State of New South Wales v JS

[2023] NSWSC 114

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v JS [2023] NSWSC 114

Hearing dates:

6 February 2023

Decision date:

21 February 2023

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

(1) An order pursuant to s 7(4) of the CHRO Act:

(a)   appointing two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) as agreed between the parties or, in the absence of agreement, as directed by the Court, to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by 12 April 2023; and

(b)   directing the defendant to attend those examinations.

(2) An order pursuant to s 10A of the CHRO Act, that the defendant be subject to an interim supervision order commencing from 12:01am on 22 February 2023 for a period of 28 days from that date.

(3) An order pursuant to s 11 of the CHRO directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule to these Orders.

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

(5)   The matter is listed before the High Risk Offenders List Judge for directions 2 March 2023.

Catchwords:

HIGH RISK OFFENDER – application for preliminary orders – interim supervision order – orders for examination of defendant by expert – defendant convicted of serious sex offences – question as to whether the defendant poses an unacceptable risk to the community if not supervised – substantial gap in time between initial serious offences and application – defendant in compliance with parole in recent months

Legislation Cited:

Child Protection (Offender’s Registration) Act 2000 (NSW)

Crimes Act 1900 (ACT)

Crimes Act 1900 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW)

Cases Cited:

Attorney-General(NSW)v Tillman [2007] NSWCA 119

Attorney-General(NSW)v Tillman [2007] NSWSC 605

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
P Aitken (Plaintiff)
A Cook (Defendant)

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

File Number(s):

2022/00327404

Publication restriction:

None. Note that s 578A of the Crimes Act 1900 (NSW) prevents the identification of the complainant.

JUDGMENT

1. HER HONOUR: The defendant, whose name must be anonymised to prevent the identification of the victim of his crimes, was convicted in 2006 and 2014 of serious sex offences as defined in ss 5(1)(a) and 5(1)(c) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the CHRO Act”). In each instance the crimes were committed against the defendant’s severely intellectually impaired daughter. The defendant was, much later, also convicted of breaching a Child Protection Prohibition Order (“CPPO”), an order that was imposed upon him as a consequence of his offending conduct.

2. The history of that offending, together with other evidence, is the background to the present application by the State of New South Wales (“the State”) for the imposition of an extended supervision order (“ESO”) upon the defendant, as provided for by ss 5B and 9(1)(a) of the CHRO Act. By summons filed on 2 November 2022 the State seeks a four year order for the defendant’s supervision. The State contends that the defendant poses an unacceptable risk to the safety of the community if left unsupervised upon the expiration of his parole period.

3. The matter came before me on 6 February 2023 at a preliminary stage of the proceedings, at which time the State asked the Court to make the orders sought by prayers 1-3, and 6 of the summons. Those orders are:

1. An order pursuant to s 7(4):

1. appointing two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) to conduct separate psychiatric and/or psychological 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

2. directing the defendant to attend those examinations.

2. An order pursuant to s 10A of the CHRO Act, that the defendant be subject to an interim supervision order commencing from 12:01am on 22 February 2023 for a period of 28 days from that date.

3. An order pursuant to s 11 of the CHRO Act directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule to this summons.

4. Prayer 6 is an order for ancillary relief, restricting access to the Court’s file by a non-party without the leave of the Court, and without giving the parties an opportunity to be heard in relation to the application for access. That order will be made without opposition from the defendant.

5. The defendant opposes any other order being made under the CHRO Act. He argues that, even when taking the plaintiff’s evidence at its highest, the Court would not be satisfied to a high degree of probability that he meets the “unacceptable risk” threshold in s 5B(d) of the CHRO Act, and an order for his interim supervision (“an ISO”) should not be made. Should an order be made, the defendant resists the imposition of the 60 conditions proposed by the State. He contends that any conditions to the order should not impose any greater restraint upon his liberty than the conditions of parole that currently apply.

The Evidence

The State’s Case

6. The State read the affidavits of Georgia Rose of 2 November 2022 and of Joanna Fisher of 2 February 2023. Ms Rose produced a quantity of documentary material, including copies of the defendant’s criminal history in NSW and the Australian Capital Territory (“ACT”), the facts and evidence concerning the sexual offences against his daughter, the remarks of the judges who sentenced the defendant in 2004 and 2006, reports of psychiatrists who have assessed him from time to time, material from the defendant’s Corrective Services NSW (“CSNSW”) file, a Risk Assessment Report (“RAR”), and a Risk Management Report (“RMR”).

7. Some of the more salient parts of the evidence are set out below. It is noted that not all evidence is here referred to, although all evidence has been considered.

Criminal History

8. The defendant has an extensive criminal record commencing from when he was 12 years of age. From that age he appeared before the Children’s Court for offences of violence and dishonesty offences and he spent significant periods in juvenile detention centres. Since his first encounter with the criminal justice system, the defendant has committed a criminal offence almost every year (and sometimes several in a year) whenever he has been at liberty, in this State and in the ACT. The crimes committed against his daughter are the most serious of the many entries in the defendant’s criminal histories. Those crimes, committed in 2002 and 2004, are the primary basis for this application.

9. On 15 April 2004, the Supreme Court of the ACT sentenced the defendant to 4 years imprisonment for the 2002 offence, being incest with a lineal descendant aged 16 years and over contrary to s 62(3) of the Crimes Act 1900 (ACT) (“the 2002 offence”). The defendant’s sentence was suspended after 11 months, and he was made subject to conditional release.

10. When subject to that conditional release, in 2004, the defendant again sexually assaulted his daughter. The offences having been committed in this jurisdiction, the defendant was arrested and, on 17 August 2006, the NSW District Court sentenced him to a term of 12 years imprisonment with a non-parole period of 9 years for four counts of sexual assault contrary to s 61J(2)(g) of the Crimes Act 1900 (NSW) (“the 2004 offences”).

11. He was released to parole in NSW on 27 October 2014, and immediately arrested on a warrant from the ACT with respect to a breach of the suspended portion of the sentence imposed in that jurisdiction for the 2002 offence. The good behaviour order to which he had been subject in the ACT was cancelled, and he was re-sentenced on 15 December 2014 in the ACT Supreme Court to imprisonment for 3 years and 1 month, suspended after 8 months, following which he was subject to a good behaviour order for 2 years and 5 months.

12. When serving the proportion of the ACT sentence that was custodial, the defendant made contact with his daughter, placing him in breach of a condition of his NSW parole that he have no unsupervised contact with her. Thus, when on 12 January 2015 the defendant was released from prison onto the good behaviour bond, he was immediately extradited to NSW to serve the balance of parole of the sentence imposed for the 2004 offences, parole having been revoked because of the contact he made with his daughter.

13. On 8 March 2016 the defendant was released to parole by the NSW State Parole Authority. On release, he was placed on the Child Protection Register pursuant to the Child Protection (Offender’s Registration) Act 2000 (NSW) (“the CPOR Act”).

14. In the ensuing years, the defendant has continued his history of breaching the criminal law, with the following offences recorded against him between then and now:

1. Fail to comply with reporting obligations in December 2016;

2. Assault (on an inmate) in December 2016;

3. Assault occasioning actual bodily harm (“AOABH”) on a neighbour in June 2018;

4. Assault and intentionally choke in March 2020;

5. Three counts of fail to comply with reporting obligations in March 2020;

6. Providing false or misleading information to police from October 2021;

7. Fail to comply with reporting obligations from October 2021;

8. Assault, and contravention of an apprehended domestic violence order (with respect to a woman) in October 2021;

9. Contravention of a CPPO from November 2021; and

10. Contravention of an apprehended domestic violence order from December 2021.

15. The penultimate conviction is a conviction for an “offence of a sexual nature” pursuant to s 5(2)(g) of the CHRO Act, and the sentence for it was current when these proceedings were initiated. The offence reflects the defendant’s use of a mobile telephone to access the internet in breach of a condition of the CPPO to which he was subject. It was discovered that he had made internet searches for “rough” sex, “virgins”, “losing virginity”, “teen porn”, “tiny slut”, and “young escort”. A sentence of 15 months imprisonment was imposed, with a period of 9 months fixed as the non-parole period. The defendant was released to parole on 22 August 2022 and the total sentence expires on 22 February 2023. Any order made by this Court would take effect from the expiration of the parole.

Facts of the Serious Sex Offences

The 2002 Offence

16. On 18 November 2002, the defendant and his daughter were watching television on the same bed when the defendant undressed himself and his daughter and licked his daughter’s body. The defendant asked his daughter to lick his penis and, when she refused, he forced his penis into her mouth. The defendant then inserted his penis into her vagina and had intercourse with her, to ejaculation. He did not wear a condom.

17. The next day the defendant’s daughter reported what had happened to her Pastor, who reported the matter to police. On 20 November 2002, a forensic medical examination was undertaken and semen consistent with the defendant’s DNA was detected.

18. The defendant’s daughter was 17 years old at the time of the offending although, due to neonatal cerebral haemorrhages she had suffered and which caused a severe intellectual disability, her functional age was consistent with that of a very young child.

19. The defendant was charged on 23 January 2003 and released on a grant of bail on 13 February 2003. He left the jurisdiction, and was subsequently charged for breaching his undertaking to appear before the ACT Magistrates Court. He was extradited from NSW to the ACT to be tried for the 2002 offence.

The 2004 Offences

20. The defendant’s daughter was 19 years old at the time of the offending although expert clinical psychological opinion was that her mental age was that of a child of between 6 and 9 years of age.

21. The assaults occurred on a visit by the complainant to Sydney to see her father. On 29 December 2004 the defendant undressed his daughter and kissed her breasts, vagina, legs, and stomach before rubbing moisturising cream inside her vagina and having penile-vaginal intercourse with her, to ejaculation. The defendant told his daughter he would hurt her if she told anyone.

22. On a day between 29 December 2004 and 2 January 2005, the defendant forced his daughter to suck his penis until he ejaculated. She vomited immediately afterwards.

23. In the same period the defendant, intoxicated from alcohol consumption, removed his daughter’s pants while she was sleeping and inserted his penis into her vagina. The complainant awoke and struggled and screamed. The defendant threatened to strangle her if she continued to resist. Already in pain, she stopped struggling so as not to be further hurt.

24. On 3 January 2005 the defendant tied his daughter’s wrists to his bed with rope and inserted his penis into her vagina until he ejaculated. That same day, the complainant telephoned her aunt and told her, “He’s doing it again”.

25. The defendant did not wear a condom during any of the assaults. Vaginal and vulva swabs detected male DNA consistent with that of the defendant. Rope found in the defendant’s residence was found to contain DNA which matched both the defendant and his daughter.

26. In sentencing the defendant for these offences on 17 August 2006 the sentencing judge referred to the defendant as a person with an extremely dysfunctional and impoverished upbringing, which had severely impacted upon his social and emotional development. His Honour could not make any prediction as to the defendant’s prospects of rehabilitation but observed that there were a number of features that elevated his risk of reoffending, including his alcohol abuse and instability.

Risk Assessment Report

27. On 8 August 2022, Sarah Wright, Senior Psychologist of the Serious Offenders Assessment Unit, prepared a RAR in relation to the defendant, at the request of CSNSW, and in anticipation of an application under the CHRO Act, for which such a report is required. The recommendations expressed by Ms Wright are supported by Cherice Cieplucha, Chief Psychologist of the Risk Management Programmes.

28. Ms Wright interviewed the defendant, who was then in custody, via AVL for approximately three hours on 22 July 2022. She was also provided with a substantial amount of relevant documentary material.

29. The defendant was 61 years old at the time of the interview (and is now almost 63 years of age). He presented as unkempt with his hair messily pulled back and several front teeth missing. He seemed frustrated by the interview because he denied any sexual reoffending and believed that he had done nothing to warrant consideration of orders under the CHRO Act. He was however cooperative with Ms Wright and appeared reactive in affect and cognitively intact.

30. The defendant gave a history to Ms Wright. He described a childhood marred by abuse, neglect, and violence. His parents drank heavily, and his father was violent to him and his mother. He felt victimised and attributed this to his father’s suspicions that the defendant was not his biological child. The defendant reported growing accustomed to the pain inflicted by his father and coming to enjoy it. Ms Wright opined that the defendant’s inability to form secure emotional attachments to his parents and siblings led to a deeply entrenched belief that he was unwanted, worthless, and unfairly victimised, which manifested in persistent antisociality.

31. The defendant became homeless at the age of 12 or 13 when he was forced out of the family home by his father. He reported living on the streets, in youth refuges, or institutions for child offenders, for the remainder of his adolescence. He described being sent to boys’ homes because he was “uncontrollable” but on reflection stated this was merely his father’s perception of him and in reality, it was for “petty things” such as stealing cars, which he believed to be “normal stuff”.

32. The defendant reported being a slow learner because of a disrupted education. He was suspended and expelled several times for, variously, assaulting a teacher with a baseball bat, fighting with teachers, and being drunk at school. He did not complete the first year of high school and has not obtained any education since.

33. The defendant began abusing alcohol at 12 years of age and consumed to excess for a decade. He has participated in intervention programmes to address his chronic alcohol abuse. He denies any drug use.

34. The defendant was involved in a motorcycle gang for some time, during which his life centred on alcohol, antisocial activity, and violence. He reports having burned down a police station and committing arson if debts were not repaid. The defendant told Ms Wright he sought love from men in the gang in lieu of his father’s love and left when it became clear they did not care for him.

35. The defendant has a limited employment history and has been in receipt of unemployment benefits from Centrelink since the 1980’s. He was granted the Disability Support Pension approximately three years ago.

36. The defendant married at the age of 22, and there are three children to the 17 year marriage. The marriage was described by the defendant as a “train wreck” that was characterised by domestic and sexual violence, communication issues, and infidelity. The defendant acknowledged that he tried to control his wife throughout their marriage and that many of their marital issues stemmed from his sense of entitlement, negative attitudes, and alcohol abuse.

37. Ms Wright noted that two allegations of sexual offending which have not been adjudicated by a court had been made, by the defendant’s ex-wife and his brother’s girlfriend respectively. The former involved allegations including oral and penile-vaginal intercourse and threats to “gang rape” her. The defendant’s former wife detailed a violent assault in which she says that the defendant tied her to a mattress and penetrated her with a wooden pepper shaker and a cucumber before forcing his penis in her mouth and threatening to kill her whilst wielding a knife.

38. The defendant acknowledged there was sexual violence in his marriage during his interview with Ms Wright, although he did not admit these specific incidents.

39. In 1980, Dr Arnaud Reid, a psychiatrist, diagnosed the defendant with severe psychopathic personality disorder which rendered him incapable of controlling his own behaviour. Dr Reid opined that the defendant is a “fully established psychopath” and as such, “psychiatry has nothing to offer.” In 2003, Dr George, another psychiatrist, assessed the defendant as suffering from a mixed personality disorder with sociopathic traits. The defendant has also been diagnosed with a Major Depressive Disorder, having a history of self-harm and suicidal ideation.

40. The defendant reports, though there is no evidence to substantiate his claim, that he has suffered a brain injury and has been diagnosed with damage to the frontal lobe. His explanations as to when and how he acquired a brain injury have been inconsistent over the years, ranging from head traumas incurred from boxing to having been hit in the head with a tomahawk as a child.

41. He initially denied having any recollection of the offences against his daughter but claimed to remember all the details leading up to and following them. After assessing the offender, a psychiatrist and a neuropsychologist found that it was unlikely the defendant’s alleged memory loss was due to an organic brain impairment. There was no clinical basis for his “self-reported offence-specific amnesia” but, rather, it was considered likely that the defendant was engaging in cognitive distortions to alleviate feelings of guilt or remorse.

27. In 2014, during his participation in a sex offender treatment programme, the defendant ostensibly took more responsibility for his offending, acknowledging “my sexual attraction to my daughters [sic] adult body and my heightened level of sexual arousal made it very easy to make t[he] inexcusable decision to use my daughter for sex”. However, in the interview with Ms Wright the defendant accepted he had committed the offences, but refused to acknowledge any specific sexual behaviours, referring to the offences only as “the bad thing” and to his daughter as “the person I hurt.”

28. The defendant minimised his daughter’s intellectual disability when speaking to Ms Wright, claiming “it’s not a mental thing, it’s a medical thing”, and that “she’s functioning well”. His belief is that his sexual offending has been resolved because he has served his custodial sentence and because he, his ex-wife and daughter have “all got over it.” He claims he has had ongoing contact with his daughter since his incarceration in violation of his conditions under parole and the Child Protection Register (“CPR”).

29. The defendant reports that in the lead up to the 2002 and 2004 offences he was self-medicating with alcohol, stressed about unemployment, and ruminating over his failed marriage. He told Ms Wright that his sexual offending was motivated by his “desire and passion for [his daughter’s] mother” as his daughter bore a resemblance to her. He acknowledged it was “the wrong thing to do” but stated he “didn’t aim it” at his daughter but rather, that “my sexual urges got the best of me”. He did not acknowledge the threats used during the commission of the offences.

30. When prompted by Ms Wright, the defendant could not identify any risk factors that must be managed to prevent sexual reoffending and could not recall any of the self-management plans he developed in treatment. He told Ms Wright he could not think of any changes he has made or things he can avoid in the community to prevent reoffending. He told Ms Wright he was “sick to death of hearing about” his alcohol consumption.

31. The defendant’s cognitive function was most recently assessed in 2006 using the Wechsler Abbreviated Scale of Intelligence. His verbal intelligence was found to be in the low average range whilst his non-verbal intelligence was found to be in the average range. He is functioning in the below average range overall and receives support through the NDIS when in the community.

32. The defendant successfully completed several therapeutic programmes in custody, including the Alcohol and Other Drug Service (2006); the Sex Offender Preparatory Group (PREP) (2007); Getting SMART (2008); CORE Moderate (2013-2014); and EQUIPS Addiction (2015).

33. Ms Wright identified the defendant’s risk factors as being: extreme minimisation of sexual violence, and attitudes supportive of sexual violence (sexual entitlement); negative emotionality; substance use and major mental illness; intimacy deficits and significant social influences; sexual deviance and physical coercion in sexual violence; non-sexual criminality and lack of concerns for others; problems with self-awareness, problem solving skills and planning; and poor cooperation with supervision.

34. Ms Wright opined that the defendant presents with a significant sense of victimisation, persecution, and resentment. He responds to challenges with anger, hostility, and aggression, having referred previously to “the beast within” himself, and describing himself as “a very horrible angry aggressive person”. Ms Wright noted the defendant’s anger is exacerbated by alcohol intoxication, a troubling feature as the sexual offences were committed when he was intoxicated.

35. Ms Wright noted that the defendant’s alcohol abuse affected his ability to maintain relationships or employment and resulted in disinhibition leading to impulsive decision making. Ms Wright opined that it was possible but unclear whether the alcohol abuse had contributed to the defendant’s cognitive impairment.

36. Ms Wright noted that the defendant holds hostile views towards women which manifest in the sexualisation of women, violence towards them, and sexual entitlement. The defendant did however recognise that women are “not just sexual objects” in the interview with Ms Wright.

37. In referring to the influence of negative peers as a strong predictor of sexual recidivism, Ms Wright detailed the defendant’s persistent feelings of loneliness, rejection, and non-acceptance. The defendant self identifies as a loner who has lacked friends most of his life. He further identified his two brothers as his personal supports.

38. Ms Wright cited records indicating one of the defendant’s brothers was charged with child sexual offences against his daughter in 2020, abuses alcohol, and discredits the defendant’s daughter, refusing to accept the defendant committed the sexual offences. The defendant’s second brother has also expressed scepticism as to whether he committed the sexual offences and helped the defendant evade police in 2021. The defendant does not have any pro social personal supports to mitigate his risk of sexual reoffending. He does however have access to a wide network of professional supports, including NDIS and Community Corrections, the latter only whilst under parole supervision. Without an order made by this Court pursuant to the CHRO Act, the support and supervision of relevant Corrections agencies will end on 21 February 2023.

39. The defendant denies any interest in deviant sexual material, although articles relating to serious sex offenders, images of pre-pubescent children, and an image of a high-profile child sex offender were found in his temporary accommodation in 2021. A subsequent search of the defendant’s phone also revealed searches for sexual material relating to teenagers and rough sex. Ms Wright noted forced sexual activity and threats were used in the commission of both the 2002 and 2004 offences.

40. Ms Wright noted the defendant’s lengthy criminal history of nonsexual offending with reference to general criminality as a risk factor for violence and sexual violence. The defendant claimed he acted as a “father figure” to young inmates in prison and that his sole purpose in life is to protect his family, though he could not reconcile this notion with his sexual offending against the victim.

41. Ms Wright noted the defendant’s lengthy history of non-compliance with parole orders, community-based orders, bail conditions, restraining orders and conditions under the Child Protection Register and the CPPO. The defendant’s persistent rejection of authority and belief in persecution is consistent with high risk offenders who express hostility towards authority figures and engage in oppositional, rule breaking behaviour.

42. In summary, Ms Wright found that, given the severity of the offending and the defendant’s lack of insight into his risk factors, he presents an above average risk for sexual offending. Despite having successfully completed two sex offender programmes in custody when asked by Ms Wright the defendant failed to identify his risk factors for sexual reoffending or any strategies he needs to implement to manage his risk of reoffending in the future.

43. Ms Wright identified potential risk scenarios, some of which include contact with children or vulnerable individuals, sexual rejection, alcohol abuse, isolation, loneliness, and difficulties managing negative emotions. Ms Wright noted “rejection of supervision may also signify potential acute risk for sexual reoffending”.

Risk Management Report

59. On 9 September 2022, Lauren Alnaser, a Community Corrections Officer with the Metropolitan Extended Supervision Order Team, prepared a RMR in accordance with s 9(3)(d1) and 17(4)(d1) of the CHRO Act. Ms Alnaser’s report was endorsed by Kelli Grabham, High Risk Offender Applications and Operational Governance Officer, within the Extended Supervision Order Team, on the same date.

60. Ms Alnaser interviewed the defendant, reviewed CSNSW records and other relevant documentary material, including the RAR prepared by Ms Wright on 8 August 2022.

61. Ms Alnaser noted that the defendant was released on parole on 22 August 2022 and has expressed a desire to remain in the community and a willingness to reengage with a community based and CSNSW psychologist (the latter not available once parole ends without any further order being imposed).

62. Ms Alnaser referred to an assessment undertaken using the Level of Service Inventory-Revised (“LSI-R”) on 24 November 2021 that found the defendant to fall in the medium risk level for general reoffending, and a psychological risk assessment undertaken by Ms Wright on 8 August 2022 assessed the defendant to fall in the high risk category of sexual offending. Ms Alnaser referred to the risk factors identified by Ms Wright’s RAR, noting that these factors and the information contained in the RAR formed the basis for the risk management plan.

63. Ms Alnaser concluded that, in relation to the identified risks, management strategies to mitigate risks would include, at a minimum, weekly contact with his supervising officer and monthly unannounced home visits. The Extended Supervision Order Investigation Team (“ESOIT”) team would also monitor the defendant’s compliance through covert observation and face-to-fact contact. The defendant would also engage in behavioural change exercises formulated to address his criminogenic needs and encouraging him to set goals and form a pro-social lifestyle.

64. Electronic monitoring, schedules of movement and travel restrictions would also provide tools by which to monitor the defendant’s movements and activities. This would allow certain areas to be identified as high risk and “exclusion zones”, sending alerts to CSNSW in the event that the defendant enters them. It would also require the defendant to remain in NSW and prohibit any unauthorised travel. Submitting a weekly schedule of movements for consideration and approval would ensure that activities are safe and appropriate for the defendant to participate in prior to approval being provided. There are limitations to the efficacy of such measures: they would not prevent or detect high risk behaviour or offending within approved locations and are dependent upon electronic monitoring and the defendant’s compliance with it.

65. Ms Alnaser proposes the defendant be subject to a non-association condition prohibiting any contact with persons under 18 years of age and requiring the defendant to notify his DSO of any person he intends to associate with. Ms Alnaser also recommends conditions relating to accommodation and electronic communications. This would prohibit any person from entering the defendant’s approved address, the imposition of a curfew and remote access to the defendant’s electronic devices to monitor the appropriateness of his internet use. Ms Alnaser opines that empowering CSNSW to conduct searches of any electronic device in the defendant’s control or possession is necessary to ensure compliance with any order.

66. Ms Alnaser proposes the defendant be referred to and directed to attend psychiatric and psychological appointments, including drug counselling and fortnightly contact with a psychologist working in consultation with the ESO team. Ms Alnaser strongly recommends any such psychologist specialise in the treatment of sex offenders. Community based interventions targeting the defendant’s history of chronic substance abuse, mental health issues and sexual offending are also recommended.

67. Subjecting the defendant to random and targeted drug and breath testing to ensure abstinence from alcohol and illicit substance use was also recommended by Ms Alnaser. There are limitations to the efficacy of such measures including if testing does not occur proximate to drug or alcohol use, in which case it will not be detected.

68. It is proposed that the risk management plan would be regularly reviewed.

The Defendant’s Case

69. The defendant read the affidavit of Nicholas Breen of 1 February 2023.

70. Mr Breen is instructed by the defendant in these proceedings. Mr Breen liaised with the defendant’s NDIS support coordinator, Kirsty Dwyer, who confirmed that the defendant receives ongoing one on one support from disability support workers (3 hours per day, 4 days per week). He receives assistance with community access, attending appointments, daily activities such as domestic cleaning, and organising and implementing his supports in accordance with his NDIS plan.

71. The defendant’s total funded NDIS supports for the period of 16 August 2022 to 15 August 2023 is in excess of $100,000, all of which is NDIA managed.

72. Mr Breen is instructed that the defendant has secured accommodation through the Department of Housing, though the terms of the lease are uncertain.

The Submissions

The State’s Submissions

73. The State submits that the gateway considerations referred to in s 5B of the CHRO Act are all met on the material, including that of the final consideration concerning unacceptable risk set out in s 5B(d). Having regard to those matters in s 9(3) the Court would be satisfied that there is an unacceptable risk requiring the making of preliminary orders, including the imposition of an ISO.

74. It is submitted that the defendant has a long history of serious sexual and other offending, accompanied by a proven inability or unwillingness to obey community based sentencing and other court orders, including orders made for the protection of children from sexual predation. The recent breach of the CPPO (from November 2021) evidences the defendant’s continuing sexual preoccupations, with the search terms used by him when unlawfully accessing the internet (“teen porn”, “tiny slut” etc) suggesting a focus on sex with children.

75. Ms Wright is of the view that the defendant poses an above average ongoing risk of sexual reoffending, particularly having regard to his attitude of acceptance of sexual violence and evident entitlement. The defendant’s incapacity to fully acknowledge and accept his crimes and their inherent violence is a further feature of concern, as is his use of alcohol, ready resort to anger and aggression, poor emotional regulation, and negative social influences.

76. Psychiatric and psychological opinion has similarly identified factors that point to the prospect of the defendant crossing the moral boundaries that restrain most individuals in society from criminal offending.

77. Whilst the defendant has successfully undertaken a number of courses and programmes to address his conduct, he is unable now to recall or apply any of the strategies and other measures he could put in place to assist him to deal with risk factors. Other measures that could reduce risk, such as the CPPO, do not have the same capacity to monitor the defendant on a regular basis as an ISO or ESO. There is evidence that the defendant continues to have problems with alcohol abuse, and with women.

The Defendant’s Submissions

78. The defendant acknowledges that the evidence meets all of the gateway statutory requirements for an ISO to be made, with the exception of the unacceptable risk test. He points to the extended period between the commission of the serious sex offences and the present, with some two decades having passed with no further sexual offences having been committed. Whilst there have been failure to comply offences, the failures have not involved any sexual offence. It is submitted that there is no clear evidence that he poses an elevated risk of serious sexual offending, with expert opinion expressed in ambivalent terms and falling well short of such a conclusion. Since release to parole the defendant has complied with conditions imposed upon him and there have been no breaches of the conditions of parole. This tends to underscore the absence of any firm opinion as to an elevated risk of sexual offending.

79. Since being released to parole the defendant has obtained both secure accommodation and funding for support in the community through the NDIS, both being features that ameliorate risk and point to stability for the defendant’s future.

80. These features taken together militate against a conclusion that the defendant poses an unacceptable risk of committing a serious sex offence if unsupervised in the community, and the summons should be dismissed.

81. If the Court does not accept that submission the defendant argues that there is no basis for the multi-layered supervisory regime sought by the State, and the 60 conditions it advances. The defendant understands and has complied with conditions of parole, and nothing further could be legitimately required to mitigate risk. Any conditions imposed by an interim order should be no more restrictive than the conditions of parole that presently apply. If such complex and detailed conditions were imposed upon the defendant, he would be greatly disadvantaged in understanding and abiding by them due to his learning deficiencies.

Consideration

82. The State’s application must be determined bearing in mind the primary objective of the CHRO Act, as provided by s 3(1):

3 Objects of Act

(1) The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community.

[…]

83. The application having been filed within the timeframe required by s 6(1), at this preliminary stage the Court may make orders if satisfied that “the matters alleged in the supporting documentation would, if proved, justify the making” of an extended supervision order: s 10A of the CHRO Act. If not so satisfied, the summons must be dismissed.

84. There is no issue as to those matters set out at s 5B(a)-(c). As an adult who has been convicted of a serious sex offences as defined by s 5(1)(a)(ii) and 5(1)(c) the defendant satisfies the definition of an offender set out at s 4A of the CHRO Act. In that he was an offender who has served a term of imprisonment and was under supervision in the community at the time the State filed the present application, he is a supervised offender for the purposes of s 5I(2)(a)(ii) of the CHRO Act.

85. The dispute between the parties is as to whether the evidence satisfies s 5B(d) of the CHRO Act, which is in these terms:

5B Making of extended supervision orders—unacceptable risk

The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if:

[…]

(d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.

86. To make an order the Court must be satisfied “to a high degree of probability” that the defendant poses an “unacceptable risk” if unsupervised in the community.

87. The term “high degree of probability” has been held to be a standard of proof which is higher than that which applies to civil claims, but less onerous than the criminal standard of proof: Attorney-General (NSW) v Tillman [2007] NSWSC 605 at [27]; Attorney-General (NSW) v Tillman [2007] NSWCA 119 at [5] and [18].

88. The gravity of the consequences of the particular risk manifesting is a relevant consideration in determining whether or not the risk is an unacceptable one. The more severe the consequences, the more likely it will be that the risk is unacceptable, even if the likelihood of the risk manifesting is low.

89. The relevant risk is that the defendant will commit a serious sex offence, likely against a teenager, child, or other vulnerable individual (such as a cognitively impaired person).

90. The defendant points to the complete absence of the commission of any serious offence of a sexual nature since 2004, the year in which he last sexually assaulted his daughter, to contend that he does not pose an unacceptable risk. That feature of and by itself is a significant argument against the imposition of a supervision order – the longer the period in which the defendant has abstained from sexually assaulting another individual, the less likely it becomes that he will do so in the future. The Court is not insensible of the power of that argument. However, the determination of the State’s application does not fall to be assessed only against the lapse of time since the 2004 offending.

86. The Court must consider the whole of the evidence and take the State’s case at its highest at this preliminary stage of the proceedings. On that approach, there is, in the Court’s conclusion, an unacceptable risk that the defendant will commit a serious sex offence. That is for two overarching reasons. Firstly, and despite the completion of sex offender and other relevant programmes over time, the defendant’s personality structure and cognitive make-up is such that he continues to present with a number of serious risk factors that coalesce to make him an ongoing danger to others. Secondly, despite the existence over two decades of some form of restraint on the defendant’s conduct directed to the protection of his daughter, the defendant has assaulted her or made contact with her in breach of court or statutory orders over the years.

87. The defendant has been unable to refrain from committing crime when in the community since he was twelve years of age. Whilst most of his offending relates to crimes that do not meet the statutory test of a serious sex offence or a serious offence of violence it is of concern that his lifestyle and lack of restraint has led to such a history.

88. A significant part of the defendant’s criminal background is for offences that have arisen in the context of a personal relationship of some sort between the defendant and the victim. The serious sexual offending against the defendant’s daughter is an obvious example, but there are others, including violence in the defendant’s marriage, reflected by offences such as contravening an apprehended domestic violence order, and violence directed to acquaintances, such as the 2018 AOABH of a neighbour and the 2021 assault of a woman who refused his sexual advances.

89. That continual pattern of violent and other offending, much of which was committed when the defendant was subject to some form of supervision and restraint on his liberty, points to an ongoing risk to others from the defendant.

90. It is a risk that likely arises because of the defendant’s particular personal features, those matters referred to in the RAR and various psychological and psychiatric reports referenced or in evidence. Ms Wright pointed to the defendant’s permissive attitude to sexual violence and coercion, his hostility to women, and his minimisation of the seriousness of his offending conduct, as risk factors, particularly when coupled with the defendant’s sense of entitlement, his abuse of alcohol, and his inability to manage his anger and aggression. The relatively recent internet searches by the defendant for terms such as “tiny slut”, and the collection of rather odd newspaper clippings the defendant left at his accommodation all suggest that his unacceptable views concerning women and sex remain current. The defendant has been described as a sociopath and a psychopath and his unstable mental state coupled with his cognitive limitations intertwine with features of his personality to elevate risk.

91. The defendant’s inability to obey restraining orders on his conduct, for the protection of his daughter and others, is the other feature that, taken together with those matters already referred to, points to an unacceptable risk of the commission by the defendant of a serious sexual offence. The defendant has a very poor compliance history for any and all orders against him. He has in the past breached orders restricting his conduct towards his daughter, despite supervision, and despite the existence of consequences for such breaches. She remains a highly vulnerable person. Greater age has not and will not strengthen her ability to protect herself and, if she was to be exposed to the defendant’s company, as could so easily occur in the absence of supervision of the defendant, the risk to her specifically would be considerable. The consequences to her of any further sexual violence at her father’s hands would be extremely damaging.

92. The defendant’s stable accommodation and the support available to him through the NDIS are positive features, but insufficient to mitigate risk without more, even bearing in mind the CPPO.

93. Thus, on the whole of the evidence taken at its highest, there is an unacceptable risk that the defendant will commit a serious sexual offence if unsupervised in the community.

94. It remains to consider the conditions necessary to manage the risk.

The Conditions of the ISO

100. The State seeks the imposition of some 60 conditions, including electronic monitoring, and the preparation and provision of schedules of movement.

101. Conditions may only be imposed if they are necessary in the sense that they are required to manage or mitigate risk. It is also important to bear in mind the defendant’s cognitive limitations, to avoid needlessly exposing him to the criminal sanctions that could follow even a breach of an ISO that occurs because of incomprehension rather than necessarily malign intent.

102. In determining the requirement for the individual conditions sought, and acknowledging the brevity of the period, it is also significant to note that the current parole orders appear to have assisted the defendant to remain crime free since August 2022.

103. Having looked at each condition sought by the State, the Court is not persuaded that all of them are necessary, particularly in circumstances where the supervising officer will have wide powers and a broad discretion to give reasonable directions, directions which should be capable of addressing most risk scenarios as and when they are identified.

104. For ease of reference, an annotated schedule of conditions is attached to these reasons that notes the basis of the imposition, or refusal, of the conditions sought by the State.

orders

105. The Court makes the following orders:

1. An order pursuant to s 7(4) of the CHRO Act:

1. appointing two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) as agreed between the parties or, in the absence of agreement, as directed by the Court, to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by 12 April 2023; and

2. directing the defendant to attend those examinations.

2. An order pursuant to s 10A of the CHRO Act, that the defendant be subject to an interim supervision order commencing from 12:01am on 22 February 2023 for a period of 28 days from that date.

3. An order pursuant to s 11 of the CHRO directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule to these Orders.

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

5. The matter is listed before the High Risk Offenders List Judge for directions 2 March 2023.

**********

SCHEDULE OF CONDITIONS OF SUPERVISION

In these conditions:

“CSNSW” means Corrective Services NSW.

“Commissioner” means Commissioner for Corrective Services

“Defendant” means JS, also known as JWS, the defendant in these proceedings and the subject of the order.

“Electronic Identity” means each of the following:

(a)   an email address,

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

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

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

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

“Material” includes:

(1)   any written or printed material;

(2)   any picture, painting or drawing;

(3)   any carving, sculpture, statue or figure;

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

(5)   any computer data or the computer record or system containing the data; and

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

“NSWPF” means NSW Police Force.

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

“Search” includes:

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

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

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

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

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

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

Schedule of Movements

1. If directed, the defendant must, with the assistance of a DSO, prepare a weekly schedule of movements.

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

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

Part B: Accommodation

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

2. If directed by a DSO, the defendant must be at his approved address between 9PM and 6AM unless other arrangements are approved by a DSO.

3. The defendant must comply with rules or by-laws (or both) of any approved accommodation for the defendant.

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

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

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

Part C: Place and travel restrictions

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

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

3. The defendant must not go to any of the following without the prior approval of a DSO:

   (a)   Day-care centres, pre-schools and schools;

   (b)   Amusement parlours, amusement parks and theme parks;

   (c)   Children’s playgrounds, parks, and areas with play equipment provided for the use of children;

   (d)   Pools, playing fields and sporting facilities;

   (e)   Internet cafes or other businesses which provide public access to the internet either for payment or for no charge (other than employment agencies).

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

Part D: Employment, finance and education

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

2. The defendant must advise the DSO within 24 hours of commencing any job, volunteer work or educational course.

3. The defendant must notify a DSO of any intention to change his employment if practicable at his next interview with a DSO.

Part E: Drugs and alcohol

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

2. The defendant must not:

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

   (b)   Possess or use prohibited drugs or drugs unlawfully obtained.

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

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

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

Part F: Non-association

Association with Children

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

Associations with Others (not children)

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

2. Without limiting condition 31, the defendant must not:

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

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

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

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

4. The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary.

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

Part G: Access to the internet and other electronic communication

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

2. The defendant must not use any alias, electronic identity, log-in name, name other than [JS] or any email address other than those known to a DSO. The defendant must give a DSO a list of all devices, services and applications he uses to communicate with or to access the internet and advise a DSO of any change to the list immediately. This includes phones, tablet devices, data storage devices or computers.

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

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

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

6. The defendant must not use any coded or encrypted messaging application or service. If the defendant is unsure whether a messaging application or service is encrypted or coded, he can ask a DSO first.

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

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

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

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

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

Part H: Search and seizure

1. The defendant must submit to the search of any item or place in his possession or under his control, including his residence, any vehicle in which he is traveling or which is under his effective control, any computer, electronic and communication device, or any storage facility, garage, locker or commercial facility; and to the seizure of any object located during the search.

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

Part I: Access to pornographic, violent and classified material

1. The defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification, X18+, Category 2 Restricted and Category 1 Restricted, or any other material as directed by a DSO with respect to concerns related to risk of committing a serious offence.

Part J: Personal details and appearance

1. The defendant must not change his name from [JS] or use any other name without notifying a DSO.

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

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

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

Part K: Medical intervention and treatment

1. The defendant must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction.

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

3. The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with a DSO.

4. The defendant must agree to any information being shared between those persons and agencies that are involved in his supervision including, but not limited to, a DSO, NSWPF and CSNSW.

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

ANNOTATED SCHEDULE OF CONDITIONS OF SUPERVISION EXPOSING CHANGES MADE TO THOSE PROPOSED BY THE PLAINTIFF

KEY TO AMENDMENTS

(1)   Italic Font designates text added to a proposed condition

(2)   Strike through designates text deleted from proposed conditions

(3)   Notations in (bold text and enclosed in brackets) provide the reasons for the imposition or refusal of a condition.

In these conditions:

“CSNSW” means Corrective Services NSW.

“Commissioner” means Commissioner for Corrective Services

“Defendant” means JS, also known as JWS, the defendant in these proceedings and the subject of the order.

“Electronic Identity” means each of the following:

(a)   an email address,

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

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

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

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

“Material” includes:

(1)   any written or printed material;

(2)   any picture, painting or drawing;

(3)   any carving, sculpture, statue or figure;

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

(5)   any computer data or the computer record or system containing the data; and

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

“NSWPF” means NSW Police Force.

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

“Search” includes:

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

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

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

1. The defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions of a DSO. (This is an essential condition with sufficiently broad powers as to manage identified risk)

2. Where a direction may conveniently be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service. (Ancillary to condition 1)

3. The defendant must truthfully answer questions from a DSO, or any other person supervising him, about where he is, where he is going, who he is with, what he is doing and the nature of his associations. (Ancillary to condition 1)

4. The defendant must not engage in any threatening, intimidating or abusive behaviour towards CSNSW or electronic monitoring staff involved in his supervision that would cause the staff member to fear for their safety and/or interfere with or impede supervision. (This does no more than reflect ordinary criminal law)

Electronic Monitoring

1. The defendant must wear electronic monitoring equipment as directed by a DSO and must not tamper with, or remove, the equipment. (Electronic monitoring has not been required whilst the defendant has been on parole and there have been no breaches. It is a particularly intrusive form of supervision which is not necessary)

Schedule of Movements

1. If directed, the defendant must, with the assistance of a DSO provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start. prepare a weekly schedule of movements. (It is likely that the defendant’s cognitive impairment would make it impossible for him to prepare schedules of this nature without assistance, or comply with a 24 hour requirement to see approval for amendment)

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

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

4. In addition to and without limiting any of the other conditions, the defendant must not go within 1km of Sydney and Bankstown Airports and Sydney Cove Passenger Terminal, or any point of departure for an international destination, except for the purpose of reporting to a DSO as directed, attending upon a Community Corrections office in accordance with his approved schedule or as directed, or attending upon other government services in accordance with his approved schedule or as directed. (There is no identified risk connected with points of international departure, and no reason to think the defendant will commit serious crime at such a location)

Part B: Accommodation (These conditions are necessary to facilitate the administration of condition 1)

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

2. If directed by a DSO, the defendant must be at his approved address between 9PM and 6AM unless other arrangements are approved by a DSO.

3. The defendant must comply with rules or by-laws (or both) of any approved accommodation for the defendant.

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

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

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

Part C: Place and travel restrictions

1. The defendant must surrender any passports held by him to the Commissioner, must not be in possession of any passports, and must not attempt to apply for any passports. (There is no reason to think the defendant has or will seek a passport, or will travel internationally)

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

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

4. Without limiting condition 18 above, the The defendant must not go to any of the following without the prior approval of a DSO:

   (a)   Day-care centres, pre-schools and schools;

   (b)   Amusement parlours, amusement parks and theme parks;

   (c)   Cinemas;

   (d)   Libraries and museums;

   (e)   Camping grounds and caravan parks;

   (f)   Children’s playgrounds, parks, and areas with play equipment provided for the use of children;

   (g)   Pools, playing fields and sporting facilities;

   (h)   Concerts, theatre shows, movies, events and activities intended for the entertainment of children;

   (i)   Residences where the defendant knows that persons aged under 18 years ordinarily reside; and

   (j)   Internet cafes or other businesses which provide public access to the internet either for payment or for no charge (other than employment agencies). (Some of these restrictions would prevent the defendant from socially positive activities. The general power of the DSO to give directions is sufficient to prevent the defendant from approaching children)

5. The defendant must not attend any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment, without the prior approval of a DSO. (This condition is directed to risk mitigation)

Part D: Employment, finance and education

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

2. The defendant must not start on his own initiative advise the DSO within 24 hours of commencing any job, volunteer work or educational course (These are positive activities that a pre-commencement notification could restrict. Early advice is sufficient to address risk)

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

4. The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by a DSO. (This condition is not associated with any identified risk. Part E, coupled with search conditions, adequately covers alcohol use without also monitoring expenditure)

Part E: Drugs and alcohol (These conditions are necessary given the historical correlation between serious offending and intoxication)

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

2. The defendant must not:

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

   (b)   Possess or use prohibited drugs or drugs unlawfully obtained.

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

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

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

Part F: Non-association (These conditions are necessary given the suggestion in the evidence of the defendant’s sexual interest in “teens”)

Association with Children

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

Associations with Others (not children)

1. The defendant must not associate with any person or persons specified by a DSO. (This condition, and the following condition, provides the power to prohibit contact with vulnerable persons other than children, or persons who could encourage criminality)

2. Without limiting condition 31, the defendant must not:

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

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

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

3. The defendant must not engage the services of sex workers, without the prior approval of a DSO. (Necessary for risk mitigation)

4. The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary. (Necessary for risk mitigation)

5. The defendant must obtain written permission from a DSO prior to joining or affiliating with any club or organisation (Necessary for risk mitigation)

Part G: Weapons

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

   (i)   a firearm, firearm part or ammunition within the meaning of the Firearms Act 1996.

   (ii)   a prohibited weapon within the meaning of the Weapons Prohibition Act 1998.

2. Without limiting or altering condition 36, the defendant must not possess or use any of the following, without a DSO’s prior approval:

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

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

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

(The criminal law adequately addresses weapons possession and use)

Part H: Access to the internet and other electronic communication (These conditions will permit the defendant’s use of electronic and digital media to make contact with vulnerable persons, or access inappropriate content, to be detected)

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

2. The defendant must not use any alias, electronic identity, log-in name, name other than [JS] or any email address other than those known to a DSO. The defendant must give a DSO a list of all devices, services and applications he uses to communicate with or to access the internet and advise a DSO of any change to the list immediately. This includes phones, tablet devices, data storage devices or computers.

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

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

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

6. The defendant must not use any coded or encrypted messaging application or service. If the defendant is unsure whether a messaging application or service is encrypted or coded, he can ask a DSO first.

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

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

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

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

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

Part I: Search and seizure (These conditions are necessary to monitor compliance)

1. The defendant must submit to the search of any item or place in his possession or under his control, including his residence, any vehicle in which he is traveling or which is under his effective control, any computer, electronic and communication device, or any storage facility, garage, locker or commercial facility; and to the seizure of any object located during the search.

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

Part J: Access to pornographic, violent and classified material (This condition is necessary for risk mitigation)

1. The defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification, X18+, Category 2 Restricted and Category 1 Restricted, or any other material as directed by a DSO with respect to concerns related to risk of committing a serious offence.

Part K: Personal details and appearance (These conditions are necessary to enable proper supervision)

1. The defendant must not change his name from [JS] or use any other name without notifying a DSO.

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

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

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

Part L: Medical intervention and treatment (These conditions facilitate supervision and rehabilitation)

1. The defendant must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction.

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

3. The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with a DSO.

4. The defendant must agree to any information being shared between those persons and agencies that are involved in his supervision including, but not limited to, a DSO, NSWPF and CSNSW.

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

Decision last updated: 22 February 2023