

63. With regards to the argument that speculative inferences from the defendant’s expressed or purported state of mind and his actions should not be drawn concerning the defendant’s risk of committing further and more serious sex offences, it is my view that for the purposes of this preliminary hearing there is sufficient factual material before the Court to substantiate a finding that there exists significant indicia of the defendant’s potential substantial risk of committing a further serious offence. By making this finding, I am not engaging in speculation, but interpreting the evidence presented to me, including the medical evidence, the RAR and the submissions based upon the material before the Court in this preliminary hearing, and drawing conclusions which are warranted by the multiple risk factors which are operative in the defendant’s current context, having regard to the principles discussed earlier in the judgment.

64. With regards to the argument that during the serious sex offence and previous offences the defendant voluntarily ceased his offending behaviour based on the response of the victim, I accept the State’s submission that there is no evidence that this motivated the cessation of offending behaviour rather than the fear of being caught or the realisation that he would not be able to achieve the outcome that he sought.

Section 9(3)(c) - Assessments by Qualified Psychiatrist and Psychologist

65. The State summarised the contents of nine reports by seven psychologists and psychiatrists ranging in date from 6 October 2000 to 14 January 2022. The State’s compendious summary of these reports was uncontentious and, in my view, conformed with the material filed for the purpose of the preliminary hearing. I deem the most recent three psychiatric assessments by Dr Gordon Elliott to be the most relevant to the risk of further serious offending by the defendant. The summary of these assessments is extracted below, without commentary:

Report of Dr Gordon Elliott, psychiatrist (for the State Parole Authority), dated 14 January 2022.

Dr Elliott had prepared previous reports on the defendant on 29 March 2021 and on 10 February 2020. That 2020 report was prepared for proceedings in the Coffs Harbour District Court for the serious sex offence. Dr Elliott noted the concerns of a Ms Daniels who had herself noted that the defendant was suffering from psychotic symptoms on 12 October 2021. However, on review, Dr Elliott noted that the defendant presented as relatively stable. The defendant told Dr Elliott that he could not participate in sex offender programmes as he had to listen to the confessions of “a high profile paedophile”.

Dr Elliott considered that the explanation for the supposed psychotic symptoms was a more mundane one but noted that the defendant claimed to be experiencing ongoing auditory hallucinations. The defendant claimed to have six daughters from multiple past relationships; Dr Elliott was uncertain whether this number of daughters was a deluded belief as he had only previously been told of one adolescent daughter (the defendant has two confirmed daughters and has queried recently whether he may have more). The defendant claimed that the auditory hallucinations no longer told him to engage in sexual behaviour, as he had reported to Dr Elliott previously. The defendant denied that he was at risk of sexual recidivism.

Dr Elliott concluded that the defendant’s diagnosis remained one of chronic schizophrenia. He noted that the defendant appears to have accommodated what now seemed to be chronic auditory hallucinations. He noted that the defendant is significantly institutionalised. He noted that the defendant expressed an awareness that he would require support if he was to avoid a return to custody.

Dr Elliott, 29 March 2021. The plaintiff notes that in the further report dated 29 March 2021, Dr Elliott first reviewed the defendant on 30 July 2020, at which the defendant said his delusions about being made to perform sexual acts for elders in the Top End were no longer occurring and his auditory hallucinations had ceased altogether. However, at a further review on 25 February 2021 the defendant had deteriorated and reported auditory hallucinations, including voices telling him what to do and to do stuff that he didn't want to do. The defendant said he was bisexual. He said that he was disgusted by his previous sexual offences towards minors. Dr Elliot concluded at page seven of the report that there “appears to be a strong link to [the defendant’s] relapses of psychosis and his offending behaviour, including and in particular his sexual offending”.

Dr Elliott, 10 February 2020. In this report, Dr Elliott reviewed the defendant's progress. The defendant told him that when he was released from custody he had relapsed and started using buprenorphine and methamphetamines. Dr Elliott noted that the defendant's account of his substance use was varying and at times contradictory. The defendant told Dr Elliott that he had first heard voices aged 10.

It was in this review that Dr Elliott was told by the defendant that he was hearing voices from indigenous persons manipulating him, telling him that he was important and that he was required to continue having sex. The defendant claimed that these voices had been speaking to him when he committed the serious sex offence with the 15-year-old boy. Dr Elliott noted that the defendant's account of symptoms, whilst initially appearing to draw a deliberately close nexus between his mental illness and his offending, subsequently proved extraordinarily elaborate and hence convincing for genuine psychotic symptoms associated with and motivating his offending behaviour.

Dr Elliott observed that he was mindful that the defendant was more than aware of the potential for his illness to offer him mitigation with regards to sentencing but did not consider that he was feigning symptoms during the assessment. He considered that the defendant remained a high risk of both sexual recidivism and general offending and that his prognosis was extremely guarded.

(Emphasis in italics has been added by the plaintiff.)

66. I will now extract one passage of Dr Elliott’s psychiatric report dated 10 February 2020 which is particularly relevant in supporting the causal link between the defendant’s auditory hallucinations and his serious offence, and hence supporting the risk that the defendant may commit a future serious offence given that the defendant’s auditory hallucinations have been ongoing. I note, as mentioned in the summary above, the context that Dr Elliott prepared this report for the purpose of proceedings concerning the serious sex offence. Dr Elliott’s report indeed notes that “[HT] has been charged with indecent assault of a person under 16 years of age.” This statement is significant because Dr Elliott’s conclusion in the passage below, concerning the defendant’s “genuine psychotic symptoms associated with and motivating his offending behaviour” can be read in the context where the most salient example of “offending behaviour” at the time of Dr Elliott’s report is the defendant’s serious sex offence. Thus, Dr Elliott’s report firmly links the defendant’s “psychotic symptoms” with the serious sex offence. The relevant passage is the following, and I have italicised for emphasis the causal link between auditory hallucinations and the serious offending:

[HT] then told me he was experiencing voices. It was initially difficult to discern whether he was referring to long past experiences of auditory hallucinations or more recent occasions. Eventually it became clear he was referring both to his recent time in the community, including around the time of the offence, and currently in custody. He spoke initially of his voices as like “an emotional storm.” He then referred more specifically to hearing two female and one male Indigenous voices from people he believed were calling from the Top End of Australia. He said the voices were manipulating him, telling him that he was important and that he was required to continue having sex. His comments included statements such as, “these voices are from the top end. They said I am important to them sexually. They don’t tell me that, but it’s the only reason. I feel I’m being used to help elderly Aboriginal people. They always tell me to masturbate.” He also spoke of the voices telling him that he is a rock spider or dog, common custodial terms for paedophiles and informants respectively. He complained however that, despite his extensive custodial experience, he has no knowledge of what these terms really mean and yet is somehow at risk because inmates around him can hear his voices referring to him in these terms.

[HT] went on to make direct remarks about his offences. He told me his symptoms caused him to, “behave foolishly with this young fella (the victim). There was no sexual contact. I asked him. I didn’t force myself on anyone. There was no act, it was just stupid behaviour due to these voices.” He again stated that he felt he was being manipulated by tribal people. He also spoke confusedly about these voices occurring since he was 10, and that between the age of nine to 13 years of age he was forced to perform sexual acts with other boys on camera. He spoke also of his brother giving him pornography when he was eight years of age, masturbating to the images and then hearing voices about sex ever since. He claimed he has struggled with the conflict between wanting to change his life, find God and stop offending, and the voices challenging these goals and telling him he is ‘too important’ sexually to alter his behaviour. He also made muddled contradictions about the effects of his antipsychotics, telling me despite the medication reducing his libido, seemingly a desired effect, he was instead suicidal. His account of symptoms, whilst initially appearing to draw a deliberately close nexus between his mental illness and his offending, subsequently proved extraordinarily elaborate and hence convincing for genuine psychotic symptoms associated with and motivating his offending behaviour.

67. Dr Elliott’s psychiatric report of 29 March 2021 provides further evidence which supports my determination that the defendant’s four recent occasions of drug use, his auditory hallucinations, and the interrelation between his drug use and the risk of psychoses, are indicia which increase his risk of committing a serious sexual offence. Dr Elliott’s conclusion to this report stated:

[HT] has a number of historical risk factors for future offending. This includes his traumatic early developmental history, his underlying personality disorder, his major mental illness, his substance use problems, his extensive offending history from an early age and his repeated failures to comply with supervision.

68. I extract further relevant statements by Dr Elliott below:

He spoke of voices making him paranoid, or “Telling me what to do and what to say, telling me to do stuff I don’t want to do, or something that has to be done for the worlds sake. I’m sick of it. I don’t want to be told what to do.” He gave further convincing examples of his auditory hallucinations, telling me that his voices, “Tell me that I have to lie to everyone, and it’s for their own good and not my own.”

Most recently he has suffered a relapse of psychotic symptoms as a result of custodial illicit substance use.

There also appears to be a strong link to [HT's] relapses of psychosis and his offending behaviour, including and in particular his sexual offending.

69. Dr Elliott’s most recent psychiatric report dated 14 January 2022 records the defendant as stating that “he now considers his voices as part of his life and he has no power over them.” As noted in the State’s summary excerpted above, the defendant claimed that there had been a change since “his previous report of hearing voices urging him towards sexual behaviour”:

He [the defendant] replied, “yeah I remember that, but they didn’t talk about that anymore. I don’t follow any of that shit. I’m not part of that anymore. I don’t care what black magic they use on me up there in the Top End, I’d rather listen to white man’s law than black man’s law. (He said this latter part with a smile). I’m not influenced anyway by these voices anymore.”

70. In my view, this change which the defendant reported during his interview on 4 January 2022 does not safeguard against the substantial risk that his auditory hallucinations may in the future, as they did in the past, command or encourage him to commit a serious sexual offence, and that the defendant will consequently commit such an offence.

71. Counsel for the defendant submitted that it is incorrect for the Court to rely on evidence about the defendant’s ongoing delusions and auditory hallucinations to find that the defendant presents an unacceptable risk. It was submitted that the defendant’s behaviour notwithstanding his auditory hallucinations indicates against finding unacceptable risk. Two incidents were pointed to where the defendant was willing to accept support during an escalation of his mental illness from his NDIS support workers. When the totality of the material before the Court is considered, including evidence as to the defendant’s expressed desires to cease or relocate away from all such supervisory support services, in my view, the defendant requires mandatory supervision in order to safeguard against the commission of a future serious offence which is made more likely by his ongoing auditory hallucinations.

Section 9(3)(d) – Statistical Assessments As To Likelihood Of Persons With Histories And Characteristics Similar To The Offender Committing A Further Serious Offence

72. For the purposes of this preliminary hearing, the State’s summary of the most recent statistical assessments was not disputed by the defendant, and is excerpted below:

2022 RAR. A Risk Assessment Report (“RAR”) has been prepared by Rochelle Pateman, senior psychologist, dated 9 September 2022. Ms Pateman was unable to interview the defendant, who sent a message saying that “I want nothing to do with psychology”. Consequently, an evaluation of the defendant’s attitude to an ESO or his current level of sexual preoccupation, for example, was not able to be properly completed. However, Ms Pateman did have the benefit of other in-person clinical assessments of the defendant conducted over the last seven or so years.

In summary, Ms Pateman described the defendant as presenting with complex needs including significant mental illness, personality vulnerabilities, institutionalisation and chronic substance abuse. She also identified that the defendant presented with some treatment resistance regarding residual experiences of auditory hallucinations and his stability was further affected by intermittent substance abuse whilst in custody.

1. However, the defendant’s reliance upon these factors faces two difficulties. First, whilst no doubt the existing mechanisms have protective and rehabilitative attributes, they do not specifically address the relevant risk as I have found it. I note the following passage from the State’s written submissions which indicates the measures that may help address the defendant’s risk of further serious offending:

…drug and alcohol rehabilitation (given that it may be considered to contribute to destabilising and/or disinhibiting the defendant’s mental state), intensive supervision and engagement in pro-social activities, maintenance and monitoring of his mental health and medication compliance, ongoing psychological intervention for his issues underlying his sex offending, social and cultural community reintegration, and monitoring of the defendant for signs of increasing sexual preoccupation.

10. Secondly, the Court should not decide the present application upon protective measures to manage the risks which are presently undefined in their content and scope. The State should not as a matter of discretion have the present application addressed based upon such speculation; particularly when the ISO is designed to address identified risk and the Court must give weight to risk avoidance at this stage.

11. As per s 9(3)(f), I have considered the defendant’s historical compliance with obligations while on release on parole, which both parties agreed has been “very poor”. I note the defendant’s history of re-offending, using drugs, and not complying with conditions or directions. I have considered the defendant’s submissions concerning the positive progress the defendant has made since being released to parole from custody on 23 September 2022. I find that the defendant still poses an unacceptable risk despite this positive progress, however his most recent progress informs the conditions I have seen fit to impose under an ISO.

12. I have taken into account the views of the sentencing Court at the time the sentence of imprisonment was imposed on the defendant (s 9(3)(h)). The defendant drew attention to the statements by the judge who sentenced the serious sex offence concerning the finding of low objective seriousness, the low level of criminality in that offence, the lack of malice and doubts as to the likelihood of the fellatio happening, the defendant’s expressed remorse, and the fact that Dr Elliott’s recommendations concerning long term treatment, accommodation and case management, which his Honour had regard to, have been largely implemented.

13. However, in addition to my earlier observation regarding this issue, I consider there is substance in the submissions of the State in reply in this respect. The State drew attention to the sentencing judges’ statements concerning the defendant’s high likelihood of reoffending, the defendant’s concern he would not be able to resist command hallucinations directing him to harm others, the defendant’s need for long term treatment over several years, the defendant’s inability to control his sexual urges, the defendant’s substance abuse issues and little evidence of his remorse for the s 112(2) offence.

89. Additionally, I have taken into account all the s 9(3) factors which I am required to have regard to, in addition to any other matter I consider relevant, in coming to my conclusion. In my view, the totality of the defendant’s criminal history, psychiatric and psychological reports, RAR and Corrective Services NSW reports and the bulk of other material before the Court, support the finding that the defendant poses an ongoing unacceptable risk of committing a further serious offence, to the requisite degree of satisfaction within the context of the receipt of materials in this preliminary hearing.

90. In coming to this conclusion, I have weighed the severity of the risk of the defendant’s future serious sex offending, including the risk that he offends again against a child, against the likelihood of his future serious sex offending.

Discretion to make an ISO

91. Having satisfied the threshold requirements in s 5B(a)-(d) of the Act, I consider it is appropriate to exercise the Court’s discretion to make an ISO. I am satisfied that this is appropriate because the nature of the unacceptable risk and the potential consequences of further serious sexual offending by the defendant are such that even with his existing level of supports an ISO is necessary to manage risk.

92. Specifically, this decision is supported by my reasoning above as to s 5B(d). Moreover, given the nature of the risk, it is not appropriate for no supervision order to be applied to the defendant once his parole expires, notwithstanding the existence of the present protective measures which after parole would consist of the NDIS supports (should the defendant remain willing to accept them) and the Child Protection Register. I do not consider either of these are sufficient to manage or mitigate the defendant’s risk of further serious offending.

93. The Child Protection Register is not a significant protection measure because the defendant is not subject to a Child Prohibition Order. Notwithstanding the defendant’s recent willingness to engage with NDIS supports, there would be no compulsion on the defendant to continue to accept the supervised accommodation and support workers. As discussed earlier in my judgment, the defendant has demonstrated real volatility concerning his ongoing engagement with services, expressing the intention to either discontinue or relocate away from all the services which supervise and treat him. On the material presently available, it cannot be assumed that the defendant would, if free of parole, necessarily maintain his engagement with psychological and psychiatric treatment or NDIS supports.

94. The defendant tried to meet this risk by contending that the defendant could be made the subject of a Community Treatment Order or Child Prohibition Order which the State had the opportunity to apply for and did not. For two reasons this contention cannot weigh against my decision to impose an ISO. First, in assessing whether an unacceptable risk exists under s 5B(d) the Court is assessing the defendant’s risk “if not kept under supervision under the order”. There is presently no extant Community Treatment Order or Child Prohibition Order for the Court to consider, let alone any terms of such an order which could speak to the assessment of risk.

95. Second, there is no evidence before the Court as to whether a Community Treatment Order or Child Prohibition Order by its nature and by its terms might arrest the relevant risks posed by the applicant to the extent that the applicant would not pose an unacceptable risk if not supervised under a supervision order.

CONDITIONS

96. The position of the parties as to conditions was two-tiered. The first tier involved a debate as to whether any conditions ordered by the Court would be confined to those already operating with respect to parole and whether those parole conditions would continue until the final determination of the matter. The defendant was in favour of this position, if the Court determined to make an ISO, which was opposed by the State.

97. The second tier, involving the conditions themselves, was engaged if the Court was not minded to make an order of that kind as sought by the defendant. The parties proceeded to refine the areas of dispute about conditions in oral submissions as well as in the agreed schedule. (This was also reflected in the Amended Summons filed by the State after the hearing).

Relevant Principles

98. Both parties referred the decision of Wilde v State of New South Wales [2015] NSWCA 28 as to how the Court will assess the appropriateness of a disputed condition urged by the State in the context of the scope, purpose and objects of the Act, (see State of NSW v Wilkinson (Preliminary) [2020] NSWSC 1813 (“Wilkinson”) at [44] (iv) and State of New South Wales v Boney (Final Hearing) [2020] NSWSC 1375 (“Boney”) at [119])) and the more recent cases dealing with the appropriateness or otherwise of various standard conditions including search and seizure, employment, association and disclosure of criminal record.

99. In considering the imposition of conditions, the defendant noted the following principles from Wilkinson set out by Hoeben CJ and CL (as his Honour then was) at [44]:

44   i) Having served a sentence of imprisonment for their offences, an offender has a right to personal liberty, however this right is not absolute: State of New South Wales v Donovan [2015] NSWSC 1254 at [83].

ii) In imposing conditions, the Court needs to strike a balance between competing considerations: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [68].

iii) A relevant consideration in imposing conditions is that a breach gives rise to criminal penalty: State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36].

iv) Conditions do not have to have a demonstrated link to past offending, but they should address the risk of future offending based on the scope, purpose and objects of the Act: Wilde v State of New South Wales [2015] NSWCA 28 at [53].

v) Conditions should not be designed toward future general criminal conduct, but instead focussed on mitigating the risk of a serious offence: State of New South Wales v Green (Final) [2013] NSWSC 1003 at [36] to [38].

vi) Conditions must not be unjustifiably onerous or punitive, “[n]either may they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision”: State of New South Wales v Bugmy [2017] NSWSC 855 at [89].

vii) Conditions “must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice”: State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36].

viii) To ensure a balance between the community interests and personal liberty, the Court should impose conditions that are the least intrusive possible: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [129]-[131].

100. Despite it being a final hearing, I adopt the approach set out in my decision in Boney at [119]-[127] in approaching the principles for the imposition of conditions. Those principles are as follows:

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

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

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

[53] Care always needs to be taken with use of language which is different from the statutory text. Section 11 does not require that there must be a specific demonstrated link to the past offending which is the basis of the order made under the Act. Rather, the court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order.

[54] As the cases to which we have referred correctly state, it is not appropriate for the court under s 11 to impose conditions on a person directed to general future criminal conduct. But the condition does not have to have a ‘demonstrated’ link to the past offending in the sense submitted by the appellant. Conditions C(19) and E(30)12 provide a good example of conditions that may be appropriate notwithstanding that the past sex offences did not involve conduct of the type constrained by such conditions. Here, the appellant’s serious sex offences had no connection with any association with an Outlaw Motorcycle Gang. Nonetheless, for the reasons we explain below, at [69]-[70], there was no error in his Honour imposing conditions prohibiting the appellant’s association with such groups.

[112] During the final hearing, submissions were advanced by the defendant as to State of New South Wales v Sturgeon (No 2) [2019] NSWSC 883 (“Sturgeon”) at [99]:

[99] The bases upon which conditions are to be regarded as appropriate have been discussed in many cases. It seems that the following matters are regarded as relevant in determining what conditions ought be imposed:

(1) an appropriate condition may be one which constrains particular conduct, or else imposes positive conduct obligations which are to be fulfilled: Attorney-General for NSW v Tillman [2007] NSWCA 119 at [10];

(2) the imposition of conditions involves striking a balance between relevant considerations so as to provide an outcome which is “fit and proper”: State of NSW v Ali [2010] NSWSC 1045 at [88]; State of NSW v Fisk [2013] NSWSC 364 at [96];

(3) as a breach of a condition has the consequence that an offence is committed, for which a term of imprisonment of up to 5 years may be imposed (s 12 of the HRO Act), there is a need for a proper basis to be demonstrated for a condition to be made in the first place: Ali at [88]; Wilde v State of NSW [2015] NSWCA 28 at [48];

(4) ordinarily, it will be necessary for any condition which is imposed to be related to the mitigation of the identified unacceptable risk which led to the Court’s conclusion that the person was a highrisk offender: State of NSW v Burns [2014] NSWSC 1014 at [59]; Wilde at [53];

(5) any condition attached to an ESO must address issues relevant too identified risk factors in relation to future commission of serious offences and not criminal offending generally: State of NSW v Green (Final) [2013] NSWSC 1003 at [36]-[38]; Wilde at [45];

(6) any condition which is imposed is not to be unjustifiably onerous or simply punitive: Green at [37];

(7) a condition cannot be simply an expression of the State’s paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense, or because it might be a convenient or resource-efficient means for the Department exercising supervision under the ESO: State of NSW v Bugmy [2017] NSWSC 855 at [89].

[123] Counsel for the defendant placed particular reliance on (4), as appears within the above extract from Sturgeon, in conjunction with the principles of Wilde to contend that for each condition imposed “there must be some sort of identification of the unacceptable risk and how that condition goes to it”.

[124] In light of that submission, I turn to the decision of Button J in State of NSW v Farringdon [2018] NSWSC 874 (“Farringdon”). In Farringdon, the dispute concerned the conditions to be imposed as part of an extended supervision order for an intellectually disabled offender who was at risk of sexual offending on children. Opposition was taken to the imposition of particular conditions including electronic monitoring, curfew and a schedule of movements.

[125] In Farringdon, Button J was ultimately satisfied that the making of an extended supervision order would go some way to preventing the defendant reoffending “and thereby aiding his rehabilitation” (at [37]). In applying the “test” set out in Wilde at [53]-[54], his Honour bore in mind “that one can expect the ‘Departmental Supervising Officer’ (DSO) who is responsible for the defendant to undertake his supervision in a common sense way, informed by a practical and constructive exercise of discretion” (at [46]).

[126] His Honour imposed the disputed conditions for the reasons outlined at [47]-[58]. Button J held (at [59]):

[59] …Those of them that do not directly relate to his prior offending do nevertheless relate to preventing its recurrence indirectly, in my opinion. As I say, I am relying upon his DSO to exercise his or her discretion with regards to them in a practical and common sense way.

[Original emphasis.]

[127] With respect, I accept Button J’s statement of principles in Farringdon.

Adoption of parole conditions?

101. As well as the standard conditions of parole as per clause 219A(1A) of the Crimes (Administration of Sentences) Regulation 2014, the defendant is currently subject to the following additional parole conditions:

ADDITIONAL CONDITIONS

12.    You must abstain from alcohol.

13.    You must not use a prohibited drug or substance, except those that have been prescribed to you.

14.    You must, if so directed by your Officer, participate in the following intervention, CSNSW Psychology.

15.    You must comply with all directions of the mental health team, including treatment and medication (and if applicable, the conditions of a Community Treatment Order).

16.    You must not contact, communicate with, watch, stalk, harass or intimidate the victim/s.

17.   You must comply with all conditions and requirements of the Child Protection Register.

18.   You must not contact, communicate, or associate with your co-offender/s, without the express prior approval of your Officer.

19.   You must not frequent or visit the Glen Haven Motor Inn, Glen Innes.

102. The defendant is on the Child Protection Register which imposes a number of limited supervision requirements, including for example, notifying of changes of address. However, the Register does not impose prohibitions on individuals like a child protection prohibition order does.

103. The defendant currently receives support under the NDIS which will be reviewed on 19 April 2023. His funding is for:

Core supports – maintain accommodation and access the community.

Capacity Building Supports – improved daily living (Occupational Therapist), improved relationships (specialist behaviour intervention support), increased social and community participation (living skills development) and support coordination. (RAR, [80]).

104. The defendant is currently residing in accommodation which is part of his NDIS package accommodation and has two workers with him at all hours. He has two streams of psychological support: one through his parole connections and another through his NDIS package. I note that with the exception of Mr Clarke’s evidence, the Court was not taken to any specific material about the care provided by NDIS workers.

105. Kinchela Boys Homes Corporation, who allocated the defendant a NDIS Access worker and Specialist Support Coordinator, is assisting him to locate suitable accommodation, which is one of his NDIS short-term goals.

106. The State opposed the adoption of parole conditions as the conditions attached to the ISO. It was correctly submitted that the serious sex offence was committed less than 12 months after he ceased participation in the CUBIT program and some 23 days after he had been released from custody, suggesting the parole conditions were not sufficient in this case.

107. In opposition, counsel for the defendant submitted that the defendant had been successfully supervised under the conditions of his parole since 23 September 2022. At the time of the preliminary hearing, he had been subject to those conditions for close to five months.

108. Counsel for the defendant submitted that the parole involves 19 conditions where are broad, stringent and have been formulated for the specific risk profile presented by the defendant. It was submitted that any conditions attached to an ISO should emulate the defendant’s current parole conditions for the following reasons:

a. Through his ongoing compliance, it is clear that the defendant understands his parole conditions, the manner of their enforcement and his responsibilities pursuant to those conditions. Unnecessarily changing those conditions risks the defendant inadvertently or accidentally breaching the order.

b. The conditions sought by the plaintiff are far more onerous and restrictive than the current parole conditions. This regression in the defendant’s freedoms, without any connection to increased risk, is unfairly arbitrary and runs the risk of discouraging the defendant from future positive engagement with any order. If the defendant was to disengage with his own rehabilitation, it assists neither object of the Act as contained in s.3.

109. If the defendant remains on his parole conditions as part of an ISO, those conditions will continue for a maximum time of three 28-day extensions, which is three months, until the final hearing.

110. In oral submissions, counsel for the defendant emphasised that it would make sense for the parole conditions to continue, considering the defendant’s complex mental health diagnoses and level of cognitive functioning, rather than have a three-month period on different conditions “that may well change again at the time of a final hearing.”

111. The defendant relied on the decision of Lonergan J in State of NSW v CD (Preliminary) [2021] NSWSC 1396 to support their position. Lonergan J adopted an offender’s existing parole conditions as the conditions of the offender’s ISO and summarised the reasons for that approach as follows (at [6]):

[6] [F]irst, the current parole conditions directly and adequately address any risk to the community presented by the defendant. Secondly, and significantly, they have a simplicity and clarity which the constellation of conditions proposed by the plaintiff do not. Thirdly, they are not overly paternalistic or inflexibly prescriptive. Fourthly, they are able to be understood and followed and they seem to have been functioning adequately over the last two weeks. Fifthly and importantly, they do not tend to unnecessarily criminalise uncontroversial and irrelevant elements of potential behaviour by the defendant. Sixthly, they tend to facilitate the necessary pursuit of the objects of the Act, the primary object of course being protection of the community, but the secondary object of rehabilitation of the offender which in turn has a role in increasing and improving the potential safety of the community.

112. As the defendant submitted, the defendant has been subject to the parole conditions for approximately five months, not two weeks, as was the case in the decision of Lonergan J.

113. In reply, the State submitted that “Each matter turns on its own facts and on the Court’s assessment of the offender, the current parole conditions, the progress on parole, the nature of the risk, and the ESO conditions required to address that risk. It is important in that respect to differentiate between the purpose of parole and the purpose of conditions imposed under the Act.”

114. The State relied upon the decision of Schmidt J (as her Honour then was) in State of New South Wales v Lee [2017] NSWSC 1766, at [86] as follows:

[86]   In my view, specific conditions as to particular matters can be a useful way by which different aspects of the risks which an offender poses can be addressed. Not only do they make clear to the offender what conditions are imposed upon him by the order, they also make clear to those supervising him, both the extent and limits of the broad discretion which condition three would otherwise give them, as to those matters. They also make clear to any other reader of the Court’s order, a police officer for example, the conditions which have been imposed as to identified matters.

115. I accept the position of the State in this respect. Given I have found that there is an unacceptable risk of the defendant committing a further serious offence if not supervised under an ESO, addressing that unacceptable risk is the foundation for the structuring of the conditions to address the risks the subject of these findings, rather than simply relying on the existing parole conditions even if there has been, over the last five months, adherence to them.

116. It is true that it is only three months until a final hearing, but if a final ESO is made, there is a substantial chance that conditions will be fashioned specifically to deal with the risks and the consequences thereof in the context of evaluations made from the principles of s 5B(d).

117. Following Schmidt J’s decision in Lee, individual case plans are managed so that when an offender approaches the completion of an ESO there can be a gradual reduction of restrictions and an increase in independence. This can only be achieved where the conditions give the supervisors the necessary discretion to permit such relaxation.

118. I accept that there is a possibility as to some destabilisation of the defendant after the imposition of new or additional conditions. But there is little evidence as to the real likelihood of the same or whether any instability may or may not be successfully managed. In fact, the defendant’s own evidence counts against him on this point. The defendant indicated that after the expiration of his parole, he would cease all engagement with support services except Centrelink (see the affidavit of Ms van Lieven, page 6) and relocate to Glen Innes which is a place where he committed the robbery offence he is currently serving a sentence for (affidavit of Ms van Lieven, page 13). Whether or not the existing parole conditions have sufficiently restrained the defendant to date, that has occurred in circumstances where the defendant had an expectation that those controls may end within a relatively short timeframe. The defendant continues to demonstrate a real instability which, considering the principles above, indicates a greater need for the imposition of specific, risk management conditions in a context where the Court should give weight to risk avoidance. I consider the ISO and the conditions I will attach to it will serve that purpose.

Disputed Conditions

Conditions 5 and 5A

119. Proposed conditions 5 and 5A are as follows:

5. Subject to condition 5A, the defendant must wear electronic monitoring equipment as directed by a DSO and must not tamper with, or remove, the equipment.

5A. The defendant is not required to wear electronic monitoring equipment unless he is directed to comply with condition 5 by a DSO. A DSO may direct the defendant to comply with condition 5 if any of the following occurs:

i. The defendant is charged with an offence of breaching the ISO or the ESO, or with a serious offence or an offence of a sexual nature as defined under the Act; or

ii. The defendant is charged with a serious indictable offence involving violence;

iii. A DSO is reasonably of the opinion that condition 5 is needed due to a significant increase in the risk of the defendant committing a serious offence as defined under the Act.

120. The State submitted that the Court can reasonably assume that an experienced DSO will be aware of “the nature of the risk and the factors which inform the risk, having regard to the Risk Assessment Report findings.” If the defendant was not electronically monitored, it was submitted that the only effective monitoring of the defendant would be if there was a breach of the ISO or if he committed a serious offence.

121. The word “significant” in condition 5A(iii), it was submitted by the State, is to try and confine the phrase “increase in risk”.

122. Mr Glover, a Community Corrections Officer who interviewed the defendant, noted that there is no requirement for electronic monitoring as part of the defendant’s current parole but that under an ESO, this would assist in ensuring adherence to the schedule of movements and enable audits to be conducted to identify any concerning patterns in his behaviour, as well as the monitoring his whereabouts. The RAR at [90] also recommends that the defendant may be obliged to wear electronic monitoring.

123. Counsel for the defendant opposed this condition on the basis that the defendant has not be subject to electronic monitoring while on parole and it is not necessary now. It was submitted that electronic monitoring is unnecessary, considering the defendant is living on a remote property in a regional area.

124. Further, the defendant submitted that the words in condition 5A(iii), “significant increase,” are too subjective and vague and that the Court would be minded not to make this condition.

125. In my view, there is not a sufficient basis for the defendant to resist the imposition of this condition merely because the applicant is not presently the subject of such a restraint whilst on parole. However, it is equally the case, that the State’s contention that the electronic monitoring may assist in monitoring adherence to the schedule of movements, if fixed as a condition, is not a sufficient basis for the imposition of the condition unless there is some demonstration, by evidence, to make that connection in the present case.

126. No other basis has been provided by the State for the imposition of electronic monitoring in this case to manage risk, over and above those protections afforded by scheduling itself.

127. Whilst the provisions in condition 5A represent a concession by the State, modifying the circumstances in which electronic monitoring might be used, and while it might be excepted that a DSO would act reasonably in directing the compliance with that condition, the very nature of the qualifications in 5A create doubt in my mind as to whether electronic monitoring is necessary, in this case.

128. Overall, at this stage, the State has not shown that electronic monitoring would be appropriate to address the risks that I have found in a direct or even in an indirect way.

129. I reject conditions 5 and 5A.

Conditions 6, 7 and 8

130. The State pressed the imposition of a weekly schedule of movements to be provided by the defendant three days before it is due to start. It was submitted that a schedule would the mean that the DSO would have a greater understanding of what he is doing and that a dialogue could be created between those who manage him and his behaviours and the DSO, whose role is to manage risk. Further, the State also relied upon the ongoing concerns around the defendant’s attempts at drug use.

131. The RAR at [90] also recommends that the defendant may be obliged to provide a schedule of his daily activities. This is because it may assist in improving his decision-making skills, impulsivity and limiting his access to potential victims (e.g., break and enter offences).

132. Counsel for the defendant submitted that there is nothing to suggest that scheduling, which the defendant has not be subject to on parole, is now necessary. It was submitted that if the Court decided to impose scheduling that a new condition 8A be inserted, as follows:

The defendant is not required to comply with conditions 6, 7 or 8 during the currency of any ISO or ESO except that all of these conditions will reapply if at any time the defendant refuses to be supported by service providers in accordance with his National Disability Insurance Scheme (“NDIS”) package or the defendant refuses to continue to engage with and accept the assistance of his available NDIS service providers.

133. The proposal in condition 8A has implicit within in that the provision of support through NDIS is sufficient to manage the risk such that him walking away from that support would create a scenario in which conditions 6, 7, and 8 are triggered. However, I have not accepted the premise of that proposition, namely, that support is sufficient to manage the risks as I have found them.

134. I agree with the State that in the absence of electronic monitoring and given the ongoing concerns around the defendant’s attempts at drug use and mental instability, both associated with the risk of further offending, scheduling is required.

135. I also agree with the State that a schedule of movements would introduce a greater degree of certainty on the part of those supervising him outside of Kirinari House (that is, the DSO), to understand what he is doing.

136. Despite the defendant’s current supervision being such that people accompany him wherever he goes, a scheduling condition would provide force to this routine and as the RAR states, it could reduce the risk of him engaging with potential victims.

137. I accept conditions 6, 7 and 8. I reject proposed condition 8A.

Condition 10

138. The State submitted that the curfew within condition 10 is an important way of ensuring some stability and routine (important to reintegration which in turn indirectly reduces risk) and removing the temptation, for example, to obtain illicit drugs.

139. Again, counsel for the defendant submitted that the present parole conditions do not involve a curfew and it is not necessary to implement one now. It was also submitted that there have not been issues with the defendant being out at night-time and that the defendant’s pattern of offending is random, rather than more frequently at night. There is no suggestion that being out at night-time would elevate his risk.

140. I accept the defendant’s position in this case.

Condition 13

141. The original condition 13 was as follows:

13. 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.

142. The State pressed the original version of condition 13 on the basis that “the defendant’s assessed risk scenarios were not confined to opportunistic approaches to strangers and also included increased risk of contact sex offences in private locations.” Further, it was submitted that persons over the age of 18 can still be vulnerable.

143. The defendant opposed this condition. An amended condition was proposed in the following form:

13. The defendant must promptly notify a DSO of any visitor under the age of 18 entering and remaining at his approved address and must not permit any person under the age of 18 to stay overnight, at his approved address (other than persons who ordinarily reside at his approved address), without the prior approval of a DSO.

144. It was submitted that preventing persons over the age of 18 from visiting the defendant’s approved address is not sufficiently connected to the defendant’s risk profile (see the RAR at [84]).

145. The defendant’s approach to this condition, considering the nature of the risk, is expressed too narrowly expressed in the light of my earlier findings. However, even adopting an indirect approach to the management of risk as in Farringdon, the State has not demonstrated why a condition of the kind identified in Condition 13 is necessary. Accordingly, I will adopt the approach of the defendant because there is at least a clearly defined risk in relation to persons under 18 years of age.

Condition 22

146. The State submitted that drug purchase use and consequent potential deleterious effect on already unstable mental health is a significant risk factor, where command hallucinations have been linked to serious sex offending by Dr Elliott. Hence, the condition mandating the provision of any information relating to the defendant’s financial affairs if directed by a DSO, was pressed.

147. Counsel for the defendant opposed this condition on the basis that it is not sufficiently connected to the mitigation of the risk of a serious offence and is inappropriate in circumstances where a financial guardianship application is pending.

148. I accept the defendant’s submissions in this respect.

Conditions 40, 44, 45 and 46

149. Proposed conditions 40, 44, 45, and 46 were as follows:

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

…

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

45. The defendant must not delete or edit any communications, applications or search history from his phone, computer or any electronic device or alter any applications, email, text messages, any electronic message, call history, any data, internet search, internet or application search history, any application chat or communication history from his phone, computer, tablet or any other electronic device without the prior consent of a DSO.

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

150. The State submitted that the considering the defendant admitted to searching ‘teen porn’ on his phone, the use of the internet to contact and meet up with vulnerable persons is an obvious potential future risk factor.

151. Counsel for the defendant submitted that any issues with internet use have been adequately addressed by the defendant’s current parole conditions and that these sorts of conditions are more appropriate for defendants with a history of sexual offending and moulding on the internet. The defendant does not have that past criminal history and as such, these conditions are not sufficiently connected to his risk profile.

152. I agree with the State regarding Conditions 40, 44, 45 and 46. The concern is that the defendant might use the internet to attempt to contact or meet up with people under the age of 16.

153. The State’s submission is supported by the RAR at [90] which recommended that the defendant’s access to the internet and electronic devices be monitored in order to scrutinise his social contacts and aim to increase pro-social influences.

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Amendments

22 March 2023 - Judgment amended to use the pseudonym “HT” in reference to the defendant.

Decision last updated: 22 March 2023