State of New South Wales v Nichol (Preliminary)

[2019] NSWSC 1233

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Nichol (Preliminary) [2019] NSWSC 1233

Hearing dates:

5 September 2019

Date of orders:

18 September 2019

Decision date:

18 September 2019

Jurisdiction:

Common Law

Before:

Wright J

Decision:

(1)   Two qualified psychiatrists or registered psychologists (or one of each such persons) as agreed by the parties are appointed to conduct separate psychiatric or psychological examinations of the defendant and are to furnish reports to the Supreme Court on the results of those examinations by a date to be agreed by the parties.

 

(2)   The defendant is directed to attend those examinations.

 

(3)   The defendant is to be the subject of an interim supervision order to commence at midnight on 24 September 2019.

 

(4)   The interim supervision order is to be for a period of 28 days.

 

(5)   The defendant is to comply with the conditions set out in the Schedule to these orders for the period of the interim supervision order.

 

(6)   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.

 

(7)   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.

 (8)   Liberty is granted to the parties to apply on one day’s notice in relation to order 1 if the parties cannot reach agreement for the purposes of that order.

Catchwords:

HIGH RISK OFFENDERS – application for extended supervision order – preliminary hearing – whether Court to be satisfied to a high degree of probability that offender posed unacceptable risk of committing another serious offence on assumption that allegations in supporting documentation proved – examination order and interim supervision order made – no point of principle

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes Act 1900 (ACT)
Criminal Code Act 1995 (Cth)

Cases Cited:

Attorney General for New South Wales v Tillman [2007] NSWCA 119
Attorney General for New South Wales v Winters [2007] NSWSC 611
Cornwall v Attorney General for New South Wales [2007] NSWCA 374
Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57
New South Wales v Simcock (Final) [2016] NSWSC 1805
NSW v Ceissman [2018] NSWSC 508
State of New South Wales v BP (Preliminary) [2019] NSWSC 699
State of New South Wales v Dunn (a pseudonym) [2018] NSWSC 1008
State of New South Wales v McGee (Preliminary) [2019] NSWSC 53
State of New South Wales v Naaman (No 2) [2018] NSWCA 328
State of New South Wales v Sturgeon [2019] NSWSC 559

Category:

Principal judgment

Parties:

Attorney General of NSW (Plaintiff)
Zakary Michael Nichol (Defendant)

Representation:

Counsel:
Ms C Melis (Plaintiff)
Mr S Fraser (Defendant)

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

File Number(s):

2019/208828

Judgment

Introduction

1. By a summons filed on 5 July 2019, the plaintiff, the State of New South Wales, applies for final relief by way of an order that the defendant, Zakary Nichol, be subject to an extended supervision order (ESO) for a period of two years from the date of the order, under ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (HRO Act), and that for the period of the ESO the defendant is to comply with the conditions, which may be imposed under s 11 of the HRO Act, set out in the schedule to the summons.

2. In the interim, the State has also sought an order under s 7(4) of the HRO Act for the appointment of two qualified psychiatrists and/or registered psychologists to conduct separate examinations of the defendant, and to furnish reports to the Court on the results of those examinations as well as an order directing the defendant to attend those examinations.

3. To allow the examinations to be carried out and the application for an ESO to be properly prepared, the State has applied for an order that the defendant be subject to an interim supervision order (ISO) under s 10A of the HRO Act to date from when his current sentence expires on 24 September 2019 for a period of 28 days, unless the order is renewed on the State’s application or the proceedings are finally determined, and that, for the period of the ISO, the defendant is to comply with the conditions set out in the schedule to the summons.

4. Finally, the State seeks the following:

“4. An order that access to the Supreme 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.”

Preliminary hearing

5. As required by s 7(3) of the HRO Act, a preliminary hearing was conducted before me on 5 September 2019. At that hearing, the State sought the interim orders for examinations under s 7(4) and the ISO under s 10A of the HRO Act. The order in par 4 of the prayers for relief was also sought at this time.

6. It can be noted at this point that there was no opposition to the making of an order in the terms of prayer 4 and, as it is appropriate at this stage, I propose to make that order.

Relevant statutory provisions

7. The objects of the HRO Act are set out in s 3 as follows:

“(1) The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community.

(2) Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation.”

8. Section 5B of the HRO Act provides that the Court may make an ESO in certain circumstances. Where an application for such an order is made, s 7(3) provides:

“A preliminary hearing into the application is to be conducted by the Supreme Court within 28 days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow.”

9. Following the preliminary hearing required under s 7(3) in proceedings for an ESO, orders for examination of a defendant by psychiatrists and/or psychologists and the provision of reports to the Court can be made under s 7(4). In addition, an ISO can be made under s 10A at the same time as the examination orders, if the requirements in s 10A(a) and (b) are met.

10. Section 7(4) provides:

“If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders:

(a) appointing:

(i) 2 qualified psychiatrists, or

(ii) 2 registered psychologists, or

(iii) 1 qualified psychiatrist and 1 registered psychologist, or

(iv) 2 qualified psychiatrists and 2 registered psychologists,

to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and

(b) directing the offender to attend those examinations.”

11. It can be noted that, if the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, the making of the order for examinations and reports is mandatory. There is no discretion to refuse to make the orders. The situation concerning making an ISO is different. Under s 10A, if the Court is satisfied of various matters, including that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, the Court has a discretion whether or not to make an ISO.

12. Section 10A is in the following relevant terms:

“The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, it appears to the Court:

(a) that the offender’s current custody or supervision will expire before the proceedings are determined, and

(b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.”

13. In the present case, it was not in dispute, and I accept, that, given the likely time examinations and the provision of reports would take, the defendant’s current custody, which comes to an end on 24 September 2019, would expire before the proceedings are finally determined, if it were determined that examination orders should be made. Thus, if examination orders were made, the requirement in s 10A(a) would be satisfied in this case

14. Consequently, the principal question that must be determined, under both ss 7(4) and 10A(b), on this preliminary hearing, is whether the matters alleged in the supporting documentation would, if proved, justify the making of an ESO under s 5B of the HRO Act. Section 5B establishes four preconditions for making of an ESO. Relevantly for the purposes of the present proceedings, s 5B provides:

“The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if:

(a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and

(b) the person is a supervised offender (within the meaning of section 5I), and

(c) an application for the order is made in accordance with section 5I, and

(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.”

15. It was not in dispute for the purposes of the preliminary hearing that the statutory criteria in s 5B(a), (b) and (c) are satisfied in the present case. Accordingly, it is only necessary to consider the prerequisite in par (d) of s 5B.

16. Thus, at the preliminary hearing in this matter, the focus was whether the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. This will be so if, on the basis of those matters, the Court would be justified in being 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 order.

General principles concerning s 5B(d)

17. The standard of proof required by the words “high degree of probability”, is a higher standard than “more probably than not” but not as high as “beyond reasonable doubt”: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]. The right of an offender to his or her personal liberty after serving a term of imprisonment is not a consideration in this evaluative task: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (Lynn) at [44] and [55]-[58].

18. The expression “unacceptable risk” in s 5B(d) of the HRO Act is not defined in the Act. It is to be given its everyday meaning in its context and having regard to the objects of the Act: Lynn at [58]. The test of whether an offender poses a relevant unacceptable risk is an evaluative one and requires the exercise of discretionary judgment: Lynn at [82]. The nature of the risk posed has to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition. The assessment must be based on an absence of protective measures: Lynn at [126].

19. The evaluation of whether the risk is “unacceptable”:

1. is directed to the assessment of risk in the context of making the community secure from harm, as opposed to guaranteeing its safety and protection: Lynn at [61]; and

2. involves balancing considerations of the likelihood of the risk eventuating and the gravity of the risk that may eventuate: State of New South Wales vSimcock(Final) [2016] NSWSC 1805 at [71].

20. Deciding whether the Court is satisfied to a high degree of probability that the offender poses an unacceptable risk does not involve determining the probability of the existence of the risk or the likelihood of its manifestation, but rather the probability that the offender poses such an unacceptable risk: NSW vCeissman [2018] NSWSC 508 at [32] (Rothman J); Cornwall v Attorney General of NSW [2007] NSWCA 374 at [21].

21. In determining whether to make an ESO, the Court must:

1. take into account the safety of the community as the paramount consideration, by virtue of s 9(2) of the HRO Act; and

2. have regard to the factors in s 9(3)(b) to (i).

Approach to test in ss 7(4) and 10A(b)

22. As explained above, whether examination orders are to be made under s 7(4) and an ISO ordered under s 10A(b) turns on whether the making of an ESO would be justified assuming the matters alleged in the supporting documentation were proved.

23. The words “would … justify the making of an [ESO]”, in s 7(4) and 10A(b) are to be construed as imposing a lower standard than that which applies to the making of the ESO itself: State of New South Wales v Naaman (No 2) [2018] NSWCA 328 at [17], State of New South Wales v Dunn (a pseudonym) [2018] NSWSC 1008 at [44]. Those words require the Court to be satisfied that the making of an ESO would be justified, in the sense of being reasonably open, in the light of the matters alleged in the supporting documentation, assuming them to be proved: State of New South Wales v Sturgeon [2019] NSWSC 559 at [6], State of New South Wales v BP (Preliminary) [2019] NSWSC 699 at [59].

24. This approach is consistent with the principle that in considering whether to make interim orders, such as the ISO in the present case, it is appropriate to give weight to risk-avoidance: Attorney General for New South Wales v Winters [2007] NSWSC 611 at [7] (Bell J).

25. In addition, at a preliminary hearing, the function of the Court is not to weigh up the documentation provided in support of the making of interim orders, or to consider what evidence the defendant might call at the final hearing, or to seek to predict the outcome of the proceedings for final orders: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98], and State of New South Wales v McGee (Preliminary) [2019] NSWSC 53 (McGee) at [10].

26. Rather, the Court is to engage in an evaluative exercise, taking into account all of the supporting documentation and, proceeding on the assumption that the facts alleged in the supporting documentation are proved, to determine whether those facts would justify the making of an ESO: McGee at [10].

The evidence

27. The supporting documentation on which the State relied was:

1. the affidavit of David Stevens sworn 2 July 2019 together with exhibit DS-1;

2. the affidavit of Nicholas Boyce affirmed 13 August 2019; and

3. exhibits A to F which were extracts from the NSW Department of Corrective Services OIMS notes concerning the defendant for various dates between 24 January 2019 and 8 August 2019.

28. The defendant relied on:

1. the affidavit of Grainne Marsden affirmed 27 August 2019; and

2. exhibit 1 which consisted of a further 5 pages of NSW Department of Corrective Services OIMS notes concerning the defendant.

29. As noted above, when determining whether an ESO would be justified for the purposes of ss 7(4) and 10B, the Court is required to proceed on the basis that “the matters alleged in the supporting documentation” are proved. This refers, in my view, to the documentation provided by the State in support of its application for an ISO and examination orders. It does not include evidence or documentation provided on behalf of the defendant. From this it does not follow, however, that the defendant’s evidence is not relevant on other issues such as whether, in the exercise of the Court’s discretion, an ISO should or should not be made and what conditions should be imposed as part of any ISO: State of New South Wales v BP (Preliminary) [2019] NSWSC 699 at [69]. To that extent, the defendant’s evidence is relevant.

30. The findings set out below concerning the defendant and whether the Court must or may make orders under ss 7(4) and 10B, respectively, are based on the matters alleged in the State’s documentation supporting its application, on the assumption that they have been proved. In determining whether to make an ISO, I have also taken into account the defendant’s material.

The defendant’s circumstances and offending prior to the index offences

31. The defendant was born in 1996 and is the only child from his parent’s relationship, although he has an older half-sister who is his mother’s daughter. His parents separated when he was two years old. While he lived with his mother, he maintained contact with his father. His mother formed another relationship but this ended when he was 12 years old.

32. The defendant has reported that his childhood was unhappy and he had a poor relationship with his stepfather whom he described as emotionally abusive and “rude, mean and nasty”. Although he described his mother as cold and unemotional, he reported that he had a good relationship with his father.

33. At about the age of 12, the defendant was diagnosed with IgA nephropathy which is a genetic condition affecting his kidneys. The defendant’s understanding was that he had a 50% statistical chance of his kidneys failing within 10 years after initial diagnosis and an 85% chance after 25 years. He identified that the prognosis was poor and the condition was generally fatal. He is required to attend medical tests every six months to assess his kidney functioning and although he was diagnosed approximately 10 years ago, to date his kidneys are still functioning satisfactorily.

34. The defendant’s schooling was positive until year 9 when he began truanting.

35. When he was 15 or 16 years of age the defendant was charged with four offences of animal cruelty which involved his killing four of his neighbour’s dogs. These charges were dismissed under the mental health provisions of the Crimes Act 1900 (ACT) on the basis of a diagnosis of Asperger’s syndrome. The defendant reported that his motivation for the offences was so that he could be more like a “psychopath” in that he believed he was too emotional at that time and he wanted to be like people whom he believed experienced little emotion. The defendant spent a number of months in a juvenile detention centre whilst on remand pending the charges being dealt with. This incarceration interrupted his schooling.

36. As a result of the dismissal of the charges under the mental health provisions, the defendant came under the mental health jurisdiction of the Australian Capital Territory Civil and Administrative Tribunal or ACAT.

37. It also appears that about the age of 16 the defendant was charged with a minor theft but this charge was also dismissed under the applicable mental health provisions.

38. He attempted to complete his Higher School Certificate. However, the antipsychotic medication which was prescribed for him interfered with his concentration and his capacity to retain information and he ceased schooling at the age of 17.

39. It appears that the defendant commenced university studies in engineering in 2013 but dropped out because of the effects of his medication. In 2014, he recommenced these studies in Sydney. For nine months in 2014 and 2015, the defendant worked in a McDonald’s restaurant.

The index offences

40. On 25 February 2016, the defendant was arrested and charged with two offences:

1. using a carriage service to procure a person under 16 years for sexual activity contrary to s 474.26(1) of the Criminal Code Act 1995 (Cth) (the Code); and

2. using a carriage service to send indecent material to a person under 16 years contrary to s 474.27A(1) of the Code.

41. The defendant pleaded guilty at the earliest opportunity and was sentenced by Williams SC DCJ in the District Court on 27 January 2017. His Honour’s remarks on sentence included the following information:

“[In relation to count 1] The agreed facts demonstrate that between 30 April and 14 June 2015 the offender and the victim [a 12-year-old girl living in another state using a school issued iPad to communicate online] communicated over the Apple iMessage system on many, many occasions. There were instances in which he suggested to the victim that she should travel to Sydney. The suggestions deteriorated into graphic requests by the offender for the victim to perform the sexual activities that he was specifying.

However, the agreed facts are conspicuous for the virtual absence of any evidence that the victim responded to his requests or did anything to comply with them other than on one occasion in May 2015… where he asked the victim if she wanted to be his ‘sub’ or presumably submissive person and she replied ‘yeah’.

The second instance of her responding to his multiple depraved suggestions was … when he asked if the horse that she was feeding was a male, and the victim replied saying, ‘I did it but nothing happened. He’s de-sexed’. It is a bizarre conversation in concept but I cannot find any fact against the offender beyond reasonable doubt in relation to that beyond the fact that the communication occurred.

The offending continued with him asking the victim to carry out certain activities and purchase certain items to be used in a sexual manner. He acknowledged that he knew that the victim was much younger than him and that he would be in a lot of trouble if he was ever found out.

The contact apparently ceased on 14 June 2015 after the exchange about the horse, at which time he asked if he could call the victim and speak over the telephone. There is no explanation as to why the contact ceased.

…

As to the second count which … occurred between 24 December 2014 and 19 January 2015, that is finishing about three months before the second series of offending, this was unearthed because investigators examined his computer and found Skype CAD messages between the offender and a person identified as [victim 2] born … 1999 who was an American citizen living in the United States. He sent her a link to a website depicting sexually explicit images involving sadism, pain and torture on more than one occasion, and made vile suggestions to her as to the rules that should be followed in such conduct. He sent photographs to her of someone apparently masturbating or after masturbating.”

42. The learned sentencing judge said that in neither case did the defendant transmit obscene images, offer money or persist in pursuing opportunities to meet the victim in person and that, unusually, the defendant was not arrested at a meeting place arranged with the child but was arrested some eight months after the last contact with the victim. His Honour also said:

“As he was only 18 or 19 at the time of the offending he was lacking in maturity, whether one describes it as poor consequential thinking due to the factors listed by Ms Dewson [a psychologist who provided a report for the purposes of sentencing], or whether simply due to immaturity …

… I accept that his remorse is genuine in this case …

I am confident that his prospects of rehabilitation are at least reasonable given his willingness to engage in programs of treatment and his continuing maturity.”

43. The defendant was sentenced as follows:

1. for count 1, 3 years and 3 months imprisonment commencing on 25 June 2016 and expiring 24 September 2019;

2. for count 2, 2 years imprisonment commencing on 25 February 2016 and expiring on 24 February 2018,

with

3. a single non-parole period of 18 months commencing on 25 February 2016 and expiring on 24 August 2017.

Custody and parole

44. While in custody, the defendant received one reprimand and caution for failing a prescribed drug test while in custody. He reported, however, that this was because he had been provided with Panadeine by the Justice Health Clinic but that had not been recorded and, when tested, codeine was noted to be present.

45. While in custody, the defendant also participated in the CUBIT program between 7 August 2017 and 27 June 2018. This program is a custody-based residential therapy program for men who have sexually abused adults and/or children. A report dated 6 August 2018 concerning his participation and successful completion of the program was prepared by Ms Nicole Weaver, psychologist.

46. As to his general participation in the program, Ms Weaver noted that the defendant expressed internal motivation for wanting to complete treatment and he reported wanting to be able to deal with problematic areas in his life, primarily identifying domains related to offending, interpersonal relationships and how he viewed himself. He completed all tasks that were required of him. In general, his completion of task work appeared to be thoughtful and comprehensive. He also provided written tasks for review that were not requested. The defendant was provided with feedback that initially his participation was perceived as disingenuous by therapists. This was due to factors such as the defendant regularly asking for feedback from the therapists with the perceived motivation being validation seeking. However, over the course of treatment his motivation and commitment to treatment appeared to be consistent. In general, he appeared to get along with other group and community members. Overall, the defendant participated well in treatment. He appeared to understand the content discussed and reportedly applied associated skills with effectiveness. He completed task work as required and often discussed content in a thoughtful manner.

47. The defendant’s risk of reoffending was assessed using the STABLE-2007 tool designed to identify stable dynamic risk factors and the STATIC-99R actuarial risk assessment instrument. When these two were combined, his composite risk/needs level, having regard to static and dynamic risk factors, was in the “well above average risk level”. This was further explained as follows:

“Out of 100 individuals convicted of sexually motivated offences with the same risk profile as [the defendant], 21.9 and 26.8 would be expected to recidivate [sic] sexually over three and five years respectively. Conversely, 78.1 and 73.2 out of 100 would not recidivate with a sexually motivated offence after three and five years in the community respectively.”

48. The report also identified the most salient of risk areas as being intimacy deficits, significant social influences and sexual self-regulation. In order for his risk of reoffending to be managed successfully upon release, it was said that he would need to continue to address his dynamic risk by utilising and building on the knowledge and strategies gained throughout the treatment. Any changes noted in his dynamic risk factors should alert him, his support network and any professionals to the potential need for intervention.

49. The report concluded with a series of recommendations for the defendant as follows:

“A referral to Forensic Psychology Service has been made (26/06/2018). [The defendant] would benefit from attending community-based maintenance. If he is released to his father's address, then this should be available to him. If that was not available to him then he should be referred to a Community Corrections Psychologist in his local area, to further assist with the reintegration in addition to any assistance required for emotional regulation, self-esteem and obstacles related to any relationships.

[The defendant] should be encouraged to participate in age appropriate activities for the purpose of increasing involvement in prosocial activities and to facilitate the development of friendships and routine activities to assist with his integration

[The defendant] should be encouraged to continue to utilise his identified emotional regulation strategies. He should be encouraged to engage in self-reflection which will likely enhance his awareness into problems as they arise. Additionally, he should be encouraged to be open with his support network (professionals included) about his emotions and any problems he is having.

[The defendant] should be encouraged to comply with any requirements as set by the CPR and Community Corrections. [The defendant] should not have any unsupervised contact with children under the age of 18 years and should have strict monitoring of his access to internet/telecommunication providers.

[The defendant] should be encouraged to pursue his goals related to employment and education. This will likely assist with providing [the defendant] with structured daily activities and a sense of purpose.

[The defendant] has expressed an intention of resuming and improving relationships with his family. If required, to assist in improving the family dynamic [the defendant] may benefit from family counselling offered through services such as Relationships Australia.

[The defendant] should be encouraged to refrain from interacting with any person who has been convicted of a sexual offence or who express a preoccupation with deviant or fetish interests. This should include ceasing any current contact. Where possible his associations and communications should be monitored.”

50. The defendant was released to parole on 22 August 2018 and is currently living in the community, subject to extensive parole conditions. The Corrective Services New South Wales case note reports, or OIMS notes, indicate that the defendant by late 2018 was engaging well with his psychologist and appeared to be using the maintenance group in a positive way. By January 2019, he had obtained an Australian business number, or ABN, for use in the future in relation to a robotic support and production business. It was noted that it was not currently being used at that time. It was also recorded that the defendant had created an online presence for that business and “like most of his online commerce, social media and similar; he has reported all of the required details in accordance with his [obligations]”. At the beginning of 2019, the defendant also re-enrolled at university.

51. In February 2019, the defendant was required to provide various items of information including “a list of all websites used and their purpose, including all usernames for each website, email addresses and any other identifiers”. He complied with this requirement. A review of the websites he provided indicated that there was one which included content of a sexual nature and this was forwarded for review but it was stated in the case note report that “no significant concerns noted re this”. In addition, the list provided included a number of social media website, chat room websites and messaging applications. As a result of these latter matters, on 20 March 2019, a parole notification was issued and on 28 March 2019 the defendant was given a manager’s warning and directed to cease use of all social media websites, chat rooms and messaging applications in order to comply with the written direction he signed in August 2018.

52. On 28 March 2019 when the defendant received the warning, the case note report indicates that “initially he was confused by this as he believed he was allowed to access social media to assist with his universities studies”. On that occasion he also indicated that he understood the reasoning behind the warning and the direction provided in August 2018 and expressed his concern that he felt he may have put his liberty at risk.

53. During the period from early 2019, it appears that the defendant has had two age-appropriate relationships with females which have been disclosed to Community Corrections staff. He has deferred his university studies for the second semester of 2019.

Section 9(3) factors

9(3)(b) The s 7(4) reports

54. As this is a preliminary application, no reports have yet been provided under s 7(4) of the HRO Act.

9(3)(c) Other psychiatrists’ or psychologists’ assessments as to the likelihood of a further serious offence

55. A risk assessment report dated 25 March 2019 concerning the defendant was prepared by Dr Richard Parker, senior psychologist. Dr Parker noted the defendant’s presentation at interview as follows:

“[The defendant] was polite and respectful at interview, and appeared to answer all questions honestly. His mood was appropriate for the occasion. He approached the interview very thoughtfully and methodically, including reading (and demonstrating an understanding of) some of my public writings. He brought a list of his top-10 coping strategies, which appeared to be well thought out strategies for living a sustainable, offence-free life. He also produced a detailed list of concrete strategies for containing his Internet usage, so that he does not use the Internet as a means to isolate himself from real life interactions and healthy activities.”

56. Dr Parker noted that while a diagnosis of Asperger’s syndrome had been on an earlier occasion “categorically ruled out” the defendant appeared to display at least one of the traits associated with it. He also observed that this condition is often quite subtle in adults and difficult to diagnose, particularly when there is limited information from childhood, as was the case for the report.

57. As to the defendant’s personality, Dr Parker assessed his level of psychopathy as “very low” and, hence, psychopathy did not present as a credible explanation of the defendant’s offending.

58. Dr Parker assessed the defendant’s overall risk level by combining the STABLE-2007 assessment with the STATIC-99R assessment to yield a “well above average risk” level. As to criminogenic needs, Dr Parker was of the view that:

1. sexual attitudes were of little concern in the defendant’s case;

2. in relation to self-regulation and impulsivity, the defendant appeared to have a good understanding of times when he made ill-considered decisions; and

3. his lack of relationships with adults appeared to be a feature of his social impairment and that if that arose from Asperger’s syndrome it was unlikely to change. This was said to remain a substantial risk factor as the defendant’s options for forming consensual sexual relations were limited when he struggled to form relationships with adults.

59. It was noted, however, that the stable-2007 score may be inflated due to the presence of some Asperger’s symptomatology. Taking this into account, Dr Parker estimated that the defendant most likely belonged in the “above average risk” category.

60. Dr Parker opined:

“it appears likely that the therapeutic work, he has engaged in, has helped him to find more socially appropriate ways of interacting with people. He appears to be motivated to continue this process. While not being in a position to make a definitive diagnosis, my working hypothesis is that [the defendant] suffers from Asperger’s syndrome, but that the therapy he has done, and his intelligence, has enabled him to make adaptations to lessen the impact of this.

…

… Additionally, the wide difference in his two types of offending, suggests that [the defendant] does not have an unrelenting drive to carry out antisocial acts. Both sets of offences can be viewed as attempted strategies to find his pathway in the world, and meet his desires. His Asperger’s symptoms meant that he was unable to fully anticipate the outcomes of his offending. However, his intelligence would indicate he is more than capable of learning from these experiences. I suspect that, if he reoffended, it would be qualitatively different from his earlier offending.”

61. The risks scenarios identified by Dr Parker in respect of the defendant were as follows:

“The major risk factor for [the defendant] would appear to be his difficulties in social interactions. While he appears to basically have a prosocial attitude toward society he is prone to being rejected by others. This would leave him socially isolated and feeling lonely.

In that scenario, he would try to find some mechanism for social interaction and intimacy. His intelligence and computer literacy make the Internet a logical platform for seeking this type of interaction. However, it is not axiomatic that he would do so in an illegal manner, as he does not appear to have a sexual preference for illegal sexual activity.”

62. It can be noted that Dr Parker was unable to make a definitive diagnosis as to Asperger’s syndrome and he could only offer the suspicion that if the defendant reoffended it would be qualitatively different. The difference in quality, and whether it would be more or less serious than his previous offending, was not explained.

9(3)(d) Any statistical or other assessment as to the likelihood of committing a further serious offence

63. In addition to Dr Parker’s and Ms Weaver’s risk assessments which have been referred to above, Ms Chelsey Dewson, forensic psychologist, carried out a risk assessment concerning the defendant and provided a report dated 24 January 2017 for the purposes of sentencing.

64. Ms Dewson applied the Risk Matrix 2000/S (RM 2000/S) scale-revised which has been adapted for use with Internet sexual offenders. To assess his dynamic risk, Ms Dewson employed the Risk for Sexual Violence Protocol (RSVP). Using those tools, she was of the view that:

“taking into account the following static and dynamic risk assessment, [the defendant] is considered to pose a Moderate risk of reoffending. Based on the information provided, it seems most likely that his risk will be for a similar offence in the future. That is, using the Internet to engage in sexualised conversations where his identity can be concealed and where interpersonal deficits can be better masked. Whilst he strongly denies any intent to meet face-to-face with the individuals he engaged with, this remains a possibility and his behaviour escalating to a contact offence cannot be ruled out. In order to minimise the risk of future sexually abusive behaviour, treatment and sanction are recommended.”

9(3)(d1) Corrective Services reports as to management in the community

65. On 17 April 2019, Mr Marc Corcoran, Community Corrections Officer, provided a risk management report concerning the defendant. The report was prepared for the purposes of s 9(3)(d1) of the HRO Act.

66. In relation to the defendant’s response to supervision while on parole, Mr Corcoran observed that his response was considered satisfactory. In particular, it was noted that:

“his Community Corrections Officer ‘considers that the parolee has been generally compliant with supervision, and does not have any significant concerns about the parolee’s risk to the community at this time’”.

67. Mr Corcoran reported that an assessment undertaken using the Level Of Service Inventory-Revised (LSI-R) on 28 August 2018 found the defendant to fall in the medium risk level for general reoffending. As to the risk of sexual reoffending Mr Corcoran estimated that he most likely belonged in the above average risk category.

68. Mr Corcoran identified the risks to be managed or monitored under each element and explained why the nature of the management or monitoring was required in the defendant’s specific circumstances. Those risks were sexual attitudes, self-regulation and intimacy deficits. I have taken all of this material into account but it is sufficient to note the following matters here, generally under the headings used by Mr Corcoran.

Interviews with the defendant

69. These would be weekly face-to-face interviews with the defendant at his approved residence or another location. The interviews would focus on the implementation of a comprehensive case plan which will include opportunities for intervention, prosocial activities and strategies that are relevant to the identified risks. The case plan would be reviewed and updated with the defendant every two months or sooner if required. The limitation on the effectiveness of this element was the defendant’s difficulties in social interactions.

Field visits

70. Field visits would include scheduled and unannounced home visits, field visits or surveillance by Community Corrections at minimum once per month. The purpose was to detect and mitigate risky behaviours. Field surveillance and observations may be conducted to monitor interactions and behaviours in the community and potential risks associated with approved activities. The limitations of this strategy were that the defendant could not be monitored 24 hours per day and he may engage in untoward behaviour when not being monitored.

Third-party contacts

71. Third-party contacts with the defendant’s father, psychologist and therapist would be made on a weekly basis to monitor the defendant’s progress, level of engagement and for emerging signs of risky behaviours. Contact would be maintained with ESOIT and Corrections Intelligence Group to detect emerging signs of risky behaviour.

Monitoring, schedules and curfews

72. Electronic monitoring, if ordered by the Court, was referred to. The implementation of schedules was thought to be useful in assisting the defendant to plan structured prosocial leisure time and intervention. This may assist him to maintain a sustainable lifestyle beyond supervision. The limitation on this element was that it could prevent neither high-risk situations nor offending behaviours, whilst he was engaging in an approved activity or in his home.

Referral to CSNSW or private psychology services

73. it was noted the defendant currently attends Forensic Psychology Services for sex offender program maintenance sessions and has self-referred to a private psychologist which he described as being beneficial in providing oversight of his self-management plans and for “self-improvement”.

74. Regular contact would be maintained with the defendant’s treating therapist assigned by FPS and other mental health treatment providers to confirm his attendance and to discuss his progress and/or concerns.

Alcohol and drug related matters

75. The defendant would be monitored for signs of substance abuse during interviews. If the conditions on the order permitted and if the defendant presented with signs of substance abuse, he may be tested for such use.

Contact with children under 18 years of age

76. The defendant’s previous relevant history and Internet use were noted. If ordered by the Court, the defendant would be required to provide details of his Internet access and related information and would require approval to register for social media applications and forums. In addition, if so directed by the Court, searches to monitor such use would be undertaken. It was noted that the limitations on this strategy were that it could not prevent high-risk situations or offending behaviours whilst the defendant was engaging in approved activities on the Internet or in his home and he may meet persons under the age of 18 years while at University. In addition, if he used Internet-based encrypted messaging services he may be able to hide the nature of his Internet activities without being able to be monitored accurately.

Non-association and place restrictions

77. The defendant would be required to advise his Community Corrections Officer of employment, education and volunteer work that he commences as such activities would be subject to risk assessment. He would also be directed and encouraged not to have contact with persons who have been convicted of a sexual offence or who express a preoccupation with deviant or fetish interests.

9(3)(e) Treatment or rehabilitation programs in which the offender has participated

78. The defendant’s participation in the CUBIT program between 7 August 2017 and 27 June 2018 and Ms Weaver’s report dated 6 August 2018 concerning his participation in, and completion of, the program has been referred to in detail above. I have taken those matters in the recommendations in that report into account.

9(3)(e1) Options (if any) available to reduce the likelihood of re-offending over time

79. These options have been covered in Mr Corcoran’s report and Ms Weaver’s report referred to above.

9(3)(e2) and (f) Likelihood of compliance with the obligations of an ESO

80. In this regard, the State contended that:

“[t]he defendant’s alleged breach of parole in August 2018 suggests an unacceptable risk of the defendant committing a further serious offence of a same nature as the index offending. The condition breached (restricting the use of social media websites) was clearly calculated to address the behaviours underlying the index offending; the breach of it suggests a risk of the defendant engaging in similar behaviour in the future”.

81. I have recounted the nature of the relevant breach, which occurred in March 2019, above. While it indicates there is some potential risk, I do not accept that it is as high as the State contends. Mr Corcoran’s report included the view of the defendant’s Community Corrections Officer that the defendant had been generally compliant with supervision and the officer did not have any significant concerns about the defendant’s risk to the community at that time. I note, however, that the officer’s view as to risk was based on the defendant being subject to supervision.

9(3)(g) Level of compliance with any obligations under the Child Protection (Offenders Registration) legislation

82. It has not been suggested that this factor had any particular relevance in the present case.

9(3)(h) Criminal history and any pattern of offending behaviour disclosed by that history

83. The defendant’s criminal history and the nature of his offending have been dealt with above.

9(3)(h1) Views of the sentencing court when the sentence of imprisonment was imposed

84. The views of Williams SC DCJ in the District Court on 27 January 2017 have also been recorded above.

9(3)(i) Any other information as to the likelihood of reoffending

85. I have also taken into account the matters raised in tactical intelligence report, especially those referred to in paragraphs 89 and 90 of the State’s written submissions. They are particularly disturbing, but it is not necessary to repeat them here.

Consideration of whether an ESO would be justified on the matters alleged in the supporting documentation, assuming them to be proved

86. The State submitted that, in the light of the consideration of the s 9(3) factors and the other circumstances of this case, the Court would be satisfied that the making of an ESO was justified in the present case, on the assumption that the matters alleged in the supporting documentation were proved.

87. The defendant submitted that the material did not permit such a finding, even accepting that the past offending was of a serious nature and that the index offences involved two children. His written submissions drew attention in particular to the following:

1. the offending did not involve direct contact, violent or otherwise, with children or any other person;

2. the defendant was aged 16 and 18/19 of the time of the offending and was, as described by the sentencing judge, immature;

3. the last offence was committed more than four years ago;

4. the defendant has, since his last offence, been at liberty for approximately 20 months with no suggestion of further reoffending; and

5. Dr Parker’s view that it was not axiomatic that he would attempt to find some mechanism for social interaction and intimacy in an illegal manner.

88. While I accept that the defendant’s circumstances include those to which he has drawn attention, I am nonetheless of the view that, on the assumption that the matters alleged in the supporting documentation are proved, it would be open to the Court to be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not under supervision. I reach this conclusion in light of the material in the State’s supporting documentation as a whole but particularly relying on the nature of the defendant’s past offending, the lack of certainty concerning the defendant’s diagnosis with Asperger’s syndrome, Dr Parker’s ability only to offer the suspicion that if the defendant reoffended it would be qualitatively different, without identifying the nature of the difference, and the seriousness of the matters disclosed in the tactical intelligence report, especially those referred to in paragraphs 89 and 90 of the State’s written submissions, as well as the reports of Ms Weaver and Ms Dewson.

89. This material also indicates to me that the Court would not be in a position to make a properly informed decision concerning whether an ESO should be granted without the benefit of up to date reports from psychiatrists or psychologists that deal with all the relevant matters.

90. On these bases, I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order. Accordingly, under s 7(4) of the HRO Act I am required to make orders for the examination of the defendant. In addition, the discretionary power under s 10A of the HRO Act to make an ISO is enlivened.

91. In considering whether an ISO should be made I have taken into account the evidence adduced by the defendant as well as the material relied upon by the State, including Mr Corcoran’s report. I have also taken into account both objectives of the Act, namely, ensuring the safety and protection of the community and encouraging offenders to undertake rehabilitation.

92. It appears to me that the nature and extent of the risk posed by the defendant, as far as it can be presently ascertained without the benefit of up-to-date reports from psychiatrists or psychologists, together with the benefit likely to be derived by the defendant from a further short period of supervision, given the support he is likely to receive from his family and his present partner, mean that the imposition of an ISO for 28 days is appropriate and beneficial in the circumstances of this case. In reaching this conclusion, I should not be taken to be expressing any view as to whether an ESO will or will not be appropriate when that matter comes to be considered in the light of all the circumstances and including, in particular, up-to-date reports concerning the defendant from the psychiatrists or psychologists appointed under s 7(4).

93. As to the conditions that are should be imposed on any ISO, the State provided a revised schedule of proposed conditions which became MFI 1. The defendant did not make specific submissions opposing many of the proposed conditions, if it was decided that an ISO should be imposed. The defendant’s submissions concerning proposed conditions 34 and 35 were, in effect, accepted by the State in MFI 1. It is not necessary to address those conditions any further.

94. The only conditions which remained in contention were proposed conditions 8 and 9. They were in the following terms:

“8. The defendant must not spend the night anywhere other than his approved address or any alternative approved address without the approval of his DSO.

9. The defendant must promptly notify his DSO of any visitor entertaining or remaining at his approved address and must not permit any person to stay overnight at his approved address brackets other than persons who ordinarily reside at the address), without the prior approval of his DSO.”

95. Similar conditions are not included in the defendant’s parole conditions and it has not been suggested that the defendant’s conduct since his release on parole indicated that such conditions were required. It appears to me that the defendant has made commendable progress both in custody with the CUBIT program and since his release to parole. Proposed conditions 8 and 9 are, in my view, at this time unnecessary to ensure the safety and protection of the community. Further, imposing these conditions would not be necessary or appropriate to assist the rehabilitation of the defendant.

96. In these circumstances, I propose to impose the conditions set out in MFI 1 except for conditions 8 and 9.

Orders

97. For all of these reasons, the orders of the Court are:

1. Two qualified psychiatrists or registered psychologists (or one of each such persons) as agreed by the parties are appointed to conduct separate psychiatric or psychological examinations of the defendant and are to furnish reports to the Supreme Court on the results of those examinations by a date to be agreed by the parties.

2. The defendant is directed to attend those examinations.

3. The defendant is to be the subject of an interim supervision order to commence at midnight on 24 September 2019.

4. The interim supervision order is to be for a period of 28 days.

5. The defendant is to comply with the conditions set out in the Schedule to these orders for the period of the interim supervision order.

6. 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.

7. 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.

8. Liberty is granted to the parties to apply on one day’s notice in relation to order 1 if the parties cannot reach agreement for the purposes of that order.

**********

Schedule to the orders made on 18 September 2019 in State of New South Wales v Nichol (Preliminary).

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

1.    Corrective Services NSW (CSNSW) will administer this ISO until the end of the Order.

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

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

Electronic Monitoring

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

Part B: Accommodation

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

6.   The defendant may be directed to abide by a curfew if his DSO reasonably suspects behaviour or conduct associated with an increased risk of the defendant committing a serious offence (as defined by the Act). If implemented, the defendant must be at his approved address between times nominated by the DSO unless other arrangements are 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.

8.   [Deleted]

9.   [Deleted]

Part C: Place and travel restrictions

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

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

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

13.   Without limiting condition 12 above, the defendant must not go to any of the following places without the prior approval of his DSO:

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

2. Amusement parlours, amusement parks and theme parks;

3. Cinemas;

4. Libraries and museums;

5. Camping grounds and caravan parks;

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

7. Pools, playing fields and sporting facilities;

8. Concerts, theatre shows, movies, events and activities intended for the entertainment of children; or

9. Residences where the defendant knows that persons under 18 ordinarily reside;

10. Internet cafes or other businesses which provide public access to the internet either for payment or for no charge (other than employment agencies).

14.   The defendant must not attend any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment without the prior approval of his DSO.

Part D: Employment, finance and education

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

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

17.   The defendant must not form any corporation, partnership, unincorporated association or register any business names without prior approval of the DSO.

Part F: Non-association

Association with Children

18.   The defendant must not approach or have contact with anyone who he knows or reasonably should know is under 18, other than:

11. Incidental contact in a public place; or

12. With the written permission of his DSO and in accordance with any requirements reasonably determined by the DSO, including that the contact takes place in the presence of an adult who has been approved in writing by his DSO.

Associations with Others (not children)

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

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

21.   The defendant must obtain written permission from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service

Part I: Access to the internet and other electronic communication

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

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

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

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

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

Part J: Search and seizure

27.   If the DSO reasonably believes that a search (of the type referred to in sub­paragraphs d to f below) is necessary:

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

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

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

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

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

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

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

20. search and examination of his person.

28.   For the purposes of the above condition:

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

21. 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.

29.   During a search carried out pursuant to condition 27 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:

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

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

25. 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.

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

31.   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 27 to 30 above.

Part K: Access to pornographic, violent and classified material

32.   The defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification, X18+, R18+, Restricted Category 2 and Restricted Category 1, or any other material as directed by the DSO without the prior approval of the DSO.

Part L: Personal details and appearance

33.   The defendant must not change his name from "Zakary Nichol" or use any other name without the approval of his DSO.

34.   The defendant must not use any alias, log-in name, or a name other than "Zakary Nichol" or use any email address other than those known to the DSO under condition 22 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email.

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.

Part M: Medical intervention and treatment

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

38   The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend unless the defendant provides a reasonable excuse to his DSO for 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 health practitioners advise him that it is not necessary to do so.

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

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

42.   The defendant 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.

Decision last updated: 18 September 2019