State of New South Wales v Keech

[2024] NSWSC 408

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Keech [2024] NSWSC 408

Hearing dates:

3 April 2024

Date of orders:

2 May 2024

Decision date:

02 May 2024

Jurisdiction:

Common Law

Before:

Yehia J

Decision:

(1) Pursuant to s 10A of the Crimes (High Risk Offenders) Act 2006 (NSW) Act, the defendant be subject to an Interim Supervision Order commencing on 26 May 2024.

(2) Pursuant to s 10C(1) of the Act, the Interim Supervision Order is to be for a period of 28 days.

(3) Pursuant to s 11 of the Act, I direct that the defendant, for the period of the Interim Supervision Order, comply with the conditions set out in the Schedule to this judgment.

(4) Pursuant to s 7(4) of the Act:

(a)   I appoint two qualified psychiatrists or two registered psychologists, or a combination of one of each, 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

(b)   I direct the defendant attend those examinations.

Catchwords:

HIGH RISK OFFENDER – interim supervision order – where no issue is taken with the making of the order – the Court is required to be independently satisfied of the statutory preconditions – dispute as to appropriate conditions – balancing the intrusion on a defendant’s liberty and privacy with the safety of the community, which must be given primacy – order made – conditions amended

Legislation Cited:

Child Protection (Offenders Prohibition Orders) Act 2004 (NSW)

Child Protection (Offenders Registration) Act 2000 (NSW), ss 3A, 17

Crimes Act 1900 (NSW), ss 61M, 61N, 547C, 562AB(1)

Crimes Act 1914 (Cth), ss 85ZE

Crimes (High Risk Offenders) Act 2006 (NSW), ss 4A, 5, 5B, 7(4), 9, 10A, 10C, 11

Criminal Code Act 1995 (Cth), s 474.19

Summary Offences Act 1988 (NSW), s 11G

Terrorism (High Risk Offenders) Act 2017 (NSW)

Cases Cited:

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

Lynn v State of New South Wales [2016] NSWCA 57

New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483

New South Wales v Mustapha [2022] NSWSC 87

State of New South Wales v Bugmy [2017] NSWSC 855

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

State of New South Wales v Green (Final) [2013] NSWSC 1003

State of New South Wales v Keech [2015] NSWSC 1898

State of New South Wales v Tina Lee (a pseudonym) (Preliminary) [2023] NSWSC 693

State of NSW v Ali [2010] NSWSC 1045

State of NSW v Donovan [2015] NSWSC 1254

Wilde v The State of New South Wales [2015] NSWCA 28

Category:

Procedural rulings

Parties:

State of New South Wales (Plaintiff)
Christian Paul Keech (Defendant)

Representation:

Counsel:
M Dalla-Pozza (Plaintiff)
B Kennedy (Defendant)

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

File Number(s):

2024/00042416

JUDGMENT

Introduction

1. By summons, dated 30 January 2024, the State of New South Wales (“the plaintiff”) seeks an Interim Supervision Order (“ISO”) against Christian Paul Keech (“the defendant”) pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”).

2. By way of interim and interlocutory relief, the plaintiff seeks:

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

1. Appointing two qualified psychiatrists or two registered psychologists, or a combination of one of each, 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:    

1. Pursuant to s 10A of the Act that the defendant be subject to an ISO commencing on 26 May 2024, upon the expiry of his ISO;

2. Pursuant to s 10C(1) of the Act, that the ISO be for a period of 28 days thereafter; and

3. Pursuant to s 11 of the Act, directing that the defendant, for the period of the ISO, comply with the conditions set out in the Schedule to the summons.

3. By way of final relief, the plaintiff seeks the following orders:

1. An order pursuant to ss 5B and 9(1)(a) of the Act that the defendant be subject to an Extended Supervision Order (“ESO”) for a period of three years from the date of the order; and

2. An order pursuant to s 11 of the Act, directing that the defendant, for the period of the ESO, comply with the conditions set out in Schedule to the summons.

4. By way of ancillary relief, the plaintiff seeks an order that access to the Supreme Court 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 for access.

5. The defendant did not wish to be heard against the making of an ISO, or an order appointing two psychiatrists or psychologists (or a combination of one of each). Notwithstanding that position, it is well understood that the granting of the relief sought requires this Court to be independently satisfied of certain matters before its discretion to make the order sought is enlivened: Attorney-General (NSW) v Tillman [2007] NSWCA 119 at [42]; State of New South Wales v Tina Lee (a pseudonym) (Preliminary) [2023] NSWSC 693 at [16].

6. The defendant opposes a number of the conditions proposed by the plaintiff, and, with respect to some of the conditions, offers an alternative formulation. This was the real issue which arose during the hearing.

Background

7. The plaintiff read the affidavits of Nicholas McArdle, affirmed on 30 January 2024, and Jesse Slattery-McDonald, affirmed on 28 March 2024. The plaintiff also relies upon Exhibit NM-1 and a statement of facts (Exhibit D). Although not a Statement of Agreed Facts, the defendant does not dispute the contents of that document.

8. The defendant read the affidavit of Joseph Harding, affirmed on 22 March 2024 and (over objection) the affidavit of Tracy Reynolds, affirmed on 2 April 2024 (“the Reynolds Affidavit”).

9. In light of the fact that no Statement of Agreed Facts is before the Court and the defendant’s objection to the Reynolds Affidavit, I will only briefly summarise the relevant background. The defendant is a 48 year old man who is currently subject to an ICO which will expire on 26 May 2024 and a Community Corrections Order which will expire on 18 December 2026.

10. The defendant was subject to a five year ESO (“the previous ESO”) imposed by R A Hulme J on 15 December 2015, which expired on 12 March 2024: State of New South Wales v Keech [2015] NSWSC 1898.

11. The defendant was born in Mudgee in December 1975. He is the eldest of three sons to his parents.

12. From a young age, the defendant experienced significant physical and emotional developmental delay. The defendant displayed behavioural problems during childhood that required specialist intervention. He was given hormonal supplements in early adolescence in order to facilitate delayed puberty. He was frequently bullied at school due to his small stature and would later experience rejection from appropriate sexual partners. The defendant reported having feelings of sexual inadequacy, which persisted throughout his life. This led him to associate, and emotionally identify with, younger children whom he felt were more accepting than peers his own age.

13. At the age of 13, the defendant began to smoke marijuana. His drug use escalated in his late teens, and he began using amphetamines and other drugs such as hallucinogens, in addition to daily marijuana use. He became sexually preoccupied with engaging in excessive masturbation and a range of paraphilic activity, becoming mostly fixated on young girls. In his early 20s, the defendant began using heroin, but ceased after the death of a close friend due to an overdose.

14. At 24 years of age, the defendant married and had two children. The marriage lasted three years. The defendant admitted to being abusive to his wife and was charged with offences against her, including sexual assault, threaten to inflict actual bodily harm with a weapon, aggravated break and enter, and commit serious indictable offence whilst armed. He was not convicted of these charges.

15. The defendant has a number of convictions for sexual offences, which are set out below.

16. On 30 November 2000, the defendant was convicted of one count of commit an act of indecency with a person under 16 years of age contrary to (now repealed) s 61N(1) of the Crimes Act 1900 (NSW) (“Crimes Act”), one count of incite a person under 16 years to commit an act of indecency, contrary to (now repealed) s 61N(1) of the Crimes Act, and one count of stalk/intimidate with intent to cause fear (physical or mental harm), contrary to (now repealed) s 562AB(1) of the Crimes Act. The defendant was sentenced to terms of imprisonment for those offences.

17. On 30 November 2000, the defendant was convicted of three counts of use carriage service in offensive manner contrary to (now repealed) s 85ZE(b) of the Crimes Act 1914 (Cth). In October 2000, the defendant telephoned four teenage girls, two of whom were aged 17 years old, and the other two aged 12 and 15 years old. He left sexually explicit voicemail messages including threats of rape. He was sentenced to a term of imprisonment of 6 months.

18. On 26 June 2003, the defendant was convicted of child sexual offender loitering near a public place contrary to s 11G(1)(b) of the Summary Offences Act 1988 (NSW) and failing to comply with reporting locations under the Child Protection Registrar (“CPR”), contrary to s 17(1) of the Child Protection (Offenders Registration) Act 2000 (NSW) (“CPOR Act”). The defendant was sentenced to a suspended sentence, which he breached by failing to report, resulting in a period of 6 months imprisonment.

19. On 1 August 2005, the defendant was convicted of peep or pry contrary to s 547C of the Crimes Act, and child sexual offender loitering in a public place contrary to s 11G(1)(b) of the Summary Offences Act. He was sentenced to terms of imprisonment for each of those offences.

20. The defendant has been convicted of a number of sexual offences, which will be set out below.

21. On 25 November 2007, in a shopping centre, the defendant walked up to a girl aged 12 and felt her buttocks. He was later observed following her around. On 8 May 2008, the defendant was convicted of aggravated indecent assault of a person under 16 years of age contrary to (now repealed) s 61M(1) of the Crimes Act and convicted child sex offender loitering near a public place contrary to s 11G(1)(b) of the Summary Offences Act. For that offending the defendant was sentenced to 17 months imprisonment with a 12 month non-parole period.

22. On 16 April 2010, the defendant was convicted of three counts of aggravated indecent assault of a person under 16 years of age contrary to (now repealed) s 61M(1) of the Crimes Act. On 4 December 2009, the defendant approached a 15 year old girl in a shopping centre. He touched her buttocks on two occasions. On 11 December 2009, again in a shopping centre, the defendant approached a 13 year old girl and also touched her buttocks before walking off and returning to tell her she had “nice tits”. The defendant was sentenced to an effective total term of 2 years imprisonment commencing on 17 December 2010 with a non-parole period concluding on 16 January 2012.

23. On 24 January 2013, the defendant was convicted of use carriage service to transmit child pornography material, contrary to (now repealed) s 474.19(1)(a)(iii) of the Criminal Code Act 1995 (Cth). The offence was committed between about July and August 2009. The defendant transmitted 240 sexually explicit images, 98 of which depicted sexual activity between an adult and a child, to a person in the United States. The defendant also represented that he was a 15 year old girl to the recipient of those images. The defendant was sentenced to imprisonment for 3 years and 4 months.

24. On 4 February 2013, the defendant was convicted of indecent assault against a person under 16 years of age, contrary to (now repealed) s 61M(2) of the Crimes Act (an index offence). The offence was committed on 5 April 2012 while the defendant was on parole. While inside a Big W store, the defendant lightly squeezed the right buttock of a 15 year old girl and then later “brushed up against her buttocks”. On 19 April 2012, he approached and stared at the same girl at Campbelltown Mall. The defendant was sentenced to a term of imprisonment of 16 months commencing on 4 May 2014, with a non-parole period of 10 months expiring on 3 March 2015.

25. On 15 December 2015, R A Hulme J made orders subjecting the defendant to the previous ESO. The defendant has been convicted of breaching the previous ESO 15 times, on seven different occasions. The breaches related to the use of illicit substances, communicating with convicted sex offenders, sending photographs of a birthday card to his mother to provide to his five year old niece, and approaching two children aged 18 months and three years old who were playing in the common area of the unit complex where the defendant resided.

26. The defendant has been taking anti-libidinal medication for approximately nine years. On 6 September 2023, the defendant’s psychologist from Forensic Psychology Services (“FPS”) informed Community Corrections that the defendant had expressed an intention to cease that medication when he is no longer mandated to take it under the conditions of an ESO.

27. Shortly after his release from custody in September 2016, the defendant started to engage regularly with various psychologists from FPS. The defendant has historically attended Narcotics Anonymous (“NA”) meetings but ceased attendance in December 2022.

28. A detailed chronology of the defendant’s history of supervision is contained in the Reynolds Affidavit. The information is extracted from a review of Offender Integrated Management System (“OIMS”) records, provided to the author of the Risk Assessment Report (“RAR”). The chronology is very thorough and assists in an understanding of the history of supervision and the defendant’s multiple breaches of the previous ESO.

The s 9 Requirements

29. The RAR, dated 5 May 2023, was prepared by Ms Gillian Tulloh, who interviewed the defendant on 20 and 21 April 2023. Ms Tulloh assessed the defendant as remaining in the “contemplation” stage of managing his response to deviant stimuli and described him as not apparently being motivated to engage in activities to manage that response. In reaching this opinion, Ms Tulloh specifically referenced the defendant’s most recent conviction for breaching the previous ESO. She characterised the breach as one which involved the defendant “actively moving towards” deviant external stimuli, which evidenced his preparedness to take risks to expose himself to such stimuli.

30. The defendant was assessed using the Level of Service Inventory-Revised (LSI-R) risk assessment tool, which places him into the medium range for general and violent offending. The defendant scored 9 on the STATIC-99R risk assessment instrument placing him in the high risk category, well above average in the category of risk of committing further sexual offences, relative to other adult male sex offenders. This is the highest category of risk described by the STATIC-99R instrument.

31. Ms Tulloh administered the STABLE-2007 measurement tool to the defendant on 21 April 2023. His scores suggested a high density of criminogenic needs relative to other male sex offenders. Areas of particular concern included the defendant’s capacity for relationship stability; poor problem-solving skills; sexual preoccupation; and deviant sexual preference.

32. The combined STABLE-2007 and STATIC-99R results place the defendant at a well above average risk level of sexual re-offending.

33. In formulating the defendant’s risk, Ms Tulloh relevantly noted that the defendant presents with a long and diverse history of sexual offending which began in his teens. She observed that since the defendant’s marriage dissolved in 2003, he has failed to develop any significant intimate relationships as an adult and has, throughout his adult life, been dominated by sexual preoccupation. The defendant demonstrates some insight into his patterns of offending but continues to lack motivation to put strategies into place to keep himself from re-offending and continues to be sexually attracted to children.

34. In terms of options for the future management of the defendant, Ms Tulloh observed that an ESO would allow for continued contact with his treating psychologist and monitoring of the defendant’s social contacts. The supervision would also allow for drug and alcohol testing, electronic monitoring and monitoring of the defendant’s anti-libidinal medication.

35. Ms Tulloh does not consider an order under the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) would provide for a commensurate range of support and intervention.

36. A Risk Management Report (“RMR”) has been prepared by Mr Mick Glover of the Metropolitan Extended Supervision Orders Team, dated 17 May 2023. The RMR confirms that the defendant is attending monthly individual sessions with FPS. The defendant has had infrequent contact with his family as there is some unwillingness on his part to disclose his offending history to his siblings.

37. Mr Glover noted that the defendant, after attending NA meetings, reported that he had stopped using illicit substances in August 2020 and has not returned any positive drug test since then. It was also noted in Mr Glover’s report that an FPS psychologist expressed concerns that the defendant continued to attend these meetings, opining that he did so as an opportunity to befriend vulnerable people in the NA group. The defendant stopped attending the meetings in February 2023. Mr Glover recommended a number of conditions be included in any ESO to mitigate risk.

Should the preliminary orders be made?

38. The defendant is an “offender” for the purpose of s 4A of the Act. He is over 18 years of age (s 4A(a)) and has served a sentence of full-time imprisonment following a conviction for a “serious offence” (s 4A(b)), that offence being a “serious sex offence” (s 5).

39. The defendant is a “supervised offender” under s 5I(2), currently serving a sentence of imprisonment (by way of ICO). There is no issue that these preliminary jurisdictional requirements are met.

40. I turn to consider the “unacceptable risk” test pursuant to s 5B(d) of the Act. The principles governing the Court’s task at preliminary hearing were distilled by Walton J in State of New South Wales v Mustapha [2022] NSWSC 87 (“Mustapha”) at [55]-[91]. Although Mustapha concerned an application under the Terrorism (High Risk Offenders) Act 2017 (NSW), the principles apply equally to these proceedings.

41. I must undertake a forward looking, evaluative exercise, proceeding on the assumption that the asserted facts are proved, to determine whether the plaintiff has discharged its burden of establishing to a high degree of probability that the defendant poses an unacceptable risk of committing a “serious offence”.

42. “Unacceptable risk” is undefined and should be given its ordinary meaning having regard to the context of the objects of the Act. In determining whether the plaintiff has discharged its onus, I have had regard to the expert evidence; the assessment of risk; the nature of the offending; the defendant’s progress and compliance with supervision; breaches of the previous ESO; and the objects of the Act, primary amongst them being the safety of the community.

43. Given the significant restriction placed upon defendants who are subject to any supervision order and the onerous conditions with which they must comply, the degree of risk must be sufficiently grave that the community cannot be kept secure without the order.

44. I am satisfied, to a high degree of probability, that the defendant poses an unacceptable risk of committing another “serious offence” if he is not kept under supervision. In concluding that the plaintiff has discharged its onus, I have had regard to the following factors:

1. The results of the expert assessments indicating the defendant’s risk of sexual re-offending as higher than average when compared to other adult offenders with similar histories and characteristics, as well as the defendant’s participation in those assessments.

2. The rehabilitation programs which the defendant has had the opportunity to participate in.

3. The likelihood of the defendant’s compliance with an ESO and past compliance with the previous ESO, supervision and reporting obligations.

4. The defendant’s prior history of sexual offending.

5. The view of the sentencing court at the time the sentence of imprisonment was imposed.

Appropriate conditions

45. As indicated earlier in this judgment, the real issue between the parties is whether, and to what extent, the conditions proposed by the plaintiff are necessary and/or appropriate. A summary of the principles regarding the imposition of conditions attaching to a supervision order are helpfully summarised in the defendant’s written submissions (at [30]) and are extracted below:

1. Having served their sentence, an offender has a right to personal liberty, although this right is not absolute: State of NSW v Donovan [2015] NSWSC 1254 at [83].

2. In imposing conditions, the Court needs to strike a balance between competing considerations to provide an outcome which is fit and proper: State of NSW v Ali [2010] NSWSC 1045 at [88]; State of New South Wales v Fisk [2013] NSWSC 364 at [96].

3. It is relevant that a breach gives rise to criminal penalty of up to 5 years imprisonment, which supports the position that a proper basis must be shown to warrant the imposition of each condition: Wilde v State of New South Wales [2015] NSWCA 28 at [48].

4. A link to past offending is not necessary, but conditions should address the risk of future offending based on the scope, purpose and objects of the Act.

5. Conditions should focus on mitigating the risk of a “serious offence”, and not on reoffending generally: State of New South Wales v Green (Final) [2013] NSWSC 1003 at [36]-[38].

6. Conditions must not be unjustifiably onerous, punitive, paternalistic, in the “general” public interest, or for the convenience or efficiency of those supervising the offender: State of New South Wales v Bugmy [2017] NSWSC 855 at [89].

7. An identifiable and substantive purpose is required for each condition. Speculation that it will be useful will not suffice: State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36].

8. Conditions imposed ought to be the least intrusive conditions that are still consistent with the objects and purpose of the Act: Lynn v State of New South Wales [2016] NSWCA 57 at [129]-[131].

46. It is with these principles in mind that I proceed to determine the disputed conditions. The defendant’s previous ESO expired on 12 March 2024. He is currently subject to supervision under an ICO. The defendant was also placed on the CPR on 23 May 2003 (as stated in the Police Facts Sheet relating to the defendant’s offending in June 2003). The RAR notes that the defendant is eligible to be considered for a Child Protection Prohibition Order as the defendant is a “registrable person” under the terms of the CPR and s 3A the CPOR Act.

47. I note at the outset that an over-arching submission made on behalf of the defendant is that wherever possible, and to ensure continuity, the conditions attaching to an ISO, should be consistent with the conditions currently in place under the ICO and any reporting obligations.

Conditions 5, 6 and 7

48. Conditions 5, 6 and 7 can be conveniently dealt with together. The defendant opposes the imposition of these conditions, submitting that they are not currently in place under the ICO. Further, the previous breaches were not breaches of a schedule of movements.

49. The plaintiff submitted that on each occasion that the defendant has breached the previous ESO he has regressed to Stage 2 monitoring, with a full suite of conditions.

50. I am not persuaded that these conditions are necessary to mitigate risk. The previous breaches do not relate to anything in the defendant’s schedule of movements. Further, there are a number of other conditions designed to sufficiently monitor the movements of the defendant.

Condition 8

51. The defendant has proposed an alternative wording of condition 8 which mirrors the condition under the ICO. I am not persuaded that the alternative sufficiently deals with the objective of the condition which is to ensure that a Departmental Supervising Officer (“DSO”) is aware of where the defendant is living and any intention to change his living arrangements. I am therefore satisfied that the plaintiff’s proposed condition 8 be imposed.

Conditions 11 and 12

52. The defendant opposes the imposition of conditions 11 and 12, submitting that they are unnecessary in light of the fact that the defendant is subject to electronic monitoring. Furthermore, the evidence establishes that the defendant’s offending occurred in public places. There is no evidence upon which this Court could therefore be satisfied that the conditions are necessary to mitigate risk.

53. In oral submissions, the plaintiff conceded that none of the offending occurred at the defendant’s premises but urged the Court to take an overall cautious approach in order to mitigate risk.

54. I am not persuaded that conditions 11 and 12 as proposed by the plaintiff are necessary or appropriate in the circumstances. The defendant is subject to electronic monitoring and several of the other conditions are directed to, and allow for, monitoring of the defendant. This is a prime example of where the Court has to balance the safety of the community, which must be given primacy, and any unnecessary or overly burdensome intrusion upon the defendant’s liberty and privacy.

Condition 15

55. The defendant proposes an amendment to condition 15 so as to delete 15(g) and 15(h) which together prohibit the defendant from attending pools, playing fields, sporting facilities, concerts, theatres, shows, movies, events, and activities intended for the entertainment of children, without prior approval of a DSO.

56. The defendant submitted that these restrictions are not included in the ICO conditions and are phrased so broadly as to likely lead to confusion and an unjustifiably punitive restriction of the defendant’s movements.

57. The plaintiff submitted that these conditions are tailored to the risk presented by the defendant, having regard to the fact that his offending has occurred in public places.

58. The defendant’s previous sexual offences have all occurred in public places, mostly shopping centres. I am satisfied that condition 15, as proposed by the plaintiff, should attach to the ISO. I accept that the defendant’s attendance at sporting facilities and gyms facilitates his rehabilitation and is an activity that should be encouraged. He is not prohibited from attending a gym as long as he obtains the prior approval of a DSO. It follows that I will impose condition 15 as proposed by the plaintiff.

Condition 16

59. The defendant has proposed an alternative version to the plaintiff’s proposed condition deleting the requirement that the defendant not attend any place used for the sale or display of sexually explicit material or the provision of sexual services or explicit entertainment without the prior approval of a DSO.

60. As I understand the evidence, the defendant has sought and obtained prior approval to attend establishments where sexual services are provided. While it is important to engage in a process of tapering conditions so as to encourage the defendant to make decisions independently and responsibly, the defendant’s sexual preoccupation is relevant to, and informs, his level of risk and the support that should be provided to him.

61. I am satisfied that condition 16 as proposed by the plaintiff should attach to the ISO.

Condition 17 and 18

62. The defendant proposes alternative conditions 17 and 18 for two reasons. Firstly, the alternative versions promote consistency and continuity with the ICO conditions. Secondly, they facilitate the defendant’s autonomy and allow him to take some responsibility for his decision-making.

63. The plaintiff proposes that the conditions include a requirement that the defendant not engage in employment, volunteer work, or educational courses without the prior approval of a DSO.

64. The alternative conditions require the defendant to comply with all reasonable directions from a DSO about the defendant participating in employment, education, training and other related activities. The DSO will be notified of all relevant information relating to any employment. The alternative conditions sufficiently address the risk posed by the defendant, while affording him some autonomy and agency.

65. I am satisfied that the defendant’s proposed alternatives to condition 17 and 18 should attach to the ISO.

Condition 21

66. There is no substantial dispute between the parties. I am satisfied that the defendant’s proposed alternative is appropriate.

Condition 23

67. Condition 23, as proposed by the plaintiff, prohibits the defendant from associating with anyone who he knows, or reasonably should know, is under 18 years of age, 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 take place in the presence of an adult who has been approved in writing by a DSO.

68. The defendant has provided an alternative condition 23 which is designed to prohibit the defendant from associating or making contact with any person he knows, or reasonably should know is under 18, other than incidental contact in a public place or with prior notification to a DSO of the details of the children and the name and contact details of an adult who will supervise the contact and is aware of the defendant’s criminal history.

69. The proposed alternative requires the defendant to notify a DSO of the details of any children with which it is proposed he has contact. This is particularly relevant to the defendant’s continued contact and interaction with his family. Clearly, a DSO, having prior notification of the details of the children that the defendant may come into contact with, affords the DSO with the opportunity to prohibit the visit and/or contact.

70. The proposed alternative condition is also consistent with the ICO condition and the defendant’s reporting obligations pursuant to the CPR. It therefore affords a degree of continuity. For these reasons, I am satisfied that condition 23 as proposed by the defendant, is sufficient to mitigate risk.

71. Furthermore, I am satisfied that the defendant’s additional proposed condition (under condition 23) should be attached to the ISO. The additional condition prohibits the defendant from associating, directly or indirectly, with any person he knows to be convicted sex offender, unless that contact occurs within accommodation arranged for the defendant by a DSO or in the course of treatment at FPS. Should any such person make contact with the defendant, the defendant must not respond and must report that contact to a DSO immediately.

Condition 26

72. Condition 26 as proposed by the plaintiff overlaps to a degree with the restrictions placed upon the defendant’s movements by virtue of condition 16. It is therefore duplicitous and unnecessary and will not attach to the ISO.

Condition 27

73. Condition 27 requires the defendant to agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary. I find this condition wholly unnecessary and counterproductive to the defendant’s rehabilitation. The evidence demonstrates that the defendant is understandably embarrassed about his previous offending and sexual interest in children. He would prefer to disengage from prosocial activities than disclose his criminal history. By way of example, even a limited disclosure to an employer may lead to a breakdown in the employment relationship and make the defendant more likely to disengage by leaving that employment.

74. Disclosing the criminal history of the defendant to another person if the disclosure is “reasonably necessary” will be counterproductive in the defendant’s rehabilitation. Instead, the risk that this condition is intended to ameliorate, is addressed by a DSO simply directing the defendant not attend a particular place, engage in particular employment or have contact with particular people. There are ways to manage risk without the potentially negative impact on rehabilitation that such a condition may have. Accordingly, I am not satisfied condition 27 as proposed by the plaintiff is necessary or appropriate and will not attach to the ISO.

Condition 28

75. Condition 28 requires the defendant to obtain written permission from a DSO prior to joining or affiliating with any clubs or organisations. There is nothing in the evidence that suggests the offender’s sexual offending took place in a club or in connection with his affiliation with an organisation. There is no such condition attaching to the ICO. Furthermore, if a concern arises as to the defendant’s affiliation with a club or organisation, a DSO would direct that the defendant not attend such a club or organisation.

76. There is evidence that the defendant was directed not to continue to engage with the NA group in March 2023 because of concerns that he was using the group as a social space rather than because he needed support to maintain abstinence.

77. I am not persuaded that condition 28 as proposed by the plaintiff should attach to the ISO.

Condition 30

78. Condition 30 prohibits the defendant from using any alias, electronic identity, log in name, the name other than “Christian Keech”, or any email address other than those known to a DSO. The condition also requires the defendant to give a DSO the details of all devices, services, and applications he uses to communicate or to access the internet.

79. The condition is opposed by the defendant. It is submitted that condition 30 is duplicitous in that conditions 29, 31 and 32, do the same work and mitigate the risk.

80. The plaintiff submitted that condition 30 is particularly important because the defendant’s previous offending includes accessing child pornography and using devices to contact child sex offenders.

81. Condition 30 is an important condition given some of the offending conduct engaged in by the defendant in the past. While there is a degree of overlap between conditions 29, 30, 31 and 32, they each have different work to do. Accordingly, condition 30 as proposed by the plaintiff will attach to the ISO.

Conditions 34, 35 and 36

82. It is appropriate to deal with these conditions compendiously. Condition 34 prohibits the defendant from using any coded or encrypted messaging application or service. It is opposed by the defendant who contends that the prohibition is far too broad, extending as it does to applications like WhatsApp.

83. Condition 36 prohibits the defendant from accessing, joining and/or connecting to any social networking service, amongst other things, without the prior approval of a DSO.

84. Condition 35 requires the defendant to provide any code or encryption for any electronic data or any electronic communication if discovered on the defendant’s electronic devices are accounts, as a result of a search or remote inspection. Other conditions, which are not disputed, require the defendant to submit to searches of his home and vehicle and allow a DSO to remotely inspect any internet account used by the defendant, including any internet service provider account email account and social media accounts.

85. Any risk that the defendant will use coded or encrypted messaging to make contact with convicted sex offenders, is sufficiently mitigated by requiring the defendant to provide any code or encryption for an electronic device discovered, and the suite of conditions that allow for physical and remote searches.

86. Conditions 34 and 36 as proposed by the plaintiff are unnecessary and will not attach to the ISO. Condition 35 as proposed by the plaintiff is appropriate and will attach to the ISO.

Condition 39

87. Condition 39 requires the defendant to provide consent for his telephone provider and internet service provider to share information about his accounts with a DSO. The defendant opposes this condition, submitting that the conditions he is currently subject to under the ICO do not include a similar condition.

88. The plaintiff concedes that there is some overlap between conditions 37, 38 and 39. However, insofar as conditions 37 and 38 do not include access to text messaging via telephone records, condition 39 is necessary.

89. Condition 37 (which is agreed) allows for a DSO to remotely inspect any internet account used by the defendant, including any internet service provider account, email accounts and social media accounts. Condition 38 prohibits the defendant from deleting or altering any applications, emails or text messages, internet history or communication history (amongst other electronic records) from his electronic devices without the prior consent of a DSO.

90. Several of the conditions to which there is agreement, already address the risk that the defendant may use a device to communicate with convicted sex offenders. Condition 39 is not necessary to mitigate that risk. Accordingly, condition 39 as proposed by the plaintiff will not attach to the ISO.

Conditions 40 and 41

91. The defendant opposes conditions 40 and 41. The defendant proposes an alternative to condition 40, namely, that the defendant submit to no more than two searches per year.

92. Condition 40 requires the defendant to submit to the search of his residence, any vehicle in which he is travelling, or which is under his effective control, any computer, electronic communication device, or any storage facility, garage, locker or commercial facility, and to the seizure of any object located during the search.

93. Under condition 41 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 that order.

94. These are not conditions of the defendant’s current supervision under the ICO. The defendant submitted that continuity in the terms of the conditions under which the defendant is supervised is a relevant and important factor to his rehabilitation. Further, under condition 37, a DSO can remotely monitor the defendant’s electronic devices.

95. The plaintiff submitted that the searches are required not only to detect any potential breaches of an ESO but to see whether the defendant is engaging in a pattern of behaviour suggestive of increased risk. For example, whether he has an increased volume of pornography in his home, an indicium of an increase in sexual preoccupation.

96. Although a DSO is able to remotely inspect any internet account used by the defendant, condition 40 is not limited to a search of electronic devices. It extends to a search of the defendant’s residence and any vehicle which is under his effective control. In light of the defendant’s prior sexual offending, including accessing child pornography, and the multiple breaches of the previous ESO, I am not persuaded that the searches should be limited to no more than two searches per year.

97. Equally, the Court proceeds upon the the basis that this power will be exercised in a reasonable, as opposed to an oppressive, manner. Frequent and unwarranted searches of the defendant’s residence, vehicle, and storage facilities may constitute unreasonable and oppressive conduct. However, the evidence does not establish that there has been an abuse of this power in the past.

98. Accordingly, I am satisfied the conditions 40 and 41 as proposed by the plaintiff should attach to the ISO.

Condition 42

99. Condition 42 is designed to prohibit the defendant’s access to pornographic, violent and classified material. The condition is opposed on the basis that the defendant is not currently subject to such a condition, pursuant to the ICO.

99. Although there is some overlap between condition 42 and other conditions, either agreed or to be imposed, there is a need to ensure that the defendant not access such material. Monitoring in this regard has the dual purpose of reducing the risk of further breaches and addressing an increase in sexual preoccupation, in a timely fashion.

100. Accordingly, I am satisfied that condition 42 as proposed by the plaintiff should attach to the ISO.

Conditions 43 and 44

102. The defendant opposes a condition that he must not change his name from “Christian Keech” or use any other name without notifying a DSO. Essentially, the defendant submitted that this condition is unnecessary having regard to the proposed alternative condition 44.

103. The proposed alternative condition 44 requires the defendant to notify a DSO of personal information, including employment, details relating to the defendant’s motor vehicle, details relating to his identification documents, and a description of the appearance, location, and size of any tattoos the defendant has.

104. Accepting that the proposed alternative is consistent with the ICO conditions, I am of the view that conditions 43 and 44 are necessary. The requirements placed on the defendant are expressed in simple and clear terms. In the current proposed form, they are less prone to misunderstanding or confusion on the part of the defendant.

105. Accordingly, I am satisfied the condition 43 as proposed by the plaintiff and the defendant’s proposed alternative condition 44 should attach to the ISO.

Conditions 47 and 48

106. Although there is a dispute between the parties as to the wording of these conditions, in my view there is no substantive difference between the plaintiff’s suggested wording and defendant’s proposed alternative wording. I am satisfied that the defendant’s proposed alternative conditions sufficiently address the defendant’s compliance with reasonable directions from a DSO about participating in programs, treatment, interventions and related activities.

107. Accordingly, I am satisfied that the defendant’s proposed alternative condition 47 will attach to the ISO. In light of that condition I am not of the view it is necessary to impose condition 48 either in its original form or as proposed by the defendant.

Conditions 49, 50, 51

108. The defendant opposes a condition that he must take medications that are prescribed to him by his healthcare practitioners only in the manner prescribed. The defendant submitted that this condition is unnecessary given the terms of condition 19, that he not possess or use illicit drugs, or prescription drugs that are not prescribed to him.

109. However, condition 49 is directed to a different purpose. The requirement placed on the defendant, here, is to ensure that he is taking his anti-libidinal medication in the manner prescribed. In light of the importance of the medication to his treatment, I am satisfied that condition 49 as proposed by the plaintiff should attach to the ISO.

110. Condition 50 places a responsibility upon the defendant to immediately notify a DSO if he ceases to take his medication. Condition 51 requires the defendant to agree to his treatment and service providers and healthcare practitioners sharing information. The sharing of information, including reports on his progress in attendance, is an important part of the process of monitoring and assessment of the progress of the defendant. I am also satisfied that condition 50 as proposed by the plaintiff and condition 51 as proposed by the plaintiff should attach to the ISO.

Condition 53

111. Condition 53 requires the defendant to agree to the disclosure of his criminal history to any healthcare professionals that are treating him. The condition’s current form proposed by the plaintiff is far too broad. It would mean that any healthcare professional, for example, a physiotherapist, could receive the defendant’s criminal history. In practice, this is perhaps unlikely to occur. However, the conditions must clearly reflect the objective of the requirement or prohibition. I am satisfied that condition 53 should read as follows:

The defendant must agree to the disclosure of his criminal history to any mental health care professionals and drug and alcohol counsellors who are treating him with respect to his risk of sexual offending.

112. Accordingly, I make the following orders:

1. Pursuant to s 10A of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant be subject to an Interim Supervision Order commencing on 26 May 2024.

2. Pursuant to s 10C(1) of the Act, the Interim Supervision Order is to be for a period of 28 days.

3. Pursuant to s 11 of the Act, I direct that the defendant, for the period of the Interim Supervision Order, comply with the conditions set out in the Schedule to this judgment.

4. Pursuant to s 7(4) of the Act:

1. I appoint two qualified psychiatrists or two registered psychologists, or a combination of one of each, 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. I direct the defendant attend those examinations.   

schedule of conditions of supervision

In these conditions:

“Commissioner” means Commissioner for Corrective Services.

“CSNSW” means Corrective Services New South Wales.

“DSO” means Departmental Supervising Officer.

“NSWPF” means New South Wales Police Force.

PART A: SUPERVISION AND ELECTRONIC MONITORING

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 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.

4. The defendant must wear electronic monitoring equipment as directed by a DSO and must not tamper with, or remove, the equipment.

5. Condition not imposed.

6. Condition not imposed.

7. Condition not imposed.

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

PART B: ACCOMMODATION

1. No longer pressed.

2. 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.

3. Condition not imposed.

4. Condition not imposed.

PART C: PLACE AND TRAVEL RESTRICTIONS

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

2. The defendant must not frequent or visit any place or district a DSO directs him not to frequent or visit on a basis that is reasonably related to his risk profile.

3. Without limiting condition 14 above, the defendant must not go to any of the following without the prior approval of a DSO:

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

   b) Amusement parlours, amusement parks and theme parks;

   c) Cinemas;

   d) Libraries and museums;

   e) Camping grounds and caravan parks;

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

   g) Pools, playing fields and sporting facilities;

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

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

   j) Internet cafes or other business which provide 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 comply with all reasonable directions from a DSO about participating (or not participating) in employment, education, training or other related activities.

2. The defendant must notify a DSO of the following personal information, and must update the DSO within seven days if any of this information changes:

   a) The nature of any job he gets the name of his employer and the location or locations at which he usually works.

PART E: DRUGS AND ALCOHOL

1. The defendant must not possess or use illicit drugs, or prescription drugs that are not prescribed to him.

2. The defendant must comply with any reasonable directions from a DSO about his use of alcohol.

3. The defendant must submit to drug and alcohol testing as required by a DSO.

4. The defendant must comply with all reasonable direction from a DSO about participating in programs, treatment, interventions or other related activities.

PART F: NON-ASSOCIATION

1. The defendant is not to associate or make contact with any person he knows, or ought to reasonably know, is under 18 years other than:

   a) Incidental contact in a public place; or

   b) With prior notification to the DSO of the names and dates of birth of the children; the date, location and circumstances of the contact; and the name and contact details of an adult who will supervise the contact and is aware of the defendant’s criminal history.

Without limiting condition 24, the defendant is not to associate, directly or indirectly, with any person he knows to be a convicted sex offender, unless that contact occurs within accommodation arranged for the defendant by a DSO or in the course of treatment at FPS. Should any such person make contact with the defendant, the defendant must not respond and must report that contact to a DSO immediately.

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

2. Without limiting condition 24, the defendant must not:

   a) Associate with any people who he knows are consuming or under the influence of illegal drugs.

   b) Associate with any person held in custody without prior approval of a DSO.

3. Condition not imposed.

4. Condition not imposed.

5. Condition not imposed.

PART G: ACCESS TO THE INTERNET AND OTHER ELECTRONIC COMMUNICATIONS

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 “Christian Keech” 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 approved for use by a DSO.

4. The defendant must provide the details of telephone numbers, service provider account numbers, email addresses or other usernames 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; and must not use any email addresses or usernames until they have been disclosed to a DSO.

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. Condition not imposed.

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. Condition not imposed.

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 delete or alter any applications, email, text messages, any electronic message, call history, any data, internet search, internet 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. Condition not imposed.

PART H: SEARCH AND SEIZURE

1. The defendant must submit to the search of any time 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 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+, Restricted Category 2 and Restricted Category 1, 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 “Christian Keech” or use any other name without notifying a DSO.

2. The defendant must notify a DSO of the following personal information, and must update the DSO within seven days if any of this information changes:

   a) The nature of any job he gets, the name of his employer and the location or locations at which he usually works;

   b) The make, model, colour and registration number of any motor vehicle owned or hired by, or generally driven by, the defendant;

   c) The details of any identification documents the defendant owns or uses, including but not limited to driver’s licences and passports; and

   d) A description of the appearance, location and size of any tattoos the defendant has.

3. The defendant must allow the DSO to photograph him, clothed, within seven days after any significant changes 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 comply with all reasonable direction from a DSO about participating in programs, treatment, interventions or other related activities.

2. Condition not imposed.

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

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

5. 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.

6. 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.

7. The defendant must agree to the disclosure of his criminal history to any mental health care professionals and drug and alcohol counsellors who are treating him with respect to his risk of sexual offending.

Decision last updated: 02 May 2024