State of New South Wales v Monteiro (Final)

[2020] NSWSC 881

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of New South Wales v Monteiro (Final) [2020] NSWSC 881

Hearing dates:

16 and 17 June 2020

Date of orders:

6 July 2020

Decision date:

08 July 2020

Jurisdiction:

Common Law

Before:

Fagan J

Decision:

1 Order that the defendant be subject to extended supervision pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) for 5 years commencing 6 July 2020.

2 Direct that the defendant comply with the 26 conditions in Schedule A to the Extended Supervision Order.

Catchwords:

HIGH RISK OFFENDERS – final hearing – extended supervision order – interim supervision order previously made – assessment of whether defendant poses an unacceptable risk – extended supervision order imposed with conditions

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW)

Court Suppression and Non-Publication Orders Act 2010 (NSW)

Cases Cited:

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

Monteiro v R [2011] NSWCCA 113

Monteiro v R [2014] NSWCCA 277

Category:

Principal judgment

Parties:

State of New South Wales (plaintiff)
Simon Monteiro (defendant)

Representation:

Counsel:
D Kell SC with C McGorey (plaintiff)
S Beckett (defendant)

Solicitors:
Crown Solicitor’s Office (plaintiff)
Younes + Espiner (defendant)

File Number(s):

2020/70194

Publication restriction:

No

Judgment

1. These proceedings were commenced by summons filed on 23 August 2019. By amended summons filed on 15 June 2020 the plaintiff seeks an order for extended supervision of the defendant of 5 years duration under the Crimes (High Risk Offenders) Act 2006 (NSW). After a final hearing on 16 and 17 June 2020 an Extended Supervision Order (“ESO”) was made on 6 July 2020, commencing that day and to remain in force for 5 years. Annexed to the order was a schedule 26 conditions imposed under s 11 of the Act. These are the Court’s reasons for making the order.

2. On 16 June 2020 an interim order was made under the Court Suppression and Non-Publication Orders Act 2010 (NSW) prohibiting publication of the names of various deponents, persons whose names have been mentioned in the evidence and persons who have made complaints of criminal conduct by the defendant. It was directed that those persons be referred to by pseudonym initials in the course of the proceedings on the summons. On 6 July 2020 those orders were made final. They are necessary to protect the privacy of the individuals concerned, who have no involvement in or control over the proceedings and should not be at risk of embarrassment as a result of incidental publicity.

3. Cavanagh J made an order for interim supervision of the defendant on 3 April 2020: State of New South Wales v Monteiro (aka Lowe) (No 3) (Preliminary) [2020] NSWSC 350. His Honour also ordered under s 7(4) of the Act that expert reports be furnished to the Court. Such reports, dated 15 May 2020, were duly provided by forensic psychiatrists Dr Kerri Eagle and Dr Richard Furst. The reports are referred to at length below.

The index offence and the defendant’s status – s 5B(a), (b) and (c)

4. The statutory threshold requirement for making an ESO prescribed by s 5B(a) is clearly established. The relevant serious offence for which the defendant has served a sentence of imprisonment was an aggravated sexual assault without consent contrary to s 61J(1) of the Crimes Act 1900 (NSW) committed on 2 January 2008. The circumstance of aggravation was that in the course of commission of the offence the defendant maliciously inflicted actual bodily harm upon the victim.

5. In December 2008 the defendant was found guilty of that offence by a jury. On 9 April 2009 he was sentenced by Norrish DCJ to imprisonment for 11 years commencing on 8 April 2009 and expiring on 7 April 2020, with a non-parole period of 6 years and 6 months to expire on 7 October 2015. The commencement of the sentence one year after the date it was pronounced is attributable to the fact that at the same time the defendant was sentenced for associated offences of malicious damage and larceny. The sentence for the aggravated sexual intercourse without consent was partly cumulative on the terms of imprisonment for the lesser offences.

6. The defendant has never accepted responsibility for the index offence. He contested it at trial. During the oral delivery of Norrish DCJ’s remarks on sentence the defendant made a number of outbursts. The defendant appealed his conviction, unsuccessfully: Monteiro v R [2011] NSWCCA 113. He appealed the sentence, also unsuccessfully: Monteiro v R [2014] NSWCCA 277.

7. Within the meaning of s 5B(b), the defendant was a supervised offender at the date when the plaintiff commenced these proceedings. He was at that time subject to a parole order. Accordingly, sub-pars (b) and (c) of s 5B are satisfied.

Prerequisite in s 5B(d) and the considerations in s 9(2) and (3)

8. In view of the prerequisites in sub-pars (a), (b) and (c) all being established, the question whether the Court “may” make an extended supervision order therefore turns upon whether sub-par (d) of s 5B is also fulfilled, as follows:

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

9. Section 9(2) requires that the safety of the community must be the Court’s paramount consideration in determining whether an ESO should be made. Section 9(3) specifies a list of matters to which the Court must have regard in making that assessment. The s 9(3) matters are inherently relevant to the antecedent question of unacceptable risk that arises under s 5B(d). My conclusions on each of the relevant considerations are set out in the following headings.

Particulars of the index offence – s 9(3)(h) and (h1)

10. One of the s 9(3) matters, par (h), is the offender’s criminal history and any pattern of offending behaviour. I will commence with consideration of the serious sex offence of 2 January 2008 that attracts the operation of the Act. Paragraph (h1) of s 9(3) requires the Court also to consider the views of the sentencing judge.

11. As found by Norrish DCJ, at about the end of March 2007 the defendant commenced an intimate relationship with the woman who became the victim of the index offence. After a short time they began living together. The defendant’s behaviour in about the second half of 2007 was “possessive and somewhat erratic”. For the duration of the relationship the defendant was physically and verbally abusive and “intimidating and demanding” towards the victim. In about October 2007 there was an incident when he pulled some of the victim’s hair out. In the last months of 2007, when the defendant acted violently towards the victim, he threatened her not to approach police because he would find out. He made a threat to the victim that he would harm her family.

12. By Christmas 2007 the defendant agreed to move out of the parties’ shared accommodation but he did not have the financial means for this and still resided with the victim up to the date of the offence. From Christmas Day 2007 until 2 January 2008 the victim stayed with her family in Goulburn. She invited the defendant to attend their flat when she returned, for him to hand over his keys. She arrived back at the flat with her parents and the defendant was there. After the parents had left the defendant rushed at the victim, pushed his hand against her face to force her into the bedroom, slapped her about the face, forced her onto the bed and pulled her clothes off. He continued to push and slap her face and when she screamed he threatened to suffocate her with a pillow. He had penile-vaginal intercourse with her, briefly and violently, against her resistance. He then rolled off her and “carried on as if nothing had happened”, according to Norrish DCJ.

13. This offence occurred in about the middle of the day or early in the afternoon. The defendant remained with the victim for the rest of the day and overnight. Next morning he followed her as she made her way to work and engaged in running verbal altercations. She arrived at her workplace in a distressed state with visible injuries to her face. She subsequently attended Paddington police station where it transpired that the defendant had earlier made a false report that he had been assaulted by the victim and that she had threatened to invent a charge of rape. This was apparently an attempt to pre-empt the victim.

14. While the victim was being attended to at Paddington Police Station and arrangements were being made to serve an interim apprehended domestic violence order on the defendant, he returned to the victim’s flat and destroyed the interior of it, in a most malicious and vindictive manner. The learned sentencing judge described what police found, upon inspecting the premises, as follows:

Paint, soy sauce and dirt had been strewn on the floors, walls, ceiling and furniture. A fish tank belonging to the victim in the kitchen had been emptied and dead fish were laying on the bottom of the tank. The bathroom in the unit had been filled with books belonging to [the victim] and the shower had been left running. Furniture belonging to her had been upended and slashed. Plants had been removed from their pots. […] Photographs had been removed and torn up, a cream rug she owned had been cut into pieces […]. Dirt was on the floor. Paint had been splashed on the walls and on the blinds and on items of personal property. Oil had been squirted into her DVD and video players. Her mattress had been slashed and had dirt on it. Her pillows had been slashed. A large painting belonging to her hanging over the bed had been cut and there had been [...] damage to other property. The estimate of the damage […] is said to be $14,750.

15. The objective seriousness of the aggravated sexual assault speaks for itself. The accompanying vindictiveness sheds significant light on the defendant’s inability to manage his own anger. Psychiatric reports tendered to the sentencing judge tentatively suggested that the defendant may have suffered from bipolar disorder. Evidence given by Drs Eagle and Furst in the present proceedings satisfy me that those tentative views are not substantiated. Norrish DCJ was not satisfied that there was “evidence of any relevant mental illness that contributed to the commission of the sexual assault matters”. He found that the defendant’s moral culpability was not reduced on that account.

16. His Honour said:

Whilst I do not believe the prisoner is a risk to the community in a general sense, the prisoner’s incapacity or difficulty in dealing with personal relationships and his failure to control his anger does not give confidence that unless he receives assistance he will […] avoid at the least acting violently towards another person with whom he has a relationship.

As will be seen, nothing has changed since that assessment was made. His Honour’s summation of the nature and degree of the risk of re-offending posed by the defendant is now supported by two firm opinions of forensic psychiatrists.

Earlier criminal record and charges undetermined – s 9(3)(h)

17. The defendant was born in December 1966 and was aged 41 at the time of the index offence. He is now 53. He had behavioural problems from the age of seven. At 13 he was suspended from high school for aggressive and disruptive conduct. His few convictions in the Gosford Children’s Court, from age 14, were for stealing and break and enter offences that have no significance for present purposes. Between the ages of 18 and about 25 he was convicted several times, in New South Wales and in Queensland, for relatively minor offences of violence.

18. In 1989 the defendant was charged with having attempted sexual intercourse without consent at Gosford on 12 August of that year. The alleged victim was a young woman whom he had known at high school. The defendant was 22 at the date of the alleged offence. He was committed to stand trial but the Director of Public Prosecutions decided not to proceed at the request of the complainant.

19. In June 2000, at age 33, the defendant met a woman named FD with whom he had sexual intercourse and used cocaine. At the time she was the complainant in relation to a sexual assault charge that was pending in Victoria against one Stephen Millichamp. The defendant recorded film of himself and FD engaged in sexual activity and recorded conversations of them discussing drug use. He then threatened FD that he would upload the film to the internet if she did not withdraw her allegations against Millichamp. The defendant was convicted after trial of threatening a witness contrary to ss 322(a) and 324 of the Crimes Act, supplying a prohibited drug, unlawfully recording a conversation and unlawfully publishing that recording. He was sentenced to imprisonment for 6 years and 6 months with a non-parole period of 3 years and 3 months but his conviction for the most serious offence of threatening a witness was set aside on appeal because that charge could not be maintained in respect of a witness who was to give evidence in another state: R v Lowe [2003] NSWCCA 150. The defendant’s sentences on the other offences were in some respects confirmed and in other respects adjusted, resulting in him serving 16 months from 7 February 2002 until his release on parole on 5 June 2003.

20. In September 2000 the defendant was charged with sexual intercourse without consent. The alleged victim was MZ and the offence was said to have been committed on 31 August 2000. During a dinner date MZ became considerably intoxicated. She alleged that at one point during the evening the defendant intruded into the female toilet where she was talking on her phone and attempted to stop the conversation. He subsequently turned her phone off. She said the defendant then drove her to the Gap, forcibly removed her clothing and had intercourse without her consent. The defendant was tried on this charge in September 2001. Evidence was given by MZ’s sister and mother that she returned home after midnight hysterical and made immediate complaint of the offence. The defendant gave evidence that sexual intercourse had occurred at the place and time alleged but was consensual. The jury was unable to agree. MZ did not wish to give evidence a second time and the Director withdrew the charge.

21. In June 2001, prior to being tried and sentenced for the matters concerning FD, the defendant had formed an intimate relationship with a female partner KG. Soon after, the defendant commenced to reside with KG in her house but then began to argue with her about her prior relationships. She asked him to move out. He persisted in turning up at the house, attended her place of work in an angry state and on 24 December 2001 threw a rock through a window of the house occupied by her former partner. On 7 January 2002 the defendant assaulted KG in her home. The defendant was not dealt with for those matters until August 2004, when he was given a suspended sentence of 12 months for stalking and intimidating KG. On appeal to the District Court he was placed on a two-year bond for the offence of 24 December 2001.

22. In late 2004 and early 2005, when the defendant was aged 38 years, he was in an intimate relationship with JU and lived with her in her unit in Woollahra. In January 2005 JU ended the relationship and told the defendant not to return to the unit but on the 26^th of that month she came home with another male friend, DD, to find that the defendant had gained entry. She later said that the defendant assaulted DD and ejected him from the unit, searched her phone for contact numbers and forcibly detained her. Police attended and the defendant was charged with aggravated break and enter (s 111(2) of the Crimes Act) and take and detain a person for advantage (s 86(1)(b)). An Apprehended Violence Order was issued. The defendant was subsequently charged with numerous breaches of that order, constituted by him persistently phoning JU and threatening her. This was alleged to have occurred during late January 2005. On 6 July 2005 the defendant was committed to the District Court to stand trial on these charges but they were withdrawn at the request of the complainant after she was informed that the defendant would be self-represented.

23. Police intelligence records include numerous other complaints from females alleging that they have had relationships with the defendant, that those relationships have become verbally and physically abusive, that the defendant has behaved in a paranoid and controlling manner and that upon endeavouring to break off contact with the defendant he has subjected them to stalking, harassment, physical confrontation threats and/or sexual assault or other violence. The incidents that are the subject of these reports span all of the years from 1997 (when the defendant was aged 30) up to the present, except for periods when he was in prison.

24. The defendant denies all of these allegations. As earlier mentioned, he also denies the allegations that resulted in his conviction for the index offence committed on 2 January 2008. In respect of the matters that did not proceed to verdict, without having heard those complainants’ evidence, including under cross examination, and without having taken evidence from the defendant in response, the Court cannot make direct use of the complaints and unresolved charges. In those circumstances, the only materiality of these unproved matters is for use in connection with statistical tools that are applied by the forensic psychiatrists in assessing the risk of re-offending.

25. Drs Eagle and Furst gave evidence that research conducted in North America, the United Kingdom and other parts of Europe has shown a correlation between the number of charges against a person for conduct of this nature and the degree of likelihood that the person will commit sexual and/or violent offences in the future. The statistical correlation has been demonstrated irrespective of whether the charges result in conviction. Accordingly, the Static 99R actuarial tool (further discussed below) relies upon the number of charges as one of the factors upon which a score is calculated, giving rise to a prediction of recidivism. This actuarial tool has been widely validated amongst the populations referred to. I accept the evidence of both Dr Furst and Dr Eagle that this statistical model has been found by professionals in their field to be valid for the Australian population and that scores derived by applying the Static 99R tool deserve to be given weight in assessing the risk of re-offending under s 5B(d) and s 9 of the Act.

Dr Eagle’s report and oral evidence – s 9(3)(a) and (d)

26. Dr Eagle interviewed the defendant for one hour and 45 minutes remotely, using a computer-to-computer conferencing system. The doctor recognised the advantages of face-to-face consultations and accepted the limitations of the method of communication used in this case but did not think that this would be likely to impact upon her assessment. Dr Eagle reviewed extensive documentary material including the plaintiff’s affidavits filed in these proceedings and extracts from the multi-folder exhibits to those affidavits, including the defendant’s criminal history; details of the index offence; past psychological and psychiatric assessments dating from as early as 1981, including opinions given by several psychiatrists and psychologists between 2002 and 2019; prison disciplinary records; Corrective Services assessments of risk of re-offending and prospects for management in the community.

27. The Defendant informed Dr Eagle that he had been sexually assaulted at the age of 13 while attending a St John of God school. He said he had used alcohol from the age of 15 until his mid 30s and that he had “dabbled” in cannabis, ecstasy and cocaine but had not used drugs past the age of 40. The doctor made the following observations about his manner at interview:

100   … He engaged in positive impression management throughout the interview and was unable to engage genuinely in the assessment process. He took extraordinary steps to control the process, by recording the interview without any advance notice that he wanted the interview recorded. He was argumentative at times, challenging the questions asked and attempting to imply unintended inferences from them.

103   [The defendant] displayed a pervasive lack of insight. He denied all offending behaviours and any associated wrongdoing. He denied any problems with substance use, mood disturbance, relationships or emotional control. He was unable to provide any understandable explanation as to why he had not only a number of convictions for various offences, but also as to why so many of his relationships had resulted in allegations of sexual misconduct. … [He] was unable to identify any strategies that might enable him to avoid situations where he might be accused of sexual misconduct in future. He appeared unable to reflect on his previous conduct … . He maintained his innocence in relation to the Index Offence.

28. Dr Eagle reached the following conclusions:

180   [The defendant] did not display or describe signs or symptoms of a major mental illness such as a psychotic disorder or major mood disturbance on assessment. He has been described in various clinical and case notes as grandiose, entitled, agitated, hyperactive, pressured and erratic. …

181   [The defendant] has been diagnosed on various occasions with a mood disorder. It is apparent that he has a history of severe emotional dysregulation from early childhood that is manifested in highly problematic behaviours including repeated and severe aggression. He has also been described as pervasively depressed at times and hypomanic at other times. …

182   [The defendant] has been diagnosed with post traumatic stress disorder (PTSD) arising both from earlier experiences in the correctional environment and childhood sexual abuse. …

183   [The defendant] likely has a substance use disorder, in remission in a controlled environment. … [The] use of substances has been implicated as a contributing factor in some of his alleged offending behaviours. He has criminal charges arising from the use of substances. Emotional dysregulation and mood disturbance are exacerbated by the use of substances … .

184   [The defendant] has a severe personality disorder. He has been diagnosed with narcissistic personality disorder and antisocial personality disorder. I am of the view that he would satisfy criteria for those personality disorders on the information available and based on a psychiatric assessment. He has displayed a pervasive pattern of behaviour since childhood including failure to conform to social norms regarding lawful behaviours; deceitfulness (for instance use of aliases); impulsivity; aggression; reckless disregard for the safety of self and others; and lack of remorse with evidence of conduct disorder before the age of 15 years old. He has been repeatedly described and continues to display a grandiose sense of self-importance; belief he is special and/or unique; has a sense of entitlement; behaviours that are interpersonally exploitative; a lack of empathy and shows arrogant haughty behaviours or attitudes.

185   I am of the view that [the defendant] has a high loading of psychopathic traits based on assessment using the PCLR (Psychopathy Checklist Revised). The PCLR is a structured professional judgment tool designed to identify those with a psychopathic personality style or traits. A high score on the PCLR has been associated with a high risk of violent and sexual offending in the research literature.

29. Dr Eagle described the PCLR in oral evidence as “the accepted gold standard for diagnosis of a psychopathic personality disorder that has been robustly assessed and used over a number of decades and … is based on empirical research”. The doctor explained the various elements of the PCLR and said that she had assessed the defendant for each factor on the checklist, using information obtained from him during the consultation and further information derived from her review of the copious records. The score of 30 that Dr Eagle derived on this checklist contributed to the following conclusion:

[The defendant] has a severe personality disorder. He satisfies criteria for a narcissistic personality disorder and antisocial personality disorder. He also appears to have a psychopathic personality style, based on an assessment using the PCLR. Personality disorders are by definition pervasive and persistent.

In oral evidence Dr Eagle said that the defendant’s narcissism is of a severe and malignant form, measured by the nature of the traits of this disorder that he exhibits and the level of dysfunction that the disorder causes.

30. Dr Eagle assessed the defendant using the Static 99R actuarial risk assessment tool that has been developed to assist in the valuation of the risk of sexual recidivism amongst adult male sex offenders. It is a tool that takes into account “unchangeable risk factors associated with sexual offending on the basis of research studies”. The defendant scored 6 on Dr Eagle’s assessment using this tool, which she said placed him “well above average risk”.

31. The doctor also applied the Stable 2007 “structured professional judgment tool”, which is directed to assessing the risk of re-offending on the basis of potential dynamic, or changeable, risk factors. On this test the defendant scored 12 according to Dr Eagle’s assessment. In combination with the Static 99R score this confirmed him in the “well above average risk category”. Yet another structured professional judgment tool, the HCR 20 Version 3, was applied. Dr Eagle said that this “looks at historical and unchangeable risk factors and clinical risk factors and risk management factors … and it also relies on expert judgment in terms of whether the factors apply”. Taking into account the defendant’s range of previous violent behaviour, the doctor’s conclusion from the application of this tool is that:

… he is most likely to engage in threats of violence, fights, reactive and sexual violence in future.

32. After listing the particular characteristics of the defendant that gave rise to his high scores on these tests, Dr Eagle said this:

Most significant of these risk factors would appear to be [the defendant’s] lack of insight or acceptance of responsibility for his previous offending which appears to be an ongoing barrier to his ability to address the factors associated with his risk of future offending.

[The defendant’s] risk of committing [a further] serious offence would appear to be highest in the context of intimate relationships, and involve a sexual offence against an intimate partner. His lack of insight into previous problematic relationships … or willingness to engage in meaningful strategies to acknowledge and address the problems associated with those relationships (involving his own conduct and vulnerabilities, rather than merely attributed to the intimate partner) would be that most significant barrier to his rehabilitation.

33. In oral evidence Dr Eagle said that based upon the defendant’s scores for actuarial static risk factors and those for dynamic risk factors, “he falls squarely in the highest category” of risk of re-offending. She is of the view that the defendant is significantly likely to enter into relationships similar to those that in the past have ended with offences being committed. Dr Eagle gave this evidence:

[The defendant] is capable of engaging in superficial relationships where he can present for a period of time as a charming, pleasant, law-abiding person, it would appear, and especially as this goes back to his personality style. The narcissistic personality style […] has been well established, a person presents a false self to the world and they present a false self as a defence and the false self then needs to be accepted and taken up by others […].

34. Dr Eagle considers that supervision under an ESO would at least be likely to deter the defendant from placing himself in situations that would exacerbate his risk of re-offending. She referred to evidence from North American studies indicating that GPS monitoring of sexual offenders has been associated with reduced rates of sexual offending, likely due to the deterrent effect of this type of surveillance.

35. Dr Eagle did not consider that the defendant’s level of risk will reduce in the short to medium term. She is of the opinion that meaningful change of the entrenched behaviours and psychological vulnerabilities she has identified in the defendant would at least take “many years” and “may not be achieved”. In her report the doctor expressed the view that the defendant’s risk factors are unlikely to change over the next 2-3 years. In oral evidence she was more pessimistic and thought that given his current presentation, lack of insight and refusal genuinely to engage in psychological interventions or even acknowledge them, it is “unlikely that his personality traits would ever change” and unlikely that he would modify them over the next five years.

Dr Furst’s report and oral evidence – s 9(3)(a) and (d)

36. Dr Furst reviewed the same material as Dr Eagle and also interviewed the defendant. He described the interview as follows:

He was anxious/controlling from the outset of the interview, including his insistence on recording the assessment interview, explaining that he has been “misconstrued” and “misquoted” in previous psychological/psychiatric assessments and wanting the recording for his own “evidence”.

He was fairly intense in his manner; however, this appeared to be based on his anxiety to have his account of events and perceptions of past injustices clearly articulated. He was very expensive in this respect. … He was also emotional at times, particularly in relation to discussion about past abuse experiences.

37. Dr Furst diagnosed the defendant as having a substance use disorder, in remission, and, most importantly for present purposes, a personality disorder that he explained as follows:

The available history indicates that [the defendant’s] temperamental problems, emotional problems, behavioural problems and interpersonal difficulties have a long history, commencing in his early childhood and manifesting in childhood conduct disorder, persistent emotional difficulties, anger issues, manipulation of others [children and adults], self-destructive behaviour, and underachievement at school despite a number of interventions and counselling efforts.

His childhood emotional difficulties and temperamental problems have subsequently evolved into an adult personality disorder with mixed features of borderline personality traits, narcissistic personality traits and antisocial personality traits.

38. Dr Furst also applied the Static 99R actuarial risk assessment instrument, which is concerned with static or unchanging risk factors, and derived a score of 7, placing the defendant in the category of “well above average risk of re-offending”. Dr Furst also found that “dynamic and clinical considerations, which add to the utility of the Static 99R instrument in relation to his risk of committing a future serious sex offence, were also highly relevant”. The doctor summarised those further considerations as follows:

A review of [the defendant’s] criminal/relationship history is indicative of a pattern of both violent and sexual offending perpetrated against intimate partners, episodes of property damage and threats during periods of rejection and/or emotional conflict and potentially even in the absence of conflict or heightened emotions. His past offending appears to have been largely driven by a combination of emotional deficits, anger issues, negative attitudes towards women, a need for power, control and possessiveness in his intimate relationships and revenge themes. Those tendencies, traits and manifestations, which largely stem from his personality disorder, are likely to resurface in future relationships with women … .

[Another factor] of significant concern in relation to his past offending and risk of future offending is his pathological level of denial in relation to virtually all previous offences, including a pattern of taking matters to trial, appealing against convictions and severity of sentence, and ongoing denial of offending such as the denial that has persisted over the last 12 years in relation to [the index offence of January 2008].

In my opinion, his pathological level of denial, coupled with a pattern of continual rejection of authority figures and his personality disorder, is a far more ominous scenario that a sex offender who lacks insight into offending and/or has cognitive distortions facilitating future offending, the latter being much more amenable to therapy/interventions.

Furthermore the manipulative and threatening tendencies of [the defendant] towards his victims and his contempt for the criminal justice system, the courts, Corrective Services, psychiatrists and psychologists indicates he is completely lacking in any motivation to address his offending behaviour or underlying emotional deficits.

39. Dr Furst identified as an additional risk factor the defendant’s capacity to ingratiate himself with other people, especially females. He said that the defendant had not in the past “encountered much difficulty in forming intimate relationships” and that he was likely to continue doing so in the future. Dr Furst said:

[His] risk of re-offending, which is much higher than the average sex offender coming before the Court, would be greatest towards future intimate partners, but is not restricted to future intimate partners, as any woman he meets and spends time with is potentially at risk.

40. In Dr Furst’s opinion, without formal supervision in the community, the defendant will:

likely pose an unacceptable risk of sexual or physical violence of a serious nature to his current and/or future female partners, especially in the form of control of his partners, threats, intimidation and increasing risk when [he] is rejected and/or perceives rejection.

41. The doctor made the following observations about the utility of an ESO and the difficulties likely to be encountered in enforcing it:

The role of the ESO, if granted, would be to monitor [the defendant’s] movements and monitor his future relationships, with the hope that such monitoring and supervision measures would fully inform his current and future partners of his offending and risk profile … .

[The defendant] is likely to resist some or all of the proposed conditions of the ESO, as he is a highly selfish and entitled individual with no insight and no respect for authority … .

42. Dr Furst said that the defendant’s risk factors are unlikely to change or fluctuate to any significant extent over the next five years. He is of the view that the defendant is “essentially … ‘untreatable’ in a psychological sense”. The doctor said that the defendant’s “prospects of being successfully rehabilitated are so poor as to be classified as dismal”. This was elaborated during the doctor’s oral evidence, by reference to psychological reports dating from the defendant’s early teens, as follows:

He would be making friends and then punishing them and hurting them and being nasty towards people he befriended. He’s doing the same thing now, 40 years later. I have no clinical basis to suggest that will change.

[The] literature in terms of treatment of narcissistic personality [and antisocial] personality is not very encouraging at all, I can’t think of any studies that show good response of either personality type to psychological treatment. … I’ve [quoted] his prospects of being rehabilitated as dismal and I’d say there’s almost no chance, but a very slight chance with some encouragement, with some improvement, close to nothing.

I don’t think the treatment [namely, face-to-face counselling and endeavouring to stimulate insight] will work to change his personality at all. That’s the evidence of that therapy, it doesn’t help.

43. The doctor said that psychological therapy in the nature of counselling would only have a prospect of correcting a personality disorder in the following circumstances:

[If the subject had] some inherent motivation to want to change, rather than believing there’s nothing wrong with them at all and the world is the problem around them which is what we have here. A reverse situation, he wants everyone to go away and leave him alone, rather than engage in therapy to address himself.

Results of other qualified assessments – s 9(3)(c)

44. The Court is required to have regard to the results of any assessments of the defendant that have been prepared by professionals other than the experts appointed under s 7(4). Relevant assessments are those that have considered “the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment”: s9(3)(c)

45. The defendant refused entirely to cooperate in efforts to assess him that were made by Dr Parker, a Senior Specialist Psychologist within the Serious Offenders Assessment Unit of Corrective Services. On 9 October 2019 Dr Parker wrote to the defendant while he was on parole to advise that the Commissioner of Corrective Services had requested a risk assessment report in anticipation of an application being made for an ESO. The defendant’s immediate reply, by email, included the following:

Any questions are to be directed to my lawyer. … I indicate to you that there are zero grounds for this bullshit application, it is an act of spitefulness at the behest of an extremely corrupt, manipulative and incompetent commissioner, Peter Severin.

[…] [It] is simply a spiteful last throw of the dice by that piece of shit Severin and it’s [sic] goons, no doubt you will turn [out] to be one of those, disguised as an “independent” professional. This will go nowhere and I look forward to reading detailed statements on record to the media outside the Supreme Court and cross-examining yourself et al via my competent QC […]. […] If you had a brain, you would stay under your rock where you belong. Obviously you will seek to be misleading and spiteful. […]

Is this clear enough for you Richard?

46. That response tends to support Dr Furst’s view of the defendant, namely, that he is “a highly selfish and entitled individual with no insight and no respect for authority” and a person with “manipulative and threatening tendencies […] towards his victims and […] contempt for the criminal justice system, the courts, Corrective Services, psychiatrists and psychologists”. The defendant’s bellicose threats of exposure of corruption and so on have not been followed by any formal, evidence-based allegations. The defendant’s email to Dr Parker is consistent with his lack of co-operation with FPS during his parole and with the narcissistic and antisocial traits that Drs Eagle and Furst have identified.

47. Dr Parker completed his report on the basis of Corrective Services records, including voluminous contemporaneous notes of interactions between correctional staff and the defendant that were recorded in the Offender Integrated Management System (“OIMS”). Dr Parker also considered the defendant’s criminal history, numerous earlier psychiatric and psychological assessments, reports upon an attempted custody-based treatment program for the defendant and several parole notifications and breach of parole reports. His conclusions generally accord with those of Drs Eagle and Furst and include the following:

[The defendant] is assessed as falling within the highest category of risk for sexual, violent and domestically violent offending. The dangers are considered most acute within an intimate relationship.

It is unlikely [the defendant] will self-select an effective intervention to change his behaviours, unless it is mandated. Any intervention imposed to influence [the defendant] will be assessed, by him, as hostile and will be strongly resisted.

48. Dr Parker applied the PCLR used by Dr Eagle and the Static 99R and Stable 2007 tools used by both Dr Eagle and Dr Furst, with the same results. He found that the two last mentioned tools generated an overall risk rating of “well above average risk”.

Difficulties of management in the community – s 9(3)(d1)

49. Ms Kelli Grabham, a senior Corrective Services officer responsible for the administration of ESOs, has sworn an affidavit describing the manner in which various conditions of an ESO may be used to achieve effective supervision of the defendant in the community. I have taken her evidence into account together with the evidence referred to below of difficulties that have been encountered in supervising the defendant on parole. Those difficulties indicate the limited utility of some of the conditions of an ESO that have been proposed by the plaintiff. They also indicate the impracticality of achieving compliance with other conditions. The experience of Community Corrections with the defendant on parole has shown that some conditions that would be useful in the supervision of other offenders are likely to be so poorly complied with by the defendant so as to become counter-productive.

Attempts to rehabilitate the defendant in prison and on parole – s 9(3)(e)

Level of compliance with parole conditions – s 9(3)(f)

50. The defendant’s custodial history records approximately 30 disciplinary sanctions during his sentence for the index offence. He frequently abused staff in vile language, behaved disruptively during attempts to engage him in sexual offending group treatment, threatened violence against Corrective Services staff and their families, threatened and abused Justice Health nursing staff and targeted vulnerable inmates to antagonise and provoke them.

51. Dr Parker reported as follows concerning an attempt during the defendant’s imprisonment to engage him in a sexual offenders program:

His treatment was problematic, characterised by allegations of bias against his treating psychologist and clashes with other participants. Among the difficulties were: a myriad of complaints about the program; his aggressive communication style; his complaint that the program aggravates his PTSD; his lack of openness and evasion; his confrontational style and discrediting the program and the therapists.

As a result of many difficulties he was eventually transferred to a different group. However, after an aggressive incident with another program participant on 13 June 2017, he was removed from the therapeutic community and completed the remaining content of the program individually.

52. Although the defendant was eligible for parole from 7 October 2015, he was first released under an order made on 9 January 2018. After the order had been made and before implementation, the defendant threatened Dr Chew, a Justice Health psychiatrist who had submitted a report to the State Parole Authority. He said to Dr Chew:

You’re a liar. You’re a piece of shit. You want me locked up. Your report was a whole lot of rubbish. It was a piece of shit. It was a fucking joke. I am going to get you. This is not a threat. I’ll do it the legal way. I’ll go head to head with you on the ABC. I’ve instructed Olav Nielssen. We’ll tear you apart. You’re a liar. I’ll get you so you’ll never work again.

53. Despite this, the parole order was not revoked and on 4 February 2018 the defendant was released on conditions that he submit to electronic monitoring, comply with directions of a Community Corrections officer, co-operate in mental health intervention by Forensic Psychology Services (“FPS”), reside at an address approved by his parole officer and not associate with persons specified by the officer.

54. About seven weeks after the defendant’s release to parole, Community Corrections issued a breach report dated 21 March 2018 that included the following:

The offender has repeatedly failed to comply with instructions given to him in regards to the scheduling of his movements. In particular, he has failed to provide adequate notice of his proposed movements and has become hostile when dealing with officers who attempt to obtain information regarding his schedules […].

55. Examples of the defendant’s lack of cooperation were provided, including incidents when he shouted profanities at Community Corrections officers, terminated phone calls after becoming abusive, threatened officers with various forms of harassment and violence, forwarded emails containing abusive statements and allegations of corruption and generally acted erratically and aggressively. The breach report further stated:

The FPS psychologist advised on three main issues of concern; the first is [the defendant] is not engaging in therapeutic maintenance because he will not give consent; second, the threatening and volatile nature of his interactions; and third, the utility of therapeutic intervention and supervision is questionable given the risk management issues.

56. The breach report stated that written formal warnings and directions had been given but that these had had “little to no impact on [the defendant] and only produced an inflamed response with further aggression”. This report resulted in the defendant’s parole being revoked on 23 March 2018. He was released a second time on 14 December 2018. The plaintiff’s present application under the Crimes (High Risk Offenders) Act was commenced during this second period of parole, which expired on 7 April 2020.

57. During his second period of parole, from 14 December 2018, the ESO team within Community Corrections took over supervision of the defendant from the Gosford office. The transfer of responsibility took effect from 25 July 2019. On 15 August 2019 the State Parole Authority deleted the condition that the defendant submit schedules of proposed movements and adhere to them. On 2 November 2019 the ESO team submitted to the State Parole Authority a progress report covering the preceding four months. The report included the following:

[I]nterviews with [the defendant] can at times be challenging with [the defendant] embracing his opinions as fact and filling his statements with abuse and threats, directing these to past supervising officers and mostly to his hatred of Custodial Correctional Staff and ultimately the Commissioner of Corrective Services NSW. However, whilst the vitriol and threats still make their way into interviews they are less frequent […].

[The] removal of [the defendant’s] obligation to submit to schedules has assisted in a marked reduction of confrontational contact with [him].

[The defendant’s movements and contacts] are yet to be verified as [the defendant] refuses to provide [Community Corrections] with the details of any personal business in his life other than his lawyer.

Electronic monitoring of [the defendant] has identified what appears to be a busy schedule with [the defendant] frequenting several locations out of the Central Coast area [where he is resident] such as Neutral Bay and Mosman on a regular basis. When asked about his reason for attending these locations [the defendant] is vague and will generally indicate a medical or legal appointment.

[The defendant] has advised that he spent the night with a female friend on one occasion and a male friend on another. Again [the defendant] refuses to provide the details of these interactions and will further not provide permission for [Community Corrections] to contact these persons.

[The defendant] continues to vehemently deny his index offence and any discussion around [this] results in aggression and confrontation.

[The defendant’s] response to supervision is considered to be an improvement from that of previous periods of supervision yet still superficial.

[From 5 September 2019 the FPS psychologist who had been attempting to engage with him “to address sexual offending” ceased these endeavours and advised:]

Based on [the defendant’s] involvement with FPS to date, he is considered to be declining consent to FPS intervention. Further, given his repeated expressed negative stance on the department and its programs, it is unlikely that even if he were consenting to intervention, he would […] make any further treatment gains in the space. Consequently, [the defendant] has been discharged from the FPS program.

58. In his report of 28 February 2020 Dr Parker summarised the defendant’s response to supervision on parole, based upon Community Corrections reports and breach reports to the State Parole Authority, as “superficial and hostile”. Having reviewed the primary material from Community Corrections I find that assessment to be fully justified. In so far as supervision has included attempts to provide psychological counselling and support to the defendant, I would go further and describe his response as destructive, to the point of rendering this component futile.

Prospects of compliance with an ESO – s 9(3)(e2)

59. I consider there are sufficient prospects that the defendant will comply with the conditions of an ESO to warrant making such an order. Many of the conditions proposed by the plaintiff have been disputed. My determinations regarding inclusion of some conditions and exclusion of others appear below. It will be apparent from my rulings on the contested matters that I consider it possible to formulate a list of conditions that will facilitate adequate supervision whilst not placing upon the defendant constraints that would generate such a level of conflict and disruption as to impede the defendant’s integration into the community and defeat successful supervision.

Evidence of defendant’s current partner, family relationships and support

60. The defendant adduced evidence on affidavit from his father, one of his brothers, his current female partner and other witnesses. All of these deponents are supportive of him and speak to his positive qualities. The defendant’s current partner does not perceive risk to herself from the relationship. I do not doubt the genuineness of any of this evidence. However it does not affect the matters I am required to evaluate under s 9(3) of the Act or the decision that ultimately must be made under s 5B(d) and s 9(1) and (2). The defendant’s long history of personality disorder and of resultant antisocial behaviour and its adverse impact on other members of the community is not to be erased or even qualified by the evidence he has adduced. It does not appear that relationships with these deponents have had anything to do with the defendant’s past offending or that current favourable developments in those relationships might alter his future behaviour in any way relevant to the present proceedings.

61. As for the defendant’s relationship with his current partner, the evidence shows that he has had relationships of at least several months with numerous other female partners and that a number of these have ended with charges being laid against him of violence, sexual offending, stalking and intimidating or the like. The fact that the current relationship has continued for some months makes no difference to the basis upon which the two court-appointed experts have expressed their opinions or to the validity and impressiveness of their conclusions.

62. The affidavit evidence does not answer or qualify the evidence of the defendant’s continuing denial of past offences, his lack of insight and his refusal to engage cooperatively with FPS to address the aspects of his personality that in the past have led to him offending. The evidence does not answer the established record of his apparent inability to abide by the law or accept authority. I accept the responses of Dr Eagle and Dr Furst in that respect. Both of them were asked in cross-examination about the evidence of the defendant’s good relations with some family members, his adoption of the Buddhist religion, his work in a market garden on the Central Coast and his endeavours to acquire a helicopter pilot’s license. That evidence did not cause either of the psychiatrists to retract or qualify their opinions and assessments of risk. Dr Furst said:

[The defendant] thinks those things are a key thing and his religion and everything else he’s doing for other people, but the problem, as I said, relates to him forming relationships and then controlling a woman and potentially raping her or seriously assaulting her, and that hasn’t gone away; [he] is nowhere near having insight as [to] that - nowhere near it … continually denying it.

Unacceptable risk – justification for a 5-year ESO – ss 5B(d), 9(1), 10(1A)

63. I accept without reservation the conclusions of Drs Eagle, Furst and Parker concerning the risk of re-offending posed by the defendant, the need for supervision to ameliorate that risk and the strong desirability of an ESO with appropriate conditions to continue in force for five years. The doctors’ opinions are based upon thorough consideration of the documented history of those aspects of the defendant’s conduct that are relevant to the assessment. They have applied statistical and other tools generally accepted in their profession, as well as their own clinical judgment based upon a great depth of experience. The substantiation of the opinions expressed in the doctors’ reports was enhanced rather than diminished by further explanations that were elicited in cross-examination.

64. For the purposes of s 5B(d), I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO. Having regard to the considerations prescribed in s 9(2) and (3) I have determined that an order should be made of five years duration.

Conditions of the ESO – s 11

Electronic monitoring

65. The plaintiff sought a condition that the defendant must wear electronic monitoring equipment. The defendant opposed this, principally upon the ground that, in conjunction with a requirement that he adhere to schedules of movements, electronic monitoring would be extremely intrusive in his life and would impede his endeavours to pursue business and employment opportunities. Further, he submitted that it would lead to frequent contact from the monitoring service whenever any departure from a schedule should take place, or if the electronic device should require recharging and so on.

66. As will be seen below, I will not make it a condition of the defendant’s ESO that the defendant should submit and abide by schedules of movements. That will remove a large part of his objections to electronic monitoring. Electronic monitoring will remain a useful condition of supervision, in part as a deterrent as referred to in the evidence of Dr Eagle quoted at [34] above. Electronic monitoring will also enable Community Corrections officers to review the defendant’s movements and activities retrospectively, so that they may inform themselves for the purpose of making appropriate enquiries of the defendant concerning people with whom he may make contact or form relationships.

Schedules of movements

67. I do not consider that it is necessary to impose conditions that would require the defendant to submit schedules of his proposed movements. The risk of re-offending that has been identified in the evidence is quite specific. It is related to circumstances in which the defendant forms intimate relationships with female partners. Requiring that he nominate his intended movements a week in advance and that he not depart from those intentions without prior approval of his Departmental Supervising Officer would add a significant level of interaction between the defendant and Community Corrections officers. It would do so without usefully contributing to the officers’ capacity to address the risk. Knowing where the defendant intends to be, hour by hour for a week into the future, would not equip the DSO to know whether or not the defendant is forming or has formed an intimate relationship with a partner.

68. It appears to me that the most important aspect of supervision is for the DSO to obtain particulars of any female partner of the defendant when and if he commences an intimate relationship, so that a judgment can be made as to whether the partner should be informed of the defendant’s background. To this end, I have included condition No 4 in the schedule to the ESO. This requires the defendant to answer truthfully questions from his DSO about his location, his activities and his associations. Condition No 15 requires him to inform the DSO if he commences an intimate relationship. Past experience of Corrective Services’ attempts to supervise the defendant in the community have shown that he cannot be relied upon to provide accurate information. If he fails to do so under conditions 4 and 15 he will be liable to prosecution for breach of the ESO under s 12. It does not appear to me that his compliance with these conditions that he supply relevant information to his DSO on request can be any better secured by imposing conditions relating to schedules of movements.

Financial affairs

69. The plaintiff sought conditions that the defendant provide to Community Corrections any information concerning his financial affairs, including income and expenditure, that may be requested by his DSO and that he not execute any legal instrument under which he would obtain control of any money or assets of another person without the DSO’s prior approval. Another proposed condition would prohibit him from entering into any lease, mortgage or contract for a subject matter above the value of $1,000. I do not consider that these proposed conditions would have any bearing upon the risk of re-offending that has been identified in relation to the defendant and such conditions have not been incorporated in the schedule to the ESO that is ordered by the Court.

Drugs and alcohol

70. The plaintiff sought conditions that would prohibit the defendant from possessing or using alcohol without prior approval of his DSO and would prohibit him from possessing or using illegal drugs. The use of alcohol is not significantly implicated in his past offending. It is not suggested by the experts who have provided opinions in the case that the use of alcohol exacerbates the identified risks. A total prohibition on use of alcohol would be highly intrusive and likely to lead to conflict and hostility in any circumstance where the defendant wished to consume alcohol. Such a condition is unnecessary and would be counter-productive. A condition prohibiting the use of illicit drugs is unnecessary as it is already provided for in the Drug Misuse and Trafficking Act 1985 (NSW). Neither of these conditions has been included in the schedule to the ESO.

71. A further condition proposed by the plaintiff is that the defendant not be permitted to enter any licensed premises, including any restaurant, hotel or club, without prior approval of his DSO. No doubt these are locations in which the defendant may meet females with whom he might form relationships that could end badly, as has occurred in the past, but a prohibition upon entering such places without prior approval would in my view be an excessive curtailment of his freedom out of proportion to the relevant risk and counter-productive to the defendant’s reintegration into the community. The proposed condition has not been included.

72. There has also not been included on the schedule a condition, sought by the plaintiff, that the defendant participate in drug and alcohol rehabilitation programs as directed by his DSO. The expert evidence before me falls far short of demonstrating that the defendant has a current alcohol or drug abuse problem of such severity as to justify empowering the DSO to direct the defendant that he must take part in such a program.

Search and seizure

73. The plaintiff sought conditions that would confer upon the DSO sweeping powers of search of the defendant’s person, premises and any location under his control. Conditions such as these are routinely sought by the plaintiff in applications of this nature. I see no need for, or utility in, such powers of search in this case.

Personal details and appearance

74. The plaintiff has sought a condition that the defendant not change his name from Simon Monteiro or use any other name without the approval of his DSO. The defendant resisted this and sought that he be permitted to use the alternative name Simon Lowe. I have included on the schedule to the ESO an order in the terms sought by the plaintiff. I see no need for the defendant to be able to use a second name. I cannot think of any reason why anyone, exercising all the freedoms that citizens enjoy under the laws of Australia, should have a legitimate need to go by more than one name. No reason was articulated to the Court in argument on behalf of the defendant.

Medical intervention and treatment

75. The plaintiff sought conditions that the defendant notify his DSO of the name and particulars of any mental health care practitioner that he may consult; that he follow all treatment recommendations and that he give permission for any mental health care practitioner to share information with the DSO. There is no need for any of these conditions and they would serve no useful purpose in relation to supervision or amelioration of risk with respect to the defendant. The expert evidence satisfies me that the defendant does not suffer from any psychiatric condition that would be responsive to medication or other treatment. These proposed conditions would be suitable to a supervised person who was diagnosed with, for example, schizophrenia or bipolar disorder. It might be important in the interests of adequate supervision and protection of the community for such a person to be required to make disclosure of treatment prescribed by mental health professionals, so that the DSO could monitor compliance with the medical advice. This is not such a case.

76. The plaintiff also sought a condition that the defendant attend and participate in psychological and psychiatric assessments as directed by his DSO. This is a standard condition pursuant to which it is common for a DSO to direct that a supervised person attend upon FPS and follow the directions of that service. Commonly that results in weekly or fortnightly engagement with the psychologist. In an appropriate case that may be beneficial in monitoring the supervised person’s mental health stability and/or improvement. In the present case there is ample evidence that no such psychological counselling or consultation will be of the slightest use with respect to the defendant. Endeavours to engage him in this way during probation had to be abandoned. This condition is not included on the schedule.

Schedule of conditions

77. To aid an understanding of the manner in which the disputes concerning some of the conditions of the ESO has been resolved, a copy of Schedule A to the order is annexed to these reasons.

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Schedule A

STATE OF NSW v MONTEIRO

SCHEDULE OF 26 CONDITIONS OF SUPERVISION

Monitoring and reporting

1. The defendant must accept the supervision of Corrective Services NSW (CSNSW) for the term of the Order (ESO).

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 the DSO’s delegate from CSNSW for the enforcement and implementation of the ESO or any of these conditions. 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; advice of movements

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

5. The defendant must truthfully answer questions from his DSO, or any person supervising him, about his location, his activities and his associations.

Accommodation

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

7. 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 and take such steps as may be reasonably necessary to ascertain the identity of persons present.

8. The defendant must not spend the night anywhere other than his approved address or any alternative approved addresses (if relevant) without the prior approval of his DSO, which may not be withheld unreasonably.

9. The defendant must not permit any person to stay overnight at his approved address unless

(a) the person was ordinarily resident at the approved address, to the knowledge of the DSO, at the time of approval of that address or

(b) the defendant has notified the DSO the name and contact details of the person who is to stay overnight and the DSO has given approval for that to occur.

It shall not be necessary for the defendant to seek approval for an overnight stay of the same person on a second occasion.

Place and travel restrictions

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

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

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

Employment

13. Before commencing any form of employment, volunteer work or educational course the defendant must advise the DSO of the nature and place of the relevant activity and the contact details of the person in charge and/or responsible for the defendant’s involvement and participation.

Non-association

14. The defendant must comply with any reasonable direction not to associate with people that his DSO directs him not to associate with.

15. If the defendant starts an intimate relationship with someone or has a sexual relationship with someone he must inform his DSO within 24 hours of the name of that person and he must truthfully answer any questions that the DSO asks regarding that relationship. 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.

16. The defendant must notify his DSO of

(a) any username and password for any social networking app that he may utilise and for any dating app or website that he joins or with which he affiliates and

(b) any social club or similar organisation that he may join.

Access to the internet and other electronic communication

17. 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’). The details to be provided shall include, as directed, telephone numbers, service provider account numbers, own email addresses, login names or other user names, relevant passwords and codes used by the defendant and the nature and details of the internet connection.

18. 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.

19. 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.

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

21. The defendant must advise the DSO of any change to the inventory of Devices listed pursuant to condition 17 immediately such change occurs.

22. 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.

23. 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 17, 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.

Personal details and appearance

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

25. The defendant must let CSNSW photograph him.

Sharing of information between supervision agencies

26. 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

12 April 2022 - Minor amendments in Schedule

Decision last updated: 12 April 2022