State of New South Wales v Lidster (Final)

[2020] NSWSC 788

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of New South Wales v Lidster (Final) [2020] NSWSC 788

Hearing dates:

5 June 2020; 22 June 2020

Date of orders:

22 June 2020

Decision date:

22 June 2020

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

(1)(a) Pursuant to s 5B and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant will be subject to an extended supervision order for a period of five years from the date of the order; and
(1)(b) Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant, for the period of the extended supervision order, is to comply with the conditions set out in the Schedule attached.

 

(2) Any reports prepared for the purpose of these proceedings, including reports prepared by court-appointed experts, are permitted to be provided to Corrective Services NSW, any agency involved in the defendant’s supervision, and the defendant’s treating clinician(s) and health care practitioner(s).

 (3) Access to the Court’s file in these proceedings is to be restricted such that access would be permitted to a non-party only with the leave of a judge of the Court, and with prior notice provided to the parties so as to allow them an opportunity to be heard in respect of the application for access.

Catchwords:

CIVIL LAW – high risk offender – extended supervision order – history of violence against woman – murder – strangulation – sad history of mental health issues – appropriate concessions as to statutory prerequisites – inconsistent attempts at rehabilitation – drug and alcohol problems – dispute over conditions – no question of principle

Legislation Cited:

Crimes Act 1900 (NSW), s 23A
Crimes (High Risk Offenders) Act 2006 (NSW), ss 4, 5A, 5B, 5I, 7, 9, 11

Cases Cited:

State of New South Wales v Carr [2020] NSWSC 643
State of New South Wales v Michael Lidster [2020] NSWSC 275
State of New South Wales v Schmidt [2019] NSWSC 764
State of New South Wales v Steven Single [2019] NSWSC 176
State of New South Wales v Stevenson (Final) [2019] NSWSC 778
State of New South Wales v Sturgeon (No. 2) [2019] NSWSC 883
State of New South Wales v Wainwright (Preliminary) [2019] NSWSC 1603

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Michael John Lidster (Defendant)

Representation:

Counsel:
P Aitken (Plaintiff)
M Curry (Defendant)

  Solicitors:
Crown Solicitor’s Office (Plaintiff)
Ly Lawyers (Defendant)

File Number(s):

2019/389936

Publication restriction:

Nil

EX TEMPORE Judgment (REVISED)

1. Michael Lidster was sentenced in November 2003 for the murder of his de-facto partner. He was sentenced to 18 years imprisonment, with a non-parole period of 12 years. He was released to parole on 19 June 2017, but his parole was revoked on 24 February 2019 because he was charged with an offence of stalking/intimidation and for other breaches of his parole order. His sentence expired on 21 March 2020. He has been subject to an Interim Supervision Order (“ISO”) since then and the State of New South Wales now seeks an Extended Supervision Order (“ESO”) for a period of 5 years under s 5B of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). Mr Lidster does not oppose the making of the order and accepts that the statutory pre-requisites for the making of such an order are established. He also concedes that it is open to find to a high degree of probability that he poses an unacceptable risk of committing another serious offence if he is not supervised under such an order. The only dispute that remains between the parties relates to 3 of the 50 conditions sought by the State. Those issues have largely been resolved this morning.

2. On 20 March 2020, Rothman J made the ISO and orders for the appointment of two psychiatrists under s 7(4) of the Act: State of New South Wales v Michael Lidster [2020] NSWSC 275. The ISO was due to expire on 16 May 2020 and was renewed by Bellew J on 15 May 2020 for a period of 28 days.

3. The matter came before me for a final hearing on 5 June 2020, but was adjourned by consent because Mr Lidster had obtained new legal representation. The matter was heard today and I am satisfied that an ESO should be made. Because the ISO expires in a few days, or perhaps a few weeks, it is necessary for this judgment to be relatively short in spite of the importance of the issues at stake and the substantial amount of material tendered on the application. Even though Mr Lidster consents to the orders and makes a number of relevant concessions, it is necessary for the Court to be satisfied that an ESO should be made. There also remains the dispute about three of the conditions.

Background and index offences

4. Mr Lidster has lived a disadvantaged and difficult life. He grew up in Forbes and Griffith and had two sisters and number of step-brothers and step-sisters. He had developmental difficulties in the course of his deprived childhood and was admitted to a psychiatric hospital (Bloomfield) at the age of 17 years. He has had serious substance abuse issues, having commenced taking drugs at as young as 15 years of age. His IQ suggests what is described in some reports as “borderline mental [retardation]” and, over the years, he has been diagnosed with a variety of psychiatric diagnoses, including schizophrenia and brain damage from head injuries. It is not really surprising given those disadvantages that Mr Lidster has developed a long and unenviable criminal record including many offences of violence committed especially in a domestic setting. A report prepared by a psychologist, Dr Parker, in 2019 said that each of his three significant relationships has been marred by violence and that his violent offending was associated with alcohol and other drug use. Mr Lidster has made a number of genuine but unsuccessful attempts to rehabilitate from his alcohol and drug abuse. He has been inconsistent in his compliance with psychiatric treatment regimes, and in particular has not always taken anti-psychotic medication in accordance with medical advice.

Criminal history and history of violence

5. Mr Lidster’s criminal history commenced in the Children’s Court. Between 1990 and 2003 he was convicted of many charges of assault, assault occasioning actual bodily harm, destroying property including by fire, breaching apprehended violence orders and a number of property offences. He was sent to gaol on several occasions during that period. The facts of these charges, or many of them, were included in the evidence tendered on the application. Some of the offences of violence were very serious. This included a number of offences against one of Mr Lidster’s ex-partners, Debra Jeffress. On one occasion he threatened her with a knife and kneed her in the face. On another, he attempted to strangle her. He also breached domestic violence orders, bonds and bail. On the other hand, the subjective material tendered in some of those proceedings was encouraging in that it showed Mr Lidster made some earnest attempts at rehabilitation.

6. By March 2002, Mr Lidster was on a good behaviour bond and serving a suspended sentence for offences of violence and breaching an earlier apprehended violence order. These were current when he murdered Lisa Sara.

The murder offence and the trial Judge’s observations in sentencing

7. Mr Lidster commenced a de facto relationship with Lisa Sara in 2001. On 20 March 2002, while heavily intoxicated, Mr Lidster argued with his partner and then manually strangled her with a power cord from a hairdryer. He fled the scene and was later arrested and found to be driving with a blood alcohol concentration of 0.195. Before his arrest he spoke to his mother on the telephone and tearfully confessed that he had killed Lisa. He was released on bail for the driving offence and confessed to other people that he had killed “two people”, one of whom was Lisa Sara. It seems this confession was exaggerated. There is no suggestion he killed a second person. The police were told of the confession and went to the couple’s home. They found Lisa’s dead body. When arrested Mr Lidster told police that Lisa had “gone to God” and that he had sent her.

8. Mr Lidster was tried for murder before Acting Justice Davidson and a jury. He raised a defence of substantial impairment and there was evidence of his mental state at the time of the killing. There was also evidence of his violent disposition, including the earlier attempted strangulation of Ms Jeffress, which was admitted under common law principles concerning propensity evidence. The jury found Mr Lidster guilty of murder. In his judgment on sentencing, Acting Justice Davidson observed that the defendant’s violent behaviour manifested itself when he was drinking and/or not taking his prescribed anti-psychotic medication. His Honour said there was no dispute at the trial that Mr Lidster suffered a number of underlying conditions including schizophrenia, brain damage and “congenital retardation of intelligence”. However, there was a dispute as to whether that impairment was “substantial” and whether it was such that it should reduce the crime from murder to manslaughter: s 23A(1)(b) of the Crimes Act 1900 (NSW). There was also an issue at the trial relating to the impact that the defendant’s intoxication had on his capacity to form the necessary intention to kill or to inflict grievous bodily harm.

9. His Honour sentenced Mr Lidster on the basis that he formed a murderous intention and that he had a substantial impairment due to his underlying psychiatric conditions. While the impairment was not such that the crime was reduced from murder to manslaughter, it remained relevant to the sentencing process and was a significant factor in mitigation on sentence. His Honour accepted these conditions and that the offender’s long standing alcohol and substance abuse issues reduced his ability to control himself and impacted on the significance of general deterrence. His Honour formed the view that Mr Lidster was a “50:50 chance of rehabilitation” but that his prospects depended on him engaging in programs calculated to control his substance abuse problems, ability to control himself and his tendency to resort to serious violence. His Honour appeared to accept that Mr Lidster would require “close supervision for a long period” after his release – a matter that was raised in one of the reports tendered on sentence.

10. While Davidson AJ acknowledged that a victim might lose consciousness “within a matter of seconds” as a result of ligature strangulation, His Honour found that the act of strangulation “conjures up a degree of callousness of a significant order”. His Honour held the offender’s conduct after the offence included a genuine demonstration of remorse over Lisa’s death.

11. His Honour imposed a sentence of 16 years with a non-parole period of 12 years. He noted the need for strict supervision upon release. The non-parole period expired on 21 March 2014 and the total sentence came to an end on 21 March 2020.

Progress in custody and on parole

12. There is evidence that Mr Lidster undertook various programs while serving that sentence. A treatment report from the Violent Offenders Treatment Program described him as “a keen and interested participant with a genuine desire to learn about and manage his problematic behaviour”. He was said to have gained greater insight into “his triggers” and demonstrated an increased ability to consider the consequences of his actions and impulsivity. On the other hand, his period in custody was not incident free and in 2011 another inmate claimed that Mr Lidster had injured him by grabbing him around the neck, the relevance of which is obvious in the circumstances. He committed nine institutional offences including fighting, possessing an offence weapon and intimidation. There were also incidents of self-harm and a possible suicide attempt when he fell or jumped from a balcony.

13. Mr Lidster was released to parole on 19 June 2017. There are a number of reports tendered alleging that he breached the conditions of his parole. The breaches included a failure to adapt to normal community life, consuming alcohol and drugs, and non-compliance with treatment programs. The accumulation of incidents of non-compliance culminated in the revocation of parole based on a report dated 24 February 2019. The revocation followed an incident of violence directed towards his then housemates. Mr Lidster was off his medication at the time and his behaviour had become erratic and aggressive. On the day of the offence he became abusive to his flat mates and caused property damage. He was yelling things like “get ready to die you cunts”.

14. Mr Lidster was charged with intimidation in relation to this last incident and was sentenced to 14 months imprisonment with a non-parole period of 9 months.

15. Prior to the expiration of that sentence, Rothman J made the ISO to which he remains subject. Mr Lidster was released to parole, subject to the conditions of the ISO, on 21 March 2020.

16. There is a further alleged breach of the ISO currently before the Dubbo Local Court. That matter involves an allegation that contrary to the terms of the ISO and without the permission of his DSO, Mr Lidster allowed a female acquaintance or friend into his home. In the course of hearing this morning, material relevant to that incident was tendered. The State accepts that Mr Lidster is entitled to the presumption of innocence, but it remains a factor relevant to the consideration of the various matters I need to be satisfied of when deciding whether to make an order and the conditions that should be imposed if such an order is made.

17. Mr Lidster volunteered by way of video link that he proposed to plead guilty to that incident, but that remains a matter to be determined in the Dubbo Local Court. I should add that Mr Lidster also indicated that he did not particularly understand the obligations under the order. That may be a matter for the Local Court to take into account either in terms of his intention or in terms of mitigation.

18. As I indicated at the time, whilst I accept that such a breach is clearly relevant, especially given the nature of Mr Lidster's criminal history, in the overall scheme of things I do not consider it to be a matter of great weight. Nor does it change the conclusions that I have already come to before becoming aware of the facts and circumstances surrounding that alleged breach.

Medical reports and records and recent reports relevant to the current assessment of risk of serious offending

19. There are many reports and hospital records before the Court going back for more than 20 years. They establish with sad clarity that Mr Lidster’s mental health conditions are of very long standing. By way of example, he was diagnosed with schizophrenia at Bloomfield Hospital and Wagga Wagga Base Hospital in 1989 and 1990 respectively. He presented at Maitland Hospital on 19 May 1996 in a confused and aggressive state suffering from serious head injuries. He discharged himself against doctor’s orders. There are many reports that have been prepared for his court appearances and for the purpose of assessing whether he should be released on parole.

20. More recently, last year, Risk Assessment and Risk Management Reports were prepared in advance of the application for a supervision order under the Act. Dr Parker assessed Mr Lidster as being “at a high risk of violent recidivism and a medium high risk of general recidivism”. He was of the opinion that Mr Lidster would benefit from being subject to an ISO and management under such an order. He noted Mr Lidster’s genuine attempts at rehabilitation in the past but also noted his failures, relevant risk factors, past recidivism and extensive history of violence. Ms Grabham, in the Risk Management Report, set out the strategies that could be implemented to manage the risks.

21. Dr Kerri Eagle and Dr Jeremy O’Dea provided comprehensive reports for the purpose of today’s hearing. It is unnecessary to review the substance of these reports but the findings and opinions are consistent with those of Dr Parker. The reports, particularly that of Dr Eagle, provide a helpful review of a great deal of the material tendered as Exhibit A. For future applications, if there is such a report, the parties might consider resisting the temptation to tender all of the material at the hearing when they could agree that such a report provides an adequate summary of the mountains of paper available to the parties: cf State of New South Wales v Schmidt [2019] NSWSC 764 at [14]; State of New South Wales v Steven Single [2019] NSWSC 176 at [6]; State of New South Wales v Stevenson (Final) [2019] NSWSC 778 at [19] (RA Hulme J); State of New South Wales v Sturgeon (No. 2) [2019] NSWSC 883 at [31] (Garling J).

22. Dr Eagle was of the opinion that Mr Lidster had a “substantially elevated risk of committing a further serious violence offence if unsupervised in the community”. She described in detail the risk factors or triggers and relied on the history of violence, substance abuse and mental health issues in formulating her opinion. She was of the view that Mr Lidster has a chronic psychotic disorder (either drug induced or schizophrenic), a neurocognitive disorder, a severe substance abuse disorder and also had an emotionally unstable personality disorder. She was of the view that the conditions imposed in the ISO ordered by Rothman J were appropriate and I would infer that she would also agree that the conditions proposed by the State are appropriate. Most critical to Mr Lidster’s prospects of rehabilitation was his attendance at a residential drug rehabilitation programme for 6-9 months and the management of his mental health issues.

23. Dr O’Dea noted the combination of psychiatric conditions was complex and difficult to categorise but he diagnosed substance use disorder, chronic organic brain disorder, mild neurocognitive disorder and personality disorder. He was of the view that that the history of psychosis was likely the consequence of a schizophrenic disorder complicated by substance abuse rather than a drug induced psychosis. Dr O’Dea was circumspect in his assessment of risk noting that such predictions are uncertain and controversial. However, according to Dr O’Dea, the best predictor of future behaviour is past behaviour. On this basis he said:

“Mr Lidster’s risk of engaging in further violent offending behaviours in the community in the long term may be significantly high, particularly if he were to resume alcohol and/or illicit substance use…”

The formal statutory pre-requisites for the making of an order are satisfied

24. Section 5B(a) of the Act provides this Court may make an extended supervision order if the person is serving, or has served, a sentence for a serious offence. A serious offence includes a serious violence offence and that includes an offence that caused the death of another person if there was an intention to harm the other person: ss 4 and 5A of the Act. I am satisfied that s 5B(a) is satisfied.

25. Section 5B(b) requires the person to be a supervised offender within the meaning of s 5I. Section 5I provides a definition of that term, including that the offender is subject to an ISO. That is the case as at today’s date.

26. The third statutory pre-requisite is that the application was made in accordance with s 5I: s 5B(c). That is, relevantly, that the offender was a supervised offender at the time the application was made, that is, when the summons were filed in this Court. When the proceedings were commenced, Mr Lidster was serving a sentence for a serious violence offence. At that time he was serving the balance of the term after his parole was revoked. I am satisfied that this pre-requisite is also satisfied.

Risk assessment under s 5B(d)

27. The critical provision is s 5B(d) which provides that the Court must be “satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order”. This test, which involves a prediction based on the available evidence, has been considered in a number of cases at first instance and in the Court of Appeal. Its content and operation is now well established and it is unnecessary to elaborate further.

27. I am satisfied to a high degree of probability that Mr Lidster poses an unacceptable risk of committing another serious offence if he is not kept under supervision. I have based this assessment on Mr Lidster’s history of violence, his mental health issues, the severity and circumstances of the murder offence, the opinions of the experts, the nature of the risk, including the potential devastating consequences if it manifests itself, and the breaches of parole, including the commission of an offence of violence (or threatened violence) whilst on parole.

An ESO should be made

29. Even so, the making of an ESO is discretionary and s 9(3) of the Act sets out a non-exhaustive list of matters to which the Court must have regard. In relation to the catalogue in s 9(3), I make the following brief observations (I refer here to the sub-paragraphs of that section):

1. I have already set out the opinions of the Court-appointed experts. Their opinions suggest s 5B(d) is satisfied and that Mr Lidster participated co-operatively with the assessments. Their opinion suggests both the community and Mr Lidster would benefit from him being subject to an ESO.

2. I have considered the many other reports included in the evidence. In particular, Dr Parker’s risk assessment report is generally consistent with the opinions of Dr Eagle and Dr O’Dea. The earlier reports are important because they establish the chronic nature of Mr Lidster’s mental health challenges.

3. The statistical material and risk assessment tools, referred to by Dr Eagle, are also consistent with the opinions of the experts. While I “must” take those into account, I am conscious of the criticism of some of these tools: State of New South Wales v Wainwright (Preliminary) [2019] NSWSC 1603 at [40] and [51].

4. (d1)   The risk management report suggests Mr Lidster can practically and reasonably be managed in the community.

5. Over the years, Mr Lidster has engaged in rehabilitation programs and has a history demonstrating a willingness to participate in such programs. His willingness is also demonstrated by his concession that an order should or could be made.

6. (e1)   There are many strategies or options suggested in the most recent reports that might reduce the defendant’s risk of re-offending.

7. (e2)   It is difficult to determine the likelihood that Mr Lidster will comply with his ESO. He has a generally positive, but far from fabulous, history of compliance. There have been some troubling exceptions to this, including most recently his breaches of parole which included illicit drug use, failing to take prescribed medication and becoming involved in an ugly and potentially explosive domestic incident.

8. Mr Lidster did breach parole on a number of occasions and in different ways. However, again, he has generally shown a positive attitude to involvement in programs. He seems initially to have been reasonably compliant. My assessment is that he tries very hard to remain drug free, to comply with directions, but that this is very hard for him to maintain and he relapses into patterns of self-destructive and dangerous behaviour.

9. Is not relevant.

10. Mr Lidster’s criminal history strongly militates in favour of making an ESO. It shows a pattern of violence especially towards woman, when he is intoxicated, when he is not taking his medication and especially when he is involved in dysfunctional relationships.

11. (h1)   The sentencing Judge referred to the need for a lengthy period of supervision on Mr Lidster’s release and the critical need for management of his substance abuse and mental health issues.

12. The general history of violence and the custodial infractions support the proposition that there is a significant risk of further offending.

30. Taking all of those matters into account, and considering the material tendered globally, I am comfortably satisfied that an ESO should be made.

Conditions

Conditions not in dispute

31. The State seeks some 50 conditions. Of these, at the time of written submissions, only three were in dispute (conditions 46, 47 and 49). I confess that I am somewhat troubled that the number and nature of the conditions are such that Mr Lidster will have difficulty with strict compliance. This concern arises from his mild cognitive impairment. I have recently dealt with a case where an offender with a similar disability was repeatedly incarcerated due to minor breaches of his ESO: State of New South Wales v Carr [2020] NSWSC 643. I express the strong recommendation that those administering the order do so with flexibility and understanding. In spite of these concerns, I am satisfied that the conditions proposed by the State, subject to what follows, are necessary and appropriate. The fact that Mr Lidster consents to the conditions, on the advice of highly skilled legal representatives, provides some comfort that he understand the strictures of the regime under which he will live during the currency of the ESO.

32. I turn now to consider the matters in dispute.

Condition 46

33. The State seeks a condition in the following terms:

The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend.

34. The defendant accepts such a condition is appropriate but asks the Court to add the words:

Unless he provides a reasonable excuse to his DSO for non-attendance.

35. I can see no good reason why the condition ought not to have the caveat proposed by the defendant, or something similar. It is not impractical for the DSO to administer such a condition with flexibility. The condition as proposed by the State, if administered or enforced harshly, could result in Mr Lidster being exposed to substantial penalties, including incarceration, in circumstances where he may be sick or have some other important commitment. However, I propose to fashion the condition to ensure Mr Lidster does not take advantage of the flexibility proposed and attends an appointment with the same expert or practitioner a short time after the missed appointment. I raised the proposed amendments with the parties at the hearing this morning. They both provided helpful input and consequently the proposed wording of this condition is essentially by agreement. Condition 46 will be in the following terms:

46.1 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 no later than 2 hours before the scheduled time of the appointment. An assessment of the reasonableness of the excuse is to be made by the DSO.

46.2   If the defendant misses such an appointment or assessment as a result of providing a reasonable excuse under 46.1, he must attend a re-scheduled appointment as organised by the DSO as soon as possible after the missed appointment.

Condition 47

36. The State proposed a condition as follows:

The defendant must take all medications that are prescribed by his healthcare practitioners.

37. The defendant sought the following additional words:

Except so far as his healthcare practitioners advise him that it is not necessary to do so.

38. In view of the importance of medication to the protective purpose of the ISO, I was not inclined to make any variation to the order proposed by the State. Presumably, I thought if the healthcare practitioners are of the view the medication is not necessary, the prescription and treatment program would change. Again, if there are side-effects or other issues with a particular medication, it is expected that the DSO will arrange medical appointments so that the problems can be addressed. It is well known that some medications, especially anti-psychotic medications, have side effects on some patients and one would hope the DSO and doctors would approach the issue with compassion and understanding.

39. However, at the hearing this morning, the State very fairly indicated that it would not oppose the proposed amendment, provided the advice in question was confirmed in writing.

40. Accordingly, condition 47 will be as proposed in an amended summons filed this morning in the following terms:

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

Condition 49

41. The condition proposed by the State is as follows:

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.

42. The defendant seeks that the italicised words be replaced by:

The defendant must also agree to his healthcare practitioners sharing information, including reports on his progress and information he has told them, with his DSO, as considered appropriate by his healthcare practitioners for the defendant’s rehabilitation and risk-mitigation in relation to a serious offence.

43. The State opposed the proposed amendment on a number of bases. In particular it referred to the benefits of “information sharing” to the protective purposes of the legislation. Reliance was placed on the opinion of Dr O’Dea where he said:

“Conditions 49 and 50 involving the sharing of clinical information between health care practitioners and any agency involved in his supervision is unlikely in the circumstances to have a deleterious effect on managing Mr Lidster’s risk and promoting rehabilitation.”

44. The State also relied on sentiments expressed by Dr Eagle, although she was a little more circumspect and actually took into account privacy concerns which I take to be her reference to “Mr Lidster’s autonomy”.

45. The State was also concerned with the formulation of the condition because it placed the onus on potentially very busy health care professionals to make the call as to what information should be shared with the DSO. It was also concerned as to the use of a word like “appropriate” because such a word is liable to have different meanings to different people.

46. Against that, serious issues of privacy are involved. The nature of the orders and conditions in ESOs like the present are such that significant restrictions are placed on a citizen’s freedoms and liberties. Equally, substantial infringements of privacy are inevitably involved. Not all medical consultations that Mr Lidster will attend over the next five years will be relevant to the purposes of this legislation and the likelihood of him committing serious offences.

47. I have no difficulty in allowing a medical practitioner some discretion and trusting that they would understand and give proper effect to what is and what is not appropriate given the protective purpose of the legislation.

48. My conclusion is that the addition proposed by the defendant strikes an appropriate balance between the privacy concerns that arise from this condition and the importance that the DSO remain informed of Mr Lidster’s progress and any relevant medical issues. There is no reason why the DSO needs to know every detail of Mr Lidster’s consultations with his doctors. If a medical issue or something disclosed in a consultation is relevant to the protective purpose for which the condition exists – for example, if the defendant discloses he has missed his medication, or is contemplating going off the medication against medical advice, or if he is exhibiting symptoms that may create risk of serious offending – the medical practitioner will advise the DSO. If the matter is personal, and not relevant to the risk of recidivism, the medical practitioner will not. I see no problem with leaving this with the discretion of the healthcare practitioner. There is nothing preventing the DSO from making inquiries with the doctors if they have any concern.

Conclusion and orders

49. Before making the orders, I wish to express my congratulations and gratitude to the parties and their legal representatives for the way in which they have co-operated with each other in order to facilitate the smooth conduct of these proceedings. I commend Mr Lidster for the sensible approach he has taken by not contesting the making of the order. I wish him well and hope he understands that it is critical that he comply strictly with the condition of the ESO and that the penalties for not doing so are severe. His lawyers might explain to him the circumstances of Mr Carr’s case.

50. For those reasons, I will make the orders sought by the State subject to the amendments to the conditions 46 and 49 as detailed earlier in this judgment.

51. The orders I make are these:

1. An order:

1. pursuant to s 5B and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) that the defendant be subject to an extended supervision order for a period of five years from the date of the order, that is, Monday, 22 June 2020; and

2. pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), that the defendant, for the period of the extended supervision order, comply with the conditions set out in the Schedule attached to these orders.

2. An order permitting that any reports prepared for the purpose of these proceedings, including reports prepared by court appointed experts, be provided to Corrective Services NSW, any agency involved in the defendant’s supervision, and the defendant’s treating clinician(s) and health care practitioner(s).

3. An order restricting access to the Court’s file in these proceedings such that access would be permitted to a non-party only with the leave of a judge of the Court, and with prior notice provided to the parties so as to allow them an opportunity to be heard in respect of the application for access.

Schedule of Conditions of Supervision:

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 advanced, unless the DSO approves a shorter period.

7. The defendant must not deviate from his approved schedule of movements but the deviations will not be a breach of this condition if it occurs:

a. in an emergency; or

b. the deviation is unintentional; or

c. the defendant is able to provide a reasonable explanation for the deviation to his DSO, or any other person supervising him, as soon as it is reasonably practicable.

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 be at his approved address between 10pm and 6am unless other arrangements are approved by his DSO.

11. 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.

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

13. If the defendant is living alone, he must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO.

14. If the defendant is living with any co-residents, he must not invite any person to enter and remain, or to stay overnight, at his approved address without the prior approval of his DSO. If any of his co-residents invite or permit someone (“the visitor”) to enter, remain or to stay overnight at the approved address, the offender must inform his DSO as soon as possible of the identity of the visitor, the purpose of the visit (if known) and the nature of the relationship between himself and the visitor (if any). The defendant must follow all directions from his DSO in relation to the visitor.

Part C: Place and travel restrictions

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

16. The defendant must surrender any passports held by the defendant to the Commissioner.

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

Part D: Employment, finance and education

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

19. The defendant must notify his DSO prior to commencing any job, volunteer work or educational course. The defendant must follow all reasonable directions from his DSO in relation to the same.

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

Part E: Drugs and alcohol

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

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

23. The defendant must not enter any licensed premises without the approval of his DSO.

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

Part F: Non-association

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

26. The defendant must not associate with any people who he knows, or ought to reasonably know, are consuming or under the influence of illegal drugs.

27. The defendant must not associate with any people who he knows, or ought to reasonably know, are consuming or under the influence of alcohol without the prior approval of his DSO.

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

29. The defendant must notify his DSO prior to joining or affiliating with any club or organisation, other than his local gym.

Part G: Weapons

30. The defendant must not possess or use a knife in any public place or any prohibited weapon as defined in s 4 and Schedule 1 of the Weapons Prohibition Act 1998.

Part H: Access to the internet and other electronic communication

31. 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.

32. 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, in monitoring compliance with this order.  

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

34. 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 I: Search and seizure

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

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

b. to monitor the defendant’s compliance with this order; or

c. 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:

d. search and inspection of any part of, or any thing in, the defendant’s approved address;

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

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

g. search and examination of his person.

36. For the purposes of the above condition:

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

b. 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.

37. 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:

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

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

c. 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.

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

39. 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 35 to 38 above.

Part J: Personal details and appearance

40. The defendant must not change his name from “Michael John Lidster” or use any other name without the approval of his DSO.

41. The defendant must not use any alias, log-in name, or a name other than “Michael John Lidster” 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.

42. The defendant must not change his appearance without notifying his DSO in advance.

43. The defendant must let CSNSW photograph him.

44. 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 K: Medical intervention and treatment

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

46.1. 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, no later than 2 hours before the scheduled time of the appointment. An assessment of the reasonableness of the excuse is to be made by the DSO.

46.2. If the defendant misses such an appointment or assessment as a result of providing a reasonable excuse under 46.1, he must attend a re-scheduled appointment as organised by the DSO as soon as possible after the missed appointment.

47. The defendant must take all medications that are prescribed to him by his healthcare practitioners, except where his healthcare practitioners advise him in writing that it is not necessary to do so.

48. 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.

49. The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other. The defendant must also agree to his healthcare practitioners sharing information, including reports on his progress and information he has told them, with his DSO, as considered appropriate by his healthcare practitioners for the defendant’s rehabilitation and risk-mitigation in relation to a serious offence.

50. 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.

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Amendments

23 June 2020 - Amended defendant's solicitor.

Decision last updated: 23 June 2020