State of New South Wales v Rush (Preliminary)

[2018] NSWSC 1949

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	State of New South Wales v Rush (Preliminary) [2018] NSWSC 1949
Hearing dates:	10 December 2018
Date of orders:	10 December 2018
Decision date:	13 December 2018
Jurisdiction:	Common Law
Before:	Lonergan J
Decision:	See [39]
Catchwords:	HIGH RISK OFFENDER – serious sex offender – preliminary hearing - application for interim supervision order – application for extended supervision order
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW) ss 4A, 5B, 5I, 6, 7, 9, 10A, 11 Crimes Act 1900 (NSW) s 61J
Cases Cited:	State of New South Wales v BG [2018] NSWSC 1694 State of New South Wales v Sotheren (Preliminary) [2018] NSWSC 754
Category:	Procedural and other rulings
Parties:	State of New South Wales (Plaintiff) Shayne Charles Rush (Defendant)
Representation:	Counsel: P Aitken (Plaintiff) A Cook (Defendant)   Solicitors: Crown Solicitors Office (Plaintiff) Legal Aid (Defendant)
File Number(s):	2018/295920

Judgment

1. By Summons filed on 27 September 2018, the plaintiff, the State of New South Wales, seeks certain orders under the Crimes (High Risk Offenders) Act 2006 (“the HRO Act”) with respect to the defendant, Shayne Charles Rush.

2. The defendant is currently on parole. He attended court and actively participated in proceedings by providing his counsel with instructions during the hearing.

3. The application made by the plaintiff is for interim relief in accordance with orders 1 and 2 of its Summons. For the purposes of determining the application for interim relief, the court has to undertake a preliminary hearing in accordance with the HRO Act.

4. Mr Aitken of counsel appears for the plaintiff and Ms Cook of counsel appears for the defendant. An affidavit of Kate Horman sworn 27 September 2018 was read in support of the application. Exhibited to that affidavit were two volumes of documents regarding the defendant’s offending that has led to this application, including a risk assessment report of Mr Ardasinski, psychologist and a risk management report of Ms Carden from DCS, the sentencing remarks of the various judges who have dealt with the previous offending, and parole reports.

5. Counsel for the plaintiff and the defendant have furnished helpful written submissions. Ms Cook did not resist the interim relief sought in the Summons if the court is independently satisfied to the requisite standard that such orders should be made. No submission was made by the defendant that the court should not be so satisfied.

6. The defendant did not oppose the making of the orders sought in paragraphs 1 and 2 of the Summons, however submissions were made concerning a number of the conditions the plaintiff sought as conditions of the interim supervision order (ISO). It reflects well on counsel for the parties that the area for disagreement has been narrowed to one issue only. That was in respect of condition number 28 regarding non association with children. After some helpful debate and proposed modification, that condition also was able to be the subject of agreement. I will return to that condition later in this judgment.

7. I was greatly assisted by counsel’s approach to the issues, however the court is still required to form its own view as to whether the orders ought to be made in accordance with the provision of the HRO Act. Given the lack of opposition to the orders sought, whilst I need to explain the reasons for the orders which will be made, the Court is not required to give detailed reasons in respect to its analysis of each statutory factor.

Relevant provisions of HRO Act

8. Section 7(3)-(5) of the HRO Act provides:

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

(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.

(5)   If, following the preliminary hearing, it is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must dismiss the application.

9. For the purpose of assessing whether a s 7 order should be made, I am required to consider the matters contained in s 9 of the HRO Act:

9   Determination of application for extended supervision order

…

(2)   In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court.

(2A)   (Repealed)

(3)   In determining whether or not to make an extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant:

(a)   (Repealed)

(b) the reports received from the persons appointed under section 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 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 re-offending 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 offender’s 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.

(4)   In determining whether or not to make an extended supervision order in respect of an offender, the Supreme Court is not to consider any intention of the offender to leave New South Wales (whether permanently or temporarily).

10. It is also necessary for the court to consider the requirements contained in s 5B of the HRO Act:

5B   Making of extended supervision orders—unacceptable risk

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

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

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

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

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

11. Section 5I sets out threshold requirements that the court needs to consider at the preliminary hearing stage in respect of applications for an extended supervision order:

5I   Application for extended supervision order

(1)   An application for an extended supervision order may be made only in respect of a supervised offender.

(2)   A supervised offender is an offender who, when the application for the order is made, is in custody or under supervision (referred to in this Part as the offender’s current custody or supervision):

(a)   while serving a sentence of imprisonment:

(i)   for a serious offence, or

(ii)   for an offence of a sexual nature, or

(iii)   for an offence under section 12, or

(iv)   for another offence (whether under a law of this State or another Australian jurisdiction) that is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraph (i), (ii) or (iii), or

(b)   under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order.

(3)   A person is taken to be serving a sentence of imprisonment whether the sentence is being served by way of full-time detention or intensive correction in the community (whether or not subject to a home detention condition) and whether the offender is in custody or on release on parole.

Threshold issues

12. Statutory threshold requirements were conceded by counsel for the defendant and I am satisfied there was a proper basis for these concessions.

13. There are a number of threshold requirements under ss 4A(a), 4A(b), 5I(2)(a)(i) and (ii) and 6(1) of the HRO Act. These concern formal matters concerning the timing of the application, the custodial status of the defendant at the time of the application, the age of the defendant (he is now 53 years old), the fact that the defendant has served a sentence of imprisonment following conviction for a serious offence in the form of a serious sex offence (here an offence contrary to s 61J of the Crimes Act 1900) and the fact that the defendant is a supervised offender within the meaning of the HRO Act, are all met here.

Some relevant legal principles

14. I adopt the summary of the relevant principles to apply at preliminary hearing from the judgment of Johnson J in State of New South Wales v Sotheren (Preliminary) [2018] NSWSC 754 at [20]-[25]:

[20] The unacceptable risk test in s.5B(d) of the HRO Act requires the exercise of a discretionary judgment: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at 652 [82]. The objects of the HRO Act should be kept in mind when undertaking this evaluative task: Lynn v State of New South Wales at 648 [55]. Those objects are contained in s.3 which states:

“3 Objects of Act

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

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

[21]   The Court must be satisfied to a high degree of probability that the Defendant poses an “unacceptable risk” of committing a further serious offence if not kept under supervision under an ESO. The standard of proof lies between the ordinary civil standard and the criminal standard of beyond reasonable doubt: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21].

[22]   The right of a person to his or her personal liberty after serving a term of imprisonment is not a consideration in this evaluative task: Lynn v State of New South Wales at 645 [44], 648 [55]-[58], 660-661 [128] and 665 [148].

[23]   At a preliminary hearing, it is not for the Court to weigh up the documentation or to predict the ultimate result or to consider what evidence the Defendant might call at the final hearing: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98]. Rather, the Court undertakes a task that has been described as being akin to applying a prima facie case test in committal proceedings (as they were before 30 April 2018), taking the Plaintiff’s case at its highest: State of New South Wales v Manners [2008] NSWSC 1242 at [8]; State of New South Wales v Brookes [2008] NSWSC 150 at [13].

[24] If the Court is satisfied that an ISO should be made, the question arises as to whether the conditions as sought by the Plaintiff should attach to the ISO. Section 11 of the HRO Act specifies a range of conditions which may attach to an ESO and thus an ISO. The conditions outlined in s.11 of the HRO Act impose positive obligations as well as restrictions upon a person. In considering whether to impose conditions, it is necessary to bear in mind that the effect of their inclusion is to expose the Defendant to criminal sanctions if they are breached so that a proper basis needs to be demonstrated for including the conditions in the first place: State of New South Wales v TT (Final) [2018] NSWSC 358 at [127].

[25] Section 11 of the HRO Act does not require that there must be a specific demonstrated link to past offending which is the basis for an order made under the Act. Rather, the Court must be satisfied that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order: Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 at 76-77 [53]. A balancing exercise is required so that the Court will seek to impose the least intrusive conditions, consistent with its assessment of the risk posed by the Defendant and a further assessment as to what conditions are likely to be effective with the interests of the Defendant in liberty and privacy being properly treated as relevant considerations in ensuring that unjustifiable conditions are not imposed: Lynn v State of New South Wales at 661 [129]-[130] and 665 [149].

Consideration of statutory factors under section 9(3) HRO Act

15. I have considered the evidence adduced at the preliminary hearing by reference to the statutory factors contained in s 9(3) of the HRO Act. Given the defendant has conceded these requirements have in effect been met, I will briefly refer to key matters only.

Section 9(3)(h): Defendant’s criminal history and pattern of offending behaviour

16. The defendant had a history of non-sexual offending both as a young person and into adulthood comprising thefts, break and enters and goods in custody as well as some violent offences in the nature of hindering police, malicious damage and assault. There were many driving offences spanning 1982 to 1997 including drink driving and negligent driving as well as one charge of possession of drugs in 1995.

17. In addition to the index offending for which he was sentenced on 17 December 2010, the defendant was convicted for offences committed in September 1998. For those offences, he was sentenced on 19 October 1999 to nine years imprisonment. They involved a series of attacks on young girls in Wyong Shopping Plaza and a Gosford shopping centre. In respect of one of the offences, the defendant pleaded guilty. That plea related to his conduct on 2 September 1998 where he approached a nine year old girl dragged her by her school uniform into a fire escape, sexually assaulted her, threatened her that he would and punch her in the mouth, placed his hand across her mouth so she could not scream for help and then made her “squeeze” his penis until he ejaculated.

18. The defendant pleaded not guilty to other charges relating to his conduct on 9 September 1998, but was found guilty by a jury. In essence, he raped a 13 year old girl in a toilet cubicle, threatened her and told her he had a knife and that he would stab her if she is not quiet.

19. There was another charge taken into account on the Form 1 which involved the defendant masturbating in the presence of another child, a 10 year old female, in 1998. There were additional charges involving sexual attacks on two 12 year old girls in May 1998. However, he was found not guilty of those charges in October 1998. Whilst there is some authority to suggest that I can take into account charges not established in exercising my discretion under the HRO Act, I decline to do so here. There is ample evidence that activates my discretion in the form of the convictions for serious sex offending against children, including rape, as well as the risk assessments of the defendant carried out in July 2018.

20. The index offending occurred in 1997 and involved three counts of aggravated sexual intercourse without consent, aggravated indecent assault and commit or incite acts of indecency (three counts) involving a 13 year old boy, whom the defendant randomly attacked and threatened violence if he did not do what the defendant said. The defendant was DNA matched in 2008, hence the late arrest and sentence for that offending.

21. As observed by the sentencing judges in respect of all of the offending for which he was convicted, the defendant behaved in a way that was predatory, opportunistic and deliberately degrading of the children concerned.

Section 9(3)(e): Treatment or rehabilitation programs undertaken

22. Whilst the defendant underwent the CUBIT program in custody and showed some improved cooperation later in his participation, observations were made about his impulsive nature, his limited consequential thinking, his poor understanding of boundaries, and limited self-awareness. He was reported on a number of occasions to have minimised the offending behaviour. He made assertions such as the 13 year old boy “exaggerated” what had happened, and that the boy “had not done anything he didn’t want to do”. He said that the female victims “were better off” because he had “made them more aware of life”. This was described by an assessing psychologist as a “cognitive distortion to justify his actions”.

23. Of particular concern is the perception perpetuated by the defendant that the 13 year old boy had “sexed him”, showing a lack of insight into the predatory nature of his own behaviour and a lack of recognition of the unacceptable nature of his attacks.

Section 9(3)(c) and (d): Risk assessment reports undertaken

24. Dr Ardasinski in his report of July 2018 noted that since release on parole in April 2017, the defendant had not formed any relationships or social connections. Because he has been in custody almost continually from 1999 to April 2017, it is difficult to predict what will happen. He identified that the defendant probably has a pre-existing sexual preoccupation with children. These matters, together with the history of offending, lead Dr Ardasinski to the view that the defendant is at a moderate to high risk of sexual re-offending.

Section 9(3)(f): Behaviour whilst on parole

25. Whilst on parole (over the last 18 months) there have been no breaches. It appears that the containment associated with the conditions of parole has been protective, and hence the usefulness of close supervision with clear conditions, should continue for the protection of vulnerable young persons against potential random sexual attacks by the defendant.

Section 9(3)(d)(ii): Corrective Services Risk Management report

26. The risk management report prepared by Ms Carden, Community Corrections Officer, dated 26 July 2018 set out a number of potential management strategies to address the defendant’s risk for sexual reoffending. She noted this risk to be well above average or “high” on the assessment of Luke Brabant, Psychologist, in June 2018. Risk factors were identified as anti-social lifestyle, drug use, hedonism, lack of direction, relationship and intimacy deficits, emotional loneliness, possible deviant sexual interest, impulsivity, poor problem-solving, personality factors and difficulty accepting feedback. Ms Carden outlined a risk management plan which included a number of strategies aimed at managing those risks. Those strategies have been largely incorporated into the series of conditions proposed by the plaintiff with the Summons and consistently with which I made the orders on 10 December 2018.

Determination

27. I have had regard to the various statutory factors outlined in this judgment and the evidence which relates to them. The issue for the court at this stage is a threshold one involving the application of a prima facie test by reference to the evidence.

28. I am completely satisfied that an ISO should be made in this case together with orders for a psychiatric and psychological examination. I have significant concern that the defendant may well engage in similar types of random sexual attacks upon young children. The evidence discloses that the risk of him committing this type of offence is moderate to high. The attacks are random, committed in public places accessible to children, and are associated with sudden violence and threats to the children concerned.

29. The assessment of Mr Ardasinski places the defendant in the moderate to high risk category for future sexual offending. I am required pursuant to s 3(1)(b) of the HRO Act to provide for extended supervision of high risk sex offenders so as to ensure the safety and protection of the community. I am satisfied to the prima facie level, that on the evidence before the court there is real risk of the defendant committing a serious sex offence involving young, vulnerable children. This level of risk is likely to be ameliorated by a further lengthy period of supervision with stringent conditions and accordingly the interim or preliminary ISO should be made.

Conditions of the ISO

30. Annexed to the Summons were a number of proposed conditions which had been discussed between the parties prior to the preliminary hearing.

31. The remaining condition in issue was 28 which dealt with the important issue of “non-association with children”. The form of the condition proposed by the plaintiff was as follows:

28.   The defendant must not approach or have contact with 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.

32. Ms Cook, counsel for the defendant, drew attention to the difficulties associated with that condition in circumstances where the defendant may well approach, for example, a cashier who is aged under 18 to purchase grocery items or may sit on a bus next to a young person, behaviour which might be considered by some DSOs or judicial officers to be “approach” or “contact”.

33. Counsel for the defendant submitted (persuasively) that the form of wording adopted by Johnson J in State of New South Wales v BG [2018] NSWSC 1694 would be a more appropriate wording to allow the defendant to carry out simple activities such as purchasing groceries from a check-out or standing at a bus stop or catching public transport without running the risk of being in breach of his ISO conditions.

34. After submissions, the form of wording adopted is as follows:

28.   The defendant must not approach or have contact with anyone who he knows or reasonably believes is under 18, other than incidental contact in a public place with a person in the course of that person’s duty, unless his DSO tells him he can, and he is with someone who has been approved in writing by his DSO.

35. In fixing this condition, I confirm that it is understood by the court (and should be understood by the DSO (Departmental Supervising Officer) and the defendant) that this condition is not intended to apply to a situation where for example the defendant gets on a train or bus and within that train or bus is a person under the age of 18, so long as the defendant does not approach or have contact with such a person. That means that he must not sit next to such a person he knows, or reasonably believes to be under 18, or stand in close proximity to such a person. He cannot approach or have contact with such persons. If he does so, he will be in breach of this condition. Whilst it is not practical to build that explanation into the form of the condition, I note these matters to assist in the practical enforcement of the condition. The defendant should be and remain aware that compliance with this aspect of his ISO is critical.

Conclusion

36. I am satisfied that an ISO should be made in this case, together with an order for examination of the defendant by a psychiatrist and a psychologist and the other associated orders.

37. I am satisfied that the conditions attached to the Summons including the re-framed condition 28 should be included as part of the ISO.

38. I have nominated the commencement for the ISO as 24 March 2019 in the orders I made on 10 December 2018. There will not have been a final hearing by that date, and so the order is necessary. I have also listed the matter before me on 14 December 2018, at which time further clarity ought to be available as to the examination to be organised with the psychologist.

39. I make the following orders:

1. Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (“the Act”):

1. A psychiatrist, Dr Adam Martin, and a psychologist yet to be determined, be appointed to conduct separate examinations of the defendant and to furnish reports on the results of those examinations to the Supreme Court of New South Wales, by a date to be agreed.

2. The defendant is to attend an appointment with Dr Adam Martin at 9:00 am on Wednesday, 30 January 2019 or such other time and date as arranged.

3. The defendant is to attend an appointment with a psychologist at a time and date to be agreed between the parties.

2. Pursuant to s 10A of the Act, the defendant is subject to an interim supervision order from 24 March 2019 and expiring on 21 April 2019.

3. Pursuant to s 11 of the Act, I direct that the defendant comply with the conditions set out in the Schedule annexed to the Summons in these proceedings noting that condition 28 has been modified to be worded as follows:

28.   The defendant must not approach or have contact with anyone who he knows or reasonably believes is under 18, other than incidental contact in a public place with a person in the course of that persons’ duty, unless his DSO tells him he can, and he is with someone who has been approved by his DSO.

4. The matter is listed at 9:30 am on 14 December 2018 before Justice Lonergan for directions to set a timetable for final hearing.

5. Access to the Court’s file by a non-party in respect of any document shall not be granted without the prior notification by the Registrar of the Court to the parties of that non-party’s application for access, and such access will not be granted without the leave of a Justice of the Court.

6. Liberty to apply to relist the matter on one day’s notice to Lonergan J by email to her Associate or alternatively to the Duty Judge via the Duty Registrar if liberty to apply is sought during the Court vacation period, that is 15 December 2018 to 28 January 2019.

SCHEDULE OF CONDITIONS OF SUPERVISION

SHAYNE CHARLES RUSH

Departmental Supervising Officer (DSO)

Corrective Services NSW (CSNSW)

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.

Electronic Monitoring

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

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 his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period.

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

8.   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

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

10.   If so directed, the defendant must be at his approved address between 10:00pm and 6:00am unless other arrangements are approved by his DSO.

11.   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.

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

13.   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

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

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

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

17.   Without limiting condition 16 above, the defendant must not attend or be in the vicinity of premises frequented by children including but not limited to:

a.   Day-care centres, pre-schools and schools (private or public);

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

c.   Premises being used for childcare.

18.   Without limiting condition 16 above, the defendant must not go to any of the following locations without obtaining prior verbal approval from the DSO:

a.   Amusement parlours, amusement parks and theme parks;

b.   Shopping Centres;

c.   Cinemas;

d.   Libraries and museums;

e.   Camping grounds and caravan parks;

f.   Pools, playing fields and sporting facilities;

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

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

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

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

Part D: Employment, finance and education

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

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

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

Part E: Drugs and alcohol

23.   The defendant must not possess or use illegal drugs, and he must not possess or use prescription medication other than as prescribed.

24.   The defendant must not possess or use alcohol without prior approval of his DSO.

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 with anyone who he knows or reasonably believes is under 18, other than incidental contact in a public place with a person in the course of that person’s duty, 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 obtain verbal approval from the DSO prior to engaging 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 verbal permission from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service.

Part G: 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 H: Access to the internet and other electronic communication

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

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

37.   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.

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

39.   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 I: Search and seizure

40.   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 anything in, the defendant’s approved address;

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

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

g.   search and examination of his person.

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.

42.   During a search carried out pursuant to condition 35 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.

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

44.   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 40 and 43 above.

Part J: Access to pornographic, violent and classified material

45.   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, without prior approval by the DSO.

Part K: Personal details and appearance

46.   The defendant must not change his name from “Shayne Charles Rush” or use any other name without the approval of his DSO.

47.   The defendant must not use any alias, log-in name, or a name other than “Shayne Charles Rush” or use any email address other than those known to the DSO under condition 33 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.

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

49.   The defendant must let CSNSW photograph him.

50.   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 L: Medical intervention and treatment

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

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

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

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

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Amendments

17 May 2019 - Typographical error in the heading above paragraph [14] amended.

Decision last updated: 17 May 2019