State of New South Wales v Richardson (Preliminary)

[2020] NSWSC 1442

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Richardson (Preliminary) [2020] NSWSC 1442

Hearing dates:

9 October 2020

Decision date:

20 October 2020

Jurisdiction:

Common Law

Before:

Hoeben CJ at CL

Decision:

(1) An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act);

(a)   appointing two qualified psychiatrists and/or registered psychologists to conduct separate psychiatric and/or psychological examinations (as the case may be) of the defendant and to furnish reports to the Court on the results of those examinations by a date to be fixed by the Court; and

(b)   directing the defendant to attend those examinations.

(2)   An order:

(a) pursuant to s 10A of the Act that the defendant be subject to an Interim Supervision Order (“the Interim Supervision Order”); and

(b)   pursuant to s 10C(1) of the Act that the Interim Supervision Order be for a period of 28 days from the date of the order; and

(c) pursuant to s 11 of the Act directing the defendant for the period of the Interim Supervision Order to comply with the conditions attached to this judgment.

(3)   An 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 OFFENDER – preliminary hearing – application for Interim Supervision Order – serious sex offender – defendant currently subject to parole – whether the defendant poses an unacceptable risk of committing a serious offence if not kept under supervision – dispute as to conditions – whether scheduling conditions should be imposed.

Legislation Cited:

Crimes Act 1900 (NSW) – s 66, 547

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW) – ss 5, 6, 7, 9, 10, 11

Crimes (Sentencing Procedure) Act 1999 (NSW) – s9

Cases Cited:

Attorney General for New South Wales v Tillman [2007] NSWCA 119

State of New South Wales v Bugmy [2017] NSWSC 855

State of New South Wales v Green (Final) [2013] NSWSC 1003

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

State of New South Wales v Tannous [2020] NSWSC 292

Category:

Principal judgment

Parties:

State of New South Wales – Plaintiff
Mark William Richardson – Defendant

Representation:

Counsel:
D New – Plaintiff
P Coady/A Bhasin – Defendant

Solicitors:
Crown Solicitor for NSW – Plaintiff
Legal Aid NSW – Defendant

File Number(s):

2020/242087

JUDGMENT

1. HIS HONOUR: By an Amended Summons filed 9 October 2020 the plaintiff seeks the following orders:

1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act);

1. appointing two qualified psychiatrists and/or registered psychologists to conduct separate psychiatric and/or psychological examinations (as the case may be) of the defendant and to furnish reports to the Court on the results of those examinations by a date to be fixed by the Court; and

2. directing the defendant to attend those examinations.

2. An order;

1. pursuant to s 10A of the Act that the defendant be subject to an Interim Supervision Order (“the Interim Supervision Order”); and

2. pursuant to s 10C(1) of the Act that the Interim Supervision Order be for a period of 28 days from the date of the order; and

3. pursuant to s 11 of the Act directing the defendant for the period of the Interim Supervision Order to comply with the conditions set out in the Schedule to this Summons.

3. ...

4. (4)   An 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.

2. In support of those orders, the plaintiff relies upon three affidavits of Isabel Kallinosis, affirmed 10 August, 4 September and 2 October 2020. Included in the material placed before the Court were two folders of documents identified as Exhibit IK-1 to the first of the affidavits of Ms Kallinosis referred to above.

3. The position of the defendant in relation to the orders sought in the Amended Summons was set out in his written submissions as follows:

“6.   The defendant does not oppose the appointment of two experts to provide reports to the Court.

7.   Further, he does not oppose the making of the interim order. Notwithstanding that consent, the defendant does not concede that the making of the interim order is determinative of the outcome of the final hearing.

8.   Furthermore, in the event an interim order is made, there are several conditions that the defendant takes issue with, set out in more detail below. It is the defendant's position that it is important to raise the appropriateness of the conditions at the interim stage so that the Court appointed experts can give particular consideration to the appropriateness of these conditions when they address the conditions in their respective reports.”

4. The defendant did not dispute that the threshold criteria contained in s 5B(a), (b) and (c) of the Act are met. The defendant agreed that:

1. he is serving a sentence of imprisonment for a “serious offence” being an offence under s 66(C)(3) of the Crimes Act 1900 (NSW) for the purposes of s 5(B)(a). The sentence was imposed by his Honour Judge Madgwick QC on 18 November 2016, being a total term of 4 years imprisonment, with a non-parole period of 3 years, commencing 18 November 2016.

2. that he is a supervised offender for the purposes of s 5I(2) of the Act;

3. that the application complies with s 6 of the Act;

4. that in terms of whether the Court can be satisfied of the test in s 5B(d) (i.e. to a “high degree of probability that the defendant poses an unacceptable risk of committing a serious offence”) the defendant conceded that the test is met in the context of this being a preliminary hearing only.

5. Despite the concession by the defendant, it is still necessary for the Court to analyse the evidence before it in order for it to be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious crime unless an Interim Supervision Order (ISO) is made.

Mandatory relevant consideration

6. Section 9(2) of the Act provides that in determining whether or not to make an Extended Supervision Order (ESO) “the safety of the community must be the paramount consideration”. Section 9(3) of the Act sets out the following mandatory relevant considerations which the Supreme Court “must also have regard to in addition to any other matter it considers relevant” in considering whether to make an ESO:

“(b) the reports received from the persons appointed under s 7(4) to conduct examinations of the offender and the level of the offender’s participation in any such examination;

(c)   the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment and the level of the offender’s participation in any such assessment;

(d)   the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence;

(d1)   any report prepared by Corrective Services NSW (CSNSW) as to the extent to which the offender can reasonably and practicably be managed in the community;

(e)   any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs and the level of the offender’s participation in any such programs;

(e1)   options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender reoffending over time;

(e2)   the likelihood that the offender will comply with the obligations of an Extended Supervision Order;

(f)   without limiting paragraph (e2) the level of the offender’s compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier Extended Supervision Order;

(g)   the level of the offenders compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004;

(h)    the offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history;

(h1)    the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender;

(i)    any other information that is available as to the likelihood that the offender will commit a further serious offence ...”

7. The considerations contained in s 9(3) provide a central framework for the Court in making a decision as to whether to make an order and the conditions that it might regard as appropriate.

The test at a preliminary hearing

8. Section 7 of the Act requires a determination that:

“...

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

(a)    appointing:

(i)    2 qualified psychiatrists, or

(ii)    2 registered psychologists, or

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

(iv)    2 qualified psychiatrists and 2 registered psychologists,

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

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

9. The reference to “justify the making of ESO” in s 7 of the Act refers back to s 5B which provides the pre-condition for the making of an ESO. These include, in accordance with s 5B, that the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.

10. At the preliminary hearing, the Court is not required to assess the weight of the supporting documentation in support of the ESO, or to seek to predict the outcome of the proceedings for final orders. Instead, the Court is to engage in an evaluative exercise taking into account all of the supporting documentation and, proceeding on the assumption that the facts alleged in the supporting documentation are proved, to determine whether those facts would justify the making of an ESO.

11. While it is the case that the test pursuant to s 5B applies to both preliminary proceedings and final hearings, the important difference is that there is an assumption that the matters relied upon by the State in the supporting documentation are, for the purposes of the preliminary hearing, taken to be proved. In short, the Court in considering the test prescribed by s 7(4) does so from the assumption that the facts will be proved in accordance with the test prescribed by s 5B(d).

The defendant’s personal history

12. The defendant grew up in Sydney with his mother, father and two brothers. The defendant’s upbringing was not marked by any significant disadvantage. It was stable and he was not exposed to abuse or neglect in his early life. The defendant’s schooling was consistent over the years and he remained at school until he was 18. The defendant was an average student. He had maintained steady employment as a bank clerk until his first sentence of imprisonment in 1992. Upon his release in 1995, the defendant completed an Associate Diploma in Accounting and thereafter worked as an accountant.

13. The defendant has been involved in two motor vehicle accidents in which he sustained injuries to his lower back and neck. He has suffered from ongoing back problems and chronic pain ever since.

The defendant’s criminal history

Index offence

14. The defendant met the victim in early 2011 while she was on holidays with her family. At the time the victim was approximately 13 years old and the defendant was aged 46. The defendant approached her and informed her father that he might be able to get the victim some modelling work. He provided her father with a business card to this effect. By late 2012, the defendant and the victim were communicating electronically.

15. In early 2013, the victim agreed to travel to Sydney (from Taree) for the purpose of having photos taken by the defendant to be used to initiate a modelling career. The defendant deposited money in the victim’s account and met her in Sydney on 24 February 2014. The victim was then aged 15 years and 8 months. The defendant was aged 48. Over the following two days, the defendant bought the victim some clothes and took her to a beach where he photographed her both clothed and unclothed. He booked her a room in a hotel in the city and booked himself into the same room.

16. On the last night, the defendant and the victim were watching a movie in the hotel room on the bed together. The victim fell asleep. When the victim woke up, the defendant was moving off her side of the bed naked and she noticed that her shorts and underwear had been moved aside. The defendant had unprotected sex with the victim while she was sleeping and as a result, she gave birth to a daughter when she was about 16 and a half years old.

17. Judge Madgwick stated that the defendant had a long record of uncontrolled sexual behaviour including a serious matter in 1991. His Honour acknowledged that there had been a lengthy period during which the defendant did not come under notice, but that the entire record indicated that periodically he had been unable to resist sexual urges which had built up in him.

18. The Court found that having regard to the defendant’s entire history, remorse was not likely to be a major factor in his rehabilitation. The Court found that the defendant’s previous record aggravated the seriousness of the matter because he had had “ample warning and opportunity to change his ways”. His Honour found that the defendant was intelligent enough to recognise the seriousness of his conduct and that he knew there were avenues available to bring his impulses under control.

Previous criminal history

19. The defendant’s first offence as an adult occurred on 16 September 1982 when he approached a girl aged 17 on an escalator while in David Jones. The defendant made admissions upon his arrest on 8 October 1982 to following the female onto the escalator, having felt an urge, and then moving his hand inside her skirt, touching her on the thigh and buttocks.

20. The defendant returned to the same store on 8 October 1982 and was observed by security to be following another female on the escalator. The defendant upon his arrest, stated that he had commenced placing his hand on the inside of the victim’s skirt but was interrupted by security staff who detained him. The defendant was charged with an attempted act of indecency.

21. The defendant was convicted of both offences on 30 June 1983 and sentenced to a 2 year good behaviour bond.

22. During the currency of the bond, the defendant was again charged with conduct involving the unlawful assault of a female. The defendant on 12 January 1984, was within a lift at Myers shopping centre at Chatswood, when he touched the backside of a woman for a period of a few seconds. As the victim was leaving the lift, the defendant blew kisses towards her whilst holding the lift door open. The victim raised the alarm when she saw the defendant again on 9 February 1984. The defendant initially entered a plea of not guilty, but changed his plea to guilty on 12 September 1984. He received a fine of $300.

23. In 1988 the defendant was charged with an offence of “peep or pry”, pursuant to s 547C Crimes Act 1900 (NSW). The conduct related to him being in a building on 4 August 1988 in St Leonards without reasonable cause. The matter was dismissed when no evidence was offered by the prosecution. A subsequent charge of wilful and obscene exposure was also brought on 26 April 1989, but was also dismissed on 11 December 1989 at Burwood Local Court.

1991 offending

24. Between 14 October 1991 and 16 November 1991, the defendant committed the following offences involving four different female victims:

1. on 14 October 1991, an offence of aggravated sexual assault, in circumstances of aggravation where, at the time of the commission of the offence, he threatened to inflict actual bodily harm upon the victim;

2. on 26 October 1991, an offence of common assault;

3. on 15 November 1991, an offence of common assault; and

4. on 16 November 1991, an offence of malicious wounding.

25. The facts of the 14 October 1991 offence were that in response to an advertisement by the victim for shared accommodation, the defendant attended an inspection. After the inspection, the defendant asked to re-inspect a bedroom. When the victim entered the bedroom, the defendant prevented her from leaving. As she went to pass him, the defendant pushed her with both hands causing her to fall backwards onto a bed.

26. The defendant produced a knife and told the victim to remove her clothing. The victim refused which caused the defendant to bring the knife up to the victim’s face and threaten her with violence if she did not comply with his demands.

27. The victim removed her clothing and was told by the defendant to lie on the bed and spread her legs. After other threats to the victim, the defendant grabbed her hand and placed it on his penis. He then took her by the back of the head and forced it down onto his penis. He held the victim’s head while he pushed his penis into her mouth. The defendant told the victim to lie on the bed and began to perform oral sex on her. He then got off the bed and left the premises.

28. On 26 October 1991, the defendant enquired about shared accommodation and went to inspect a home unit at 7:00pm. After the victim showed the defendant around the unit, he persuaded her to let him return at 8:45pm. At that time, the defendant entered the victim’s apartment and pointed a small knife at her. The defendant began masturbating. He told the victim that he would use the knife if he had to.

29. A struggle ensued when the victim took hold of the knife and the defendant forced her against the opposite wall, pushing his pelvis against her and trying to kiss her. The defendant attempted to move the victim towards a spare bedroom but she struggled and screamed. The defendant released her and began to masturbate again with his other hand and raised the knife towards the victim, while she was on the floor. As the victim began to edge her way along the wall to the front door, the defendant took hold of her hand and a struggle occurred in which the intercom was knocked off the wall. The victim told the defendant that security would arrive soon and he left.

30. The facts of the 15 November 1991 offence were that the defendant responded to an advertisement for shared accommodation and attended a unit to inspect it. When the victim had showed the defendant the unit, he asked to see her bedroom. When the victim walked into her bedroom past the defendant and turned around, he was standing in front of her with a pocket knife in his right hand pointing at her. The defendant told the victim to be quiet and that he would not hurt her. The victim screamed “call the police” which caused the defendant to back out of the room and leave.

25. The facts of the 16 November 1991 offence were that the defendant responded to an advertisement for shared accommodation and attended the unit to inspect it. When the victim showed him around the unit, he went into her bedroom and she followed him. The defendant pushed the victim onto the bed. When the victim got up from the bed, she was confronted by the defendant holding a scalpel in his right hand which was pointed at her.

26. The defendant said to the victim “give me a kiss” and began to rub his left hand up and down the front of his trousers. The defendant then moved closer to the victim with the scalpel pointed at her chest. When the defendant was about six to eight inches away from her, she grabbed hold of his right wrist with her right hand and a struggle ensued. As the defendant jerked his hand backwards, he dragged the scalpel across the victim’s right hand resulting in her sustaining a cut to that hand. The defendant fled from the unit.

27. The defendant pleaded guilty to those four offences before Judge Johnston on 9 October 1992. The defendant received a concurrent sentence for the two offences of common assault and malicious wounding of 12 months. A sentence of 4 years, with a non parole period of 3 years was imposed for the aggravated sexual assault offence. The sentences commenced on 25 May 1992 so that the defendant was eligible for release to parole on 24 May 1995.

28. During the hearing of these matters, the Court considered previous medical reports and noted that from the age of 15, the defendant had experienced sexual problems which resulted in him consulting various professionals. Dr Taylor, a consultant psychologist, stated that the defendant may have a degree of organic brain disorder but that it could not explain the progressive deterioration in his ability to cope with his sexual feelings.

29. Judge Johnston concluded that if the defendant were to not offend again, he would have to accept a good deal of supervision and counselling.

1998 Offending

36. The defendant was charged with an offence of “peep and pry” arising out of an incident on 8 December 1998, when he entered the rear yard of a house and observed a girl aged 16 years, who was standing near her bedroom window dressed in pyjamas. Upon seeing the defendant looking at her through her window, she screamed and the defendant fled. The victim’s father pursued the defendant and detained him inside his vehicle a short distance from the house.

37. The defendant received a fine in the sum of $800 and a good behaviour bond which was for a period of two years from 10 February 1999.

More recent offending

38. The defendant was charged with an offence of “peep and pry” relating to conduct said to have taken place on 17 October 2003. The offence was dismissed by the Downing Centre Local Court on 22 March 2004. The defendant was charged with wilful and obscene exposure relating to him exposing his penis in a public place on 20 February 2004. On 24 March 2004 that charge was withdrawn in the Ryde Local Court.

39. The defendant’s pattern of sexually inappropriate conduct in public places continued in 2005 when he was charged with a “peep and pry” offence in addition to an offence of enter enclosed lands. The conduct comprised the defendant looking through the windows of premises. The conduct was reported by a woman who had observed the person looking through her front window. The defendant fled the scene and was later apprehended by police. The defendant was sentenced on 21 August 2006 to a fine of $500 and a 2 year s 9 good behaviour bond (Crimes (Sentencing Procedure) Act 1999 (NSW)) with a condition that he accept treatment by a psychologist and be supervised by the Probation and Parole Service.

40. A further s 9 bond was imposed on the defendant on 28 November 2013 for the offence of “behave in an offensive manner in/near a public place or school”. The defendant entered a woman’s dress store on 13 February 2013 and approached a female shop assistant and asked to try on some female clothing. He engaged the assistant in a discussion concerning his sexual desires. The defendant walked up close to the victim and started to breathe heavily and said “oh fuck yeah” a number of times before the assistant left the store to seek help. The defendant was apprehended by police a short time later when attempting to enter another female boutique store.

41. It should be noted that there is a gap of twenty two years between the commission of the serious sexual offences, i.e. between 1991 and 2013. Even so, there appears to have been no de-escalation of risk posed by the defendant.

Risk assessment and other material relevant to risk: ss 9(3)(c), (d), (d1)

42. The following risk assessments were obtained in relation to the defendant:

1. there was a Risk Assessment Report dated 27 April 2020 (2020 RAR) prepared by Rochelle Pateman, Assistant Senior Psychologist and Cherice Cieplucha from Serious Offenders Assessment Unit; and

2. a Risk Management Report dated 29 May 2020 (2020 RMR) was prepared by Jason Saad and Kelli Grabham from the Extended Supervision Order Team.

2020 RAR

43. In the 2020 RAR, Ms Pateman concluded that the defendant posed a well above average risk of further sexual offending. She found that the deviant sexual interests (e.g. exhibitionism, voyeurism, transvestism and toucherism) and the enduring nature of his offending behaviour was indicative of the ongoing presence of sexual preoccupation. It was noted that two of his most recent victims were teenage girls indicating a possible sexual interest in pubescent females. The report found that the defendant’s sexual offending had increased in severity and that he did not appear to accept responsibility or acknowledge any purposeful sexual offending behaviour (p 23).

44. The 2020 RAR recorded the following test results. The Static-99R instrument (which has a moderate accuracy in predicting sexual recidivism for individuals charged with or convicted of a sexual offence) gave the defendant a score of 7, placing him as a “well above average risk”.

45. The STABLE-2007 instrument identified dynamic risk factors for sexual offending as follows:

1. the defendant’s total score on the STABLE-2007 suggested a “high density” of criminogenic needs relative to other male sexual offenders; and

2. the areas of significant concern with the defendant when considering his STABLE-2007 assessment were his significant social influence, negative emotionality, poor cognitive problem solving and deviant sexual interests. The assessment identified other areas of concern including sex as a coping mechanism, no capacity for relationship stability, general social rejection, lack of concern for others, sex drive/preoccupation, hostility to women and little cooperation with supervision.

46. The combined effect of both those tests was an “overall well above average” risk level (Level IV-b) of sexual offending.

47. The 2020 RAR identified the following risk scenarios:

“The defendant’s most likely scenario for re-offending would occur following a period of instability and increased stressors in the community as he would experience an emotional collapse, most likely through ongoing and acute incidents of social rejection and would struggle to cope.”

48. Ms Pateman stated that in such circumstances the defendant would be experiencing an increased intensity of sexual tension and would provide himself with justifications for having his needs met through sexual offending.

49. Ms Pateman stated that it was likely that the defendant would target a young and vulnerable victim due to his low confidence around women, his anticipation that this person may be less resistant to his advances and his propensity to utilise weapons and violence to reduce overall victim resistance when attempting to achieve sexual gratification.

2020 RMR

50. This report stated that the latest risk assessment conducted on 28 April 2020 resulted in the defendant being assessed as within the high risk category of sexual offending. The report proposed a management strategy for the defendant which would include, weekly in person interviews, regular home and field visits, electronic monitoring and an associated schedule of activities and access to Forensic Psychological Services (FPS).

51. The 2020 RMR noted that the defendant’s access to community support was limited to his brother (who was in custody) and his teenage daughter with whom he had had no contact during his most recent period in custody. The report noted that there might be impediments to the implementation of the case management plan because of the defendant’s reluctance to acknowledge the need for offence specific treatment. In particular, the defendant might be resistant to home visits given his failure to engage with such a requirement while he was subject to community corrections supervision in 2006.

52. The report noted that the defendant had expressed significant displeasure about having to schedule and plan his activities in advance and questioned what it would achieve. The report also noted that electronic monitoring would not prevent the defendant from being involved in high risk situations or offending behaviours while he is engaging in an approved activity.

53. The report noted the lack of meaningful progress by the defendant through engagement in custody based treatment such as the High Intensity Sexual Offender Program (HISOP). The report found that the defendant’s stated unwillingness to engage in further intervention demonstrated his lack of insight and raised concerns regarding his capacity to comply with an ESO.

54. The defendant was released to parole on 30 June 2020 to reside at the Nunyara Community Offender Support Program centre (COSP). During this time, the defendant had experienced difficulties complying with his schedule of movements and conditions. He had made numerous complaints about the conditions placed upon him. The defendant has issues with things such as yearly reporting, updating contacting details and restrictions on travel. The defendant believed that he should be exempt from a curfew. The defendant has been behind schedule on numerous occasions, resulting in the Community Corrections Officer (CCO) calling the defendant to see where he was. Although the defendant’s breaches of conditions on parole have been minimal, they appear to demonstrated his incapacity to be compliant with supervision. This was evidenced by a comment to a CCO to “send him back to gaol as it was too much”.

55. Since the defendant’s release to parole, a provisional Apprehended Domestic Violence Order (provisional order) has been made. The order was made for the protection of the defendant’s ex-partner and 15 year old daughter. The provisional order contains an exclusion zone to restrict the defendant accessing places near or around the residence of “the persons in need of protection” (PINOPs).

56. The defendant since his release to parole has been insistent that he be given access to his daughter. He indicated to a CCO that having discussed it with his ex-partner, she was willing to consider such access. When staff contacted the defendant’s ex-partner on 3 July to verify such information, she stated that the defendant was “absolutely not” to have contact with her daughter. It was further revealed to staff that the defendant had got access to his ex-partner’s address without her knowledge. She had received several miscalls and text messages from the defendant after she agreed to meet with him to sign paperwork on 2 July 2020. On 3 July 2020, the defendant and his ex-partner attended a solicitor’s office. Shortly after the meeting, the defendant called his ex-partner on a number of occasions and sent numerous text messages.

57. The final hearing for the application for an Apprehended Domestic Violence Order has not yet been heard.

Insight of defendant

58. The plaintiff submitted that the defendant had demonstrated a lack of insight into his actions on numerous occasions. The plaintiff noted that in a letter dated 18 February 2019 to the Sex Offender Programs, the defendant stated that the sentence imposed on him by the judge was “incorrect” and “without foundation”. In this letter, the defendant also blamed his legal team for his sentence. The plaintiff submitted that in this letter the defendant had dealt with the index offence in a way which blamed the victim and minimised his actions. The plaintiff submitted that this was evident when the letter stated:

“Conversations with the girl concerned led me to believe she was older and the actual act was spontaneous and initiated by her. .this proved to be a lie and misleading.”

59. The plaintiff relied upon the following further instances which it submitted demonstrated the defendant’s lack of insight into his offending:

1. he continues to state that the victim led him to believe that she was older and that the sexual intercourse was initiated by her;

2. he maintains that he has no interest in minors and that he has never been intimate with a minor;

3. he maintains that he is at low risk of reoffending;

4. he maintains that the offence was “purely opportunistic”;

5. he stated that he did not know about the victim giving birth to a daughter until “months after she was born”;

6. on numerous occasions, he disputed his high Static-99 score; and

7. he argues that the index offence was “minor” in nature.

60. The plaintiff submitted that the defendant has the capacity to manipulate those around him and to be deceitful in order to have his sexual desires met. The plaintiff submitted that he had displayed a capacity to deceive those closest to him regarding his sexual offending. This was evidenced by him failing to disclose his past offending to his wife, using false names in the past to avoid detection and also in relation to utilising his fictitious role as a modelling agent to commit the index offence.

61. The plaintiff submitted that the defendant had been noted to “have his own agenda of tasks that he deems priority. He appears to staff shop, attempt to split staff and is manipulative in trying to get staff to assist him with what he wants to do”. The plaintiff submitted that the defendant appears to provide constant excuses and blames everyone else for why he has been unable to achieve a set task.

62. The plaintiff submitted that the defendant had displayed a pattern of serious offending, notwithstanding the gaps in his criminal history, and the versatility of his offending profile. The plaintiff submitted that it was in this context that the risk profile of the defendant had to be considered. The plaintiff submitted that the gap in the defendant’s criminal history between the two discrete episodes of serious sexual offending does not preclude the nature of the risk posed by the defendant rising to an unacceptable level. The plaintiff submitted that the opportunistic and varied nature of the serious offences committed by the defendant highlighted the proposition that the risk posed by him meets the threshold level of an unacceptable risk.

63. The plaintiff submitted that despite the offending of the defendant involving low level voyeurism and public exposure offences, the evidence suggested that his current risk profile was closely aligned with the commission of further serious offences. The plaintiff submitted that the defendant’s current risk scenarios primarily relate to the targeting of vulnerable young women to achieve sexual gratification. The plaintiff submitted that the defendant was likely to utilise his personal skills and intelligence to entice victims. The plaintiff submitted that it was in the context of these advances being rejected, that the defendant had the capacity in the past to utilise violence and weapons to overcome any resistance.

Conclusion

64. On the basis that this is a preliminary application and what is being sought is an Interim Supervision Order, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an Interim Supervision Order.

65. In carrying out the evaluative process to reach that conclusion, I am conscious of the fact that the Court is not required to assess the weight of the supporting documentation or seek to predict the outcome of the proceedings for final orders. Accordingly, I have engaged in that evaluative exercise taking into account all of the supporting documentation and proceeding on the assumption that the facts alleged in the supporting documentation are proved. Accordingly, I propose to make an Interim Supervision Order in respect of the defendant.

66. That does not end the matter. There is, as was foreshadowed at the beginning of this judgment, a dispute between the parties as to what conditions should be imposed on the defendant as part of the Interim Supervision Order.

The setting of conditions

67. Before dealing with the submissions as to the content of the conditions which should be imposed, it is useful to keep in mind the test provided for by the Act when there is a dispute as to the content of a condition.

68. Section 11 of the Act relevantly provides:

“11    Conditions that may be imposed on supervision order

(1)    An extended supervision order or interim supervision order may direct an offender to comply with such conditions as the Supreme Court considers appropriate, including (but not limited to) directions requiring the offender:

(a)    to permit any corrective services officer to visit the offender at the offender’s residential address at any time and, for that purpose, to enter the premises at that address, or

(a1)    to permit any corrective services officer to access any computer or related equipment that is at the offender’s residential address or in the possession of the offender, or

(b)    to make periodic reports to a corrective services officer, or

(c)    to notify a corrective services officer of any change in his or her address, or

(d)    to participate in treatment and rehabilitation programs, or

(e)    to wear electronic monitoring equipment, or

(ea)    to reside at an address approved by the Commissioner of Corrective Services, or

(f)    not to reside in or resort to specified locations or classes of locations, or

(g)    not to associate or make contact with specified persons or classes of persons, or

(h)    not to engage in specified conduct or classes of conduct, or

(i)    not to engage in specified employment or classes of employment, or

(j)    not to change his or her name, or

(k)    to report to police and provide information to police about the conditions imposed on the extended supervision order or interim supervision order and the offender’s residential address, or

(l) to comply with any obligation that could be imposed on the offender under Part 3 of the Child Protection (Offenders Registration) Act 2000 if the offender were a registrable person within the meaning of that Act and were not the subject of an interim supervision order or an extended supervision order, or

(m)    to comply with specified requirements in connection with the offender’s access to and use of the internet, or

(n)    to provide any corrective services officer with requested information in relation to any employment or any financial affairs of the offender.

(2)    An extended supervision order or interim supervision order must include a condition requiring the offender not to leave New South Wales except with the approval of the Commissioner of Corrective Services.”

69. The Court is to impose “such conditions” as it considers appropriate. The determination of the specific conditions to be imposed depends upon the scope of s 11. The word “appropriate” can only be interpreted in the context of s 5B which gives the Court the power to make an ESO. In particular, the ESO can only be made where the Court is satisfied to the requisite standard that there is an “unacceptable risk of committing another serious offence”. The ESO is accordingly directed to the mitigation of risk of the offender committing a further serious offence. The conditions that are made pursuant to the power in s 11 can only be appropriate where they go to the mitigation of the relevant risk. The relevant risk here is offending of the type that the defendant has engaged in previously.

69. The intent and objects of the Act must be borne in mind when undertaking this assessment. As observed in Attorney-General for New South Wales v Tillman [2007] NSWCA 119 at [45]:

“"The statutory objects in this extraordinary legislation are directed at “ensuring” the safety and protection of the community and “facilitating” rehabilitation of serious sex offenders.”

71. The making of an ESO requires an assessment that the individual conditions sought specifically address issues relevant to the currently identified risk of future “serious offending” and not offending generally. Conditions ought not to be imposed that are onerous or simply punitive; State of New South Wales v Green (Final) [2013] NSWSC 1003 at [37].

72. The Court’s consideration of appropriate conditions includes the discretionary factors that are relevant to whether or not an ESO is imposed. The breadth of the required analysis was summarised by N Adams J in State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36]:

“Section 11 of the Act permits the imposition only of such conditions as it “considers appropriate”, including those specified in the section. As Johnson J observed in State of New South Wales v Tillman [2008] NSWSC 1293 at [68], the Court is to strike a “balance between relevant considerations” which included the matters to which the Court has had regard in determining whether to make an extended supervision order. Amongst the other considerations are the ordinary rights of the subject to go about his or her lawful activities free from officious and unnecessary restrictions and the fact that breaches of the conditions incur criminal penalties. Ultimately, the purpose of conditions is to mitigate the risk of the defendants committing further sexual offences. For this reason, it is obvious that there need not be a link between the condition and the circumstances of the offences that have triggered the order or the way in which they were committed. The conditions must address identified risk factors but these must be considered in a realistic way and not treated as some statutory scheme. In the nature of things, there can be no bright line: the relevant factors are inherently incommensurable. The condition must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice. (See Wilde v State of New South Wales [2015] NSWCA 28, in which the authorities are usefully collected.)”

73. The Courts have recognised that care is to be exercised when imposing conditions to ensure that they relevantly address the risk identified. Fullerton J in State of New South Wales v Bugmy [2017] NSWSC 855 stated at [89]:

“The Court is entitled to expect that the conditions the plaintiff proposes that Mr Bugmy be subject to are drafted to address what are identified in the evidence as the risk factors to his further violent offending (State of New South Wales v Burns [2014] NSWSC 1014 at [59]). The conditions must not be unjustifiably onerous or simply punitive (see Wilde v State of NSW (2015) 249 A Crim R 65; [2015] NSWCA 28 at [45] citing RA Hulme J in State of New South Wales v Green (Final) [2013] NSWSC 1003). Neither may they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision under an extended supervision order. The conditions to be imposed in this case must be at least capable of moderating or minimising the risk of Mr Bugmy inflicting serious violence, in contrast to reducing or minimising the risk of him offending in other ways.”

74. The Court has held that in order to satisfy the legislative intent of the Act, conditions need to adequately target the identified risk factors.

75. In State of New South Wales v Tannous [2020] NSWSC 292, amendments were made to a number of conditions to be imposed on the defendant on the basis that a balance was required to be struck between the primary object of the Act and the rehabilitation needs of the defendant. His Honour Justice Rothman noted:

“46 The Court is not bound to impose Conditions within a narrow band, but the Conditions must be relevant to the risk factors associated with the defendant and seek to achieve the purposes of the Act. I bear in mind that the safety of the community must be the primary objective of the issuing of an ESO and the Conditions that are imposed in that ESO, pursuant to the terms of s 11 of the Act.”

Disputed conditions

76. The defendant opposes the imposition of Conditions 5-7. Those conditions provide:

“Schedule of movements

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

6.   If the defendant wants to change anything in his schedule of movements once it is approved by 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.”

77. When considering those conditions, it needs to be kept in mind that the defendant has not opposed the imposition of Condition 4 which provides that he must wear electronic monitoring equipment as directed by a DSO and must not tamper with or remove the equipment.

78. The plaintiff submitted that the relevant risk was that the defendant would again engage in serious sexual offending with the potential victims being not only young females, but also adult females. The plaintiff submitted that when one looked at the RAR and the RMR, they showed that the defendant had sexual self-regulation issues and lacked insight into the high risk scenarios which had led to earlier offending on his part. The plaintiff submitted that those reports made it clear that the defendant was likely to focus upon young women because they would be easier to manipulate.

79. By reference to the defendant’s previous offending, the plaintiff submitted that such offending could occur without warning and unless a scheduling provision was in place, there would be no way for the DSO and other Corrective Services personnel to anticipate or prevent such offending. The plaintiff submitted that electronic monitoring would not prevent offending of the kind which had occurred in the past because while electronic monitoring could identify where the defendant was located from time to time, it said nothing about the sort of activities he may or may not have been engaged in at that time.

80. The plaintiff submitted that the whole purpose of scheduling was to enable an offender to structure his or her time and to plan the particular activities that would be engaged in on any specified day. The plaintiff submitted that with such planning in place, the dynamic risk factors which had been identified for the defendant would be less likely to cause him to engage in the opportunistic sexual offending as he had in the past.

81. The Court was provided with a current weekly schedule which illustrated close control over the defendant’s activities in that not only was a destination identified but the time taken to reach that destination and to return from it was also specified. That having been said, there was in many cases quite a broad timeframe. On four of the days, the timeframe was between 8:45am and 4:00 to 5:00pm in the afternoon. The schedule described the defendant as renovating his mother’s house during the day on those occasions.

82. The defendant opposed the imposition of a schedule on the basis that it was unnecessary and irrelevant to the identified risk factors. The defendant submitted that the RAR described the most likely scenario for further sexual offending as occurring “following a period of instability and increased stressors in the community”. The defendant noted that the RAR described a period of potential emotional collapse and of the defendant struggling to cope. The defendant submitted that that scenario inevitably would take place over a substantial period of time and that there should be adequate warning to the DSO of such a deterioration in the defendant’s state of mind so as to be able to prevent the occurrence of any sexual offending.

83. The defendant submitted that he did not suffer from addiction problems and so was not in the same category as defendants who required close monitoring and scheduling of activities because of their addictions and because in many cases, they had come from a structured background (i.e. a prison) and were struggling to come to grips with their first period of liberty.

84. In general, the defendant submitted that scheduling was quite inappropriate when one had regard to his history of sexual offending.

85. In relation to these conditions, the decision which I have come to is that during the currency of the ISO, the defendant should be required to comply with the scheduling conditions. The current scheduling roster, which was placed before the Court, although somewhat restrictive in relation to travelling times, was otherwise quite flexible and broad in that the daily program covered many hours of the day without being unduly prescriptive as to the precise activities which would be carried out.

86. I have had particular regard to the RAR and the RMR which set out the management strategy planned for the defendant. The expert opinion there expressed, particularly in the RMR, is to the effect that scheduling of the defendant’s activities is a fundamental concept in providing protection for the community from an offender like the defendant. It is from the start point of scheduling that other strategies to manage the defendant come into effect.

87. A clearer picture as to the relevance and benefit of scheduling should emerge when up to date reports are obtained from either or both a psychiatrist and a psychologist independently retained, who can be asked to comment specifically on what is to be gained by the defendant from scheduling.

88. The next condition which was challenged by the defendant was Condition 9 as follows:

“9.   If so directed, the defendant must be at his approved address between 9pm and 6am unless attending work or another activity approved by a DSO.”

89. The plaintiff submitted that a number of the defendant’s offences had occurred at night, e.g. the “peep and pry” offences and the inspection of premises under the pretext of looking for shared accommodation all occurred after dark. Some of the “shared accommodation” offences involved serious sexual offending.

90. The defendant submitted that the imposition of a curfew was not relevant to mitigate an identified risk factor. The defendant submitted that he is not currently subject to a curfew under his parole conditions. The defendant submitted that drug and alcohol issues, as well as negative peer associations (which are often used to support the imposition of a curfew) did not apply to him.

91. I agree with the submission on behalf of the defendant, particularly since he is not currently subject to a curfew. As was pointed out in argument, there is already in Condition 2 a requirement that the defendant must spend the night at his approved address which further reduces the benefits, if any, to be obtained from the imposition of a curfew.

92. The defendant objected to Conditions 15 and 16 which are in the following terms:

“15.   The defendant must not frequent or visit any place or district specified by a DSO.

16.   Without limiting condition 15 above, the defendant must not go to any of the following without the prior approval of a DSO:

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

b.   Amusement parlours, amusement parks and theme parks;

c.   Cinemas;

d.   Libraries and museums;

e.   Camping grounds and caravan parks;

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

g.   Pools, playing fields and sporting facilities;

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

i.    Residences where the defendant knows that persons aged under 18 years ordinarily reside; and

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

93. The plaintiff submitted that Condition 15 was drafted in order to manage risk. That is why it was expressed in such broad terms. The plaintiff submitted that Condition 15 needed to be read with Condition 16 which does not involve a blanket prohibition but invites consultation with the DSO before the defendant attends one of the specified locations.

94. The plaintiff explained that libraries were included because they contained areas dedicated to children. The plaintiff submitted that pools were also included for a similar reason. The plaintiff submitted that if the defendant intended to use a pool for therapeutic purposes because of his bad back, it was simply a matter of consulting with his DSO and choosing a time when children were not about.

95. The defendant submitted that Condition 15 was too broad and in any event it was unnecessary in that it was open to the police to obtain an ADVO or AVO which would achieve the same purpose, together with the availability of powers under the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

96. The defendant submitted that some of the venues referred to in Condition 16 were not connected with any risk of him offending in a way which was relevant to his past offending. The defendant particularly objected to the prohibition on attending cinemas, libraries, pools and internet cafes. The defendant submitted that he would require access to the internet if he is successful in engaging in his former employment as an accountant. The defendant submitted that the search powers provided for in the conditions were sufficiently wide to allow full supervision of the use by him of the internet.

97. There seems to me to be something of a misunderstanding of the nature of the defendant’s offending insofar as children are concerned. There is no evidence of any offence against a child per se. The vulnerable group would appear to be pre-pubescent or pubescent females and adult females. Accordingly, the protection of children seems to be unnecessary when one has regard to the history of the defendant’s offending. That having been said, there was no objection taken by counsel for the defendant to the focus upon children and accordingly, I will take that issue no further.

98. In relation to swimming pools, experience has made it clear that sexual predators do take the opportunity of attending such places to view young people of both sexes. Accordingly, there should be some qualification on the defendant doing so. Given the undoubted therapeutic value of a pool in the context of the defendant’s bad back, the suggestion by the plaintiff is reasonable, i.e. that the defendant consult with his DSO as to appropriate times to attend a pool to enable him to engage in exercise and manage his lower back pain.

99. Accordingly, I would delete Condition 15. In relation to Condition 16, I would delete subparagraphs (c) and (d). I would not remove (j). If the defendant does return to his previous employment as an accountant, he will undoubtedly have his own computer and will be using that rather than a device in an internet café to conduct his business.

100. The defendant objected to Conditions 21, 22 and 23 which are in the following terms:

“Part E: Drugs and alcohol

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

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

23.   The defendant must attend and participate in programmes 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.”

101. I do not see any basis for imposing Conditions 21, 22 and 23 as part of the defendant’s ISO. The use of prohibited drugs is forbidden in any event and there is no evidence that the defendant had or has a drug problem or used drugs. Similarly, there is no connection between the ingestion of drugs and alcohol and the defendant’s offending. The same comment applies to Condition 23. It has no relevance to the defendant’s offending.

102. The defendant objected to Condition 26. Condition 26 is in the following terms:

“26.   Without limiting condition 25, the defendant must not associate with any person held in custody without prior approval of a DSO.”

103. The difficulty with that condition is that the defendant’s younger brother is currently in custody. He would appear to be the only relative that the defendant has contact with. There is no suggestion in any of the material before me that the defendant’s offending had anything to do with his brother or that he was assisted in any way by his brother.

104. Leaving aside his brother, there is no connection between the defendant’s offending and any association on his part with a person who is or has been in custody. Accordingly, I find that Condition 26 is irrelevant to the risk of the defendant engaging in serious sexual offending and should not be imposed as part of his ISO.

105. The defendant objected to Conditions 42 and 43. Those conditions were as follows:

“Part I:   Search and seizure

42.   The defendant must submit to the search by a DSO (or on behalf of a DSO) of his person and residence and the search and seizure of his vehicle, computer, electronic and communication device or any storage facility, garage, locker or commercial facility under his control.

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 these conditions.”

106. The defendant explained his objection to the conditions as follows:

“The defendant consents generally to the search powers provided by Condition 42. However, as the defendant will be seeking to return to his prior employment as an accountant and tax agent he is likely to have confidential information pertaining to his client’s business records. In those circumstances the condition should be amended to remove a “seizure” power. Further the search power should be exercised only in the defendant’s presence.”

107. The plaintiff’s response to the defendant’s objection was to add an additional Condition 42a. That condition was in the following form:

“42a.    During the search conducted under Condition 42, where the defendant identifies a file or document (electronic or hard copy) as a confidential client file or document the preliminary inspection of that document or file is to be conducted in the defendant’s presence for the purpose of confirming the same. On the DSO agreeing, or person conducting the search on behalf of the DSO agreeing, that the document or file appears to be confidential no further search or seizure of it will be undertaken.”

108. It seems to me that the defendant’s concerns are substantially alleviated by the provisions of Condition 42a, particularly if it is made clear that Condition 42 is subject to the qualification set out in proposed Condition 42a.

109. Accordingly, those conditions will now read:

“42   Subject to Condition 42a, the defendant must submit to the search by a DSO (or on behalf of a DSO) of his person and residence and the search and seizure of his vehicle, computer, electronic and communication device or any storage facility, garage, locker or commercial facility under his control.

42a.   During the search conducted under Condition 42, where the defendant identifies a file or document (electronic or hard copy) as a confidential client file or document, the preliminary inspection of that document or file is to be conducted in the defendant’s presence for the purpose of confirming the same. On the DSO agreeing, or person conducting the search on behalf of the DSO agreeing, that the document or file appears to be confidential no further search or seizure of it will be undertaken.

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 these conditions.”

110. The defendant objected to Conditions 51-56. Those conditions provided:

“51.   The defendant must attend, upon the direction of a DSO, any therapy sessions, support and treatment programs the subject of the direction, including for the purposes of a Mental Health Care Plan or Community Treatment Order.

52.   The defendant must take medications that are prescribed to him by his healthcare practitioners only in the manner prescribed.

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

54.   The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with a DSO.

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

56.   The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him.”

111. The defendant articulated his objections to those conditions as follows:

• Condition 51 – The references to “Mental Health Care Plan or Community Treatment Order” should be removed as it is irrelevant.

• Conditions 52 and 53 – These conditions should be removed. There is nothing to suggest that the defendant requires medication. This condition is more relevant to people suffering from major mental illnesses or drug addiction.

• Conditions 54 to 56 – It is not clear what evidence underpins the requirement for these conditions. The defendant does not have a chronic medical condition which relates to the risks defined in the Risk Assessment Report and accordingly, these conditions do nothing to mitigate any risk.

112. In support of the inclusion of Conditions 51-56, the plaintiff referred to some provisional diagnoses of the defendant which took place many years ago. The plaintiff was not able to make those diagnoses relevant to the defendant’s health as it is now.

113. The plaintiff did submit that Condition 54 could be made relevant if the words “where it is relevant to managing his risks” were added to that condition.

114. I am prepared to impose Condition 54 with that addition to it but I am not persuaded that at this stage the other “health” conditions have any relevance to the risk of the defendant seriously offending in the future. On the material currently available, apart from his back pain and the need to attend a pool from time to time for therapeutic purposes, no nexus has been established between the defendant’s health and his offending, either in the past or the risk of serious offending in the future. Accordingly, the only conditions which I will impose of this kind are Conditions 49, 50 and 54 as modified by the plaintiff.

115. I have annexed to the judgment the conditions which I propose to impose.

116. The orders which I make are as follows:

1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act);

1. appointing two qualified psychiatrists and/or registered psychologists to conduct separate psychiatric and/or psychological examinations (as the case may be) of the defendant and to furnish reports to the Court on the results of those examinations by a date to be fixed by the Court; and

2. directing the defendant to attend those examinations.

2. An order:

1. pursuant to s 10A of the Act that the defendant be subject to an Interim Supervision Order (“the Interim Supervision Order”); and

2. pursuant to s 10C(1) of the Act that the Interim Supervision Order be for a period of 28 days from the date of the order; and

3. pursuant to s 11 of the Act directing the defendant for the period of the Interim Supervision Order to comply with the conditions attached to this judgment.

3. (3)   An 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.

**********

SCHEDULE OF CONDITIONS OF SUPERVISION

MARK WILLIAM RICHARDSON

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 NSW.

“Defendant” means MARK WILLIAM RICHARDSON, the defendant in these proceedings and the

subject of the order.

“Electronic Identity” means each of the following:

an email address,

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

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

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

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

“Material” includes:

any written or printed material;

any picture, painting or drawing;

any carving, sculpture, statue or figure;

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

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

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:

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

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

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

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.

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

1. The defendant must wear electronic monitoring equipment as directed by a DSO and must not tamper with, or remove, the equipment.

Schedule of Movements

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.

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.

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

Part B: Accommodation

The defendant must live at an address approved by a DSO and notify a DSO before any steps are taken to change the defendant's address or living arrangements.

DELETED.

The defendant must comply with rules or by-laws (or both) of any approved accommodation for the defendant.

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.

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.

The defendant must promptly notify a DSO of any visitor entering and remaining at his approved address and 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

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.

DELETED.

The defendant must not go to any of the following without the prior approval of a DSO:

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

b.   Amusement parlours, amusement parks and theme parks;

c.   DELETED;

d.   DELETED;

e.   Camping grounds and caravan parks;

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

g.   Pools, playing fields and sporting facilities;

h.   Concerts, theatre shows, events and activities intended for the entertainment of children;

1. Residences where the defendant knows that persons aged under 18 years ordinarily reside; and

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

Part D: Employment, finance and education

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.

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

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

DELETED.

Part E: Drugs and alcohol

DELETED.

DELETED.

DELETED.

Part F: Non-association

Association with Children

1. The defendant must not associate with anyone who he knows or reasonably should know is under 18, other than incidental contact in a public place in the course of the duties of the minor; or with the written permission of a DSO and in accordance with any requirements reasonably determined by a DSO, including that the contact takes place in the presence of an adult who has been approved in writing by a DSO.

Associations with Others (not children)

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

DELETED.

The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary.

If the defendant commences an intimate relationship with someone, he has to tell a DSO who may want to disclose to the person about the defendant's criminal history. Prior to doing so, a DSO will advise the defendant.

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

Part G: Weapons

30. The defendant must not possess or use any of the following without a DSO's prior approval:

a.   a knife (other than a kitchen knife which has been disclosed to a DSO), machete, sword, flick knife, sheath knife, scalpel 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;

b.   any other implement made or adapted for use for causing injury to a person; and

c.   anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property.

Part H: Access to the internet and other electronic communication

The defendant must obey any reasonable directions by a DSO about communication, internet access and use of electronic devices (including, but not limited to, approval of devices used, method of communication, access to the internet and restrictions on deleting information).

The defendant must not use any alias, electronic identity, log-in name, name other than "Mark RICHARDSON" or any email address other than those known to a DSO. The defendant must give a DSO a list of all devices, services and applications he uses to communicate with or to access the internet and advise a DSO of any change to the list immediately. This includes phones, tablet devices, data storage devices or computers.

The defendant must only use an electronic device which has the ability to access the internet after the device has been disclosed to a DSO and the device has been seen and approved for use by a DSO.

The defendant must provide the details of telephone numbers, service provider account numbers, email addresses or other user names as well as any relevant passwords, pin codes and pass codes used by the defendant and the nature and details of the internet connection, as directed.

The defendant must provide a DSO with all passwords, pin codes and pass codes used to access all electronic devices, electronic applications, internet sites and communication platforms of any kind.

The defendant must not use any coded or encrypted messaging application or service.

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.

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 services including text and voice services.

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 these conditions.

The defendant must not delete 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.

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

Part I: Search and seizure

1. Subject to the provisions of Condition 42a the defendant must submit to the search by a DSO (or on behalf of a DSO) of his person and residence and the search and seizure of his vehicle, computer, electronic and communication device or any storage facility, garage, locker or commercial facility under his control.

42a. During the search conducted under condition 42, where the defendant identifies a file or document (electronic or hard copy) as a confidential client file or document the preliminary inspection of that document or file is to be conducted in the defendant's presence for the purpose of confirming the same. On the DSO agreeing, or person conducting the search on behalf of the DSO agreeing, that the document or file appears to be confidential no further search or seizure of it will be undertaken.

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 these conditions.

Part J: 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+, Restricted Category 2 and Restricted Category 1, or any other material as directed by a DSO with respect to concerns related to risk of committing a serious offence.

Part K: Personal details and appearance

The defendant must not change his name from "Mark RICHARDSON" or use any other name without notifying a DSO.

The defendant must not significantly change his appearance without the approval of a DSO.

The defendant must let a DSO photograph him, dressed, within one week of the commencement of these conditions and the defendant is to advise a DSO of any significant change to his body or physical appearance that is not observable.

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, as soon as practicable.

Part L: Medical intervention and treatment

The defendant must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction, including for the purposes of a Mental Health Care Plan or Community Treatment Order.

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

DELETED.

DELETED.

DELETED.

The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with a DSO where it is relevant to managing his risks.

DELETED.

DELETED.

Decision last updated: 20 October 2020