State of New South Wales v Monteiro (aka Lowe) (No 3) (Preliminary)

[2020] NSWSC 350

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Monteiro (aka Lowe) (No 3) (Preliminary) [2020] NSWSC 350

Hearing dates:

23 and 24 March 2020

Date of orders:

03 April 2020

Decision date:

03 April 2020

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

I make the following orders:
(1) Pursuant to s 7(4) of the Act:
(a)   I appoint two qualified psychiatrists, psychologists (or any combination of such persons) to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court.
(b)   I direct that the defendant attend those examinations.
(2)   An order:
(a) pursuant to s 10A of the Act that the defendant be subject to an interim supervision order from 7 April 2020 (“the interim supervision order”); and
(b) pursuant to s 10C(1) of the Act, that the interim supervision order be for a period of 28 days unless renewed on further application by the plaintiff for another period of 28 days or the proceedings are finally determined; and
(c) pursuant to s 11 of the Act, direct that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule to this judgment.
(3)   Access to the Court’s file for any document shall not be granted to a non-party without leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in respect of the application for access.
(4)   Liberty is granted to the parties to approach the High Risk Offenders List Judge to obtain hearing dates for any application for an extension of the interim order or the final hearing of the matter, and to fix a timetable for the filing and serving of evidence and submissions.

Catchwords:

HIGH RISK OFFENDERS — preliminary hearing — application for interim supervision order and order for examination by court-appointed psychiatrists or psychologists — where orders opposed by defendant — conditions — test for imposition

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW), s 8
Crimes (High Risk Offenders) Act 2006 (NSW), ss 5B, 5C, 6, 7, 9, 10A, 10C, 11
Legal Aid Commission Act 1979 (NSW), s 57

Cases Cited:

Attorney General for New South Wales v Tillman [2007] NSWCA 119
Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57
State of New South Wales v Holschier (No 2) [2018] NSWSC 1921
State of New South Wales v Michael Lidster [2020] NSWSC 275
State of New South Wales v Sturgeon [2019] NSWSC 559
State of New South Wales v Wainwright (Preliminary) [2019] NSWSC 1603
State of New South Wales v Wilmott (Preliminary) [2019] NSWSC 776
State of New South Wales v Winters [2007] NSWSC 611

Category:

Procedural and other rulings

Parties:

State of New South Wales (Plaintiff)
Simon Monteiro (aka Simon Lowe) (Defendant)

Representation:

Counsel:
D Kell SC with C McGorey (Plaintiff)

 

Solicitors:
Crown Solicitor’s Office (Plaintiff)

  Defendant (self-represented)

File Number(s):

2020/70194

Publication restriction:

Pursuant to interim non-publication and suppression orders made by the Court on 23 March 2020, under s 10 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), there is to be no publication of material that identifies or is likely to lead to the identification of Ms L.

Judgment

1. By summons filed on 23 August 2019 the plaintiff, the State of New South Wales (“the State”), brings proceedings against the defendant, Simon Monteiro (aka Simon Lowe), pursuant to the Crimes (High Risk Offenders) Act2006 (NSW) (“the Act”).

2. It seeks interlocutory orders, interim orders and final relief in the nature of an extended supervision (“ESO”) order for a period of five years. This is the judgment in respect of the preliminary hearing. The issues I am determining are whether I should make the interlocutory orders appointing two qualified psychiatrists, psychologists or a combination of such persons to conduct separate examinations of the defendant pursuant to s 7(4) of the Act and then whether I should make interim orders in the nature of an interim supervision order (“ISO”) pursuant to s 10A of the Act.

3. The defendant is currently under supervision on parole but his parole period expires on 7 April 2020. The State submits that the defendant should be the subject of an ISO on the expiry of his parole. I am thus dealing with the matter with some urgency.

4. The State is represented by Mr Kell of Senior Counsel with Mr McGorey of Counsel.

5. The defendant appears himself. He opposes any orders being made. He previously had legal representation but his grant of legal aid was terminated the week before the commencement of the hearing.

6. Prior to the commencement of the substantive hearing, the Commissioner for Police sought orders permitting it to withhold production of certain documents on the grounds of public interest immunity. I granted the application. I refer to the separate judgment in respect of that application.

7. That application was listed for hearing on 23 March 2020 with the substantive hearing being listed for 24 March 2020. As 23 March 2020 was the last day on which parties could appear personally before the Court except in exceptional circumstances, I asked the parties whether they could commence the substantive application on the afternoon of 23 March 2020 and they agreed to do so. This enabled the Court to receive the defendant’s documents and then circulate them electronically.

8. The plaintiff relied on a four volume Court Book. The defendant relied on a tender bundle of over 200 pages. The defendant required three of the State’s witnesses for cross-examination. The State cross-examined one of the persons who had provided a form of character reference for the defendant, or reference as to his conduct, who will be identified only as “Ms L”. I have made orders in respect of the non-publication of her identity (see [11] below).

9. At the commencement of the substantive hearing, Mr Kell directed the Court’s attention to s 57 of the Legal Aid Commission Act1979 (NSW). The effect of s 57 is that in circumstances in which a party has appealed against the termination of legal aid and the appeal is bona fide, the Court shall adjourn the proceedings on such terms and conditions as it thinks fit, subject to there being no special circumstances that prevent the Court from doing so. The defendant applied for an adjournment on the basis of s 57 of the Legal Aid Commission Act. Again, I refer to my separate judgment in respect of that application. I consider that there are special circumstances which prevent the Court from adjourning the proceedings at this time.

10. Late in the afternoon on 23 March 2020, the defendant announced that he was suffering from virus-like symptoms and had been during the day. As the hearing on 23 March 2020 was nearly complete and the defendant would be appearing by AVL or phone the next day, I put in place measures to ensure no contact with the defendant. He appeared the next day by phone. He did not make mention of any further problems.

11. During the course of the hearing, I made a non-publication order pursuant to ss 8(1)(c) and (e) of the Court Suppression and Non-publication Orders Act 2010 (NSW) in respect of Ms L.

The relevant legislation

12. The Court may make an order for the interim supervision of an offender, pursuant to s 10A of the Act, if in proceedings for an ESO, it appears to the Court that:

1. the offender’s current custody or supervision will expire before the proceedings are determined; and

2. the matters alleged in the supporting documentation would, if proved, justify the making of an ESO.

13. The defendant’s current supervision will expire before the proceedings are determined.

14. Section 7 of the Act deals with pre-trial procedures. The wording in s 7(4) of the Act is identical to the wording in s 10A(b) of the Act. For the purposes of the orders sought, it is thus necessary to be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. If so satisfied the Court must make the orders set out in ss 7(4)(a) and (b) of the Act. However, if the Court is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, the Court must dismiss the application: s 7(5) of the Act.

15. I should emphasise that, in determining whether any ESO might be made, the safety of the community must be the paramount consideration of the Court: s 9(2) of the Act. At the preliminary stage, I should adopt a precautionary or risk avoidance approach: State of New South Wales v Winters [2007] NSWSC 611 at [7].

16. It is not necessary that the Court be satisfied at the preliminary stage that the matters alleged in the supporting documentation will be proved. The Court is only required to be satisfied that, if those matters are proved, an order would be justified, bearing in mind the elevated standard of proof, namely, a high degree of probability: ss 5B and 5C of the Act; State of New South Wales v Wilmott (Preliminary) [2019] NSWSC 776 (“Wilmott”); State of New South Wales v Sturgeon [2019] NSWSC 559 (“Sturgeon”).

17. It follows, that on the preliminary hearing, the Court is not involved in weighing up the documentation or resolving any conflicts, inconsistencies or uncertainties which appear in the documentation. Nor is it necessary for the Court to predict the ultimate result or to assess the likelihood of the ultimate result: see Sturgeon at [6]; Wilmott at [7].

18. As set out in s 6(3) of the Act, an application for an ESO must be supported by documentation that addresses each of the matters referred to in s 9(3) of the Act and that includes a report prepared by a qualified psychiatrist, psychologist or medical practitioner that assesses the likelihood of the offender committing a serious offence. Further, under s 6(4) of the Act, an application may indicate the kinds of conditions that are considered to be appropriate for inclusion under s 11 in the event that an ESO is made.

19. The supporting documentation must address the matters set out in s 9(3) of the Act. It does not seem necessary for me to repeat all of those matters at this time, but this includes reports received from the persons appointed under s 7(4) of the Act to conduct examinations of the offender and the level of the offender's participation in any such examination. The State seeks an order at this time in respect of the obtaining of such reports.

20. The Court does not, at this preliminary stage, consider any evidence that might be called by the defendant or any evidence that might be called by the defendant at a final hearing because that evidence does not cast light on what is alleged in the supporting documentation: see Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98]. However, I permitted the defendant to cross-examine three of the State’s witnesses on limited topics, particularly relating to the conditions which the State sought and the validity of the psychological tests undertaken.

21. Even cross-examination on that latter topic (that is the validity of the psychological testing) may have limited utility on a preliminary hearing because “the matters alleged in the supporting documentation” when referred to in s 10A(b) of the Act would include expert opinions: State of New South Wales v Michael Lidster [2020] NSWSC 275 at [24].

22. An ESO may be made if the matters set out in ss 5B(a)–(c) of the Act are established and if the Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order: s 5B(d) of the Act.

23. The meaning of “an unacceptable risk” in s 5B(d) and the principles which are to be applied were summarised by Hoeben CJ at CL in State of New South Wales v Holschier(No 2) [2018] NSWSC 1921 at [23]–[24] as follows:

“23.   As to the meaning of the phrase ‘an unacceptable risk’, the case law establishes the following:

(a)   What the court must find to be unacceptable is the ‘risk’ of the offender ‘committing a serious [sex] offence if he or she is not kept under supervision’ (see Lynn v State of New South Wales [2016] NSWCA 57; 91 NSWLR 636 at [51] (Beazley P)).

(b)   The word ‘unacceptable’ – which means, relevantly, ‘so far from a required standard, norm, expectation etc as not to be allowed’ – is one that ‘requires context in which, or parameters against which, the unacceptable risk can be measured’ (see Lynn at [50]).

(c)   While the HRO Act does not specify ‘the precise parameters or standard or norm against which that determination (i.e. the determination whether an offender poses an unacceptable risk) is to be made’, this ‘must be so’ because ‘[a] determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made’ (see Lynn at [51]).

(d) The determination whether an offender poses an unacceptable risk has to be understood in the context of the objects or purposes of the Act; in particular, its purpose in ensuring the safety and protection of the community (see Lynn at [55]).

(e)   The right of an offender to his or her personal liberty at the expiry of a sentence of imprisonment is not relevant to the determination whether an offender poses an unacceptable risk (Lynn at [44], [55]-[58], [128], [148]). Nevertheless, as their Honours held, the intrusion on a subject’s liberty and privacy are undoubtedly matters which the Court may take into account in its discretion to make an ESO.

24.   The ‘unacceptable risk’ inquiry is not discretionary, but it does involve an evaluative balancing exercise. It involves consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate: New South Wales v Simcock [2016] NSWSC 1805 at [71].”

Submissions

24. The State submitted that I would be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO and that the conditions it seeks are appropriate having regard to s 11 of the Act.

25. The State relied on the following evidence:

1. Affidavits of Brett Thompson sworn 3 and 10 March 2020;

2. Affidavit of Kelli Grabham sworn 10 March 2020; and

3. Affidavit of Dr Richard Parker sworn 28 February 2020.

26. Exhibited to these affidavits are three volumes of material to which I have had regard, although I will not refer to them all in this judgment.

27. The defendant’s position is that he has demonstrated, by his conduct since being released, that he is not an unacceptable risk and that the conditions sought are unreasonable, too onerous and should not be imposed.

28. The defendant relied on 215 pages of documents which he maintained were relevant to the issues to be determined on a preliminary hearing. Despite the doubts about the admissibility of some of the documents, the State (appropriately) chose not to object.

29. The documents included:

1. the submissions to the Court of Criminal Appeal in respect of his conviction for the index offence;

2. emails and correspondence in respect of issues arising whilst he has been on parole, including complaints about his conduct, parole breaches and his responses which were largely to the effect that the allegations were false or that persons were making up stories or that there had been no breach;

3. documents relating to his attempts to obtain a helicopter and fixed wing pilot’s licence;

4. documents relating to applications for legal aid whilst he was in custody;

5. documents relating to an application for an AVO on 30 April 2019;

6. copies of text messages passing between the defendant and a woman with whom he says he was in a relationship which he says prove that rape allegations made by the woman against him are false;

7. conflicting statements and statutory declarations from members of his family relating to allegations of intimidation made by his brother against him;

8. written submissions for the purposes of these proceedings;

9. an affidavit of Ms L; and

10. affidavits or statements from family members, work colleagues and, it seems, even his former solicitor attesting to the defendant’s character.

Background facts

30. On 2 January 2008, the defendant committed the index offence being the offence of aggravated sexual intercourse without consent.

31. On 9 April 2009, he was sentenced for the index offence, together with other related offences, to an effective sentence of 12 years and 3 months’ imprisonment with a non-parole period of 7 years and 9 months. That sentence expires on 7 April 2020, being the expiry of the parole period.

32. The defendant is currently 53 years of age.

33. The defendant first commenced receiving psychiatric treatment at the age of seven or eight as a result of aggressive and disruptive behaviour. He was admitted to a mental health facility for young people between March and June 1978. By 1982, he was presenting with significant emotional and interpersonal conflict. He was found to be manipulative and provocative and unable and unwilling to accept responsibility.

34. His first appearance before the Children’s Court was in 1981.

35. In 1987, he was convicted of assault occasional actual bodily harm and sentenced to a two-year good behaviour bond. He faced further assault charges in 1989 and 1991. In 1992, he was convicted of an offence relating to recording a conversation with an investigating Police officer.

36. Prior to the commission of the index offence in 2008, he faced (and was convicted of) a number of charges including threatening a witness, supplying a prohibited drug, using a listening device to unlawfully record a conversation and publishing an unlawfully recorded conversation, as well as intimidation with intent to cause fear, assault occasioning bodily harm and malicious damage. I note that the conviction in respect of the charge of threatening a witness was quashed on appeal on a technical ground although the Court accepted that the defendant’s conduct merited criminal punishment.

37. Further, the defendant entered a plea of guilty to the offence of intimidation with intent to cause fear between July 2001 and January 2002.

38. In 2007, he commenced an intimate relationship with the victim, the subject of the index offence. The defendant was abusive towards the victim and was shown to be possessive, intimidating and demanding. In the remarks on sentence, there is reference to the defendant threatening the victim with an iron bar and threatening her family.

39. On 2 January 2008, the defendant went to the victim’s home uninvited where he hit her, threatened to cut off her hair, pushed her into the bed, continued to assault her, threatened to kill her and had forced penile/vaginal intercourse with her. After that assault the defendant remained in the victim’s unit and then followed her as she walked to a bus stop, abusing her.

40. The Police were called and the sexual assault was reported. He made false allegations that the victim had assaulted him. He subsequently attended her premises and caused considerable damage to her unit which the sentencing judge described as revenge or intimidation.

41. On sentence, the sentencing judge observed:

“There is no suggestion that the prisoner has shown remorse. There is no suggestion really on the medical evidence that he was not fully aware of the consequences of his act. He was not provoked; he was not acting under duress. He has a record of prior convictions. He is not a person of good character. I cannot conclude he is unlikely to re-offend, although I cannot conclude that he is necessarily likely to commit the crime of rape again but he is capable of acting violently towards others in the future. I cannot conclude ultimately he has good prospects of rehabilitation unless there are many changes in his life.”

42. On appeal against sentence, the Court observed that without warning the victim was subject to a brutal, violent and cowardly attack which involved forced penile/vaginal penetration. The attack was accompanied by threats made by the appellant, including a threat of death by suffocation, if she did not comply with his demands.

Compliance issues

43. There is a history of misconduct, threats and intimidation whilst the defendant remained in custody. Having regard to the OIMS notes, some of the misconduct and intimidation must be viewed as severe. Indeed, the NSW Department of Corrective Services has recorded at least 42 disciplinary sanctions against the defendant between 2002 and 2018. The OIMS notes are replete with reports of non-compliance.

44. On 4 February 2018, the defendant was released on parole. Issues arose thereafter. A breach of parole report was completed on 27 February 2018 and revocation of parole was recommended. He was issued a formal warning by Community Corrections on 6 March 2018. There was a further breach of parole report of 21 March 2018. The defendant characterises many of these instances of non-compliance as having been manipulated by those responsible for his supervision.

45. He was returned to custody on 22 March 2018. He remained in custody until 14 December 2018 at which time he was re-released to parole. There was a further breach of parole report on 1 April 2019, although the State Parole Authority declined to revoke parole.

46. He was charged with stalking and intimidation on 9 April 2019 and a provisional AVO was served on 18 April 2019.

47. His parole ends on 7 April 2020.

Report of the Forensic Psychiatrist

48. Dr Kerri Eagle, Forensic Psychiatrist, provided a report dated 3 March 2020.

49. The defendant’s psychiatric presentation and diagnostic formulation is complex. He has been diagnosed with a number of different psychiatric conditions. She concludes that the defendant has a personality disorder which may be described as narcissistic personality disorder and anti-social personality disorder. He has a pervasive pattern of behaviours, including failure to conform to social norms regarding lawful behaviours, deceitfulness, impulsivity, aggression and recklessness; disregard for the safety of self and others; lack of remorse; a grandiose sense of self-importance; the belief he is special; having a sense of entitlement; he is exploitative, lacks empathy and shows arrogant behaviours or attitudes.

50. The defendant has a number of historical risk factors associated with violent reoffending, including a history of problems with violence and other anti-social behaviour. According to Dr Eagle, he appears to have all 10 of the historical risk factors associated with violent reoffending. Dr Eagle considers that the defendant’s risk of future violent and sexual offending is likely to reflect the nature of previous offending. He would fall into a category of offenders at a higher substantially elevated risk of violent and sexual offending.

51. Further, his attitude towards supervision has made the implementation of conditions of supervision challenging. This may reduce the potential effectiveness of supervision in lessening the identified risks. She concluded that an extended supervision order has the potential to materially lessen the risk of reoffending. He would require a broad and comprehensive supervision regime to manage his risk of committing a further serious sexual offence or violence offence. Dr Eagle reviewed the proposed conditions of supervision and suggested they would appear necessary and potentially capable of materially reducing his risk.

52. In cross-examination Dr Eagle was challenged on her use and the validity of the Static-99R assessment and the PCL-R test. She rejected the defendant’s suggestion that the Static-99R risk assessment tool had been widely discredited. She rejected the challenge to her opinion on the basis of the suggestion that many of the personality traits might be attributable to other diagnoses. She rejected the proposition that, in some way, her opinion should be changed on the basis that (the defendant asserts) there is no evidence of any post-release conduct consistent with her opinion. She accepted that the examples (which the defendant put to her as to his behaviour) could be consistent with compassion and empathy but this did not cause her to alter her opinion. She also acknowledged the plaintiff’s participation in pro-social pursuits such as yoga and Buddhism but, again, rejected the proposition that participation in such pursuits should cause her to alter her opinion.

Risk assessment report

53. Dr Richard Parker, a Senior Psychologist with the Serious Offender's Assessment Unit within Corrective Services NSW, prepared a risk assessment report dated 21 November 2019.

54. His views are summarised as follows:

“Mr Monteiro denies this offence and maintains he is the victim of false allegations. His behaviour in custody is generally compliant, until he is challenged or required to do something he believes he should not have to do. In these situations, he will become angry and make threats against staff, often accusing them of being involved in a conspiracy against him. His behaviour under parole supervision has been similar, with numerous attempts to undermine the containment strategies imposed by Community Corrections and escalating anger when he is challenged about this.

He completed the HISOP program, but this appears to have had little, if any, impact upon his behaviours. He failed to engage meaningfully with Forensic Psychology Services and was suspended from that service as a result.

Mr Monteiro is assessed as failing within the highest categories of risk for sexual, violent and domestically violent offending. The dangers are considered most acute within an intimate relationship. His behaviour on parole is suggestive of the idea that he has been actively trying to engage in further relationships and has been trying to conceal those behaviours from Community Corrections staff.

In the event that Mr Monteiro is subject to an Extended Supervision Order (ESO), he would receive intensive supervision and case management by CSNSW. This may include electronic monitoring, the obligation to provide weekly schedules of movement; unannounced visits by supervising staff; assistance finding suitable accommodation; scrutiny of social contacts, employment and leisure activities.”

55. Dr Parker considered that the defendant’s sexual offending appeared to be best conceived as a form of domestic violence. Despite his prior assertions to the contrary, he appeared to be highly motivated to form a successful relationship. Once he has formed an intimate relationship he is likely to control his partner through intimidation and verbal threats but will use violence if necessary.

56. The thrust of the defendant’s cross-examination was that all the witnesses offered opinions and made observations based on incorrect assumptions or without a proper basis for doing so. Both Dr Eagle and Dr Parker disagreed with the defendant’s criticisms of the validity of the Static-99R and Static-99R testings.

57. The defendant sought to rely on what he put was his good behaviour whilst on parole in that he had not offended against women in the intervening time (on his case). He also suggested that his devotion to Buddhism and yoga was quite inconsistent with the type of risk referred to by the doctors.

58. Dr Parker maintained his view that the defendant meets the criteria for a diagnosis of a psychopath. Further, he maintained his view that removing the scheduling increases the risk to the community. The defendant sought to highlight that the State Parole Authority had removed the requirement for scheduling. In some respects, the questioning of the doctors tended to highlight the matters about which the doctors had expressed concern in their reports.

The evidence of Kelli Grabham

59. The State relied on the affidavit of Kelli Grabham affirmed 10 March 2020. She was also cross-examined.

60. Ms Grabham is employed by Corrective Services NSW within the Department of Justice as a High-Risk Offender Applications and Operational Governance Officer in the Extended Supervision Order team. Ms Grabham identifies the processes and procedures of the ESO team and how extended supervision works.

61. She was shown a copy of the proposed supervision conditions as attached to the summons. She identified the importance of many of the conditions proposed by the State. She considered that reporting and monitoring obligations were particularly pertinent and that electronic monitoring is a condition which can be implemented at the discretion of the ESO.

62. Further, electronic monitoring complements scheduling conditions. The purpose of scheduling is to determine whether the offender is compliant with the schedule of movements where electronic monitoring assists in determining whether the offender has deviated from the approved schedule and facilitates a conversation between the ESO team and the offender regarding additional supports that may be needed.

63. Ms Grabham was cross-examined by the defendant as to the unreasonableness of scheduling to the effect that such conditions were impossible to live with. The defendant suggested that he was functioning quite well without the scheduling.

The Defendant’s evidence

64. Generally, the Court does not consider evidence adduced by the defendant at the preliminary stage, as the Court proceeds on the basis of the matters alleged in the supporting documentation. However, there may be evidence from the defendant relevant to the conditions which the State seeks to impose.

65. I have already outlined the type of evidence relied upon by the defendant. Much of the evidence is in the nature of character evidence from family or friends attesting to his behaviour and good character. The expressions used in the affidavits as to his character are all generally consistent. Indeed, there is a remarkable similarity in some of the expressions used.

66. Having said that, as the Court is addressing the issue of risk and making a preliminary determination on the basis that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, it is difficult to see the probative value of references from family and friends.

67. The defendant seeks to challenge allegations made by a woman with whom he had a relationship in April 2018. He seeks to rely on text messages which he says establishes that the allegations could not be true. He refers to the AVO documents and other related documents. Again, it does not seem to me that these documents are relevant to the issues with which the Court is concerned at this stage. On the defendant’s case, they provide a basis for challenges to the facts which, if proved, would justify an ESO.

68. The State only required one of the deponents to the affidavits to be available for cross-examination, being Ms L. Ms L is said to be in a relationship with the defendant at this time. The State referred to Police notes of a conversation with the defendant and Ms L on 19 December 2019 and questioning of the defendant and Ms L when they were stopped by the Police. Ms L’s answers were unsatisfactory in that she declined to answer some questions and gave answers which were inconsistent with the Police notes on other matters. Having said that, the circumstances in which Ms L gave evidence are most unfortunate. She gave evidence over the phone while she was sitting with the defendant. I have some concern as to the origin of her answers.

Section 9(3) of the Act

69. In determining whether or not to make an ESO, the Court must have regard to the matters set out in s 9(3) of the Act, in addition to any other matter it considers relevant. Consideration of the matters referred to in s 9(3)(b) does not arise because the Court has not yet made any appointment for the defendant to be medically examined. Similarly, s 9(3)(g) is not relevant.

70. However, as is evident from this judgment, I have considered the matters referred to under ss 9(3)(c)–(f), (h) and (h)(i).

Conclusion

71. I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.

72. As the defendant’s current supervision will expire before the proceedings are determined, I may make an order for the interim supervision of the defendant and I accept that I should do so in the circumstances outlined.

73. I must make the orders for examination sought under s 7(4) and I thus make the orders sought in paragraphs 1(a) and (b) of the summons, which I will set out at the end of this judgment.

Conditions under s 11

74. An ISO may direct a defendant to comply with such conditions that the Court considers appropriate (s 11(1) of the Act), including directions requiring the defendant to do or not to do the things set out in ss 11(1)(a)–(n) and 11(2).

75. The State sought the imposition of 53 conditions as set out in the schedule attached to the summons. On the conclusion of the hearing, having heard submissions from both parties, I suggested that the State consider whether all the conditions it sought were appropriate and directed that the parties exchange submissions on the particular conditions. In accordance with my suggestion, the State revised its list of conditions, deleting a number which might have been viewed as onerous and too limiting on the defendant’s conduct and movements.

76. In his oral submissions at the conclusion of the hearing, the defendant had indicated an objection to most, although not all of the conditions (without withdrawing his general opposition to the orders sought in the summons).

77. In his final submissions on the conditions, after he had received the State’s amended version, he maintained the position that he had adopted throughout the hearing which was one of rejection of the State’s position and counter-allegations of manipulative, deceitful and misleading conduct by those with whom he has dealt or who have reported on him, including psychologists, guards and community corrections officers, as well as Dr Parker.

78. The defendant maintained his position that he is managing himself as a responsible and completely lawful citizen and that his life trajectory is very positive. Having said that, he submitted that the conditions which this Court should impose, if it is minded to impose any conditions, should be consistent with the existing conditions of parole and he referred to this Court’s decision in the State of New South Wales vWainwright (Preliminary) [2019] NSWSC 1603 (“Wainwright”) as an example of the approach that the Court should adopt.

79. In Wainwright at [83], Payne J referred to the observation of Beazley P in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [129]–[130] (“Lynn”) as follows:

“129.   The second step, not reached until the court is comfortably satisfied that the offender presents a heightened risk of further offending, absent supervision, involves a determination of what conditions may be imposed with the purpose of diminishing the risk to an acceptable level. It is self-evident that this will involve a ‘balancing’ exercise, in the sense that the court will seek to impose the least intrusive conditions consistent with its assessment of the risk and a further assessment as to what kind of conditions are likely to be effective. If the evidence suggested that effective supervision (described as ‘adequate supervision’ in s 5G(1)) would not be provided by an extended supervision order, the State might consider an application for a continuing detention order: none was sought in the present case.

130.   The submission that this step engages a balancing exercise involving possible intrusions on the applicant’s liberty and privacy should be accepted and they will properly be treated as relevant considerations in ensuring that unjustifiable conditions are not imposed.”

80. The defendant emphasised throughout the hearing and even in cross-examination that the State Parole Authority had removed scheduling as a condition of his parole, even though it retained the electronic monitoring condition. One of the defendant’s main points was that this Court should not impose a condition which the State Parole Authority had already removed. I will come back to the issue of scheduling but I do note that the State’s revised conditions remove previously sought conditions such as:

1. former condition 10 which involved a form of curfew on the defendant;

2. part of former condition 13 which required the defendant to promptly notify his DSO of any visitor entering or remaining at the approved address;

3. a number of conditions which may have restricted the defendant’s ability to become employed or work for himself;

4. conditions 25 and 26 which prohibited the defendant from entering licensed premises and required him to attend programs for drug and alcohol rehabilitation;

5. a condition which required the defendant to obtain written approval from the DSO prior to joining or being affiliated with any club or organisation instead, modifying that, so that he must notify the DSO if he joins or affiliates with any such club or organisation;

6. a condition relating to the defendant significantly changing his appearance.

81. Most of the other conditions resemble his conditions of parole.

82. For reasons already set out in this judgment, I am satisfied that the proposed modified conditions are appropriate. The imposition of the conditions is consistent with the balancing exercise identified by Beazley P in Lynn in that they are the least intrusive conditions consistent with the assessment of the risk and a further assessment as to what kind of conditions are likely to be effective.

83. That only leaves the issue of scheduling as proposed in conditions 5, 6, 7 and 8 of the State’s proposed amended conditions. The defendant strongly opposes the imposition of these conditions, again, relying on Wainwright. However, the defendant’s position is far different from that of the defendant in Wainwright. For example in Wainwright, Payne J observed at [85]:

“The defendant has successfully lived in the community since February 2018 without incident and in compliance with his parole conditions. He is employed and in a happy and stable personal relationship.”

84. Further, in Wainwright, the defendant was assessed at quite a different level of risk from this defendant. In Wainwright, Mr Wainwright was assessed at quite a lower level of risk.

85. The Corrective Services reports do suggest a marked reduction of confrontational conduct with the defendant subsequent to the removal of the requirement that he submit schedules. On one view, that merely means that his aggressive and confrontational conduct towards Corrective Services has been reduced as he does not have to submit schedules. However, the parole progress report of 2 November 2009 is also instructive as follows:

“Mr Monteiro’s level of engagement with CSNSW since the removal of his obligation to submit schedules has had a limited improved (namely) less aggressive outbursts however his overall response to supervision remains unchanged. Overall Mr Montero’s attitudes to his offending remains the same in that he continues to deny any criminal behaviour in relation to his index offence. Whilst his response to supervision remains unchanged in that he continues to demonstrate resistance along with challenging and superficial behaviour…”

86. The desirability of the reduction in confrontational behaviour towards those engaged in supervision must be balanced against the benefits of the conditions in terms of minimising the risk. I am conscious that the defendant falls into a high risk category. Further, Dr Eagle opines that without supervision, his risk of sexually and violently re-offending is substantially elevated. Dr Eagle supported the imposition of the original conditions.

87. As noted by Ms Grabham, offenders subject to electronic monitoring are generally required to provide the ESO team with a weekly schedule detailing their proposed daily movements in advance. She says that the requirement to provide notification of movements in advance can be flexibly applied. She says that scheduling is particularly important for the defendant because since being released on parole, the defendant has been detected attending within exclusion zones and on several occasions the defendant’s electronic monitoring device has been detected as having a low battery.

86. Further, I am mindful of Dr Parker’s comments as follows:

“While on parole, Mr Monteiro reacted very poorly to the obligation to adhere to a planned schedule of movement. It appears likely this was because it interfered with his ability to pick up women. This condition has been removed by the State Parole Authority and I consider this has substantially increased the risk of a further offence.”

89. The proposed scheduling conditions require the defendant to provide a weekly plan with the option to change anything with the approval of the DSO in accordance with the conditions 5 and 6. It does not seem to me that such conditions are too onerous, having regard to the need to balance the identified risk.

90. Unlike someone with a mental illness, such as schizophrenia, the defendant presents as a person quite capable of planning and preparing such a schedule and adhering to it if he chooses to. The fact that he may be less confrontational with his supervisors if he is not required to submit such a weekly schedule is not a proper basis for excluding scheduling if it is otherwise appropriate as part of the process in reducing the risk.

91. I am satisfied that the scheduling conditions set out in conditions 5, 6, 7 and 8 should be imposed.

Conclusion and Orders

92. For the foregoing reasons, I make the following orders:

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

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

2. I direct that the defendant attend those examinations.

2. An order:

1. pursuant to s 10A of the Act that the defendant be subject to an interim supervision order from 7 April 2020 (“the interim supervision order”); and

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

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

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

4. Liberty is granted to the parties to approach the High Risk Offenders List Judge to obtain hearing dates for any application for an extension of the interim order or the final hearing of the matter, and to fix a timetable for the filing and serving of evidence and submissions.

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 comply with any reasonable direction given by his DSO or their delegate from CSNSW, for the enforcement and implementation of the ISO/ESO or any condition of the Order. Where a direction may conveniently be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service.

Electronic Monitoring

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

Schedule of Movements

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

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

7.   The defendant must not deviate from his approved schedule of movements except in an emergency, or if there is a reasonable explanation for the deviation which is provided to his DSO or any other person supervising him as soon as possible and in any other case not later than 24 hours after the deviation.

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

Part B: Accommodation

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

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

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

12.   The defendant must not permit any person to stay overnight at his approved address (other than persons already approved or who ordinarily reside at his approved address), without the prior approval of his DSO.

Part C: Place and travel restrictions

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

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

15.   The defendant must comply with any reasonable direction from his DSO not to go to a particular place.

Part D: Employment, finance and education

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

17.   The defendant must not sign any legal instrument that gives the defendant control of any money or assets of another person or organisation, without prior approval of the DSO.

Part E: Drugs and alcohol

18.   The defendant must not:

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

(b)   Possess or use illegal drugs, and he must not possess or use prescription medication other than as prescribed.

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

Part F: Non-association

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

21.   If the defendant starts an intimate relationship with someone, has a sexual relationship with someone or commences a friendship with a woman, he has to tell his DSO within 24 hours the name of that person and truthfully answer any questions that the DSO asks regarding that relationship or friendship. Having assessed the nature and progress of the relationship, the DSO may tell the person about the defendant’s criminal history. The DSO will notify the defendant of the intended disclosure and defendant must permit it.

22.   If the defendant joins or affiliates with any club or organisation, including any internet or mobile based social networking service he is to notify his DSO of any username and password he uses on that site.

Part G: Access to the internet and other electronic communication

23.   The defendant must give his DSO a list of all devices he uses to communicate with or to access the internet as soon as practicable and, in any event, no later than within 24 hours of obtaining the device or joining the service or application. This includes phones, tablet devices, data storage devices or computers (‘the Devices’). This also includes the details of telephone numbers, service provider account numbers, email addresses, login names or other user names and relevant passwords and codes, used by the defendant and the nature and details of the internet connection, as directed.

24.   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 and social media accounts in monitoring compliance with this order.

25.   The defendant must obey any reasonable directions by his DSO about the use of the Devices including but not limited to:

(a)   producing his Devices if requested to do so by the DSO; and

(b)   prohibiting the defendant deleting records on the Devices regarding searches carried out using search engines, websites accessed, text messages sent and received, emails sent and received, and data downloaded.

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

27.   The defendant must advise the DSO of any change to the inventory of Devices listed in condition 23 immediately.

Part H: Search and seizure

28.   If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to f 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.

29.   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.

30.   During a search carried out pursuant to condition 28 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.

31.   The defendant must allow CSNSW to search any Device that he may use. The power to search includes but is not limited to:

(a)   CSNSW inspecting his Device’s logs, text messages sent and received, emails sent and received, images or data downloaded and records regarding searches using search engines and websites accessed;

(b)   CSNSW photographing test or images or screenshots on his Device and downloading data from the Devices using hardware and software that CSNSW determines is necessary to carry out that downloaded;

(c)   CSNSW seizing the Device for the purposes of examination and or preservation of evidence in connection with suspected breaches of interim or extended supervision orders made by the court or any other criminal offence punishable by a maximum of 2 years or more imprisonment.

32.   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 28 to 31 above.

Part I: Personal details and appearance

33.   The defendant must not change his name from “Simon Monteiro” or use any other name without the approval of his DSO.

34.   The defendant must notify the DSO of all log-in names, passwords and email addresses that he uses, other than those provided to the DSO under condition 23 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that require the user to have a user identification name or log-in email.

35.   The defendant must let CSNSW photograph him.

36.   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 within 7 days.

Part J: Medical intervention and treatment

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

38.   The defendant must attend and participate appropriately in 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.

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

40.   If the defendant knowingly ceases to take mental health 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.

41.   The defendant must agree to his mental healthcare practitioners sharing information with the DSO as to the fact of his attendance at appointments and his overall progress in therapy or counselling including the practitioners general opinion as to the development of his insight into offending risk factors and attitudes to reduce his risk of offending.

42.   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.

43.   The defendant must agree to the disclosure of his criminal history to any mental healthcare professionals that are treating him in regards to his offending behaviour.

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Decision last updated: 03 April 2020