State of New South Wales v Nikua (Preliminary)

[2021] NSWSC 781

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Nikua (Preliminary) [2021] NSWSC 781

Hearing dates:

21 June 2021

Date of orders:

2 July 2021

Decision date:

02 July 2021

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

I make the following orders:

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

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

(b) I direct the defendant to attend those examinations.

(2) Pursuant to s 10A of the Act, the defendant be subject to an interim supervision order from 11 July 2021 (“the interim supervision order”).

(3) Pursuant to s 10C(1) of the Act, the interim supervision order be for a period of 28 days.

(4) Pursuant to s 11 of the Act, I direct that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule to this judgment.

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

Catchwords:

HIGH RISK OFFENDERS – Interim supervision orders – Conditions – High risk violent offender – Conditions imposed must be relevant to risk posed by the offender

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW)

Cases Cited:

State of New South Wales v Ali [2010] NSWSC 1045

State of New South Wales v Burns [2014] NSWSC 1014

State of New South Wales v Hardy [2021] NSWSC 323

State of New South Wales v Holschier(No 2) [2018] NSWSC 1921

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

State of New South Wales v Sturgeon [2019] NSWSC 559

State of New South Wales v Wilmot (Preliminary) [2019] NSWSC 776

Category:

Procedural rulings

Parties:

State of New South Wales (Plaintiff)
Solomone Nikua (Defendant)

Representation:

Counsel:
P Aitken (Plaintiff)
D Carroll (Defendant)

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

File Number(s):

2021/101072

Publication restriction:

None

Judgment

1. By a summons filed on 12 April 2021 the plaintiff, the State of New South Wales (“the State”), brings proceedings against the defendant, Solomone Nikua, pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”).

2. The State seeks preliminary orders, interim orders and final relief in the nature of an extended supervision order (“ESO”).

3. This is the judgment in respect of the preliminary hearing.

4. The issue I am determining is whether I should make the orders for interim relief appointing two qualified psychiatrists and/or psychologists to conduct examinations and provide reports and an order directing the defendant to attend those examinations.

5. I am also considering whether the defendant should be subject to an interim supervision order (“ISO”) for a period of 28 days from 11 July 2021. On that day, the applicant will be released into the community having served his sentence in respect of the index offence.

6. At this preliminary stage, the defendant does not dispute that he should be subject to an ISO and that orders should be made requiring him to attend the medical examinations.

7. The focus of the dispute on the hearing related to the conditions which should be imposed at this preliminary stage. Having said that, it is necessary that I be independently satisfied that he should be subject to an ISO and attend the examinations.

The legislative scheme

8. The primary object of the Act is protective rather than punitive. It provides 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: s 3(1) of the Act.

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

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

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

10. The defendant’s current custody will expire before the proceedings are determined.

11. Section 7 of the Act deals with pre-trial procedures. The wording in s 7(4) of the Act is identical to the wording in s 10A(b) of the Act.

12. For the purposes of the orders sought, it is thus necessary to be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. If so satisfied, the Court must make the orders set out in ss 7(4)(a) and (b) of the Act.

13. However, if the Court is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, the Court must dismiss the application: s 7(5) of the Act.

14. It is not necessary that the Court be satisfied at the preliminary stage that the matters alleged in the supporting documentation will be proved. The Court is only required to be satisfied that, if those matters are proved, an order would be justified, bearing in mind the elevated standard of proof, namely, a high degree of probability: ss 5B and 5C of the Act; State of New South Wales v Wilmot (Preliminary) ^[1] (“Wilmot”); State of New South Wales v Sturgeon ^[2] (“Sturgeon”).

    1. [2019] NSWSC 776 (Lonergan J).

    2. [2019] NSWSC 559 (Garling J).

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

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

17. The meaning of “an unacceptable risk” in s 5B(d) and the principles which are to be applied were summarised by Hoeben CJ at CL in State of New South Wales v Holschier(No 2) ^[3] at [23]–[24] as follows:

    3. [2018] NSWSC 1921.

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

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

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

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

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

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

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

Threshold questions

18. The defendant accepts that the threshold requirements are satisfied. His current custody will expire before the proceedings are determined. He is serving a sentence of imprisonment for a serious offence. He is a supervised offender within the meaning of s 5I of the Act. Further, an application has been made in accordance with s 5I.

19. Further, the defendant also accepts that the application has been made in accordance with ss 6(3)(a) and (b) of the Act.

Background facts / Defendant’s criminal history

20. The defendant is currently 38 years of age. He has an extensive criminal history which commenced in the Children’s Court. The history includes a range of offences including larceny, assault, goods in custody and driving type offences.

21. In 2005, he was convicted of assault occasioning actual bodily harm and sentenced to a period of imprisonment of 18 months with a non-parole period of 6 months.

22. During 2007 he was convicted of aggravated break and enter in company and sentenced to a period of imprisonment of 5 years commencing 20 April 2008 with a non-parole period of 3 years.

23. Then in 2011, he was convicted of a number of offences of robbery armed with an offensive weapon, for which he was sentenced to a further period of imprisonment of 6 years and 6 months with a non-parole period of 4 years and 3 months.

24. In 2014, he was convicted of the offence of affray and sentenced to imprisonment for 12 months commencing 13 November 2015 with a non-parole period of 9 months.

25. Whilst in custody, he committed the offence of wounding with intent to cause grievous bodily harm (“the index offence”). He was sentenced to a further period of imprisonment for a period of 59 months commencing 12 August 2016 and expiring on 11 July 2021. A non-parole period of 35 months was specified.

26. The defendant remains in custody in respect of the index offence. He is due to be released no later than 11 July 2021. It is perhaps an unusual feature of this matter that the offending which falls within the definition of serious violence offence under s 5A of the Act, is an offence which he committed whilst in custody.

27. Although the defendant was eligible for parole on 11 July 2019 and has applied for parole, on 22 September 2020 the State Parole Authority refused to grant parole on the basis that the defendant had not completed the Violent Offenders Therapeutic Program (“VOTP”).

28. Further, at least until recent times, the offender’s tendency to violence has not abated whilst he has been in custody. Since August 2016 he has been the subject of over 50 institutional misconduct charges. Sixteen of those relate to assault or intimidation.

29. Between April 2018 and June 2020, he was in the High Risk Management Correctional Centre because of the risk of violence.

30. The circumstances of the index offence were the subject of agreed facts on sentencing before her Honour, Judge Flannery SC of the District Court on 7 April 2017.

31. The defendant and the victim were participating in the VOTP together. Whilst they were waiting in the wing yard for the commencement of the daily muster with a number of other inmates, the defendant pulled a 20 centimetre sharpened piece of plexiglass from his pocket and stabbed the victim in the head with significant force. During the subsequent struggle, the defendant stabbed the victim a further 9 times. Despite the intervention of another 9 inmates who appeared to have imposed their own acts of violence upon the defendant, the defendant and the victim continued to fight until such time as correctional officers intervened in which they needed to use gas to break up the fight.

32. The defendant has spent much of the last 15 years in prison due to a pattern of escalating violence. Although he was actually only due to be in custody for a short period as a result of being convicted of affray, the violence perpetrated by the defendant during the index offence was of a serious type. He was thus sentenced to a much more lengthy term of imprisonment as a result of the offending whilst in custody.

33. Further, on a review of the corrective services case notes, it is apparent that the defendant has had difficulty controlling his violent impulses whilst in custody.

Other evidence as to risk

34. The parties have highlighted some aspects of the evidence which, in addition to the criminal history, the circumstances of the index offence and his conduct whilst in custody, would lead to satisfaction that the matters raised in the supporting documentation would, if proved, justify the making of an ESO.

35. On 2 October 2020, Dr Richard Parker and Cherice Cieplucha, psychologists, prepared a risk assessment report on behalf of Corrective Services NSW. In their report they concluded:

“Mr Nikua is a 38 year old man, of Tongan heritage, who is estimated to be at high risk of further serious violent offending. This assessment is anchored by static, unchangeable factors and backed up by the identification of a number of criminogenic needs. He has only recently entered the VOTP to address those needs, having previously been removed from that program after seriously assaulting another participant.”

36. They said further:

“…Mr Nikua does not generally appear to carefully plan to inflict a particular level of violence, rather the resultant level of violence is an interplay between Mr Nikua’s intentions and level of emotional arousal, the resistance of the victim, and the actions of other onlookers/participants. While his index serious violence offence appears to have always been an attempt to inflict serious violence (proactive, planned offence, involving repeated strikes to the head/neck area with a blade), it is not hard to imagine many of his other violent offences reaching the level of serious violence, if circumstances had changed slightly. In one of his other violent offences… he was initially charged with a more serious offence. The fact that he planned to commit serious violence in the index offence suggests that he has few qualms against using this level of violence.

While he is currently participating in the VOTP, he has not displayed indications of any substantial change, although he did express a desire to change, upon release to the community. Whilst this desire is commendable, it will require substantial effort to change his ingrained habits.”

37. The authors of the report thus identified the defendant as being at a high risk of further serious violent offending.

38. In a report prepared by Erin Kirkwood, a Senior Community Corrections Officer, as endorsed by Kelli Grabham, a High Risk Offender Applications and Operational Governance Officer within Corrective Services NSW, the defendant is assessed as posing a high risk of further violence. The authors observed that he has displayed a poor historical response to supervision and that his effective management will be partially contingent upon his willingness to engage in the supervision process and his level of transparency with supervising staff relating to his activities and ongoing stability.

39. The defendant has a long history of polysubstance abuse. He had been drinking alcohol around the age of 12 or 13. His use of cannabis even predates that age. He began smoking heroin around the age of 13 to 14. He has also shown to have a problematic gambling history whilst under the influence of ice and accepted that he would be susceptible to relapsing into gambling if he has not addressed his ice habit.

40. In a report of 16 February 2017, Ms Caroline Hare, a forensic psychologist, opined that the defendant required intervention to address a number of criminogenic needs, including attitudes and beliefs that support the use of violence; substance abuse; emotional dysregulation; self-control deficits; cognitive distortions and interpersonal problem-solving deficits.

41. Having said all of that, the defendant points to his response to questioning by Dr Parker in October 2020 regarding his plans to live a law abiding lifestyle on release. He said to Dr Parker:

“Mr Nikua said that he had become numb to violence, through seeing so much violence in gaol. As a consequence, he believes that he has to behave a certain way in prison (project a tough image) to avoid being attacked himself. He said that the community was different and that such an image was not required (or beneficial) in the community. He said that he was ‘getting old’ and that ‘enough’s enough’ in terms of the lifestyle. He said ‘I know how to be in the community’ and said he was determined to live a drug free lifestyle upon release.”

42. Further, the defendant is on the methadone program and despite earlier difficulties completing the program, he is now participating in the VOTP. On release, it is proposed that he will live with his mother, as her residence has previously been assessed as being suitable.

43. I acknowledge that having regard to the most recent efforts of the defendant to complete the VOTP, and what appears to be an improved attitude to resisting his urges towards violence, a more optimistic view might be taken of the risks associated with the defendant’s release than at an earlier time.

44. However, having regard to all of the evidence, I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO.

45. In these circumstances, I must make an order appointing the psychiatrists or psychologists to conduct examinations and to furnish reports to the Court. Of course, although I must make an order appointing the psychiatrists or psychologists, I still have a discretion as to whether to make an ISO. In all the circumstances, I am satisfied that an ISO should be made.

46. Despite some improvement in his attitude, the risk assessment evidence suggests that he still poses a high risk of reoffending.

47. The primary issue between the parties relates to the conditions which should be imposed for the period of the ISO.

The conditions

48. The defendant accepts that most of the conditions proposed by the plaintiff should be imposed. Annexed to this judgment is a schedule of conditions which I consider should be imposed. I will comment only on the conditions in dispute.

49. The Court is permitted to impose such conditions as it “considers appropriate”: s 11 of the Act. That necessarily involves the striking of a balance between relevant considerations so as to provide an outcome which is fit and proper: State of New South Wales v Ali. ^[4]

    4. [2010] NSWSC 1045 at [88] (Johnson J).

50. The conditions must be related to the mitigation of the unacceptable risk: State of New South Wales v Burns. ^[5]

    5. [2014] NSWSC 1014 at [59] (Beech-Jones J).

51. The conditions must not be unnecessarily onerous. Further, they must address identified risk factors but must be considered in a realistic way: State of New South Wales v Ley Thomas Baker (No 2). ^[6]

    6. [2015] NSWSC 483 at [36] (Adams J).

52. Any condition must have the capacity to reduce or mitigate the risk which is unacceptable rather than merely being a condition which may be more generally appropriate in respect of serious violent or serious sex offenders. Merely identifying the possibility that a particular condition might reduce or eliminate the risk without regard to the particular offender’s specific risk factors would not suffice.

Condition 4 – Electronic Monitoring

53. The plaintiff proposes that the defendant be subject to electronic monitoring equipment. The defendant opposes that condition.

53. In this matter, there is no evidence that any of the defendant’s prior offending, other than perhaps the index offence whilst committed in custody, was the result of any real planning. There is no evidence that the offending was associated with the defendant’s visits or habitation of any particular area or place. Further, there is no evidence that electronic monitoring would prevent the type of offending with which the defendant has been associated with previously.

54. Unlike when considering serious sex offenders, risk mitigation does not require that the defendant be prohibited from entering certain places or venues such as schools or swimming pools.

55. The plaintiff submits that electronic monitoring is one of several complementary conditions aimed at tracking and restricting risk behaviour or scenarios including seeking out drugs, gambling or attending locations where scenarios or risk of violence may be more likely.

56. The purpose of electronic monitoring appears to be to identify after the event that the defendant may have frequented places where he might be involved in activities such as gambling.

57. I do not consider that there is a sufficient nexus between the defendant’s risk factors and the need for electronic monitoring. The defendant accepts that he must be subject to a schedule of movements and other conditions which would regulate his behaviour and movement.

58. I do not accept that electronic monitoring is justified merely on the basis that it might possibly alert the DSO to the fact that he might have attended places which might suggest that he has relapsed into gambling or drug-taking.

Condition 5 – Schedule of movements

60. During exchange on the hearing, the defendant accepted that the condition requiring a schedule of movements should include “such plans should include any proposed attendance at licensed premises”. I will include that sentence in the condition relating to the schedule of movements.

Condition 16 – Place and travel restrictions

61. Following exchange of submissions, the parties have agreed on a form of wording for Condition 16 as follows:

“The defendant must comply with any reasonable direction from his DSO not to go to a particular place. A direction given under this condition is to be confirmed in writing as soon as practicable, including via text/SMS, indicating the reasons for the direction and the connection with the defendant’s risk”.

62. I will include that agreed condition.

Condition 24 – Entering licensed premises

63. I consider that the proposed addition to Condition 24 (not entering licensed premises without prior approval of DSO) should be made. It is important that in any discretionary exercise by a DSO, permission to attend at licensed premises not be unreasonably withheld. Condition 24 is to be amended to include:

“A DSO is not to unreasonably refuse attendance at a licensed premises for the purposes of social engagement by the defendant with family and friends.”

Condition 28 – Disclosure of criminal history

64. I agree with the defendant’s submission that the history of his offending and associated risk factors is impulsive violence. Disclosure of his criminal history to other persons in advance is more likely to be deleterious to his reintegration and prosocial activities than mitigate any risk. I disallow Condition 28.

Condition 34 – Access to the internet and other electronic communications

65. It is perhaps difficult to link such a condition with mitigation of risk having regard to the defendant’s history of offending. The defendant’s offending does not involve the use of the internet or phones or any other similar devices. The plaintiff submits that such conditions are appropriate but because it is likely that the defendant will be able to learn to use such devices despite his lengthy period in custody, and that he is vulnerable to association with gangs and antisocial peer influence, this may be a way of tracking his activities.

66. I accept that some form of the conditions are appropriate. It seems to me that the conditions proposed by the defendant, being Conditions 34, 35, 36, 37, 38 and 39, are not either unduly onerous or intrusive and afford an appropriate means by which there may be some form of supervision of the defendant’s use of such devices. In those circumstances, I have included the conditions proposed by the defendant.

Condition 45 – Search and seizure

67. Again, the defendant has proposed an amended condition.

68. The condition proposed by the plaintiff permits search and seizure of his residence, his vehicle, his computer and electronic devices and any storage facility without limitation or any pre-requisite for the DSO having a reasonable suspicion that such a search and seizure is necessary to reduce risk.

69. I agree with the defendant’s submission that such a broadly worded condition is unduly onerous and I am not satisfied that it is necessary to reduce risk. Again, the defendant is not a serial sex offender. He has committed a number of acts of violence over the years.

70. It is important to emphasise that the importance of the conditions is to address the risk factors associated with his offending. The conditions are not intended to address risks associated with any type of offending or any type of behaviour which might be viewed as anti-social.

Condition 48 – Personal details and appearance

71. The defendant opposes the condition which prevents him from significantly changing his appearance without the approval of a DSO. It is a broadly worded condition. I am uncertain whether, for example, growing a beard or shaving off a beard would constitute a significant change in appearance. No doubt such a condition is designed to ensure that the defendant does not develop a means of avoiding detection if he is in places he should not be but, again, there is simply no evidence that this condition mitigates the risk in any way. None of his offending has been associated with any attempt to disguise his appearance and none of his risk factors are associated with offending which might be committed by persons endeavouring to attempt to disguise their appearance, such as loitering around schools or other places where certain types of offenders should not be.

72. I disallow Condition 48.

Condition 53 – Disclosure of criminal history to treating and allied health service providers

73. The defendant opposes such a condition. In State of New South Wales v Hardy ^[7] Harrison J said:

“I am unable to accept that it is either appropriate or necessary. Indeed, on one view it is potentially entirely counterproductive to the extent that it might lead a person in Mr Hardy’s position, who was in need of sensitive and confidential care, to refrain from seeking such treatment because of understandable concerns about privacy. I am not satisfied that any such condition should be imposed in this case.”

7. [2021] NSWSC 323 at [48].

74. The same might be said about this defendant.

75. There is no evidence even remotely suggesting that the defendant is likely to be violent towards any health professional. There is no evidence which suggests that any health professional might, if having knowledge of the defendant’s criminal history, adopt some type of precautions which would reduce the risk.

76. Condition 53 is amended as proposed by the defendant and Conditions 56 and 57 are deleted.

Orders

77. I make the following orders:

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

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

2. I direct the defendant to attend those examinations.

2. Pursuant to s 10A of the Act, the defendant be subject to an interim supervision order from 11 July 2021 (“the interim supervision order”);

3. Pursuant to s 10C(1) of the Act, the interim supervision order be for a period of 28 days;

4. Pursuant to s 11 of the Act, I direct that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule to this judgment; and

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

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SCHEDULE OF CONDITIONS OF SUPERVISION

SOLOMONE PESALILI NIKUA

Departmental Supervising Officer (DSO)

Corrective Services NSW (CSNSW)

In these conditions:

“Associate” includes, but is not limited to, being in company with, or to communicate by any means (including by post, facsimile, telephone, email or any other form of electronic communication).

“CSNSW” means Corrective Services NSW.

“Commissioner” means Commissioner for Corrective Services.

“Defendant” means Solomone Nikua, the defendant in these proceedings and the subject of the order.

“Digital Blueprint” has the same meaning as in the Weapons Prohibition Act 1998 (NSW) and means any type of digital (or electronic) reproduction of a technical drawing of the design of an object.

“DSO” means Departmental Supervising Officer, that is, any Corrective Services Officer supervising the defendant under the order.

“Electronic identity” means each of the following:

(a) an email address,

(b) a user name or other identity allowing access to an instant messaging service,

(c) a user name or other identity allowing access to a chat room or social media on the internet,

(d) any other user name or other identity allowing access to the internet or an electronic communication service.

“Material” includes:

1. any written or printed material;

2. any picture, painting or drawing;

3. any carving, sculpture, statue or figure;

4. any photograph, film, video recording or other object or thing from which an image may be reproduced;

5. any computer data or the computer record or system containing the data; and

6. any other material or object on which an image or representation is recorded or from which an image or representation may be reproduced.

“NSWPF” means NSW Police Force.

“Search” includes:

1. A garment search, being 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; and

2. A pat-down search, meaning a search of the defendant where the defendant’s clothed body is touched.

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

1. The defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions of a DSO.

2. Where a direction may 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.

3. The defendant must truthfully answer questions from a DSO, or any other person supervising him, about where he is, where he is going, who he is with, what he is doing and the nature of his associations.

Electronic Monitoring

4. Deleted.

Schedule of Movements

5. If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start. Such plans should include any proposed attendance at licensed premises.

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

7. The defendant must not deviate from his approved schedule of movements except in an emergency.

Part B: Accommodation

8. The defendant must live at an address approved by a DSO and notify a DSO as soon as possible of any steps taken or any steps the defendant intends to take in the near future to change the defendant’s approved address or living arrangements.

9. The defendant must be at his approved address between 9pm and 6am unless other arrangements are approved by a DSO.

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

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

12. The defendant must promptly notify a DSO of any visitor he knows will be entering and remaining at his approved address or notify a DSO as soon as practicable of any visitor who has entered and is remaining at the defendant’s approved address.

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

Part C: Place and Travel Restrictions

14. The defendant must not leave NSW without prior approval.

15. The defendant must surrender any passports held by him to the Commissioner, must not be in possession of any passports, and must not attempt to apply for any passports.

16. The defendant must comply with any reasonable direction from his DSO not to go to a particular place. A direction given under this condition is to be confirmed in writing as soon as practicable, including via text/SMS, indicating the reasons for the direction and the connection with the defendant’s risk.

Part D: Employment, Finance and Education

17. The defendant must take all reasonable steps to participate in interventions as recommended by a DSO, including the development of a case management plan which may include employment, education, training or participation in personal development programs.

18. The defendant must not start on his own initiative any job, volunteer work or educational course without the prior approval of a DSO.

19. The defendant must notify a DSO of any intention to change his employment if practicable before the change occurs or otherwise at his next interview with a DSO.

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

Part E: Drugs and Alcohol

21. The defendant must not use prohibited drugs, or abuse drugs unlawfully obtained.

22. The defendant must not consume alcohol unless he is given prior approval by a DSO and only in the manner approved (approval may be given in a general sense or for consumption to a particular blood/alcohol level or approval may be given in relation to a particular event).

23. The defendant must submit to drug and alcohol testing.

24. The defendant must not enter any licensed premises including hotels, bars, racecourses and licenced clubs, but excluding cafes and restaurants, without the prior approval of a DSO. A DSO is not to unreasonably refuse attendance at a licensed premises for the purposes of social engagement by the defendant with family and friends.

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

Part F: Non-association

Associations with Others (not children)

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

27. Without limiting condition 26, the defendant must not:

a. Associate with any person who he knows will be or are consuming or under the influence of alcohol without the approval of a DSO. The defendant must obtain approval from his DSO as soon as the defendant knows or becomes aware that the person(s) he is associating with are or will be consuming alcohol.

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

c. Associate with any person held in custody, without prior approval of a DSO.

28. Deleted.

29. The defendant must obtain approval from a DSO prior to joining or affiliating with any club or organisation.

Part G: Gambling

30. The defendant must not gamble.

31. If directed by a DSO, the defendant must seek assistance in controlling his gambling.

Part H: Weapons

32. The defendant must not possess a prohibited weapon within the meaning of the Weapons Prohibition Act 1998.

33. Additionally, the defendant must not possess or use any of the following, without a DSO’s prior approval:

a. A knife, machete, sword or any other device that consists of a single-edged or multi-edged blade or spike that is designed or adapted to inflict violence, whether actual or threatened; and

b. Any other implement made or adapted for use for causing injury to a person.

Part I: Access to the Internet and other Electronic Communication

34. If directed by a DSO, the defendant must provide a list of electronic devices he used to communicate with other persons.

35. If directed, the defendant must produce any such device to his DSO for the purpose of a DSO accessing any communication that the defendant has had with other persons on that device.

36. The defendant must take all reasonable steps to permit that access described in Condition 35 including providing any passwords or login details if necessary.

37. If the DSO, having viewed the communication in Condition 35, reasonably suspects the commission of an offence or that a communication gives rise to an increased risk of the defendant committing a serious offence or to the safety and welfare of any person the defendant must permit the DSO to:

a. Take the device for a period of no more than 48 hours, for the purpose of downloading only that communication; or alternatively

b. Photograph the communications.

38. The defendant must not delete or alter any data relating to communications with other persons without the permission of his DSO.

39. The defendant must provide consent for a DSO (or any other person requested by a DSO) to remotely inspect any electronic device identified in Condition 34 in monitoring compliance with this Order.

40. The defendant must provide any code or encryption for any electronic data or any electronic communication if discovered on the defendant’s electronic devices or accounts as a result of a search or a remote inspection.

41. The defendant must not access, join and/or connect to any social networking service or application without the prior approval of a DSO, including, but not limited to, use of internet-based email, instant messaging services, online community services, multi-player video games and other telecommunications-based including text and voice services.

42. The defendant must provide consent for a DSO (or any other person requested by a DSO) to remotely inspect any internet account used by the defendant, including any internet service provider account, email accounts and social media accounts, in monitoring compliance with this Order.

43. The defendant must not delete, tamper or alter any applications, email, text messages, any electronic message, call history, any data, internet search, internet or application search history, any application chat or communication history from his phone, computer, tablet or any other electronic device without the prior consent of a DSO.

44. The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with a DSO.

Part J: Search and Seizure

45. If the DSO forms a reasonable suspicion that a search is required, either to monitor the defendant’s compliance with this Order, or for the safety and welfare of any other person, or because the DSO suspects the defendant having engaged in behaviour or conduct associated with an increased risk of committing a serious offence, the defendant must submit to a search by a DSO (or any person directed by a DSO) of his person or residence, or any vehicle in which he is travelling or which is under his effective control, or any storage facility, garage, locker or commercial facility in his possession or under his control and to the seizure of any object located during the search which gives rise to an increased risk of him committing a serious offence.

46. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to this order.

Part K: Personal details and appearance

47. The defendant must not change his name from “Solomone Nikua” or use any other name without notifying a DSO.

48. Deleted.

49. The defendant must let a DSO photograph him, dressed, within one week of the commencement of these conditions and following any significant change to his appearance.

50. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide a DSO with such details.

Part L: Medical Intervention and Treatment

51. Where a DSO directs, the defendant must undergo psychological or psychiatric assessment or counselling (or any combination of these), including any therapy sessions, support and treatment programs (including any drug or alcohol treatment programs).

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

53. The defendant must attend, upon the direction of a DSO, any therapy sessions, support and treatment programs the subject of the direction.

54. The defendant must take medications that are prescribed to him by his treating healthcare professionals only in the manner prescribed.

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

56. Deleted.

57. Deleted.

Endnotes

Decision last updated: 02 July 2021