State of New South Wales v Presta (No 2)

[2016] NSWSC 1154

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Presta (No 2) [2016] NSWSC 1154
Hearing dates:	12 August 2016
Date of orders:	22 August 2016
Decision date:	22 August 2016
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	Pursuant to s 17(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is made subject to a high risk offender extended supervision order for a period of 5 years from today and, pursuant to s 11 of the Act, the defendant is directed to comply with the conditions set out in the Schedule to this order.
Catchwords:	CIVIL LAW – high risk sex offender – final hearing – application for a continuing detention order – interim detention order in place – whether adequate supervision will be provided by an extended supervision order
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW)
Cases Cited:	Anderson v State of New South Wales [2016] NSWCA 86 Attorney General for the State of New South Wales v Hayter [2007] NSWSC 983 Attorney General for the State of New South Wales v Tillman [2007] NSWCA 119 Lynn v State of New South Wales [2016] NSWCA 57 R v Presta [2000] NSWCCA 40 State of New South Wales v Bruno Presta (NSWSC, 5 August 2016, unrep) State of New South Wales v Donovan [2015] NSWCA 280 State of New South Wales v Presta [2016] NSWSC 966 State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 The State of New South Wales v Bruno Presta (NSWSC, 24 May 2016, unrep)
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) Bruno Presta (Defendant)
Representation:	Counsel: Mr L Fernandez (Plaintiff) Ms A Cook (Defendant)   Solicitors: Crown Solicitor’s Office (Plaintiff) Legal Aid New South Wales (Defendant)
File Number(s):	2016/00152594
Publication restriction:	None

Judgment

1. By summons filed on 18 May 2016, the State seeks the following orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) against the defendant, Bruno Presta:

1. An order pursuant to section 17(1)(b) of the Act that the defendant be the subject of a high risk sex offender continuing detention order for a period of 12 months.

2. An order pursuant to section 20(1) of the Act that the Court issue a warrant for the committal of the defendant to a correctional centre for the period specified above.

3. In the alternative, an order pursuant to section 17(1)(a) of the Act, that the defendant be subject to a high risk sex offender extended supervision order for a period of 5 years from the date of the order, and pursuant to section 11 of the Act direct that the defendant comply with the conditions set out in the Schedule

2. The matter first came before the Court on 23 May 2016 when Fagan J heard the State’s application for preliminary orders for the defendant’s interim detention, and for him to be examined by two forensic psychiatrists, Dr Michael Allnutt and Dr Jeremy O’Dea, with the object of providing the court with expert reports. His Honour granted the State’s application the following day: The State of New South Wales v Bruno Presta (NSWSC, 24 May 2016, unrep).

3. On 20 June 2016 the Court granted an extension of the interim detention order (“IDO”) for a further period of 28 days, with a further such extension granted on 11 July 2016 by Beech-Jones J: State of New South Wales v Presta [2016] NSWSC 966. On 5 August 2016 Fagan J granted a further and final 28 day extension of the IDO, which will expire on 23 August 2016: State of New South Wales v Bruno Presta (NSWSC, 5 August 2016, unrep).

4. The matter came before me on 12 August 2016 for final hearing of the State’s application for a continuing detention order (“CDO”) against the defendant.

The Law

5. The legislation and legal principles relevant to an application of this nature are now well known, there having been many such applications before the Court in the last 10 years, both at first instance and on appeal. Consideration of them can be found, for example, in Attorney General for the State of New South Wales v Hayter [2007] NSWSC 983; Attorney General for the State of New South Wales v Tillman [2007] NSWCA 119; State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118; State of New South Wales v Donovan [2015] NSWCA 280; Lynn v State of New South Wales [2016] NSWCA 57; Anderson v State of New South Wales [2016] NSWCA 86. It is not intended here to do more than note the relevant provisions and principles.

6. In determining an application for an individual to be made subject to a CDO, the Act requires the Court to be satisfied of two matters: that the defendant poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision; and, that adequate supervision will not be provided by an extended supervision order (“ESO”).

7. There is no controversy in the present case as to the first of those matters: it is conceded that the defendant is a person who has been convicted of a serious sex offence within the meaning of the Act, and that it is open to the Court to conclude that he is a high risk sex offender within the meaning of s 5B of the Act. At issue between the parties, and the focus of evidence and submissions before me, was the second matter, whether adequate supervision will not be provided by an ESO.

8. The relevant provisions are ss 5B, 5C, and 5D of the Act:

“5B High risk sex offender

(1) An offender can be made the subject of a high risk sex offender extended supervision order or a high risk sex offender continuing detention order as provided for by this Act if and only if the offender is a high risk sex offender.

(2) An offender is a high risk sex offender if the offender is a sex offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision.

(3) The Supreme Court is not required to determine that the risk of a person committing a serious sex offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious sex offence.

5C Extended supervision orders for high risk sex offenders

(1) The Supreme Court may, on application under this Act, make an order for the supervision of an offender if the offender is a high risk sex offender.

(2) An order made under this section is an extended supervision order.

(3) An extended supervision order made under this section may also be referred to as a high risk sex offender extended supervision order.

5D Continuing detention orders for high risk sex offenders

(1) The Supreme Court may, on application under this Act, make an order for the detention of an offender if the offender is a high risk sex offender and the Supreme Court is satisfied that adequate supervision will not be provided by an extended supervision order.

(2) An order made under this section is a continuing detention order.

(3) A continuing detention order made under this section may also be referred to as a high risk sex offender continuing detention order.”

The Evidence

9. As is usual with applications of this nature, there was a considerable amount of documentary evidence tendered, together with oral evidence from Drs Allnutt and O’Dea, who gave evidence before me on 12 August 2016. During preliminary proceedings, evidence was additionally taken from Melanie Munright and Katrina Frost (before Fagan J on 23 May 2016) and Susan Wojciechowski (before Beech-Jones J on 11 July 2016).

10. The evidence, broadly, falls into three categories, one dealing with the defendant’s criminal past and custodial experiences, a second relating to evidence of his mental state, and a third connected with risk assessment and management.

11. Other than entries for three minor offences dealt with before the Children’s Court in 1982 and 1985, the defendant’s criminal history is comprised solely of those offences which serve to make him a sex offender within the meaning of the Act, or which are associated with those offences.

12. On 4 November 1998 the defendant, then aged 29 years, was convicted before the Liverpool District Court and sentenced for 26 offences, to which he had pleaded guilty on indictment. A further 10 offences were before the Court on a Form 1 document and taken into account, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW), when sentence was imposed for a charge of aggravated sexual assault contrary to s 61J of the Crimes Act 1900 (NSW).

13. The indictment charged 5 counts of kidnapping under the now repealed s 90A of the Crimes Act, together with 21 counts of aggravated sexual assault. Of the 10 offences on the Form 1 document, there was one count of threatening injury (with a hand gun), 6 counts of commit act of indecency, and one count each of possessing a prohibited weapon, assault occasioning actual bodily harm, and homosexual intercourse. There were seven separate boys and young men who were the victims of these offences.

14. Fagan J described the defendant’s crimes as offences of sickening depravity, a characterisation that is innocent of the slightest hyperbole.

15. Bearing in mind the defendant’s concession that he is a high risk offender, I do not regard it as necessary to set out the detail of the defendant’s despicable crimes. It is enough to note that they involved the kidnapping (using what proved to be a replica .45 calibre automatic pistol) and detention of boys aged from about 15 years to 18 years, their forcible drugging and the subjection of each boy to the most horrific acts of sexual violence and degradation. The defendant filmed his crimes, he said, to assist the authorities when his crimes came to light (a claim, unsurprisingly, not accepted by the sentencing judge, his Honour Judge O’Reilly QC).

16. The crimes had been planned in advance.

17. When he was arrested by police he was asked why he had committed these offences. He said only “I don’t know, I really don’t” (Ex CP-1, pg 12).

18. The sentencing judge was not able to determine what the motivation was for the defendant’s “extraordinary and appalling” crimes, other than the sexual sadism with which the defendant was diagnosed prior to sentencing. His Honour concluded that “there was not much in the way of remorse so far as the victims were concerned” (Ex CP-1, pg 19).

19. His Honour concluded that there must be some risk for the future. He said:

“As to the future, Dr Lucas [who provided a psychiatric report to the court] says “One must say that his prognosis is best described as guarded”. I suppose the difficulty is that not knowing what was the trigger of this activity, one has difficulty in asserting that it is unlikely to occur again in the future. Certainly, the difficulty is compounded when plainly there must be a heavy sentence imposed on him. The doctor says that upon release from custody, careful monitoring by a psychiatrist is important and I would respectfully agree with that.” (Ex CP-1, pg 16)

20. The sentencing judge imposed an overall effective term of imprisonment for 19 years, to date from 14 November 1997, with an effective non-parole period of 14 years and 3 months imprisonment. The non-parole period expired on 13 February 2012 and the total term expires on 13 November 2016.

21. With what could only be regarded as misplaced optimism the defendant appealed against the sentence, asserting that it was too severe, but his appeal was dismissed: R v Presta [2000] NSWCCA 40. Greg James J commented (at [36]):

“Many might think that the sentence passed by the learned trial judge was lenient, and indeed very lenient. I see no basis upon which the challenge made here could have succeeded.”

22. Although eligible for parole in 2012 the defendant was not admitted to parole, the State Parole Authority refusing until recent months to countenance it. He was thus in custody serving a sentence for a serious sex offence when the State filed its application, and he is a “detained sex offender”: s 13B.

23. From the Corrective Services records in evidence, it appears that the defendant has served a significant portion of his sentence in protection, at his own request. His placements have frequently been noted as a result of “fearful inmate”. For a 3 month period in 2000 the defendant was housed in segregation, due to an allegation that he had sexually assaulted other inmates (Ex CP-1, pg 68).

24. He has incurred a number of institutional offences over the period of his incarceration, with the first such entry recorded for an offence of fighting on 10 June 1999 (Ex CP-1, pg 68). Further offences of fighting, stealing, possessing a drug, giving false information, unlawfully using a phone, and unlawfully receiving an article followed, with the last recorded institutional offence occurring on 9 November 2015 (Ex CP-1, pg 68).

25. In evidence at the hearing was a urinalysis result which established that, on or shortly before 14 July 2016, the defendant had used illegal drugs, with a sample testing positive for methadone and Buprenorphine, neither of which were prescribed to him.

26. As would be expected of a prisoner convicted of crimes such as these, with their apparent origins in a sexual sadism disorder, the defendant has been repeatedly psychiatrically examined since he was imprisoned, particularly in the period leading up to his possible release to parole, and required to undertake various rehabilitative programs.

27. The defendant was examined by Dr William Lucas on two occasions leading up to sentence, in June and again in July 1998. Dr Lucas reviewed a quantity of material concerning the defendant’s crimes, including viewing the five video recordings of the defendant’s most egregious crimes. He took a personal and medical history from the defendant, including a history of abuse of analgesics and benzodiazepines, drugs which the defendant said he was taking at the time of the commission of the offences. The defendant appears to have attributed his criminal conduct, at least in part, to his overuse of these drugs: (Ex CP-1, pg 143). He additionally suggested that an experience he claimed to have had as a teenager, of being sexually assaulted in Kings Cross, related directly to his own offending conduct, telling Dr Samuels, “Do unto others what has been done to you” (Ex CP-1, pg 144).

28. Of the defendant and his crimes, Dr Lucas said (Ex CP-1, pg 147):

“The suffering of his victims was apparent and undeniable. Mr Presta evidenced a high level of sexual arousal throughout the offences and was controlling and domineering. In a word, he was sadistic.”

29. On the basis of the history given by the defendant, Dr Lucas thought that the defendant may have had an obsessive-compulsive disorder. On the basis of his crimes, Dr Lucas diagnosed the defendant as a sexual sadist. Although the defendant told Dr Lucas that he had not, prior to the commission of his crimes, had sado-masochistic fantasies or indulged such behaviour, and he denied ever having viewed the recordings of the torture of his victims, Dr Lucas thought caution in accepting these denials was necessary. He noted that sexually sadistic preoccupations and behaviour was unlikely to have arisen suddenly.

30. His caution in accepting the defendant’s assertions as to never watching the recordings of his crimes seems to have been well justified; during later participation in a rehabilitation program in custody the defendant described these recordings as “trophies” (Annexure C to affidavit of Claudia Pendlebury dated 19 May 2016, pg 3).

31. Dr Lucas concluded (Ex CP-1, pg 150):

“Mr Presta will be receiving a substantial prison sentence. Of particular concern is his capacity for future dangerous conduct. One must say that his prognosis is best described as very guarded. […] one cannot predict his conduct many years in advance and it will be up to the releasing authorities to thoroughly review his case and evidence of change in Mr Presta, especially in terms of resolution of what appeared to be many psychological difficulties and conflicts.”

32. Dr Lucas thought that psychiatric treatment in custody, including medications designed to reduce sexual drive, was essential.

33. In custody the defendant participated in a number of programs directed to rehabilitation. He has completed a number of drug and alcohol courses (in 1999, 2006, 2006 – 2007, and 2010), the “Getting SMART” program in 2010, and the Custody-Based Intensive Treatment (“CUBIT”) program (in 2010 - 2011). His overall progress in the latter was regarded as “satisfactory”. He completed the “Controlling Anger and Learning to Manage It”, or CALM program, in 2012.

34. Despite the generally positive overall assessment of the defendant’s CUBIT participation, he was noted to have difficulties in understanding and accepting responsibility for his sexual offending. He was observed to engage in “avoidant behaviour”, focusing on his own pain rather than considering that of his victims, and blaming others, such as therapists, for his situation (Ex CP-1, pg 276). He expressed a sense of hopelessness as to his capacity to maintain a law abiding life, saying “If I’m that person then I’ll commit offences again” (Ex CP-1, pg 276). In the report of his participation with the program it was noted that:

“Mr Presta’s current arousal to deviant sexual interests is unknown. This is because of his reluctance to discuss prior and current sexual impulses.” (Ex CP-1, pg 285)

35. The defendant also undertook a number of sessions with the Sex Offender Custody Based Maintenance program with satisfactory participation.

36. The defendant additionally participated in health and safety, literacy, and occupational programs in custody.

37. In June 2011 the defendant was examined by Dr Robert Reznik, who subsequently prepared a report, dated 28 June 2011. Dr Reznik thought the defendant was a sexual sadist who was also dependent on benzodiazepine and codeine. He regarded the defendant as continuing to have deviant sexual desires and significant paraphilia, and considered anti-libidinal medication indicated. He concluded:

“It is also my professional opinion that his prognosis remains clouded and even if he should be offered and accept anti-libidinal therapy his progress in the community, should he be released on parole, will require careful and assertive follow-up” (Ex CP-1, pg 133).

38. In the period leading up to the date of expiration of the non-parole period, the defendant was assessed so that a report might be provided to the State Parole Authority. In a report to the Authority dated 29 November 2011, Liam McOnie noted that the defendant was assessed as within the “medium/high” risk category for general reoffending. His risk of sexual or violent reoffending was assessed at a similar level (Annexure C to affidavit of Claudia Pendlebury dated 19 May 2016, pg 3).

39. Dr Scott Clark saw the defendant in 2012 and prepared a report dated 14 November 2012. Dr Clark concluded that there was clear evidence of sexual sadism over a long period of time relevant to the defendant. Personality problems were also noted. Dr Clark expressed the view that the defendant should be assessed for suitability for anti-libidinal medication.

40. Ultimately, parole was not granted to the defendant. He did not seek it, and the Authority regarded him as unsuited for release to parole in any event.

41. Dr Anthony Samuels, psychiatrist, saw the defendant in April 2016 to report to the State Parole Authority. He was well briefed and provides a useful overview of the defendant’s custodial history in his report of 22 April 2016.

42. Dr Samuels specifically asked the defendant about his willingness to accept anti-libidinal medication. The defendant expressed no interest and reported that he and his partner, a fellow inmate, have “a healthy sexual relationship.” He expressed the view that he would never return to custody once released, and said that his life would have taken a different path if the psychiatrist he saw at the age of about 16 hadn’t given him “pills”, apparently blaming the doctor who prescribed medication to him at that earlier time for his offending behaviour (Ex CP-1, pg 91).

38. Dr Samuels concluded that, with reference to the Diagnostic and Statistical Manual 5th edition (DSM-5), the defendant fulfilled criteria for Sexual Sadism Disorder, Cluster B Personality Traits, and Opioid and Benzodiazepine Abuse (in remission).

39. As to the risk posed by the defendant, and referring to the offences, Dr Samuels said (Ex CP-1, pg 95):

“His use of weapons, force, drugs and the videotaping of his victims are all factors that are extremely concerning. He seems to have developed an intellectual understanding of what has happened but I wonder if [he] is to some extent minimising what has occurred and rationalising some of the behaviours and blaming them on a previous psychiatrist, drugs and addiction. […] He also sees these behaviours as being linked solely to anger but it seems quite likely there is a pattern of deviant sexual arousal which is a further risk factor, particularly if he is minimising this and not acknowledging it.

Mr Presta has had extensive Actuarial Risk and Structured Risk assessments performed. There are actuarial risk factors as well as structure risk assessments which suggest his is at Moderate – High risk. There certainly are a number of risk scenarios which could lead to destabilisation including use of drugs, rejection in the community, lack of support, relationship problems and a recurrence of the feelings of the anger that could precipitate future violence.” [emphasis in original]

45. Taking all relevant features into account, Dr Samuels assessed the defendant as being at “Moderate-High” risk of committing a further serious sex or violence offence.

Risk Assessment Report

46. Psychologist Samuel Ardasinski prepared a risk assessment report for the present hearing at the request of The Commissioner of the Department of Corrective Services New South Wales (“CSNSW”). The report was prepared on 22 February 2016 and reflects the overall assessment of risk the defendant poses on the basis of a 2 hour interview (“report of Mr Ardasinski”).

47. Mr Ardasinski additionally had the benefit of assessing the defendant previously and preparing an earlier reintegration risk assessment report on 10 June 2015.

Custodial History

48. As noted above, over the course of his time in custody, the defendant has received 11 institutional charges; some of which were drug-related, and three of which involved instances of physical violence. Despite this, Mr Ardasinski noted:

“Overall, Mr Presta has been generally described as a stable and compliant inmate, who has several positive work reports from various work locations.” (report of Mr Ardasinski, [11])

49. An offender’s compliance with custody-based supervision can serve as predictors of his or her capacity to engage with community supervisors. On that basis, Mr Ardasinski concludes, in relation to community supervision, “it is anticipated that Mr Presta will likely remain compliant” (report of Mr Ardasinski, [13]).

Substance Use History

50. Earlier psychiatric assessments of the defendant revealed that he satisfied the diagnostic criteria for Substance Use Disorder, due to his lengthy history of prescription drug abuse. Neither alcohol nor other illicit drugs have been reported as problematic for the defendant (although the recent illicit use of drugs in custody was not known at the time the report was written).

Involvement in Offender Programs

51. Mr Ardasinski set out the history of the defendant’s participation in programs intended to address particular criminogenic needs and offered by Corrective Services NSW.

52. The defendant attended 37 sessions of the PREP Preparatory program for sex offenders in 2007-2008. He additionally participated in the CUBIT program between 9 February 2010 and 21 January 2011. At the completion of the program, the defendant’s Report indicated that he had made “positive treatment gains” throughout the program (report of Mr Ardasinski, [24]), however outstanding treatment needs for the defendant included emotional regulation deficits and residual anger issues.

53. In 2010, the defendant completed the 12-session program, Getting SMART, aimed at addressing problems with alcohol and drugs.

54. He successfully completed the CALM program for anger management issues in 2012.

55. On two occasions, 27 January 2016 and 10 February 2016, the defendant was released on day leave to participate in community-based maintenance groups operated by Forensic Psychology Services at Surry Hills. The group in which the defendant was a participant noted that he “participated well in the group” and that he was “polite and compliant at all times” (report of Mr Ardasinski, [26]).

56. Mr Ardasinski identified one further program which may be beneficial to the defendant, the Real Understanding of Self-Help (RUSH) program, which is better accessed in the community than in custody. As such, he concludes:

“There are no further programs available in CSNSW custody which would be of benefit to Mr Presta in his risk management.” (report of Mr Ardasinski, [27])

Attitude to Risk and Treatment

57. Mr Ardasinski states that:

“An offender’s acknowledgement of risk and the identification of relevant risk factors can be a protective factor (ie. reduce the risk of reoffending) as it allows the individual to reduce the likely occurrence of risk factors in the future.” (report of Mr Ardasinski, [28])

58. The defendant reported that he had gained valuable insight from his experience in the CUBIT program and that he is better able to recognise his risk factors. However, the CUBIT Treatment Report recorded that the defendant “appeared to experience difficulties speaking openly about future risks associated with sexual self-regulation and sexual deviancy” (report of Mr Ardasinski, [30]). In the course of his interview, Mr Ardasinski observed the same difficulty:

“He struggles to respond openly about any ongoing sadistic fetish or any deviant sexual interest at all….this lack of transparency in Mr Presta’s willingness to discuss what his sexual thoughts and feelings are has left many decision-makers in a difficult position. It is felt that nobody truly knows the extent of Mr Preta’s deviance and therefore, his capacity for future serious sexual violence.” (report of Mr Ardasinski, [30])

Risk Posed by the Defendant

59. There were three actuarial measures employed in the assessment of risk of the defendant; Stable-2007, Static-99R and Level of Service Inventory, LSI-R. The combined actuarial risk assessments of Stable-2007 and Static-99R places the defendant in the high overall risk category. The LSI-R yielded low-moderate risk results.

60. The Risk of Sexual Violence Protocol (RSVP) is a tool which permits an assessor to derive an overall risk estimate based on the totality of the information before them. In utilising this tool, Mr Ardasinski concluded that the defendant currently presents a moderate to high risk of committing a further sexually violent offence. He opined that this risk would be “more acute” in situations where the defendant feels “rejected, abandoned or has experienced a building up of anger” (report of Mr Ardasinski, Executive Summary, pg 2).

61. However, Mr Ardasinski conceded that the moderate to high categorisation is only provisional as it is greatly hindered by the defendant’s lack of transparency about his sexual sadism. As noted earlier, the defendant has consistently denied any ongoing sexual sadistic fetish and has “maintained such a denial across several psychological and psychiatric contexts (in assessment and treatment) over the past few years” (report of Mr Ardasinki, Executive Summary, pg 2). If it were ascertained that he continues to experience sexually sadistic fantasies or urges, the defendant would present as high risk.

62. A further obstacle to re-integration is long-term institutionalisation. The defendant has spent the majority of his adult life in a custodial setting and thus, “may not have the tools to adequately cope with the competing demands of life in the community without support” (report of Mr Ardasinski, [47]).

63. Notwithstanding this reservation, Mr Ardasinski opined that the imposition of a Continuing Detention Order would be “a significant step backward” for the defendant (report of Mr Ardasinski, [60]). Mr Ardasinski asserts that:

“…there would be no additional therapeutic benefit to detaining Mr Presta in full-time custody past November 2016 since he has completed all the requisite programs available to him in gaol.” (report of Mr Ardasinski, Executive Summary, pg 2)

64. Overall, Mr Ardasinski concluded that the defendant can be adequately managed in the community.

Proposed Supervision

Evidence of Susan Wojciechowski

65. Susan Wojciechowski is the manager of the Integration Support Centre at Campbelltown. Ms Wojciechowski’s report, setting out the details of the Centre, was tendered in evidence before Beech-Jones J, and she also gave oral evidence on 11 June 2016.

66. Ms Wojciechowski is a clinical psychologist and has worked for the Department of Corrective Services for 18 years. She was responsible for the development of the Centre, which was established primarily so that persons with a history of sexual and other violent offending could be accommodated following release from custody. Unlike some other similar operations, the Centre has individualised case management.

67. The centre was only recently opened, and at the time of her oral evidence, the centre had one resident, although it was expected that there would be at least another four within the following week. The centre has capacity for 26 people. During the day, the Centre has five staff, and two during the evenings.

68. The defendant was assessed as suitable and eligible for the program.

69. When asked about what supervision the Centre would be able to provide, Ms Wojciechowski deposed that the centre would be guided by the ESO team to determine the supervision offered to the defendant, in addition to the general rules of the Centre, including a 7 pm until 6 am curfew. Ms Wojciechowski noted that the Centre would not aim to manage the defendant or any sexual sadism disorder, but would rather focus on working with other agencies (both government and non-government) to facilitate the defendant’s maintenance program, and assist the defendant with general support and life skills.

70. Ms Wojciechowski noted that there were limitations to the management provided by the Centre. Risk scenarios included monitoring of prescription drug abuse by the defendant in the absence of outward symptoms of intoxication, the defendant’s contact with young males outside the centre, access to pornographic materials on the defendant’s phone, and urinanalysis. She did, however, note that some of these risk situations could be managed by the conditions of the ESO.

Evidence of Katrina Frost

71. A senior community corrections officer within the ESO team at the Department of Corrective Services, Katrina Frost, provided a risk management report (“the report”) on 22 April 2016. The report was prepared in anticipation of this hearing.

72. The following is a summary of her evidence.

The Risk Factors

73. In the report, Ms Frost identified the key risk factors for the defendant. They include sexual re-offending, ‘cluster B’ personality traits from past psychiatric assessments, access to sexually sadistic pornographic material, substance abuse, lack of intimate relationships, difficulty in regulating his emotions, loneliness, difficulty in self managing including problem solving, few social supports and long-term institutionalisation.

74. The risk management plan (“the plan”) outlined by Ms Frost, detailed below, proposes to best manage these risks. However, she prefaces her report with a general limitation to any proposed management strategy for the defendant, that being:

“If Mr Presta is released from custody, he “may actually continue to harbour deviant sexual fantasies and he may act out on these fantasies when given the opportunity to do so (ie when not restrained by incarceration)” (Ardasinskis 2016, para 54).” (Report of Ms Frost, pg 1)

The Proposed Risk Management Plan

75. The plan proposed by Ms Frost involves weekly face-to-face interviews with the defendant at his approved residence. These interviews will involve observations of his surroundings to ensure no pornographic material is in his possession, and perusal of his electronic devices for this same purpose. Broadly, these weekly interviews are focused on exploring the defendant’s reintegration and adjustment in the community, monitoring his attendance of maintenance sessions, and his compliance with conditions of any order. A clear limitation to these interviews is that it requires the defendant to be truthful and open during these discussions; he has failed to be candid in the past.

76. In order to manage the risk of sexual re-offending, the defendant will be given a formal direction not to associate with children under the age of 18 years and compliance with this direction will be monitored by Community Corrections and the ESO Investigations Team. He will additionally be subject to non-association and place restriction conditions which prohibit the defendant from associating with other sex offenders or other criminals, and from entering into areas where his target victims frequent, such as schools and recreational fields.

77. Field visits, monitoring, schedules, and curfews are also proposed in the plan. Both scheduled and unannounced field visits are proposed to be undertaken at least once per month to ensure he is adhering to the condition that he not be in possession of pornographic material, and that he does not engage in substance abuse. Additionally, electronic monitoring and a schedule of movements are proposed to ensure his compliance with the conditions and to “encourage the development and maintenance of structured and constructive daily activities” (report of Ms Frost, pg 7).

78. Association with third party contacts will also be monitored under the plan. Concerns were expressed that the defendant has few third party contacts who are reliable however, the purpose of this condition would be to gain insight into his daily activities and how he copes in the community setting. The defendant’s partner is currently incarcerated for committing several serious violence offences but is due for release in April 2017. Ms Frost recognises that this relationship is one which requires close monitoring and a management plan to be implemented as “the nature of their individual offences may indicate that their relationship may not be deemed pro-social” (report of Ms Frost, pg 7).

79. Referral to CSNSW psychological and psychiatric services are also conditions under the proposed plan. The benefit of these services to the defendant is to encourage discussions around sexual offending and related behaviours so that he is better able to “refine self-management plans and address significant risk issues in more detail” (report of Ms Frost, pg 9).

80. In order to address his history of prescription drug dependence, the defendant will be subject to random and regular urinalysis and will additionally be referred to alcohol and other drug rehabilitation services.

81. The Plan is flexible in nature in that once it is implemented, it is scheduled for review every two months and if there are any shortcomings or significantly changed circumstances, the conditions are amended.

Expert Psychiatric Evidence

Psychosocial History

82. The defendant grew up in south west Sydney in a family of five, which he described as “…a loving and supportive familial environment” (report of Dr Allnutt, pg 6). He also described a close relationship with both of his parents. The defendant has an older sister, who currently acts as his mother’s carer, and a twin brother who passed away in 1986. His father died in 1996 from chronic hepatitis.

83. The defendant had a happy childhood, although he was required to attend speech therapy for a period of six months at the age of five or six. He reported no other developmental issues. He attended his local primary and high school and described positive relationships with his classmates and teachers. The defendant completed Year 10 and then gained employment at a supermarket as a checkout operator, and later as a loss preventions officer.

84. At the age of 16 years, the defendant and his brother were involved in a fatal motor vehicle accident when their car hit a tree. The car had five passengers. The defendant was hospitalised for approximately two weeks and suffered serious injuries, including broken ribs, a punctured lung, a fractured pelvis, and a broken jaw. The defendant still suffers chronic back pain as a result of the accident. His twin brother died on impact.

Psychosexual History

85. The defendant told Dr O’Dea that his first sexual encounter was with an older man in a shopping centre toilet at the age of 11. He reported difficulty “coming out” as a homosexual and reported that he “…became a bit of a loner…” as a result (report of Dr O’Dea, [25]). He told Dr O’Dea that he was unable to speak to anyone about his homosexuality, including his twin brother.

86. At the age of 14, the defendant reported that he was sexually assaulted after being invited into the residence of an older man. The defendant alleges that he was drugged, raped and tortured. He told Dr O’Dea that he blamed himself for the incident and that he didn’t tell anyone about it because he was embarrassed by what had happened to him.

87. Following the alleged sexual assault, the defendant reported having other sexual encounters of a casual nature. The encounters were usually with older men as he felt safer having sex with them as they were less likely to “out” him or “make fun” of him (report of Dr O’Dea, [27]; report of Dr Allnutt, pg 7). The defendant told Dr O’Dea that he usually met these men on “beats” or around public toilets. The defendant claimed he had had “…hundreds of sexual partners” (report of Dr Allnutt, pg 7).

88. The defendant has had two serious, long term relationships. The first relationship was when the defendant was 19 with another male of the same age. The relationship lasted two years. The second relationship was with a fellow inmate, and has been ongoing since 2000. He described his partner as his “soul mate,” and their relationship as “loving and stable” (report of Dr Allnutt, pg 6).

History of Substance Abuse and Clinical Issues

89. The effect of the motor vehicle accident on the defendant was severe and, a number of weeks after the incident, the defendant attempted suicide. He was prescribed the antidepressant medication Prozac, which he still takes, and attended a few sessions with a psychiatrist.

90. The defendant also reported abusing prescription painkillers and sleeping tablets, including Codeine Phosphate, Temazepam and Rohypnol following the accident in 1986. He told Dr O’Dea that he was seeing up to 16 doctors to obtain the prescriptions and that he “… ended up with 20 sleeping tablets a night…and twenty painkillers a day” (report of Dr O’Dea, [19]). The prescription drug abuse continued for 10 to 12 years, and only ceased when the defendant was incarcerated.

91. The defendant reported using the medications “…to make himself feel better” or sleep (report of Dr Allnutt, pg 3). He told Dr Allnutt that, following the death of his brother, he “…always felt [like] he wanted to die” (report of Dr Allnutt, pg 3). Prior to the index offences, the defendant was struggling to manage, and having issues with anxiety, self-esteem, anger and low moods.

92. The defendant reported to both doctors that his substance abuse was now in remission.

93. Dr O’Dea and Dr Allnutt diagnosed the defendant with substance use disorder, including benzodiazepine use disorder and opiate use disorder.

94. The defendant reported to Dr Allnutt that he had also recently had a ‘nervous breakdown’ or ‘panic attack’, and some ongoing issues with anxiety. The defendant was otherwise in good spirits, and did not have ongoing issues with low energy, moods, self-esteem or concentration.

Risk Posed by the Defendant

95. The defendant denied having sadistic sexual fantasies or urges or viewing sado-masochistic pornography. The defendant did not accept that he suffered from a sexual disorder, although he accepted that his consumption of prescription drugs may have triggered an underlying propensity for sado-masochistic desires. He reported that his only ongoing sexual fantasies were about consensual sex with his current partner.

96. The defendant contended that the motivation or genesis of the commission of the index offences was the earlier alleged sexual assault and a need to cleanse himself of ‘evil’, rather than an underlying sexual disorder. The defendant also contended that he currently had a low sex drive.

97. As a consequence, both Dr O’Dea and Dr Allnutt expressed reservations about the truthfulness and likely self-serving nature of some of the defendant’s answers. Dr Allnutt deposed:

“…I suppose the most significant issue was that…while he didn’t overtly endorse ongoing fantasies or attitudes of a sexual sadistic nature, I think concern needs to be maintained that he at least has an underlying propensity to sexually sadistic behaviour, and that he probably has ongoing fantasies in that regard because that is the nature of the condition.” (T9:34-38 of 12 August 2016.)

98. Dr O’Dea and Dr Allnutt both diagnosed the defendant with a sexually sadistic paraphillic disorder and noted that the defendant displayed a vulnerable personality with antisocial and psychopathic traits. Dr Allnutt noted that his offences were also indicative of an underlying urophilic paraphilia and manifested hebephilic behaviour.

99. Dr O’Dea posited (at [52] of his report):

“….on the basis of Mr Presta’s sex offending history against post pubescent males, previously unknown to him, it would seem reasonable to assume that he has a significant risk of engaging in further sex offending behaviours in the community in the long term, including of committing a further serious sex offence, as defined in the New South Wales Crimes (High Risk Offenders) Act 2006, particularly if his Sexual Sadism Disorder were to remain undertreated, and/or he were to abuse prescribed medications, alcohol or illicit substances, with this risk the appropriate focus of specific and structured risk management, including psychiatric treatment and risk management, in the community in the long term.”

100. In relation to the defendant’s contention that he has a low sex drive and does not suffer from sadistic sexual urges or fantasies, Dr O’Dea opined (at [53]):

“…it is generally considered that Sexual Sadistic Disorder persists long term, with the risk attached to this sexual disorder long term, significant and unlikely to be attenuated without specific and ongoing psychiatric treatment.”

101. Relevantly, Dr O’Dea posited that the usual psychological sex offender treatment programs, without any further support or intervention, whether in the community or in custody, were unlikely to substantially reduce the risk that the defendant poses. He recommended that the defendant be prescribed anti-libidinal medication, and noted that this was likely to be the most effective therapeutic intervention.

102. He considered that the defendant’s risk could not be adequately or appropriately managed in the community without psychiatric treatment and a risk management plan which included the prescription of anti-libidinal medication. Other recommended therapeutic interventions included treatment with an appropriate psychiatrist and psychologist, further drug and alcohol counselling, a psychotherapeutic focus on the defendant’s history of trauma, general moods and issues with anger, and the possible use of mood stabilising medication. Dr O’Dea concluded, at [62]:

“That being said, further time in custody at the present time, other than to organise and initiate the above treatment and risk management program, is unlikely to significantly reduce his risk on his subsequent release from custody.”

103. Dr O’Dea deposed that the defendant’s sexuality was likely to be active throughout the rest of his adult life, and particularly so in the next 10 or 20 years.

104. Dr Allnutt was in broad agreement with Dr O’Dea, and considered that the defendant posed at least a moderate to high risk of the commission of future offences. Like Dr O’Dea, Dr Allnutt was conscious of the long term risks associated with a sexual sadistic disorder. He opined:

“While he has been incarcerated he has had restricted opportunity to engage in sexually sadistic fantasies. Having regard to his offending behaviour, I would regard his sexual sadism as significantly concerning and unlikely to have ameliorated – that is, there remains a risk for recurrence of sexually sadistic fantasies and urges.” (Report of Dr Allnutt, pg 17)

105. Like Dr O’Dea, Dr Allnutt recommended the use of anti-libidinal medication and was conscious of the potentially catastrophic consequences of offending by persons with a sexually sadistic paraphillic disorder.

106. After being asked by Dr O’Dea and Dr Allnutt about anti-libidinal medication, the defendant indicated that he thought such medication would be unhelpful. He told Dr Allnutt that he was worried about his anger if he couldn’t “perform.”

107. Both doctors indicated that, if the defendant were to start on anti-libidinal medication, it was preferable for the defendant to be monitored in a restricted environment, such as a COSP, for a period of up to three months to ensure the efficacy of the medication prior to release in the community.

108. Noting the results of the positive urinalysis on 14 July 2016, both doctors also expressed concern about the disinhibiting or destabilising effects of illicit or prescription drugs or alcohol. Each reiterated the need for continued drug and alcohol counselling, with Dr O’Dea suggesting that more assertive drug and alcohol counselling, in addition to a prescription for Buprenorphine or methadone, may be necessary.

The Submissions of the Parties

109. The State submits that, particularly in circumstances where the defendant’s willingness to undergo anti-libidinal treatment is unknown at this stage, supervision cannot adequately address the risk the defendant poses.

110. It is submitted that the defendant’s diagnosis of sexual sadism is one that carries with it long term significant risk of reoffending, and that the risk of recidivism cannot be adequately met in the community without anti-libidinal medications forming part of the management strategy. The defendant cannot be forced to undergo treatment of that nature, and to date he has not signalled his willingness to do so. Up until very recently, the defendant has refused to consider it or asserted that he has no need of it; in recent weeks he has agreed to be provided with information about this method of treatment, but agreement to being informed falls well short of consent to treatment. The State contends that his release when not subject to this sort of medication regime poses too great a risk to the community to be acceptable.

111. The State submits that the risk is heightened by the defendant’s continuing abuse of illicit drugs, evidenced most recently by the positive urinalysis from 14 July 2016. Drug abuse appears to have played a role in the defendant’s vile crimes and, in effect, if he cannot be trusted to remain abstinent of such substances in the highly regulated environment of a prison, there is no basis to conclude that he will be abstinent in the community. Supervision will not adequately address the risk of descent into drug use, and its potentially disastrous consequences.

112. Relying on the evidence of Ms Frost and Ms Munright, the State contends that the terms of the proposed community supervision, and the nature of the supervised accommodation available to the defendant is such that it cannot be adequate to meet the high risk the defendant poses. The defendant will not be monitored constantly. His supervisors will have neither the time nor the resources to provide continuous supervision, and the accommodation likely to be available to the defendant in a COSP is not staffed by correctional officers.

113. The State challenges the suggestions of the Court appointed experts, qualified as they were, that a COSP environment is roughly equivalent in the level of supervision offered to a minimum security prison, submitting that there is no basis of comparison between a custodial environment and a community based facility.

114. The defendant submits that, even with the question of his willingness to undergo anti-libidinal medications presently unknown, the stringency of the supervisory regime proposed under an ESO is such that the Court could not conclude that adequate supervision will not be provided. An ESO gives considerable scope to monitor the defendant, with the capacity to regulate every aspect of the defendant’s liberty.

115. The defendant points to the unity of expert opinion suggesting that further detention will serve no therapeutic purpose, and thus can do no more than contain the defendant for the period of the 12 month CDO sought by the State. Recognising that the defendant will be released at some stage, it is submitted that the defendant can be properly managed in the community through a combination of supervision and therapy, through the strict enforcement of an ESO.

Conclusion

116. Having regard to the concession made by the defendant, and to the evidence adduced before the Court, I am satisfied to the high standard specified by s 5B(2) of the Act that the defendant does pose an unacceptable risk of committing a serious sex offence if he is not made subject to supervision.

117. The issue the subject of dispute between the parties, and upon which I have principally focused, is whether adequate supervision will not be provided by an ESO.

118. As the defendant points out, the weight of expert evidence is that the defendant can be adequately supervised in the community, despite the clear danger he poses of sexual recidivism, and despite the caveats that appear to apply to the conclusions of the experts.

119. The defendant’s apparent unwillingness to be honest about deviant thinking necessarily undermines the reliability of the predictions and risk assessments made by those involved in the question of his future management. In the highly controlled and regulated environment of a prison, and particularly the strict protection area of individual prisons, there can have been little opportunity for the defendant to act upon any criminal intentions he may have had, thus potentially leading to an unduly positive assessment of what could occur in a less strictly monitored environment. The defendant’s apparent lack of candour in discussion with therapists can only add to the difficulty in making accurate forecasts.

120. Of course, it is impossible for anyone to predict what the defendant may or may not do in the years ahead. It is only possible to assess the risk he poses to others – a risk that must be extraordinarily high in my view, despite his protestations of desiring only to live a quiet life in the country – and to consider whether the risk can be sufficiently ameliorated by community based supervision. As Dr O’Dea put it:

“… [I]n any prediction of risk, nothing is absolute and certain and we can't say that Mr Presta will or will not act on it in this way again, but what we can say is people with these kind of problems have a significant risk of acting on these problems again and with, of course ‑ if they do ‑ dramatic consequences and would be appropriate for clinical risk management of those problems.” (T28:45-50 of 12 August 2016)

121. The consensus of expert opinion is that a CDO will achieve nothing beyond containing the defendant and in that way mitigating the risk to the community. Detention will not mitigate risk long term, or mean that the man who is released in twelve months’ time will be less dangerous than he is now.

122. Whilst it may be that the time in custody could be used to ready the defendant for anti-libidinal therapy, and commence him on such a treatment programme, that is as dependent upon the defendant’s consent as it would be in the community. A decision to subject the defendant to a CDO cannot be made on the basis that he will be so treated in custody.

123. The defendant’s particular combination of disorders is such that he is likely to pose a risk to the community until old age and infirmity finally diminishes it. That risk must be managed. The expert evidence is broadly supportive of community based management.

124. It is clear from the expert evidence that the best means of managing the risk is a by a combination of strict supervision, counselling and anti-libidinal therapy, although the latter requires the defendant’s consent. A further short period of incarceration will not alter that.

125. The proposed conditions of an ESO are stringent and, if properly supervised, ought to be adequate to properly monitor the defendant and lessen the risk he presents to others. In reality, nothing can obviate that risk altogether, but that is not the test for the Court to consider.

126. An order for the defendant’s supervision in the community provides those responsible for that supervision with the power to monitor the defendant minutely, and to restrict his liberty significantly. Properly administered, an ESO should be adequate to mitigate the risk the defendant poses, and to facilitate his rehabilitation.

127. The possible conditions of an ESO provide for:

1. Reporting and monitoring obligations including acceptance of supervision and the directions of the supervising officer (“DSO”), electronic monitoring, and compliance with a schedule of movements;

2. Restrictions on where and with whom the defendant may live, and upon his capacity to leave his residence overnight or at any other time specified by the DSO;

3. Restrictions on where the defendant may go, including the power to prohibit attendance at particular places or categories of place;

4. Restrictions on persons whom the defendant will be permitted to associate with, inclusive of any intimate partner;

5. Oversight of all employment, paid or voluntary;

6. Oversight of the defendant’s finances;

7. Restrictions on drug and alcohol use and the means to test any required compliance;

8. The capacity to direct the defendant to attend any rehabilitative course and participate until permitted to withdraw;

9. Restrictions on the defendant’s access to electronic devices and potential access to the internet;

10. Restrictions intended to prohibit access to pornographic or classified material;

11. The power to direct the defendant to obtain medical treatment and comply with any prescribed medical regime, including taking prescribed medication;

12. Restrictions on the defendant’s ability to change his appearance or name, and upon his ability to obtain forms of identification; and

13. The power to subject the defendant to searches of his home, vehicle or person to ensure compliance with directions.

128. Overall, the conditions attaching to any ESO give the authorities power to supervise every aspect of the defendant’s life and to direct him in any way reasonably necessary for the protection of the community and his own rehabilitation and treatment.

129. Whilst the environment of the supported accommodation at Campbelltown at which the defendant proposes to reside is not and cannot be compared to a prison, minimum security or otherwise, the proposed conditions of an ESO give the supervising officers the power to make his place of residence a prison in effect.

130. Much depends on those given the responsibility of monitoring the defendant. It cannot be an answer to any less than optimal supervision to refer to inadequate resources, or the absence of a male staff member to supervise the provision of a urine sample for drug testing, or to a lack of appropriately experienced staff more generally. It cannot be that the efficacy of an ESO, and thus the protection of the community, is frustrated by such claims.

131. Nor should the efficacy of an ESO be frustrated by the tolerance of supervisors to breaches of the Court’s orders. It must be firmly borne in mind that a breach of a condition of an ESO by a supervised offender is a criminal offence contrary to s 12 of the Act, and one which carries a maximum penalty of five years imprisonment.

132. The community is entitled to expect that supervising officers will strictly enforce any conditions the Court were to impose upon the defendant and, critically, take swift action should there be any breach by the defendant of any condition.

133. If the ESO is properly administered, it should be adequate to properly supervise the defendant. Certainly, I am unable to conclude that adequate supervision will not be provided by an ESO.

134. Given that conclusion, a CDO cannot be imposed upon the defendant. I propose to grant prayer 7 of the summons.

order

1. Pursuant to s 17(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is made subject to a high risk offender extended supervision order for a period of 5 years from today and, pursuant to s 11 of the Act, the defendant is directed to comply with the conditions set out in the Schedule to this order.

SCHEDULE

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

(1)   The defendant must accept the supervision of Corrective Services NSW (CSNSW) until the end of the Order.

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

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

(4)   The defendant must attend the police station nearest to his approved accommodation within 3 days of the date of this order and provide a copy of this order.

Electronic Monitoring

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

Schedule of Movements

(6)   If directed, the defendant must provide a weekly plan (called a schedule of movements) to his DSO 3 days before it is due to start.

(7)   If approved by his DSO the defendant must comply with the schedule of movements.

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

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

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

Part B: Accommodation

(11)   The defendant must live at an address approved by his DSO.

(12)   The defendant must be at his approved address between 10 p.m. and 6 a.m., unless other arrangements are approved by his DSO.

(13)   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.

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

(15)   The defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO.

Part C: Place and travel restrictions

(16)   The defendant must not leave New South Wales without the approval of CSNSW.

(17)   The defendant must surrender any passports held by the defendant to the Commissioner.

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

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

(20)   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, or where alcohol or drugs are illegally sold.

Part D: Employment, finance and education

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

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

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

Part E: Drugs and alcohol

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

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

(26)   The defendant must not enter any licensed premises without the approval of his DSO.

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

Part F: Non-association

Association with Children

(28)   The defendant must not approach or have contact without anyone who he knows is under 18 unless his DSO tells him he can, and he is with someone who has been approved in writing by his DSO.

Associations with Others (not children)

(29)   The defendant must not associate with people that his DSO tells him not to.

(30)   The defendant must not associate with any people who are consuming or under the influence of illegal drugs or alcohol.

(31)   The defendant must not engage the services of sex workers.

(32)   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.

(33)   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 H: Weapons

(34) The defendant must not possess or use any firearm within the meaning of s.4 of the Firearms Act 1996 or prohibited weapon as defined in s.4 and Schedule 1 of the Weapons Prohibition Act 1998.

Part I: Access to the internet and other electronic communication

(35)   The defendant must give his DSO a list of all devices 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 used by the defendant and the nature and details of the internet connection, as directed.

(36)   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.

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

(38)   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

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

(a)   for the safety and welfare of residents or staff or persons present at the defendant's approved address;

(b)   to monitor the defendant's compliance with this order; or

(c)   because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence; then the DSO may direct, and the defendant must submit to:

(d)   search and inspection of any part of, or any thing in, the defendant's approved address;

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

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

(g)   search and examination of his person.

(40)   For the purposes of the above condition:

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

(b)   to the extent practicable a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO.

NOTE:

"Garment search" means a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the

person's body.

"Pat-down search" means a search of a person where the person's clothed body is touched.

(41)   During a search carried out pursuant to condition 39 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise:

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

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

or

(c)   the defendant's compliance with this order;

or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence.

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

(43)   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 [39] to [42] above.

Part K: Access to pornographic, violent and classified material

(44)   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.

Part L: Personal details and appearance

(45)   The defendant must not change his name from "Bruno PRESTA" or use any other name without the approval of his DSO.

(46)   The defendant must not use any alias, log-in name, or a name other than "Bruno PRESTA" or use any email address other than those known to the DSO under conditions [35] - [38] 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.

(47)   The defendant must not change his appearance without the approval of his DSO.

(48)   The defendant must let CSNSW photograph him.

(49)   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

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

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

(52)   The defendant must take all medications that are prescribed to him by his healthcare practitioners.

(53)   If the defendant knowingly stops taking medication that he has been prescribed, either temporarily or permanently, the defendant is to notify his DSO within 24 hours of stopping taking the medication.

(54)   The defendant must agree to his healthcare practitioners sharing information about him with each other and with his DSO, including reports on his progress and information he has told them.

(55)   The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW.

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Decision last updated: 22 August 2016