State of New South Wales v JS (Preliminary)

[2020] NSWSC 823

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v JS (Preliminary) [2020] NSWSC 823

Hearing dates:

11 June 2020

Date of orders:

29 June 2020

Decision date:

29 June 2020

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

1 An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act:

(a)   Appointing one qualified psychiatrist and one registered psychologist, as agreed between the parties, to conduct separate psychiatric or psychological examinations (as the case requires) of the defendant and to furnish reports to the Supreme Court on the results of those examinations; and

(b)   Directing the defendant to attend those examinations.

2   An order:

(a) Pursuant to s 10A of the Act, that the defendant be subject to an interim supervision order from 1 July 2020;

(b) Pursuant to s 10C(1) of the Act, that the interim supervision order be for a period of 28 days unless renewed on further application by the plaintiff for another period of 28 days or the proceedings are finally determined; and

(c) Pursuant to s 11 of the Act, directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule annexed to these reasons.

3   The parties are given liberty to approach the High Risk Offenders List Manager within 48 hours to ascertain a suitable date for hearing of application for final orders;

4   The parties are to provide a draft of Short Minutes of Order setting out a timetable for provision of expert reports to the Court, and for filing and service of evidence and submissions.

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

Catchwords:

HIGH RISK 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

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW)

Child Protection (Offenders Registration) Act 2000 (NSW)

Crimes Act 1900 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW)

Cases Cited:

Kamm v State of New South Wales (Final) [2016] NSWSC 1
Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57

State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041

State of NSW v Clarke [2019] NSWSC 411

Category:

Principal judgment

Parties:

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

Representation:

Counsel:
G Wright (Plaintiff)
S McGee (Defendant)

Solicitors:
Crown Solicitors Office NSW (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2020/00152776

Publication restriction:

Nil

Judgment

1. HER HONOUR: By way of Amended Summons filed on 4 June 2020, the State of New South Wales (“the State” or the plaintiff) seeks orders for the imposition of an Extended Supervision Order (“ESO”) upon the defendant, pursuant to the Crimes (High Risk Offenders) Act 2006 (“the Act”), for a period of three years. The application came before me on 11 June 2020 at the initial stage of the proceedings, with the State seeking the preliminary orders set out by prayers 1 and 2 of the Amended Summons. That is, the State seeks:

1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act:

1. Appointing one qualified psychiatrist and one registered psychologist to conduct separate psychiatric or psychological examinations (as the case requires) 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:

1. Pursuant to s 10A of the Act, that the defendant be subject to an interim supervision order from 1 July 2020;

2. Pursuant to s 10C(1) of the Act, that the interim supervision order be for a period of 28 days unless renewed on further application by the plaintiff for another period of 28 days or the proceedings are finally determined; and

3. Pursuant to s 11 of the 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.

2. The State seeks, by way of final relief,

1. An order:

1. Pursuant to ss 5B and 9(1)(a) of the Act that the defendant be subject to an extended supervision order for a period of three years; and

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

3. The usual order for ancillary relief was also sought (prayer 4), 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 any application for access.

4. Only prayers 1, 2 and 4 were pressed at the preliminary hearing.

5. The defendant opposes the making of the interim orders, arguing that the Court could not be satisfied to the requisite high degree of probability, pursuant to s 7(4) of the Act, that he poses an unacceptable risk of committing another serious (sex) offence if not kept under supervision under the orders pursuant to s 5B of the Act. The defendant submits that the amended summons should be dismissed with costs. In the alternative, if the Court determines to impose an interim supervised order (“ISO”) pending final hearing, the defendant submits that the Court would not be persuaded that all ISO conditions sought by the plaintiff are appropriate as required by s 11, at this interim stage. The defendant takes issue with several conditions, discussed below.

6. At the conclusion of the initial hearing, I reserved my judgment and orders until today.

Procedural Background

7. Until 29 November 2019, when he was released to supervised parole, the defendant was serving a sentence of six years imprisonment with a non-parole period (“NPP”) of 4 years, for multiple child sex offences. He is presently serving the parole component of the sentence; the head sentence will expire on 1 July 2020.

8. There is no dispute that the preliminary statutory requirements for an order of the nature sought have been met. The defendant is an “offender” who has served a sentence of imprisonment for a “serious sex offence” as defined by ss 4 and 5 of the Act. He is a “supervised offender” within the meaning of s 5l. The application was made within nine months of the expiration of the “current custody or supervision”, pursuant to s 5l and s 6 of the Act. The application is supported by documentation specified by s 6(3) of the Act.

The Evidence Relevant to the Application

The State’s Case

9. The defendant’s criminal and personal background was established by reference to the material tendered by the State. The State relied upon:

1. An affidavit of Ann-Marie Najjarin sworn 12 May 2020, producing Ex. AN-1, a volume of documentary exhibits produced in response to orders pursuant to s 25 of the Act, including a Risk Assessment Report (“RAR”) prepared by Rochelle Pateman on 16 December 2019, and a Risk Management Report (“RMR”) prepared by Community Corrections Officer Shantelle Hodgkinson from the Extended Supervision Order Team;

2. A second affidavit of Ann-Marie Najjarin sworn 9 June 2020, annexing further documents produced in response to s 25 orders; and

3. A third affidavit of the same deponent, sworn on 10 June 2020, producing further s 25 documents.

10. The starting point must be the defendant’s criminal history.

The Defendant’s Criminal Background, and Offences

11. The defendant was born on 5 July 1992. At the time of the application, he is a 27 year old Aboriginal male, with a history of sexual offending.

12. The defendant’s criminal history prior to the commission of the relevant offences began in 2012; it relates entirely to sexual related matters.

13. On 28 February 2012, the defendant was sentenced by Magistrate Hawdon at Wyong Children’s Court in relation to two counts of aggravated indecent assault and two counts of aggravated sexual assault, committed between 2006 and 2008. The victim was the defendant’s sister, younger than him by about two years.

14. At the time of the commission of the offences, the defendant was aged 14 to 16 years, and his sister about 12 to 14 years of age.

15. The first incident occurred on a day in the period July 2006 to December 2006, when the defendant was sitting on a lounge in the family home with his sister next to him. He exposed his penis and told her to touch it; she refused. The defendant grabbed his sister’s hand and placed it on his penis, moving it up and down until she moved her hand away.

16. He then told her to “suck on” his penis. When she refused, the defendant took hold of his sister’s head by placing his hand on the back of it, and pushed her head towards his exposed penis. The victim resisted, but the defendant continued to push her head down towards his penis, until her face was at his stomach. The siblings’ younger brother walked into the room, and the defendant let his sister go and pulled his pants up.

17. The victim was 12 years old at the time of this incident.

18. On the next occasion, on a day between June 2007 and July 2008, the victim was sitting in the lounge room of the family home when the defendant entered the room and sat down beside her. He began to rub the inside of his sister’s leg. She got up and went to her bedroom, closing the door and lying down on the bed.

19. The defendant came into the bedroom and shut the door behind him. He sat down on the bed and began rubbing his sister’s leg again, before taking her lower clothing off, followed by his own. He lay on top of her and, despite her resistance, had penile – vaginal intercourse with her. He continued for a time before getting up, putting his pants on, and leaving the room.

20. The victim was aged 12, 13, or 14 years old.

21. The second offence of aggravated sexual assault occurred on a day between October 2008 and December 2008, when the victim was aged 14 years. The defendant was at home with his sister and brother. He told his younger brother to go into his bedroom and play X-Box, and he complied. The victim stood up to go and get a drink, but the defendant grabbed her by the wrist and pulled her into his bedroom. Pushing her onto his bed, the defendant pulled his sister’s clothes off. She told the defendant to stop, but he lay on top of her and began to kiss her.

22. The victim tried to get away, moving her face away from the defendant, but he held her in position with a hand either side of her head. Removing his underwear, the defendant had penile-vaginal intercourse with his sister. The intercourse continued, with the defendant holding the victim down, until the defendant’s younger brother came into the room. The defendant jumped up. Later that day, the defendant told his sister that she should not tell anyone about what had occurred as she would be the one to get into trouble.

23. Around Easter 2010, the victim ran away from home, spending nights at her grandmother’s home, and then at the home of a friend. When staying with the latter, she told her friend that her brother had sexually assaulted her on a number of occasions. The defendant’s mother was informed, and she confronted the defendant. He admitted that he knew what he had done to his sister was wrong; he said that that was why he had stopped. He described feeling “dirty, horrible, ashamed, repulsed by myself”. He apologised to his sister.

24. The victim later spoke to a school counsellor about what had happened to her, and the authorities were notified. The defendant was arrested on 2 December 2010.

25. A Psychological and Specialist Services Report recommended that the defendant would benefit from active engagement in a Sex Offender Programme in a controlled setting - ideally a custodial setting - but such a programme was not made available, as the defendant was sentenced to community based bonds. Good behaviour bonds for a period of 12 and 18 months respectively were imposed, concluding on 23 August 2013.

26. As a result of these offences, the defendant was listed on the Child Protection Register.

27. The other entries on the defendant’s criminal history are for offences of failing to comply with reporting obligations (three counts), and further child sexual assault offences, being the index offences.

28. On 1 May 2014, the defendant was charged for failing to report as required of him as a person on the Child Protection Register. The breaches related to the defendant’s failure to advise police of a change of address and other contact details, or that he was living with children. When police finally located the defendant, he told them that he had been living with his girlfriend and her three young children. The index offences related to two of the children.

29. In June 2014, the defendant pleaded guilty to three offences of failing to comply with his reporting obligations, contrary to s 17(1) of the Child Protection (Offenders Registration) Act 2000 (NSW). His explanation for the breaches was that he “got caught up” with his “new girlfriend and just forgot”. He was sentenced to 12 months imprisonment with a non-parole period of two months, although the State Parole Authority revoked his parole prior to him entering it, on the basis that he had no suitable accommodation in the community.

30. The relationship that had led to the defendant “forgetting” to abide by his reporting obligations commenced in July 2013.

31. One month later, in August 2013, the defendant moved into the home of his new partner, a woman considerably older than him, and who had three young daughters, aged 7, 8, and 10 years old at the relevant time. The age difference between the defendant and Ms D was about 23 years, the defendant being 21 years old at the time of the index offences, and Ms D being 44 years of age.

32. The defendant lived with Ms D and her children from August 2013 to May 2014. He sometimes cared for the children in Ms D’s absence. Two of Ms D’s daughters were the victims of the offences; LD, aged seven years old at the time of the offences, and SD, aged eight years.

33. The offences came to light around 12 May 2014, when Ms D accessed the defendant’s Facebook account and saw private chat messages that he had sent to a friend. The messages were of a sexually explicit nature and referred to the defendant being sexually attracted to Ms D’s young daughters. The defendant detailed his sexual fantasies concerning the children, and his desire to engage in sexual intercourse with them, as well as referring to assaults committed upon them. The Facebook “chat” forms part of the evidence before the Court, but it is not proposed to reproduce it here; it is both graphic and highly disturbing.

34. Having seen this material, Ms D spoke to her daughters, and two of the children disclosed that the defendant had indecently assaulted them. Ms D reported the matter to police the next day.

35. On 3 June 2014, LD was interviewed and disclosed three offences of aggravated indecent assault, charged contrary to s 61M(2) of the Crimes Act 1900 (NSW).

36. The first of the offences occurred when LD was at home sitting on the lounge watching a movie with Ms D and her two sisters, covered by a blanket. The defendant placed his hand inside her shorts, and rested it on her vagina, on the outside of her underwear. The victim told him she needed to get a drink and got off the lounge and left the room.

37. The second offence, included on a Form One document, occurred when LD got into bed with her mother and the defendant. When L’s mother got out of bed and left the room, the defendant put his hand on her vagina on the outside of her underwear. His hand, “stay[ed] put”. She got out of bed sometime later, and went to make the defendant a coffee.

38. The final offence relating to LD was disclosed by SD. SD described dancing in the defendant and her mother’s bedroom, while the defendant was in bed with LD. LD was on top of the sheet, and the defendant was under the blanket. The defendant grabbed LD’s hand and made her touch his penis on the outside of his clothes and blankets, holding her hand there.

39. On 3 June 2014, SD was also interviewed and disclosed five offences of aggravated indecent assault, also charged pursuant to s 61M(2). SD recalled the first time that the defendant touched her on her vagina was when she was in the lounge room of the family home. He picked her up and held her in a straddling position with one of her legs positioned on his back, the other on his stomach, and her buttocks on his hip. He touched her on her vagina using a swirling motion on the outside of her clothes. He did this for about a minute.

40. The day after this event, SD was in the kitchen. The defendant walked in and picked her up, and began touching her vagina in a swirling motion on the outside of her “onesie”. This lasted for about 10 seconds. The offence was before the sentencing court on a Form One document.

41. After breakfast on this same day, SD was in the dining room of the family home and her mother was in the laundry. SD had changed into a dress, and the defendant approached her and picked her up. He then touched her vagina with his index finger in a swirling motion on the outside of her clothing. After a couple of minutes, he put her down and she left the room. This offence was also before the sentencing court on a Form One document.

42. Later that day, SD’s mother went to work, leaving the defendant to look after SD and her sisters. SD was playing in the garage. The defendant came in and picked her up. She attempted to hold the dress between her legs as he picked her up, but was unable to do so. The defendant touched her vagina, underneath the dress but on top of her underpants. He tried to push his finger into her vagina, but was not able to do so, and put SD down.

43. On another occasion, SD recalled standing at the bench washing up dishes in the kitchen of her home. The defendant walked past her, stopping and squeezing her on her breast with his hands on the outside of her clothing, and telling her she was a “good girl”.

44. The offences all occurred between December 2013 and January 2014.

45. The defendant ultimately pleaded guilty to four counts of aggravated indecent assault contrary to s 61M(2) of the Crimes Act 1900 (NSW) on indictment, with further four offences taken into account of a Form One document. He was sentenced by Judge Haesler SC at Campbelltown District Court on 15 December 2015 to a term of 6 years imprisonment, with a non-parole period (“NPP”) of 4 years.

46. In his remarks on sentence the sentencing judge observed that the defendant had failed to notify police of his changed address, as he was required to do as a registered person, motivated by the “entirely accurate assumption that, had he disclosed his offending history to Ms D, she would have ended their relationship”. His Honour noted that the children were young, the offences occurred in their home where they were entitled to feel safe and protected, and that:

“The offender exploited his relationship with their mother and with the children. He was at the time their carer…this position of trust and authority meant he could use ‘psychological coercion’ to commit the offences”.

47. His Honour concluded that, whilst each act was sexually exploitive of the child, it fell toward the bottom of the range of objective gravity, although “certainly not at the bottom”. The real possibility of psychological harm to each victim remained. The sentencing judge took into account the defendant’s past sexual offending, noting that it was “relevant to determining the proper sentence” as:

“it indicates that this offence is not an uncharacteristic aberration, rather it shows a worrying trend”.

48. Further, it was concluded that, “it is clear [the defendant] has a problem with sexual attraction to young girls”.

49. His Honour considered that:

“a more severe penalty is warranted with additional focus on retribution, deterrence, and the protection of the community”.

50. The defendant gave evidence on sentence, and acknowledged that he had a serious problem, and that his actions involved a serious breach of trust. The court accepted that the defendant was remorseful, and anxious to not reoffend.

51. A psychological report prepared by Ms Durkin was also before the sentencing judge. Ms Durkin took a history from the defendant of having himself been subjected to sexual abuse as a child, and she considered that he displayed symptoms consistent with Post Traumatic Stress Disorder (“PTSD”). Ms Durkin assessed the defendant as posing a high risk of sexual re-offending. She recommended that he undertake the CUBIT programme while in custody.

Other Evidence

52. Also annexed to Ms Najjarin’s affidavit of 9 June 2020 were Risk Assessment and Risk Management Reports.

Risk Assessment

53. On 16 December 2019, Rochelle Pateman, Acting Senior Psychologist of the Serious Offenders Assessment Unit, Corrective Services New South Wales (“CSNSW”) prepared a Risk Assessment Report in relation to the defendant, pursuant to s 6(3)(b) of the Act.

54. Ms Pateman met and assessed the defendant on 2 December 2019. All collateral information was available to her.

55. At the time of the interview, the defendant was aged 27 years. He presented as a healthy looking man who had appropriate eye contact and spoke in a clear, respectful, measured manner. He appeared cognitively intact having maintained concentration throughout the course of the interview.

56. He reported a history of anxiety and depression and had been recently recommended anti-depressants.

57. The defendant gave a history to Ms Pateman of being the eldest child of his parents union, with one younger sister. He reported that his father abused alcohol and was violent towards his mother, who ended the relationship and relocated the family to the Central Coast when the defendant was two years old. His mother entered a new relationship when he was about six years of age; she and his step-father were both supportive and loving towards him, and have two children together, aged 19 and 10 years.

58. The defendant’s father was absent from his life from the age of two until he was about nine years old, after which his parents shared custody of him and his younger sister. The defendant reported that his father died by suicide when he was aged 11 years, and that he blamed himself for his father’s death, because he had not seen his father the weekend before his death. Following his father’s death, the defendant said that he struggled to cope, withdrawing socially.

59. The defendant gave accounts of having been sexually abused during his childhood and adolescence by two separate abusers. The first was a 16 year old female neighbour who, he said, forced him to perform cunnilingus every few days for about a year. He was aged six years. The second was another neighbour, a 17 year old male, who forced him to engage in anal sex and fellatio when aged about 11 years, causing him significant distress and ongoing trauma.

60. The defendant reported performing well academically in primary and secondary school. He recounted some bullying during his high school years, describing himself as a “social outcast”. He said that he was suspended on three or four occasions for aggressive behaviour in primary school; this subsided upon entering secondary school. He completed his High School Certificate (HSC) in 2010 while undergoing criminal proceedings for the sexual offences he committed against his sister, and when living with his grandparents.

61. When at school, the defendant worked casually for six to 18 months as a labourer for his step-father in the period 2006 to 2011, and as a kitchen hand at two different fast food restaurants in 2008 to 2009. After completing his HSC, he studied sound engineering at TAFE, but withdrew due to feeling overwhelmed and struggling with low self-esteem.

62. The defendant reported two significant relationships in his life. The first was his high school girlfriend, whom he dated from year 11 to a few months after graduation in 2011. He said that his girlfriend had been physically abusive but, despite this, the defendant said that when she ended the relationship, he was distressed and engaged in self-harming.

63. Upon completing high school the defendant said that he moved from his grandparents’ home into shared accommodation. During this time, he reported an increase of feelings of loneliness and isolation up until he met his most recent partner (Ms D) via an online Facebook fan page. After meeting in person within a month or so of talking online, the defendant moved into her home and lived with her and her three daughters from August 2013 to May 2014 when he was arrested, initially for the breach of his Child Protection Register (“CPR”) obligations and later the index offences.

64. He claimed that “he had told his partner of his past sex offences and had forgotten to advise the Police of his change of address” as required by child protection registration requirements. Ms D, however, said that the defendant had not informed her that he was on the Child Protection Register and did not give her “full details of his historical sex offending”.

65. As to his health, the defendant reported some partial deafness and past sporting injuries that had required medical intervention. He denied any current medical issues.

66. Ms Pateman recorded the defendant’s psychiatric history, noting his prior diagnosis of depression, anxiety and insomnia at the age of 18, issues which may have been present since his father’s death. Some months after his Childrens’ Court appearance for the offences against his sister, in February 2012, a provisional diagnosis of mild depression and adjustment disorder was made.

67. The defendant denied any thoughts or plans to self-harm or suicide since those incidents, and denied any ongoing mental health issues. His mental state appeared to be stable.

68. The defendant said that he was forced to re-commence his anti-depressant medication upon moving into Nunyara COSP, in compliance with a Justice Health prescription current on release from custody. He said he would seek a medication review with a general practitioner in the community.

69. Ms Pateman referred to the defendant’s claim to have a chronic history of alcohol abuse in his younger years, at times when he felt lonely and unhappy. He reported that “his alcohol use increased again when he began experiencing relationship discord, low moods and sexualised thought regarding children”, believing that “his alcohol use may have lowered his inhibitions and perpetuated his offending behaviour”.

70. The defendant also reported having experimented with Cannabis during his late teens but denied any other drug use.

71. Of his supervision in the community Ms Pateman noted that the defendant has previously been subject to two Children’s Court bonds pursuant to s 33 (1)(B) of the Children (Criminal Proceedings) Act 1987 (NSW), from 2012 to 2013. He completed those bonds without incident, but was subsequently convicted of three counts of failing to comply with CPR reporting obligations, for failing to notify a change of address and telephone number, or that he was living in a house with children.

72. In custody, the defendant was mainly managed in protective custody as a Special Management Area Placement (or “SMAP”) prisoner, and at times in Protection Limited Association Area (or “PLRA”) protective custody. The defendant has not incurred any institutional misconduct charges since his incarceration. He participated in some custody-based employment during his sentence; no negative case notes are documented in relation to his work ethic while employed.

73. Although the defendant agreed to be referred to a custody based sex offence programme in March 2016, and was found suitable for admission to the High Intensity Sex Offender Program (“HISOP”), he declined to participate in it as “he was already into his parole period and [he thought] the programme would benefit another offender more”. It was only after having been refused parole by the State Parole Authority until such time as he had participated in a sex offender programme that he agreed to participate.

74. The defendant entered HISOP in September 2018 and completed it in October 2019. He said that he had initially struggled to be open about his offending in a group setting due to anxiety, shame and embarrassment surrounding his offending, but completed all task work, attended all sessions as required, and appeared motivated to gain benefit from treatment. Ms Pateman noted that the defendant’s “active group participation was observed to increase over time”, while “his input reflected insight into relevant factors for his treatment”.

75. The defendant was recorded as believing that “HISOP has assisted him to understand his offence pathways and the importance of self-care”. He reported that “his attitude towards his offending has changed since participating in the ‘offence pathway’ module”, and that “he can now recognise that he was not adequately dealing with his problems and they were progressively building up”. He reported “an increased awareness in the role of alcohol in his offending and as a maladaptive form of coping” and reflected “that he entered into an unhealthy relationship too quickly and isolated himself from other supports”. He reported “gaining insight into the severity of his offending rather than minimising the effect of his behaviour on the victims” and “identified his current most important risk factors” as poor coping skills, low self-esteem, sexual thoughts about children, and unhealthy relationships, whether romantic or otherwise.

76. The defendant referred himself to the “Explore, Question, Understand, Investigate, Practice, Succeed” programme (“EQUIPS”) but did not meet the criteria because of his alcohol and drug score.

77. Various risk assessment tools were administered to the defendant in custody. An assessment in February 2016 using the Level of Service Inventory – Revised (“LSI-R”), an actuarial assessment tool measuring the risk of general offending, placed the defendant in the “low-medium range of risk/needs”, although the result was adjusted to medium-high range of risk/needs, to take into account both a psychological assessment of December 2015 which found the defendant to pose a high risk of sexual offending, and the defendant’s “candid admissions of having a sexual attraction to pre-pubescent females aged seven and older”.

78. The risk of sexual re-offending was assessed in November 2016 using the Static Risk Factors actuarial assessment tool (“STATIC-99R”), a tool directed to measuring the risk of sexual recidivism. The result returned at that time (5) was regarded as potentially inaccurate by the failure to incorporate the offences that were taken into account when sentence was imposed by Haesler SC DCJ.

79. Ms Pateman readministered the STATIC-99R and found the defendant’s score to be 6, that being a score previously described as placing an offender “in the high risk category relative to other male offenders”. The most recent version of the STATIC-99R Manual categorises scores of 6 and above as corresponding to a “Well Above Average” risk, or “Level IVb”.

80. Ms Pateman observed that the rate of recidivism for individuals with a score of 6 “is estimated to be about four times higher than that of the ‘typical’ sex offender”.

81. Assessment of dynamic risk factors, by administration of the “STABLE-2007” measure, returned a score of “9”, which is suggestive of “a ‘Moderate density’ of criminogenic needs relative to other male sexual offenders”. The defendant’s capacity for stable relationships was of significant clinical concern in utilising this tool, as was “Deviant Sexual Preference, Sex as Coping, Poor Problem Solving Skills, Significant Social Influences, General Social Rejection and Emotional Identification with Children”.

82. Combining the score results from both the STABLE-2007 and STATIC-99R tools, an “overall risk level” of “well above average” was returned.

83. Ms Pateman opined that a number of dynamic factors are relevant to risk, including “intimacy deficits”. The defendant has reported two significant relationships in his life, both of an unhealthy nature, leading to feelings of loneliness and inadequacy, and reduced problem solving ability. Ms Pateman observed that the defendant “is yet to demonstrate the ability to maintain a stable and mutually supportive intimate relationship”, and “lacks a secure adult attachment” outside immediate family members.

84. Although the defendant does not currently appear to have any negative influences in his life, Ms Pateman believes that “he would be considered increasingly vulnerable when experiencing a sense of general social rejection, isolation and loneliness” and when in this mind fame, “he may also withhold his status on the CPR and criminal history when connecting with new people to reduce the chance of being rejected by them”.

85. The defendant’s capacity for sexual self-regulation is also a relevant factor in assessing his risk of sexual offending, as he has acknowledged sexual attraction to prepubescent females, such attraction being more intrusive when the defendant is under stress. Historically, he is noted to have “been sexually preoccupied with a high sex drive and [to have] used sex as his primary coping strategy”.

86. Poor problem solving is another risk factor. Prior to completing HISOP the defendant appeared to lack problem solving skills and when experiencing problems he would have increased sexualised thoughts about children, expressing the viewpoint that children involve “less drama” than relationships with adults. Although the work undertaken by the defendant in HISOP was thought to demonstrate an increased insight into this problem, Ms Pateman opined that:

“he currently appears to still have deficits in his ability to generate/evaluate alternative ideas, choose a course of action and evaluate the outcomes”.

87. Whilst the defendant has a number of short-term plans upon release, Ms Pateman noted that “he lacks any long-term plans regarding accommodation and employment”, and seemed to be unrealistic about the potential restrictions and problems that might arise due to his criminal history.

88. Emotional identification with children is another potential risk factor. The defendant’s sexual attraction to children and apparent identification with them could his heighten risk of reoffending. Although the defendant appears to have limited adult friendships he claimed to be attempting to reconnect with friends from school and establish new adult friendships. Despite this, Ms Pateman believes the defendant is emotionally immature. She considers this to be a feature that requires further assessment once the defendant has spent a longer period in the community.

89. Some “protective factors” were identified, which decrease risk factors in the community. These include: the defendant’s ongoing contact with his family, who have expressed a desire to continue to support him emotionally; plans to return to the Central Coast area, with some steps taken to that end; positive goals the defendant has set for himself, such as securing employment to ensure stable income, obtain a motorcycle licence to have a mode of transport, joining a local rugby or cricket team, studying a language, and training as a counsellor.

90. Ms Pateman also referred to the defendant’s wish “to engage with a private psychologist to address unresolved grief and loss issues around his father’s suicide” and his willingness to comply with any other recommended support, including accepting drug and alcohol counselling.

91. In summary, Ms Pateman concluded that the defendant is man with a risk of sexual re-offending estimated to be well above average, and who poses a medium-high risk of committing further offences in the future.

92. The most likely scenario for further sexual offending in Ms Pateman’s opinion would involve the defendant offending against a prepubescent female victim encountered through friends, family or via a future relationship, in circumstances where he failed to disclose his offence history or status on the CPR due to a fear of rejection. If the defendant were to feel socially isolated, or stressed, he may start to experience increasingly intrusive sexualised thoughts about children, and gravitate to a child or children, grooming the child with positive attention or threats around disclosure, with offences of progressively increasing gravity possible. Alcohol use would heighten risk.

93. Risk management strategies considered by Ms Pateman as potentially useful in the event that the defendant is under supervision in the community include:

1. participation in a community-based sex offender maintenance programme provided by Forensic Psychology Service (“FPS”) in Sydney;

2. referral to a local drug and alcohol service to engage in substance related intervention;

3. careful scrutiny of social contacts with the aim of increasing pro-social influences,

4. monitoring to ensure that the defendant is not engaging in relationships that endorse sexual abuse, including by supervision of his access to the internet and electronic devices;

5. unannounced home visits and drug and alcohol testing;

6. electronic monitoring and a requirement that the defendant provide a schedule of his daily activities, to potentially assist in improving decision-making skills and limiting access to potential victims;

7. preventing unsupervised access to children;

8. encouraging participation in education or employment to continue to build autonomy and self-esteem;

9. psychological intervention regarding unresolved grief issues; and

10. ongoing support following possible perceived rejection from a social network or poor coping.

Risk Management

94. On 14 January 2020, Shantelle Hodgkinson, a Community Corrections Officer within the Extended Supervision Order team, prepared a RMR, in accordance with s 9(3)(d1) and 17(4)(d1) of the Act.

95. Ms Hodgkinson interviewed the defendant, contacted his Departmental Supervising Officer, and reviewed CSNSW records and other documentary material, including the RAR prepared by Ms Pateman.

96. When Ms Hodgkinson saw the defendant, he was living at a community based residential facility (a “COSP”). He was being supervised by Community Corrections pursuant to parole and had been compliant with reporting obligations, and attendance with FPS. His family continue to support him, and his intention is to relocate to the Central Coast region. He told Ms Hodgkinson that he has been offered employment in that region, and planned to commence work after finding suitable accommodation.

97. Ms Hodgkinson identified the risk factors to be managed and concluded that a strategy to manage the risks would include weekly interviews with the defendant at home, at a Community Corrections Office or at another location in the community, with a focus on the development of a comprehensive case plan and monitoring the defendant’s attitudes, particularly towards his offending behaviour, and challenging such attitudes. Motivational interviewing techniques would be used to encourage the defendant’s engagement in pro social community activities, to develop an increased awareness of the risks associated with reoffending, to engage in alcohol and other drug related counselling, and to assist in identifying the differences between positive and negative relationships. This approach could also be used to challenge criminalised and sexual thoughts, and encourage maintenance of a law abiding lifestyle. The defendant’s schedule would also be discussed, and he would be encouraged to plan appointments and appropriate pro-social activities to avoid high risk situations associated with his offending behaviour.

94. The main limitation of this approach surrounds the defendant’s compliance with treatment and his behaviours in the community, given that the onus would be on him to engage in the interviews and truthfully answer questions.

95. Home visits, field visits and surveillance by the Extended Supervision Order Investigation Team (“ESOIT”) would occur, at a minimum, monthly, and involve both scheduled and unannounced visits. They would be coupled with field surveillance and observations. Field visits would occur at the defendant’s accommodation to observe his environment, liaise with co-residents and identify possible concerns.

96. The utility of field visits can be adversely affected by the availability of resources and, if the defendant is not subject to electronic monitoring, ascertaining his location to undertake unannounced visits would be impossible.

97. Visits to third parties, such as ESOIT, Corrections Intelligence Group, medical practitioners, employment network providers and his family, would occur on a weekly basis, to monitor progress, identify issues of concern, and to monitor compliance with any order.

98. Electronic monitoring, schedules of activity and curfews could also provide tools by which to monitor the defendant’s movements, activities and contacts; and minimise the likelihood of him engaging in high risk behaviours; ensure adherence to proposed exclusion zones; and to help in his reintegration into the community. 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 compliance with it.

99. Ms Hodgkinson proposed continued referral to CSNSW psychological services to address risk, discuss progress and develop insight and concerns regarding supportive attitudes, behaviour or risk. However, this strategy would only be successful if the defendant truthfully engaged with his treating psychologist.

100. Referral to alcohol and other drug services, and alcohol and drug testing, could be used, although there are, again, limitations on the efficacy of such measures: if the defendant is not forthcoming about this topic, or if testing did not occur proximate to drug use (as it will not then be detected).

101. Restrictions can be placed on the defendant’s engagement with children, requiring him to seek approval for various activities, and putting in place restrictions on attendance at facilities and locations where young people gather. If permitted, Community Corrections could also undertake searches of telecommunications devices that might discover prohibited contacts or conduct. However, failures to observe such restrictions can be difficult to detect.

102. Ms Hodgkinson considers that the defendant should be issued clear directions restricting access to the internet and social media to prevent contact with children. Device searches would be useful in monitoring compliance, although the effectiveness of such strategies could be limited if the defendant chooses not to comply with relevant directions.

103. Any risk management plan would be subject to ongoing review, every two month, and updated as necessary to reflect any changes to the offender’s circumstances.

Other material

108. Also included in the documentary material provided to the Court were various Pre-Release Parole Reports. It is sufficient to refer briefly to some of that material.

109. In a report of 2 May 2018, it was noted that the defendant had admitted to a long standing attraction to pre-pubescent females. His behaviour in custody was positive; having never received a misconduct charge during his incarceration, and he had availed himself of education courses and employment where available. He was assessed then as having a Medium to High level of risk. Ms Starling recommended against parole until the defendant had participated in a sex offender specific treatment programme, as he continued to display notable distortions in his thinking regarding sexual engagement, his sexuality and sexual preferences. As noted above, parole was refused by the State Parole Authority in May 2018, until such time as an appropriate course had been undertaken.

110. By the time of the preparation of a pre-release report of October 2019, the defendant had completed HISOP. The author noted the emotional support of the defendant from his mother and grandmother, although they were unable to offer post-release accommodation. The author considered the defendant to be motivated to implement a self-management plan in the community. His behaviour in custody had continued to be satisfactory, where he remained classified as a C2 Minimum Security inmate. On this occasion, parole was recommended with conditions attaching to any grant of parole.

111. The State Parole Authority granted the defendant parole on 22 November 2019, with standard and specific conditions including electronic monitoring, and this grant of parole continues until 1 July 2020, when the defendant’s sentence for the index offences expires.

112. A HISOP Treatment Report of 27 June 2019, written prior to the defendant’s completion of the programme noted his progress during treatment, including his acknowledgment of unhelpful thoughts and behaviours, and demonstrated insight into factors from his prior negative lifestyle and sexual offending.

113. On 25 November 2019, psychologist Maria Kostyanaya compiled an addendum to the HISOP Treatment Report, summarising the defendant’s warning signs, self-management plans, release plans, support network and providing recommendations to assist with risk management. The defendant presented with an appropriate level of conceptual understanding, reflected by a “well-articulated self-management plan at the completion of HISOP”. His risk of re-offending was in the “Level Iva” range, where:

“individuals in Level Iva are expected to have roughly twice the rate of recidivism compared to the average individual convicted of a sexually motivated offence”.

114. The defendant had identified risk factors for himself as alcohol abuse, poor coping and problem solving, not managing sexual thoughts about children, low self-esteem, and isolating and unhealthy relationships. He had developed self-management plans aimed to promote a “healthy offence free life”. A number of recommendations were made, consistent with those referred to in the RAR and RMR.

115. In relation to the defendant’s attitude towards his offending behaviour, he appeared to have developed a degree of insight. Initially, in 2014, the defendant appeared to lack insight into the offences he committed against Ms D’s daughter. A CSNSW case note, dated 19 August 2014, recorded that the defendant had told staff that he may have “accidentally touched them [the children] in the wrong place”. In relation to the Facebook messages, through which his crimes were discovered, he said that he had had a female friend who “gets off” on hearing about children being sexually abused.

116. After his plea of guilty, the defendant seemed to demonstrate remorse, and appeared distressed by the offences. In a CSNSW case note of 10 February 2016, the defendant acknowledged his actions against the victims as wrong and inappropriate, and that he took advantage of them. He also admitted to having an attraction to young females, no younger than 7 or 8, and likened it to an addiction, expressing a desire to get help for this behaviour. In CUBIT Progress notes dated 13 November 2018, the defendant described his offending against his sister as a “learned behaviour” due to his own abuse, rather than based upon sexual thoughts about children.

117. Community-based Maintenance Group progress notes detailed the defendant’s attendance at CUBIT programmes and progress in the community after being released to parole. In a case note from City Community Corrections dated 9 April 2020, it was noted that the defendant had accommodation approved, and would be living alone in a rental property. The risk of proximity to child related facilities was regarded as able to be adequately mitigated by electronic monitoring and formal directions.

118. It was noted that the defendant was trying to change his surname.

119. The defendant has not participated in any substance abuse counselling since admission to parole and was assessed as ineligible for participation in the EQUIPS Addiction Program.

The Defendant’s Case

120. The defendant read his own affidavit affirmed on 5 June 2020, and also an affidavit from Priscilla Manio, also affirmed on 5 June 2020. In her affidavit Ms Manio produced Ex PM-1, being a volume of documentary material.

121. In his affidavit the defendant referred to his release from custody on 29 November 2019, and his residence at a COSP. On or about 9 April 2020 the defendant moved from the COSP into privately rented accommodation in an inner Sydney suburb. His lease is for a 12 month period, and the defendant lives alone. He is able to get to Central Station easily, and sees his family on the Central Coast by taking a train from Central.

122. His income is currently the Newstart allowance, in an amount of about $1200 per fortnight, although the defendant says that he has received an offer of work on the Central Coast as a musician in a restaurant. Subject to the operation of a Child Protection Prohibition Order the defendant may also be able to work as a waiter in the same restaurant. He expects to work afternoon to evening shifts, and is prepared to travel by train to his workplace.

123. Although commencing in the position has been delayed due to issues surrounding the COVID-19 pandemic, the defendant is hopeful of taking up his employment soon. He also has plans to qualify as a forklift driver, with a view to improving his employment options.

124. Upon release the defendant began group therapy sessions with FPS as a condition of his parole, but a further consequence of the COVID-19 restrictions is that group sessions ceased earlier this year. Therapy is now conducted on an individual basis, which the defendant finds much more useful. He believes that his contact with the psychologist has assisted him in dealing with problems and frustrations encountered since returning to life in the community. His plan is to continue therapy with a privately retained psychologist, once the services of the FPS cease to be available to him. He says that he is committed to continuing in treatment, whether subject to supervision or an order or not.

125. The defendant is in regular contact with family, who continue to support him. He regrets that his criminal conduct took him away from family, and stresses the importance of family members. It remains his intention to return to the Central Coast to live when he can.

126. He wishes to be able to socialise with family in circumstances where family members are not prevented from drinking alcohol in his presence. Although the defendant recognises the problem he has had with alcohol in the past, he does not believe being in the presence of others who are drinking will cause any difficulties for him.

127. The defendant has maintained or re-established connections with family and friends who live at a distance by using Facebook, and X-Box Live.

128. On parole, the defendant has been required to wear an electronic monitoring device and prepare and abide by a schedule of movements. He finds both restrictive and expensive, in that he often has to have items delivered as he cannot go and collect a purchase unless the movement has been placed on his schedule. He is unable to see how these measures address his “offending pathway”, or aid in restricting his behaviour, since he already has to comply with a Child Protection Prohibition Order (“CPPO”).

129. Ms Manio obtained a number of documentary records which form Ex. PM-1. In the main, the material is derived from CSNSW records, and relate to his progress in custody with respect to sex offender treatment.

130. CUBIT progress notes are generally positive, although the defendant’s participation in treatment sessions was frequently noted to be “passive” or with “minimal contribution”. He completed all tasks required of him, although some, such as the completion of a “sexual urges log” were completed late. Treatment goals were completed as required.

131. Offender Information Management System (“OIMS”) notes document the defendant’s progress in the community since release to parole, including the practical steps taken by him to rent and furnish accommodation for himself. His compliance with the obligations of the CPR, and then an interim CPPO, are also noted. The defendant accepted the restrictions, particularly since he could spend time with his 10 year old half-sister if appropriately supervised. His compliance with scheduling requirements and electronic monitoring is also noted. The notes are current to 15 May 2020.

132. Community-based Maintenance Group Progress Notes are also generally positive. Although “a quiet member” of the group it was felt that the defedant was thoughtful. He expressed occasional frustration with the group format, including his conclusion that others in the group “talked rubbish” (13 February 2020).

133. Group sessions ceased as at 20 March 2020 due to COVID-19 restrictions, with individual sessions thereafter held by telephone. The last entry, for 21 April 2020, saw the defendant living in his new home, subject to CPR reporting and police monitoring, and having been served with an interim CPPO. He was coping well. He had pursued plans to see a private psychologist, and was on a waiting list for that service.

134. The final document in PM-1 is a copy of the interim CPPO to which the defendant is subject. It restricts his contact with children, his attendance at locations associated with children, and imposes other restrictions on him. The matter is next listed for mention on 21 October 2020 before the Downing Centre Local Court.

The Law

135. The law surrounding applications of this nature is well settled, and it is not proposed to consider it here. That has been done in numerous earlier decisions of this Court and the Court of Appeal, including in Lynn v State of New South Wales (2016) NSWLR 636; [2016] NSWCA 57; Kamm v State of New South Wales (Final) [2016] NSWSC 1; State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041; State of NSW v Clarke [2019] NSWSC 411 and numerous others.

136. Suffice it to say that, to make the orders sought by the State, the Court must be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if the orders are not made. At this preliminary stage the Court must have regard to those matters referred to in s 9(3) of the Act and determine whether the matters alleged in the supporting documentation would, if proved, justify the making of an ESO.

The Submissions of the Parties

137. The State contends that the material before the Court readily establishes that such a risk exists, and that the orders sought are necessary. The State points to the defendant’s past history of repeated sexual offences against children, notwithstanding the intervention of the criminal justice system; his self-confessed sexual attraction to children; his inability to control his intrusive sexual thoughts and recognised need for professional assistance; his mental health and alcohol misuse issues; and his assessed risk of sexual recidivism as being well above average.

138. The defendant submits that the Court could not be so satisfied, and contends that the summons should be dismissed with costs. It is argued that the defendant completed sex offender rehabilitation in custody, and has built on the skills he learned there since release to parole. He submits that he has made significant progress since he was convicted of the index offences and, since November 2019, has lived successfully in the community, complying with all requirements of him under parole, the CPR, and the interim CPPO. On that basis, the Court could not conclude he poses the sort of risk the legislation seeks to address.

139. Alternatively, if the Court is of the view the preliminary orders should be made, it is submitted that conditions requiring electronic monitoring and a schedule of movements (conditions 4 – 8 on the schedule of proposed conditions), and non-association with persons consuming alcohol (condition 26) are not necessary to address risk and should not be imposed. The defendant also seeks some modification to condition 24 (non-association with children) such that he could continue to see his young sister, under supervision.

Consideration

140. The defendant is correct in submitting that he has made progress since he committed the offences against Ms D’s children, and that he has conducted himself appropriately in the community since his recent release. He is to be commended for that, and also for complying with parole since release in November 2019.

141. However, whilst those are positive features, they are insufficient to mitigate risk such that an order is not required. Little can be drawn from a period of six or so months of living a law abiding, if closely supervised, life, particularly when, during part of that time, daily life was spent in COVID-19 “lockdown”, with children largely at home and not moving about in public places.

142. I am satisfied that, having regard to the mandatory considerations and the evidence relevant to those considerations it is appropriate to grant the interim relief sought by the State.

143. The defendant’s criminal past is a matter of concern. He began sexually offending against a young child when he was at a young age himself, and that pattern of conduct continued into adulthood. Having been charged with the offences against his sister, the defendant appeared to display some insight, telling his mother he felt ashamed. Notwithstanding that apparent insight, the defendant offended again as an adult, in circumstances where he ignored his obligations as a registered person to do so. I do not accept that a person subject to registration and the supervision of the police in the community would simply “forget” his or her obligations. It is far more likely that the defendant chose to breach his reporting obligations because, as the sentencing judge observed, he would not have been able to move in with Ms D and her three daughters if he had complied with his obligations.

144. That bespeaks persistence in achieving a set of conditions in which he would be able to gain sexual access to young children, in the face of legal obligations that sought to prevent precisely that outcome. It is most unlikely to be a coincidence that the defendant “forgot” to tell the police that he was moving house and changing telephone numbers, when his new address was one at which three young girls lived, and where, in all likelihood, he would never have been permitted to live if he complied with his obligations.

145. The sentencing judge recognised that the defendant had a problem with sexual attraction to children, and that the offences for which he was imprisoned in December 2015 constituted “a worrying trend” in that regard.

146. Of his offences, the defendant has some insight, although that has not always been consistent. With respect to the offences against his sister, the defendant has at various times sought to minimise his conduct and blame his sister, demonstrated remorse, or, quite recently in the context of the HISOP, described it as a “learned behaviour” consequent upon the abuse to which he says that he was subjected.

147. Of the offences against LD and SD, the defendant has described the offences as “accidental” touching, but has also seemingly blamed the victims, attributing to one child sexual awareness and sexual desire for him (in the Facebook chat), and also seemingly blaming the person with whom he “chatted”. More recently, the defendant has accepted his responsibility for his actions.

148. Risk assessment has consistently placed the defendant in a high risk category for sexual recidivism, however expressed, and the defendant has himself likened his attraction to children to an “addiction”.

140. The defendant has a largely unaddressed alcohol problem, that being a feature that enhances risk.

141. The risks and risk management strategies referred to by Ms Pateman and Ms Hodgkinson, and by the HISOP psychologist, all point to a strong need for steps to be taken lest the defendant return to sexually depraved conduct, targeting children. Were that to happen, the consequences would be terrible.

142. Having reached that conclusion, the Court must consider the conditions imposed by the interim order.

143. The only conditions that the defendant disputes are the electronic monitoring and scheduling conditions, the condition prohibiting him from associating with persons drinking alcohol, and a condition which could prevent him from seeing his 10 year old sister.

144. I accept that the electronic monitoring and scheduling requirements are onerous. However, both Ms Pateman and Ms Hodgkinson regarded both tools as necessary: to monitor the defendant’s whereabouts, activities, and compliance with any order; and to assist him in returning to a positive life in the community.

145. I propose to include the relevant conditions, noting that there is a degree of flexibility in the order, such that a supervising officer can consider reduction or suspension of the requirements if risk is considered to be reduced.

146. Since alcohol use is a particular risk factor for the defendant, I also regard the condition requiring him to remain away from persons using alcohol as necessary. The only people with whom the defendant proposes to socialise who may use alcohol are family members. Since relevant family members are only occasional, social, drinkers, it is reasonable to expect that, on those occasions when the defendant is present, family members will refrain from drinking as a gesture of support for him. Again, however, the supervising officer will have the ability to mitigate any too-restrictive conditions, should the defendant do well, and the conditions be unnecessary. They are not set in stone for the duration.

147. As to the defendant having access to his sister, on the basis that he is well supervised, it should be permitted. A condition of this kind would be consistent with the interim CPPO.

orders

157. The Court makes these orders:

1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act:

1. Appointing one qualified psychiatrist and one registered psychologist, as agreed between the parties, to conduct separate psychiatric or psychological examinations (as the case requires) of the defendant and to furnish reports to the Supreme Court on the results of those examinations; and

2. Directing the defendant to attend those examinations.

2. An order:

1. Pursuant to s 10A of the Act, that the defendant be subject to an interim supervision order from 1 July 2020;

2. Pursuant to s 10C(1) of the Act, that the interim supervision order be for a period of 28 days unless renewed on further application by the plaintiff for another period of 28 days or the proceedings are finally determined; and

3. Pursuant to s 11 of the Act, directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule annexed to these reasons.

3. The parties are given liberty to approach the High Risk Offenders List Manager within 48 hours to ascertain a suitable date for hearing of application for final orders;

4. The parties are to provide a draft of Short Minutes of Order setting out a timetable for provision of expert reports to the Court, and for filing and service of evidence and submissions.

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

**********

SCHEDULE OF CONDITIONS OF SUPERVISION

JS

Departmental Supervising Officer (DSO) Corrective Services NSW (CSNSW)

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

1. The defendant must accept the supervision of Corrective Services NSW (CSNSW) until the end of the Order.

2. The defendant must report to the Department Supervising Officer (DSO) or any other person supervising him as directed by the DSO.

3. The defendant must follow all reasonable directions by his DSO or any other person supervising him.

Electronic Monitoring

4. The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him.

Schedule of Movements

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

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

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

8. The defendant must truthfully answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing.

Part B: Accommodation

9. The defendant must live at an address approved by his DSO.

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

11. The defendant must not spend the night anywhere other than his approved address without the approval of his DSO.

12. The defendant must not permit any person under the age of 18 years to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO.

Part C: Place and travel restrictions

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

14. The defendant must surrender any passports held by the defendant to the Commissioner of CSNSW.

15. The defendant must not go to a place if his DSO tells him he cannot go there.

16. Without limiting condition 15 above, the defendant must not go to any:

1. Day-care centres, pre-schools and schools;

2. Amusement parlours, amusement parks and theme parks; and

3. Children's playgrounds, and areas with play equipment provided for the use of children.

Part D: Employment, finance and education

17. If the defendant is unemployed, the defendant must take reasonable steps to make himself available for employment, education, training or participation in a personal development program as directed by the DSO.

18. The defendant must not start any job, volunteer work or educational course without the approval of his DSO.

Part E: Drugs and alcohol

19. The defendant must not possess or use alcohol or illegal drugs, and he must not possess or use prescription medication other than as prescribed.

20. The defendant must submit to testing for drugs and alcohol as directed by his DSO.

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

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

23. The defendant must not attend any place where drugs and alcohol are illegally sold.

Part F: Non-association

Association with Children

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

Associations with Others (not children)

25. The defendant must not associate with people that his DSO tells him not to.

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

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

2. associate with any people who he knows or reasonably should know are
   consuming or under the influence of illegal drugs.

27. If the defendant starts a relationship with someone, he has to tell his DSO who may want to tell the person about his criminal history.

28. 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

29. The defendant must give his DSO a list of all devices, services and applications he uses to communicate with or to access the internet. This includes phones, tablet devices, data storage devices or computers. This includes the details of telephone numbers, service provider account numbers, email addresses or other user names and relevant passwords and codes, used by the defendant and the nature and details of the internet connection, as directed.

30. The DSO (or any other person requested by the DSO) may remotely inspect any internet account used by the defendant, including the defendant's email addresses, social media accounts in monitoring compliance with this order.

31. The defendant must obey any reasonable directions by his DSO about the use of phones, tablet devices, data storage devices, computers and other devices, including any reasonable directions relating to his access to the internet.

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

33. The defendant must provide a list of communication devices and data storage devices in the defendant's possession and advise the DSO of any change to the inventory immediately.

Part H: Search and seizure

34. If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to f below) is necessary:

1. for the safety and welfare of residents or staff or persons present at the defendant's approved address;

2. to monitor the defendant's compliance with this order; or

3. because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence;

then the DSO may direct, and the defendant must submit to:

4. search and inspection of any part of, or anything in, the defendant's approved address;

5. search and inspection of any part of, or anything in, any vehicle owned, hired by or under the control of the defendant;

6. search and inspection of any part of, or anything in, any storage facility,
   including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or

7. search and examination of his person.

35. For the purposes of the above condition:

(h)   a search of the defendant means a garment search or a pat-down search.

(i)   To the extent practicable a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO.

NOTE:

"Garment search" means a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body.

"Pat-down search" means a search of a person where the person's clothed body is touched.

36. During a search carried out pursuant to condition 35 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise:

1. the safety of residents or of staff at the defendant's approved address;

2. the welfare or safety of any member of the public or any other person; or

3. the defendant's compliance with this order;

or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence.

37. The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use.

38. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions 34 to 37 above.

Part I: Personal details and appearance

39. The defendant must not change his name from "JS" or use any other name without the approval of his DSO.

40. The defendant must not use any alias, log-in name, or a name other than "JS" or use any email address other than those known to the DSO under condition 33 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email.

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

42. The defendant must let CSNSW photograph him.

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

Part J: Medical intervention and treatment

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

45. The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend, unless he provides a reasonable excuse to his DSO for his non-attendance.

46. The defendant must take all medications that are prescribed to him by his healthcare practitioners, except so far as his healthcare practitioners advise him that it is not necessary to do so.

47. If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify the DSO within 24 hours of ceasing to take the medication.

48. The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his DSO.

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

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

Decision last updated: 29 June 2020