State of New South Wales v Shields (Preliminary)

[2022] NSWSC 469

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Shields (Preliminary) [2022] NSWSC 469

Hearing dates:

8 April 2022

Date of orders:

20 April 2022

Decision date:

20 April 2022

Jurisdiction:

Common Law

Before:

Wright J

Decision:

(1) Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the CHRO Act), two qualified psychiatrists or registered psychologists (or a combination of such persons), as agreed between the parties, are 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 on a date, as agreed between the parties.

(2)   The defendant is directed to attend the examinations in order (1).

(3) Pursuant to ss 10A and 10C(1) of the CHRO Act, the defendant is made the subject of an interim supervision order commencing immediately after midnight on 24 April 2022, for a period of 28 days.

(4) Pursuant to s 11 of the CHRO Act, the defendant is directed to comply with the conditions set out in the schedule to these orders for the period of the interim supervision order.

(5)   Liberty to restore on 3 days' notice, if the parties are unable to reach agreement for the purposes of order (1).

Catchwords:

HIGH RISK OFFENDERS –supervision and other orders under the Crimes (High Risk Offenders) Act 2006 (NSW) – application for interim supervision order and examination orders – whether, assuming matters alleged in supporting material proved, unacceptable risk of committing a serious offence if not supervised – conditions to be imposed as part of the interim supervision order

Legislation Cited:

Child Protection (Offenders Registration) Act 2000 (NSW), s 17

Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 5B, 5I, 7, 9, 10A, 11

Criminal Code (Cth), ss 474.19, 474.27, 474.27A

Law Enforcement (Powers and Responsibilities) Act 1997 (NSW)

Cases Cited:

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

Cornwall v Attorney General for New South Wales [2007] NSWCA 374

Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57

State of New South Wales v Dickson (Preliminary) [2019] NSWSC 1116

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Thomas John Shields (Defendant)

Representation:

Counsel:
Michael Dalla-Pozza (Plaintiff)
Paul Crean (Defendant)
Solicitors:
Crown Solicitor of New South Wales (Plaintiff)
Legal Aid Commission of New South Wales (Defendant)

File Number(s):

2022/055709

Judgment

Introduction

1. By a summons filed on 25 February 2022, the plaintiff, the State of New South Wales, seeks interim and final orders under the Crimes (High Risk Offenders) Act 2006 (NSW) (the CHRO Act), including an extended supervision order (ESO), against the defendant, Mr Thomas Shields.

2. The matter came before me for a preliminary hearing on 8 April 2022 at which time the State sought:

1. an order pursuant to s 7(4) of the CHRO Act for the appointment of two qualified psychiatrists or psychologists (or a combination of them) to examine the defendant and provide reports to the Court; and

2. an interim supervision order (ISO) pursuant to s 10A of the CHRO Act for 28 days to take effect from when the defendant’s current custody expires at midnight on 24 April 2022, with the conditions set out in the schedule to the summons.

3. The written submission filed on behalf of the defendant for the purposes of the preliminary hearing expressly stated that he did not wish to be heard against the imposition of an ISO, but he reserved his position in relation to any subsequent final hearing, in relation to the imposition of an ESO. Further, the defendant did not oppose the Court including in the ISO some, but not all, of the conditions proposed in the schedule to the summons. The defendant also did not oppose the making of the order for examination and report under s 7(4) of the CHRO Act.

4. Given the limited scope of the matters in dispute, these reasons can be somewhat shorter than might otherwise be the case.

Statutory requirements for the making of an ISO and examination orders

5. In proceedings for an ESO, the Court may make an interim order for an ISO under s 10A of the CHRO Act, if it appears to the Court that:

1. the defendant’s current custody will expire before the proceedings are determined, and

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

6. Since the defendant’s current custody will expire at midnight on 24 April 2022 and he has not yet been examined under s 7(4), I was satisfied that his current custody will expire before the present proceedings are determined.

7. Under s 5I(1) of the CHRO Act, an application for an ESO may be made only in respect of a supervised offender. It was not in dispute and I was satisfied that the defendant was a supervised offender, as that expression is defined in s 5I(2), given that he is serving sentences of imprisonment for serious sex offences, namely offences of using a carriage service to groom a person under 16 years contrary to s 474.27 of the Criminal Code (Cth).

8. All of the statutory conditions for the State to make an application for an ESO in s 6 and the pre-trial procedures set out in s 7(1)-(2) have been complied with in this case. In addition, it was correctly accepted by the defendant that the requirements for the making of an ESO in s 5B(a)-(c) were met.

9. Thus, if the Court is satisfied following the preliminary hearing that "the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order":

1. it must make orders appointing either two psychiatrists, two psychologists, one of each or two of each, to conduct examinations and to furnish reports to the Court on the results, and to direct the offender to attend such examinations: s 7(4) of the CHRO Act; and

2. it may make an ISO: s 10A of the CHRO Act.

10. In the circumstances of the present case, whether “the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order" turns on whether the Court, assuming those matters are proved, is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an order, as required by s 5B(d) of the CHRO Act.

11. As noted above, for the purposes of the interim hearing, the defendant did not contest that, assuming the matters alleged in the supporting documentation were proved, he posed an unacceptable risk of committing another serious offence if not kept under supervision.

12. In determining whether I was satisfied that the matters alleged, if proved, would justify the making of an ESO, I took into account the following principles:

1. the objects of the CHRO Act in s 3, including the primary object of providing for the extended supervision of high risk sex offenders so as to ensure the safety and protection of the community and the other object of encouraging such offenders to undertake rehabilitation;

2. section 5D which provides that a Court asked to make an ESO:

"is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence";

3. determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration: s 9(2) of the CHRO Act;

4. the test in s 5B(d) requires the exercise of a discretionary judgment: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (Lynn) at [82] (Basten JA) but the right of an offender to his or her personal liberty after serving a term of imprisonment is not a consideration in this evaluative task: Lynn at [44] and [55]-[58] (Beazley P), [128] (Basten JA), [148] (Gleeson JA);

5. the Court must be satisfied that the likelihood of the defendant committing a further serious offence is higher than the civil standard of proof, in other words it is "beyond more probably than not", but it is not a requirement that the finding be made to the criminal standard of beyond reasonable doubt: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]; and

6. the task being performed at the preliminary hearing stage is not 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]. It has been described as being similar to applying a prima facie case test, taking the plaintiff's case at its highest: State of New South Wales v Dickson (Preliminary) [2019] NSWSC 1116 at [43] (Johnson J).

Matters alleged in the supporting documentation

13. The supporting documentation included:

1. the defendant’s criminal history in both New South Wales and Victoria and other records relating to his custodial history;

2. the risk assessment report dated 17 December 2021 of Ms Cieplucha, Senior Psychologist, Serious Offenders Assessment Unit, Risk Management Programs. Ms Cieplucha’s report included details of the defendant’s family, education, employment and relationships as well as his medical and psychiatric history. She also reported on his offending behaviour including the index offending and the earlier sexual offending in 2009. The defendant’s involvement in offender programs, including: High Intensity Treatment Program (HISOP); Explore, Question, Understand, Investigate, Practice, Succeed (EQUIPS); and A Real Understanding of Self Help (RUSH), was considered. Ms Cieplucha recorded that using the Level of Service Infantry – Revised (LSI-R) actuarial risk instrument, the defendant scored in 2020 in the high range of risk/needs for general and violent offending. His risk of sexual reoffending was assessed on a number of occasions using the Static Risk Factors (Actuarial Assessment-Sex Offending) – STATIC – 99R, and the defendant’s scores indicated that his risk was “Well Above Average”. Using the Dynamic Risk Factors – STABLE – 2007 tool, the defendant was assessed as having a high density of criminogenic needs relative to other male sexual offenders and when the STABLE – 2007 was combined with the STATIC – 99R to generate a composite assessment of risk/needs, the defendant was in the “Well Above Average Risk level”. Assessed using the Risk of Sexual Violence Protocol (RSVP) structured professional judgement tool, the results suggested that the defendant fell in the “Moderate/Elevated risk category for repeat sexual violence”. Ms Cieplucha also identified the dynamic risk factors which were judged to be relevant or potentially relevant when considering the defendant’s risk of sexual reoffending and her conclusions included the following:

“[The defendant] is a 44-year-old male whose risk of sexual reoffending has been estimated to be in the Well Above Average risk range for sexual offending based on an actuarial measure of risk.

…

In the event that no order is imposed after 24/04/2022, [the defendant] would be an unconditional liberty. He would have no support from, or any monitoring by CSNSW. [The defendant] would be able to engage an appropriate service provider for further psychological assistance to address outstanding criminogenic needs relating to his sexual offending however may be less motivated to do so without the oversight and direction of CSNSW. It may be that he could independently remain offence free, however given his repeat sexual offences and outstanding criminogenic needs on the background of an impulsive and unstable lifestyle with limited social supports, his ability to self-manage is uncertain. …”.

3. the risk management report dated 6 January 2022 of Mr Begg, Community Corrections Officer, Extended Supervision Order Team. Mr Begg’s report noted that the defendant fell in the high risk category of sexual offending and summarised the risk factors relevant to the defendant as including: problems with stress or coping and suicidal ideation; problems resulting from child abuse and problems with major mental illness; problems with substance abuse; problems with intimate relationships/capacity for relationship stability and general social rejection/loneliness; sexual deviance; problems with employment and nonsexual criminality; problems with planning impulsivity and problem-solving; and, cooperation with supervision. Mr Begg also recommended various conditions be included in any management plan including: electronic monitoring; the submission of a weekly schedule of movements to improve his planning skills and provide improved structure into his daily routines, although it was noted that, “[g]iven [the defendant’s] pattern of sexual offending, a curfew condition may not be warranted”; accommodation and place and travel restrictions; a finance condition that would allow Community Corrections to scrutinise expenditure; drug and alcohol abstention conditions, especially in light of the potential forensic link between alcohol and other drug consumption and the defendant’s sexual offending; conditions limiting his associations with children and antisocial peers and others who may have access to children; limited access to the internet and other electronic communications; search and seizure conditions given the nature of the defendant’s index offending by use of electronic devices and the history of polysubstance abuse potentially related to the sexual offending; conditions in relation to personal details and appearance noting that the defendant utilised two different aliases in relation to his offending and provided false information around his age and sex in order to gain access to his victims through online platforms; medical related conditions designed to ensure that the defendant complies with medical prescriptions and to allow Community Corrections to monitor his mental health in the community; and weapons conditions having regard to the defendant’s prior convictions in relation to firearms and other weapons offences.

4. court attendance notices and a statement of facts in relation to the index offending between May and September 2018 which involved two offences of using a carriage service to solicit child pornography contrary to s 474.19(1) of the Criminal Code, two offences of using a carriage service to groom a person under 16 years contrary to s 474.27 of the Criminal Code, one offence of using a carriage service to transmit an indecent communication contrary to s 474.27A(1) of the Criminal Code and one offence of failing to comply with reporting obligations contrary to s 17(1) of the Child Protection (Offenders Registration) Act 2000 (NSW), in respect of all of which the defendant pleaded guilty;

5. the report dated 24 August 2019 of Dr Andrew Ellis, forensic psychiatrist. Dr Ellis diagnosed the defendant as having a substance use disorder and a borderline personality disorder and noted that he may suffer from a mood or anxiety disorder that was currently being treated by his medication regime. The doctor was also of the opinion that given the nature of his two sets of convictions for sexual offending there was potential evidence that he may have a diagnosis of hebephilia. Dr Ellis’s conclusions included:

“His prognosis is guarded. He has failed to routinely engage with community mental health services and relapses to drug use. He has offended while subject to conditional liberty. Borderline personality disorder can be difficult to treat, and alienate treating clinicians. If he is able to abstain from substances then his chances of desisting from offending would be improved. This should be the first goal of rehabilitation. …

He should undergo substance use education and relapse prevention. He should aim for abstinence from substances and submit to testing for drug used to encourage this.

He would benefit from psychological therapy directed at his personality and experience of early developmental trauma. There are evidence-based psychotherapies for this such as dialectical behaviour therapy or metallisation based therapy that would be suitable for him.

He would benefit from attending a group based sex offender treatment program, if this is offered to him. He would benefit from improved social communication skills achieved by attending groups.

He would benefit from further vocational training.”

6. sentencing remarks of Graham ADCJ of 11 October 2019 in relation to the index offending for which the defendant received an effective sentence of 3 years 6 months, expiring on 24 April 2022, with a non-parole period of 2 years. Those remarks included:

“This was a prolonged bout of offending, which involved two potential victims and was not, in its terms, a minor instance of any of those four offences. It was committed by a person who seems not to have any great degree of insight into what he was doing. There is no overt expression of remorse or contrition. The best that can be said is that his behaviour was, as he put it, reckless and stupid.

He was unable to obtain sexual offender treatment during the course of his Victorian sentence, apparently being ineligible for that course. He has had not a great deal of contact with professionals who might be able to assist him. His overall criminal history certainly does not suggest that he is a person who has learned from orders that have been made, whether they be overtly punitive or mild orders intended to assist him to avoid further conflict with the criminal law.

… The circumstances, as revealed by these offences, his history of offending and the findings of Dr Ellis, would all suggest that he is not a person about whom it could be said that he has any low risk of reoffending. The Court should approach sentencing on the basis that there is a real risk that he would reoffend. The Crown submitted that he is a very real threat to the community. Presently, there is some element of truth in that submission, though I would not put it as highly as that. … “;

7. police fact sheets in relation to other, non-sexual offending by the defendant;

8. reasons for sentence of 20 May 2009 of Judge Duckett of the County Court of Victoria in relation to five offences of committing an indecent act with a child under 16 years committed in 2002 and 2003 for which the effective sentence was 3 years 6 months, with a non-parole period of 2 years;

9. records and notes of Corrective Services NSW and Justice Health in relation to the defendant;

10. the defendant’s STATIC-99R coding form, STABLE-2007 tally sheet, ACUTE-2007 tally sheet;

11. notes in relation to the defendant’s participation in custody based sex offender programs;

12. pre-sentence reports, breach reports, a recent pre-release report and similar reports relating to the defendant; and

13. the HISOP treatment report dated 25 February 2022 of Andrew Fordyce, Psychologist, CUBIT, MSPC 2, Long Bay Correctional Centre. Mr Fordyce’s report included the following conclusions and recommendations:

“33. [The defendant] is a 45-year-old male, who completed the high Intensity Sex Offender Program. Overall, his progress in treatment was mixed. While his engagement was generally appropriate and he displayed a conceptual understanding of the treatment content, his capacity to relate this to his own offending behaviour and implement required changes was inconsistent. As such, [the defendant] would benefit from ongoing support in consolidating his progress in treatment and maintaining his self-management plans.

34. In addition to the recommendations made throughout the report, the following recommendations are made to assist with risk management and reintegration:

…

• That he maintain abstinence from all drug and alcohol use, and that he engage in case management from a Community Corrections Officer and random monitoring to manage his risk of relapse into substance misuse. He should be referred to drug and alcohol services for assessment and treatment if he returns a positive urinalysis or self-discloses drug use;

…

• That any contact with persons under the age of 16 is monitored by an appropriate adult, and discussed with his Community Corrections Officer;

• And that his use of technology (such as mobile phones, laptops and cameras) be regularly and randomly assessed for appropriateness. Use of sexually-explicit material should be raised with him and considered in terms of risk.

…”.

Should an ISO be made?

14. In the circumstances and in my view, the making of an ESO would be justified, on the assumption that the matters alleged in the supporting material are proved, because having regard to the matters identified in s 9(3) of the CHRO Act I would be satisfied to a high degree of probability that the defendant posed an unacceptable risk of committing another serious offence if not kept under supervision by way of an order.

15. Accordingly, my discretion to make an order for the interim supervision of the defender is enlivened in this case. Since there are no factors to which the parties have pointed which would militate against the exercise of the discretion to make an ISO in the present case and I cannot discern that there are any such factors, I propose to make an ISO for a period of 28 days in respect of the defendant.

16. The remaining issues for determination concern the specific condition with which the defendant should be directed to comply in respect of the ISO.

Conditions of the ISO

17. The conditions which the State submitted should be included in the ISO were those set out in the schedule to the summons. The defendant’s position in this regard was that, except in relation to conditions 6-8, 10, 11, 23, 26, 30, 32, 46, 47 and 55, he made no submissions against the imposition (on an interim basis) of the proposed conditions set out in the schedule to the summons. I accepted that, apart from the conditions listed in the preceding sentence, the conditions proposed by the State were appropriate given the circumstances disclosed in the supporting material, some relevant portions of which have been referred to in more detail above. In this situation, it is not necessary to deal in any detail with the conditions that are not contested and I shall limit comments to the conditions to which exception is taken.

Conditions 6-8 – Scheduling

18. Proposed conditions 6-8 were in the following terms:

“6. 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.

7. 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

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

19. The defendant submitted that these conditions constituted a significant intrusion on the defendant’s liberty and their effect was oppressive in that, if the defendant deviated from his approved schedule of movements, he would be at real risk of criminal sanctions including reimprisonment. It was also said that the conditions were oppressive because of the defendant’s mental health conditions including, for example, those diagnosed by Dr Ellis. While I accepted that requiring a person in the defendant’s position to prepare and adhere to a weekly plan of activities would be likely to have a therapeutic benefit for the person as well as the benefit of assisting in the protection of the community, as explained by Mr Begg, in my view if the defendant were required to comply with a rigid and overly prescriptive schedule of movements this might be oppressive and counter-productive. As a result of discussions between the bench and counsel during the hearing, amended wording for conditions 6-8 was agreed which would be likely to have the therapeutic and protective benefits sought by the State without the potential oppressive effects identified by the defendant. Accordingly, I propose to direct that the defendant comply with conditions relating to a weekly plan amended as follows:

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

7. If the defendant wants to change anything in his schedule of movements weekly plan 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

8. The defendant must not deviate from his approved schedule of movements attend his appointments and activities in his weekly plan except in an emergency.”

Conditions 10 and 11 – Curfew and compliance with rules

20. Proposed conditions 10 and 11 were as follows:

“10.   The defendant must be at his approved address between 9PM and 6AM unless other arrangements are approved by a DSO.

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

21. In light of the defendant’s submissions, the State did not press condition 11 and I propose to delete it.

22. As to proposed condition 10, the defendant submitted that such a curfew condition was not necessary, especially having regard to the material before the Court. In particular, it was noted that Mr Begg had said in his risk management report that “[g]iven [the defendant’s] pattern of sexual offending, a curfew condition may not be warranted” and there was nothing to suggest that the defendant’s index offending had occurred at particular times or places which would be relevant to the imposition of a curfew. I accepted that this was so. In addition, I also accepted that it was likely that the defendant’s accommodation would be in a facility which effectively had its own curfew requirements and thus an additional curfew condition would be unlikely to add anything. For these reasons I also propose to delete condition 10.

Conditions 23 and 26 – Drugs and alcohol

23. Proposed conditions 23 and 26 were as follows:

“23. The defendant must not use or possess prohibited drugs, or abuse drugs unlawfully obtained.

…

26. The defendant must not enter any licensed premises including hotels, bars, racecourses and licenced clubs, but excluding cafes and restaurants, without the prior approval of a DSO.”

24. As to proposed condition 23, it was submitted by the defendant that possession or use of prohibited drugs was already a criminal offence and the condition was superfluous. In relation to proposed condition 26, the defendant submitted that the index offending was not related to alcohol use and the prohibition involved in that condition was extremely far-reaching giving the numerous venues that hold licenses to serve alcohol in the community. The State submitted that proposed conditions were appropriate in light of the role played by drugs and alcohol in the defendant’s prior offending and the potential protective and therapeutic benefits if drug and alcohol abstention were brought within the framework of supervision under the ISO.

25. I accepted the State’s submissions in these regards and noted the comments by Mr Fordyce concerning the need to maintain abstinence from drugs and alcohol and the role that supervision could play in achieving that outcome. I also noted that condition 26 did not preclude the defendant from entering cafés or restaurants which were licensed premises. In all the circumstances, it appeared to me that these conditions were appropriate and well directed to ensuring the protection of the community and encouraging the rehabilitation of the defendant. Accordingly, I shall include conditions 23 and 26 in their proposed form.

Condition 30 – Non-Association

26. Proposed condition 30 provides as follows:

“30. Without limiting condition 29, the defendant must not:

a.   associate with any people who he knows are consuming or under the influence of alcohol without the prior approval of a DSO.

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

c.   associate with any person held in custody without prior approval of a DSO.”

27. The defendant submitted that this proposed condition was far-reaching and prevented the defendant from associating with anyone consuming or under the slightest influence of alcohol irrespective of whether they were intoxicated. I do not accept that this is what the condition prohibits. In my view, the prohibitions on association in pars a. and b. only apply where the defendant knows that the people are consuming alcohol or illegal drugs or knows that the people are under the influence of alcohol or illegal drugs. If the defendant has such knowledge, it appeared to me to be appropriate to prohibit him from associating with those people, especially since the prohibition in relation to persons consuming or under the influence of alcohol would not apply if the applicant had the prior approval of a DSO to associate with such people. Such a qualification would not, however, be appropriate in relation to people whom the defendant knew were consuming or under the influence of illegal drugs.

28. For these reasons, condition 30 will be included in the proposed form.

Condition 32 - Disclosure of criminal history

29. Proposed condition 32 was as follows:

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

30. The defendant submitted that the need for this condition has not been explained by State and thus it should not be included. The State submitted that this proposed condition was designed to ensure that the defendant’s criminal history could be disclosed by a DSO in appropriate circumstances. In particular, attention was directed to the comments in Mr Begg’s report to the effect that in the event that the defendant were to enter a friendship or relationship with a person who had access to the children, this condition would allow the DSO to disclose to the other person the defendant’s criminal history so that the friendship or relationship could be more effectively managed to protect any children to whom the defendant might have access as a result of the friendship or relationship.

31. Given the objects of the CHRO Act and the defendant’s history and circumstances, it appeared to me to be appropriate and reasonable to include a condition which would permit a DSO to disclose the defendant’s criminal history in circumstances where that disclosure was reasonably necessary including, for example, the type of situation addressed by Mr Begg. As a result, condition 32 will be included in the proposed form.

Conditions 46 and 47 – Search and seizure

32. Proposed conditions 46 and 47 were as follows:

“46.   The defendant must submit to the search of any item or place in his possession or under his control, including his residence, any vehicle in which he is traveling or which is under his effective control, any computer, electronic and communication device, or any storage facility, garage, locker or commercial facility; and to the seizure of any object located during the search.

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

33. The defendant’s submission that these conditions in their proposed form provided “an unlimited power” to search the defendant’s person and his property without warrant and without any requirement for “reasonable belief” as a precondition to the exercise of the power. It was noted that the legislature had already made express provisions for search and seizures by NSW Police under the Law Enforcement (Powers and Responsibilities) Act 1997 (NSW). In addition, it was submitted that conditions 36, 39 and 43 already allowed monitoring of the defendant’s devices and use of the internet and the search and seizure power was unnecessary. In light of the defendant’s mental health issues and circumstances, it was contended that the proposed conditions were oppressive, were open to potential abuse and went beyond what was necessary.

34. The State in effect submitted that the ability to search and seize property on an effectively random basis enhanced the protective effect of the conditions generally by encouraging compliance with the other conditions imposed as part of the supervision order. It was also submitted that it would be difficult to specify the circumstances in which a search would be reasonable.

35. In my view, the search and seizure powers in the conditions are not primarily for investigative or law enforcement purposes, but rather serve the purpose of encouraging and monitoring compliance with the other conditions imposed. If the conditions are complied with this has potential benefits both by way of ensuring the protection of the community and encouraging rehabilitation of the defendant. Nonetheless, I accepted that there was some scope for inappropriate use of the power and that it could have adverse consequences if the defendant’s mental health were not adequately taken into account. In addition, it appeared to me that the reference in proposed condition 47 to “this Order” was confusing and should be a reference to “condition 46”.

36. In all the circumstances, I was satisfied that the proposed conditions 46 and 47 were generally appropriate and should be included but that the wording should be amended so as read as follows:

“46.   The defendant must submit to the search of any item or place in his possession or under his control, including his residence, any vehicle in which he is traveling or which is under his effective control, any computer, electronic and communication device, or any storage facility, garage, locker or commercial facility; and to the seizure of any object located during the search, provided due consideration is given to the defendant’s privacy and mental health.

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

Condition 55 – Medication

37. Proposed condition 55 was in the following terms:

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

38. The defendant submitted that this proposed condition had the difficulty that if the defendant suffered adverse consequences from prescribed medication and wished to stop taking that medication he would be in breach of the condition and liable to criminal sanctions.

39. The State submitted that this was not the intended operation of the condition which was designed to ensure that prescription medication was taken in accordance with the prescription and not otherwise.

40. I accepted that, in order to address the defendant’s concern and to reflect the intended operation of the proposed condition, the wording of condition 55 should be amended so as to read as follows:

“55.   If The the defendant takes any medication, he must only take medications that are is prescribed to him by his healthcare practitioners only in the manner prescribed.”

Orders

41. For these reasons, the orders of the Court are:

1. Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the CHRO Act), two qualified psychiatrists or registered psychologists (or a combination of such persons), as agreed between the parties, are 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 on a date, as agreed between the parties.

2. The defendant is directed to attend the examinations in order (1).

3. Pursuant to ss 10A and 10C(1) of the CHRO Act, the defendant is made the subject of an interim supervision order commencing immediately after midnight on 24 April 2022, for a period of 28 days.

4. Pursuant to s 11 of the CHRO Act, the defendant is directed to comply with the conditions set out in the schedule to this order for the period of the interim supervision order.

5. Liberty to restore on 3 days' notice, if the parties are unable to reach agreement for the purposes of order (1).

**********

Schedule to the orders made on 20 April 2022

CONDITIONS OF SUPERVISION – THOMAS JOHN SHIELDS

Departmental Supervising Officer (DSO)

Corrective Services NSW (CSNSW)

In these conditions:

“CSNSW” means Corrective Services NSW.

“Commissioner” means Commissioner for Corrective Services

“Defendant” means THOMAS JOHN SHIELDS, the defendant in these proceedings and the subject of the order.

“Electronic Identity” means each of the following:

(a) an email address,

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

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

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

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

“Material” includes:

1. any written or printed material;

2. any picture, painting or drawing;

3. any carving, sculpture, statue or figure;

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

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

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

“NSWPF” means NSW Police Force.

“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).

“Search” includes:

1. A garment search, being a search of any article of clothing worn by the defendant or in the defendant’s possession, where the article of clothing is touched or removed from the person’s body; and

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

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

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

2. Where a direction may conveniently be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service.

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

4. The defendant must not engage in any threatening, intimidating or abusive behaviour towards CSNSW or electronic monitoring staff involved in his supervision that would cause the staff member to fear for their safety and/or interfere with or impede supervision.

Electronic Monitoring

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

Schedule of Movements

6. If directed, the defendant must provide a weekly plan of appointments and activities and this is to be provided 3 days before it is due to start.

7. If the defendant wants to change anything in his weekly plan 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.

8. The defendant must attend his appointments and activities in his weekly plan except in an emergency.

Part B: Accommodation

9. The defendant must live at an address approved by a DSO and notify a DSO of any intention to change the defendant’s address or living arrangements.

10. [Deleted]

11. [Deleted]

12. 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.

13. 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.

14. 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

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

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

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

18. Without limiting condition 17 above, the defendant must not go to any of the following without the prior approval of a DSO:

19. Schools;

20. Amusement parlours, amusement parks and theme parks;

21. Cinemas;

22. Libraries and museums;

23. Camping grounds and caravan parks;

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

25. Pools, playing fields and sporting facilities;

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

27. Residences where the defendant knows that persons aged under 18 years ordinarily reside.

Part D: Employment, finance and education

28. 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.

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

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

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

Part E: Drugs and alcohol

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

33. The defendant must not possess or consume alcohol without the prior approval of a DSO.

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

35. The defendant must not enter any licensed premises including hotels, bars, racecourses and licenced clubs, but excluding cafes and restaurants, without the prior approval of a DSO.

36. 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.

Part F: Non-association

Association with Children

37. 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)

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

39. Without limiting condition 29, the defendant must not:

40. associate with any people who he knows are consuming or under the influence of alcohol without the prior approval of a DSO.

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

42. associate with any person held in custody without prior approval of a DSO.

43. The defendant must not engage the services of sex workers, without the prior approval of a DSO.

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

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

Part H: Weapons

46. The defendant must not possess or use any of the following:

1. a firearm, firearm part or ammunition within the meaning of the Firearms Act 1996,

2. prohibited weapon within the meaning of the Weapons Prohibition Act 1998.

Part I: Access to the internet and other electronic communication

47. The defendant must obey any reasonable direction 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.

48. The defendant must not use any alias, electronic identity, log-in name, name other than THOMAS JOHN SHIELDS 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.

49. 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.

50. 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.

51. 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.

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

53. 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.

54. 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.

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

56. 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.

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

Part J: Search and seizure

58. The defendant must submit to the search of any item or place in his possession or under his control, including his residence, any vehicle in which he is traveling or which is under his effective control, any computer, electronic and communication device, or any storage facility, garage, locker or commercial facility; and to the seizure of any object located during the search, provided due consideration is given to the defendant’s privacy and mental health.

59. 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 condition 46.

Part K: Access to pornographic, violent and classified material

60. 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 L: Personal details and appearance

61. The defendant must not change his name from THOMAS JOHN SHIELDS or use any other name without notifying a DSO.

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

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

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

Part M: Medical intervention and treatment

65. 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.

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

67. If the defendant takes any medication, he must only take medication that is prescribed to him by his healthcare practitioners in the manner prescribed.

68. 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.

69. 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.

70. 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.

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

Decision last updated: 20 April 2022