State of New South Wales v Sittczenko (Final)

[2021] NSWSC 1092

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Sittczenko (Final) [2021] NSWSC 1092

Hearing dates:

26 August 2021

Date of orders:

31 August 2021

Decision date:

31 August 2021

Jurisdiction:

Common Law

Before:

Fagan J

Decision:

1 Order that the defendant be subject to extended supervision pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) for 3 years commencing 1 September 2021.

2 Direct that the defendant comply with the conditions in Schedule A to the Extended Supervision Order.

Catchwords:

HIGH RISK OFFENDERS – final hearing – extended supervision order – interim supervision order previously made – assessment of whether defendant poses an unacceptable risk – extended supervision order imposed with conditions

Legislation Cited:

Child Protection (Offenders Registration) Act 2000 (NSW)

Crimes Act 1900 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW)

Court Suppression and Non-Publication Orders Act 2010 (NSW)

Cases Cited:

Baldwin v State of New South Wales [2020] NSWCA 112

State of New South Wales v Baldwin [2019] NSWSC 1882

State of New South Wales v Sittczenko (Preliminary) [2021] NSWSC 547

Category:

Principal judgment

Parties:

State of New South Wales (plaintiff)
Aaron John Sittczenko (defendant)

Representation:

Counsel:
A Brown (plaintiff)
D Bhutani (defendant)

Solicitors:
Crown Solicitor’s Office (plaintiff)
Legal Aid NSW (defendant)

File Number(s):

2021/84890

Publication restriction:

No

Judgment

1. These proceedings were commenced by summons filed on 26 March 2021. By amended summons filed on 5 May 2021 the plaintiff seeks in respect of the defendant an Extended Supervision Order (“ESO”) under the Crimes (High Risk Offenders) Act 2006 (NSW). Rothman J made an order for interim supervision on 10 May 2021: State of New South Wales v Sittczenko (Preliminary) [2021] NSWSC 547. The interim order has been renewed twice and will expire on 31 August 2021. Rothman J also ordered under s 7(4) of the Act that expert reports be furnished to the Court. Such reports, dated 9 July 2021, were duly provided by forensic psychiatrist Dr Kerri Eagle and forensic psychologist Mr Patrick Sheehan. Those reports and the oral evidence of both experts at the final hearing on 26 August 2021 have been of great assistance to the Court.

2. The order sought by the plaintiff is an ESO of 3 years duration to commence from 1 September 2021 upon the expiry of the last renewal of the interim supervision order. The plaintiff has proposed a schedule of 60 conditions that it submits should be attached to the order pursuant to s 11 of the Act. The defendant opposes the making of an ESO and, if such an order is made, he opposes many of the conditions sought by the plaintiff.

The index offence and the defendant’s status – s 5B(a), (b) and (c)

3. The statutory threshold requirement for making an ESO prescribed by s 5B(a) is clearly established on the evidence. The relevant serious offences for which the defendant has served a sentence of imprisonment were three instances of aggravated sexual assault without consent contrary to s 61J(1) of the Crimes Act 1900 (NSW) committed on 13 March 2004 and two further such offences committed on 20 May 2006. The circumstance of aggravation in respect of the three offences that comprise the earlier episode were that the defendant broke into the home of the victim, a 52-year-old widow, where he raped her repeatedly. The offences comprising the second episode were aggravated by the age of the victim, a 15-year-old girl whom the defendant attacked and raped as she was walking near her home late at night. Both groups of offences were accompanied by savage punching of the respective victims to silence and subdue them. On each occasion other serious offences were committed such as aggravated breaking and entering (s 112(2)) and aggravated detaining for advantage (s 86(2)) in the 2004 episode and aggravated robbery (s 95(1)) in the second episode. All of the above statutory references are to provisions of the Crimes Act as in force at the dates of offending.

4. The defendant was at large for two years after committing the 2004 offences. He was arrested on 9 June 2006 following his attack on the 15-year-old girl. After his arrest a DNA sample was matched to forensic evidence from the scene of the 2004 crimes. The defendant pleaded guilty to all charges and was sentenced in the District Court at Sydney by Judge Cogswell SC on 21 September 2007. The judge described the offences as “a pair of shocking sexual assaults and associated offences”. After allowing appropriate discounts for the pleas of guilty his Honour fixed a series of sentences that were partially concurrent and partially cumulative, resulting in an overall effective sentence of 15 years imprisonment commencing 9 June 2006 and expiring 8 June 2021, with a non-parole period of 11 years expiring 8 June 2017.

5. Within the meaning of s 5B(b), the defendant was a supervised offender at the date when the plaintiff filed its summons to commence these proceedings. He was at that time subject to a parole order. Accordingly, sub-pars (b) and (c) of s 5B of the Crimes (High Risk Offenders) Act are satisfied.

Prerequisite in s 5B(d) and the considerations in s 9(2) and (3)

6. The question whether the Court may make an extended supervision order therefore turns upon whether sub-par (d) of s 5B is also fulfilled. It is in the following terms:

(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.

7. Section 9(2) requires that the safety of the community must be the Court’s paramount consideration in determining whether an ESO should be made. Section 9(3) specifies a list of matters to which the Court must have regard in making that assessment. The s 9(3) matters are inherently relevant to the antecedent question of unacceptable risk that arises under s 5B(d). My conclusions on each of the relevant considerations are set out in the following headings.

Particulars of the index offence – s 9(3)(h) and (h1)

8. One of the s 9(3) matters, par (h), is the defendant’s criminal history and any pattern of offending behaviour. By the date of the 2004 offences he had already been convicted of several break and enters and he had two convictions for possession of drugs. I have described the serious sex offences of 13 March 2004 and 2 May 2006 that attract the operation of the Act. He was aged 20 years and 23 years, respectively, at those dates. The offences were committed on impulse against vulnerable strangers. Paragraph (h1) of s 9(3) requires the Court also to consider the views of the sentencing judge. I have read carefully the remarks on sentence of Judge Cogswell SC The brief description I have already given is enough to show how acutely the defendant’s past criminal record raises concern about whether he may continue to pose a risk to the community and whether the risk of his commission of further serious offences reaches the level of being unacceptable.

9. On 4 July 2018 the defendant was first released to parole, at the age of 35, having served 12 years of the sentence imposed for the index offences. His history of offending and of custody since he was first paroled has been as follows:

1. 4 July 2018 to 30 October 2018 (approximately 4 months) – the defendant resided with his mother.

2. 30 October 2018 to 22 January 2019 (approximately 3 months) – the defendant was in custody, bail refused, on a charge that on 30 October 2018 he committed an assault occasioning actual bodily harm upon his mother’s former partner.

3. 22 January 2019 to 19 March 2020 (1 year and 2 months) – the defendant was on bail in relation to the assault charge until 29 April 2019; on that date the assault of 30 October 2018 was dealt with at Penrith Local Court there after the defendant’s parole continued.

4. 19 March 2020 to 1 May 2020 (six weeks) – the defendant was returned to full-time in custody for this period after his parole was revoked on 19 March 2020 for failure to abide by reporting conditions.

5. 1 May 2020 to 22 August 2020 (approximately three months) – the defendant was at liberty on parole until he committed offences of possession of implements to enter/drive a conveyance, being near premises with intent to commit an indictable offence and custody of a knife in a public place. Parole was again revoked.

6. 22 August 2020 to 22 August 2021 (one year) – the defendant served the balance of his original sentence up to 8 June 2021, concurrently with a sentence of 12 months for the offences of 22 August 2020.

Reports and oral evidence of Dr Eagle and Mr Sheehan – s 9(3)(d)

10. Dr Eagle and Mr Sheehan separately interviewed the defendant in lengthy sessions, mostly by audio and visual link. They both considered extensive documentary material including the defendant’s criminal history; details of the index offences; pre-sentence reports from May 2002 and June 2003; pre-sentence, psychological and psychiatric assessments dating from 2002; prison disciplinary records; Corrective Services assessments of risk of re-offending and prospects for management in the community.

11. The histories taken by each of Dr Eagle and Mr Sheehan disclose that the defendant’s parents separated when he was three years old and that he was raised by his mother. She had another male partner from when the defendant was about five until he was 17. The partner used illicit drugs, abused alcohol and beat the defendant’s mother, which the defendant witnessed. Although the defendant did not refer to this in his interviews, the Department of Community Services intervened to have him placed in foster care at various times during his childhood in response to reports of neglect and physical and emotional abuse.

12. By the age of about 14 or 15, in year 9, the defendant was truanting from high school and fighting. This resulted in suspension. He did not return to school to complete year 9. The defendant was sexually assaulted at about this time, when he was 15. After leaving school he had unskilled work in short periods of employment, moving from employer to employer, up to June 2006 when his imprisonment for the index offences commenced.

13. The defendant began using cannabis at 14 years and intravenous amphetamines from 16. Professional assessment reports from the early 2000s confirm, as the defendant himself acknowledged, that he was misusing drugs in his late teens and early 20s and continued to do so up until his incarceration for the index offences. In prison he gained access to illegal drugs. His misuse of drugs, including methyl amphetamine, continued during his parole. He is currently receiving daily methadone.

14. The defendant acknowledged to the expert witnesses his impulsivity, including with respect to drug use. In interview with Dr Eagle he “tended to minimise previous breaches/lapses” and, although he acknowledged that alcohol appeared to have been a significant contributing factor in his offending, Dr Eagle found that he showed little understanding of the levels of consumption that would be unsafe for him in this respect. She concluded that “he is at significant risk of relapsing into substance abuse”.

15. The defendant informed Mr Sheehan that he has no close friends and that his associations are limited to superficial contact with other drug users. Mr Sheehan identified in him a lack of confidence, a degree of insecurity and a tendency towards isolation. He has had no lasting relationship with any member of the opposite sex, the longest such involvement having been eight months during his late teens or early 20s.

16. Dr Eagle made the following diagnosis:

[The defendant] does not display any signs or symptoms of a major mental illness such as a psychotic disorder or severe mood disturbance at the time of this assessment. […]

[The defendant] has a severe substance use disorder, on maintenance treatment. […] The use of illicit substances and alcohol has directly contributed to his offending behaviour including serious sexual offending. He has made unsuccessful attempts to control his substance use.

[The defendant] has displayed behaviours and traits consistent with an antisocial personality disorder. […] [Since leaving school he has] displayed a pervasive disregard for the rights of others, as evidenced by a failure to conform to social norms (offending), deceitfulness, impulsivity, irritability or aggressiveness and consistent irresponsibility. […]

17. Upon application of the Static 99R actuarial risk assessment, to evaluate “unchangeable risk factors associated with sexual reoffending on the basis of research studies”, Dr Eagle found the defendant to have a score that placed him at an above average risk of reoffending when compared to all offenders. The doctor also scored the defendant’s dynamic risk factors on the Stable 2007 structured professional judgment tool to assess the defendant “using empirically based risk factors to assist with the formulation of risk scenarios and to identify treatment or supervision targets in the development of a risk management plan”. Taking the combined result from the Static 99R and Stable 2007 assessments, Dr Eagle placed the defendant in the category of “well above average risk of reoffending”. In that category, subjects are reported to reoffend at the rate 3 to 4 times the rate of the average sexual offender.

18. Independently, Mr Sheehan made the following diagnosis:

[The defendant] would meet the criteria for Polysubstance Use Disorder (Moderate, in partial early remission, on opioid agonist-antagonist therapy).

[The defendant] has a history consistent with Antisocial Personality Disorder, with possible conduct disorder and a pervasive pattern of disregard for and violation of the rights of others occurring since age 15 years, with failure to conform to social norms, deceitfulness, impulsivity, aggressiveness, recklessness, and irresponsibility. These problems have not yet resolved, as evidenced by [the defendant’s] inability to make good on the three-year period of [parole] made available to him since 2018. His recent use of methyl amphetamine also points towards his ongoing problems in adjusting his behaviour in response to sanction, being unable to weigh the consequences of his actions at key moments. I note that [the defendant’s] history of insecurity, unstable self-image, unstable affectivity, and unstable interpersonal relationships, are all indicators of broader personality dysfunction […].

I would not regard [the defendant] to meet criteria for any diagnosable paraphilia disorder. His sexual offences against a 15-year-old girl are problematic but do not infer Paedophilia Disorder. His sexual offences did involve instilling fear in the victims, but this would not infer an underlying deviant sadistic interest.

19. Like Dr Eagle, Mr Sheehan applied actuarial tools to measure “static or historical risk factors” as well as “dynamic risk factors […] that have been reliably related to sexual recidivism but can change over time, and therefore are amenable to change, including treatment or other intervention”. The assessment of the defendant using these tools lead Mr Sheehan the following conclusion:

In all, the evidence leads me to estimate [the defendant’s] overall risk of sexual offending to be in the above average or medium-high range of the risk spectrum. […]

20. The two expert witnesses came to very similar conclusions about the type of future offending that represents the greatest risk with respect to the defendant. On that subject Dr Eagle reported as follows:

In my opinion [the defendant] does pose a risk of committing a further sexual offence. He would most likely commit an offence similar to the index offences, an opportunistic sexual assault of a stranger, and such an assault would appear to be a serious sex offence as defined by section 5 of the Act

21. Mr Sheehan defined the highest risk with respect to the defendant’s future conduct in these terms:

The type of sexual offending that [the defendant] is at risk of would seem to pertain to spontaneous and opportunistic aggressive sexual offences against female strangers, at night when [the defendant] is affected by substances and looking to engage in property crime. An offence would be more likely to occur in the home of the victim or in an isolated public place, not in [the defendant’s] home. I see no evidence of sexual risk to young children, but there may be a residual risk towards young women who are vulnerable. The use of physical violence (such as punching) and threats would seem likely, but perhaps not beyond that required to obtain victim compliance. The use of a weapon is less likely but cannot be excluded due to [the defendant’s] history of carrying cutting weapons as recently as August 2020

22. The opinions of both witnesses strongly support a conclusion that the defendant poses a significant risk of committing another serious offence if not kept under supervision pursuant to an ESO. Those opinions authority reasoned and I have no hesitation in accepting them. The evidence of Dr Eagle and Mr Sheehan is to be given considerable weight in determining whether the Court should be “satisfied to a high degree of probability” that the level of risk is “unacceptable”.

Results of other qualified assessments – s 9(3)(c)

Attempts to rehabilitate the defendant in prison and on parole – s 9(3)(e)

23. The Court is required to have regard to the results of any assessments of the defendant that have been prepared by professionals other than the experts appointed under s 7(4). Relevant assessments are those that have considered “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”: s9(3)(c)

24. I have considered carefully the Risk Assessment Report dated 3 December 2020 prepared by a Senior Forensic Psychologist of Corrective Services, Ms S Wright. Her report is endorsed by Corrective Services Chief Psychologist Ms C Cieplucha. Ms Wright followed a similar methodology to that employed by Dr Eagle and Mr Sheehan, including four hours of interviews, a review of records relating to the index offences and a review of custodial records. Ms Wright took into account the defendant’s satisfactory completion of a sex offender program during the late stages of his prison term but she is of the view that “he has outstanding treatment needs which require further intervention and management”. Ms Wright used actuarial tools to assess the likelihood of the defendant committing further crimes of sexual violence and the results she derived from those tools are similar to the results obtained by the two court-appointed experts.

25. Like Dr Eagle and Mr Sheehan, Ms Wright concluded that the most likely scenario in which the defendant may engage in further violent sexual offending would involve circumstances similar to those of the index offences, being “opportunistic and impulsive” and carried out “against an unknown female adult”. Ms Wright identified as a factor in the risk of reoffending that the defendant has negligible community contacts and that his family connection is limited to his mother, whose influence is neither stable nor entirely beneficial.

Difficulties of management in the community – s 9(3)(d1)

Level of compliance with parole conditions – s 9(3)(f)

26. The considerations identified in pars (d1) and (f) of s 9(3) are closely related. As a result of his 12 years in prison from age 23 to age 35, the defendant has had very little adult experience of living independently in the community and he has very few social connections that might assist with his reintegration, rehabilitation and avoidance of offending. The evidence shows that prior to incarceration the defendant had very weak and unfavourable social ties, for the most part limited to fellow drug users. He does not have a social network with which to re-engage nor, as mentioned above, does he have strong family connections through which to reintegrate into society.

26. The defendant’s inability to adhere to conditions of parole and his reoffending whilst on parole demonstrate that his lack of social connections leaves him vulnerable to relapses with respect to alcohol and substance abuse. Substance abuse has in the past been directly associated with his resumption of criminal activity, including property crimes and trespasses of the same kind as the break and enter that was the context for his first serious sexual offending in March 2004. Given the defendant’s background and his long period of imprisonment it is not surprising that his parole went badly. That experience is one indicator of the level of risk that the defendant will reoffend in a violent sexual way. The defendant’s inability to comply with conditions of parole from the time of his first released in July 2018 also demonstrates that it is in the mutual interest of the community and the defendant that he should have ongoing engagement with Community Corrections, as a source of support with respect to regularising his life.

Prospects of compliance with an ESO – s 9(3)(e2)

28. I consider there are sufficient prospects that the defendant can be effectively supervised under an ESO to warrant making such an order. A few of the conditions proposed by the plaintiff have been disputed. My determinations regarding inclusion of some conditions and exclusion of others appear below. I consider that the conditions I have settled upon will facilitate adequate supervision and support whilst enabling the defendant to rehabilitate and progress towards self-regulation.

Unacceptable risk – justification for a 3-year ESO – ss 5B(d), 9(1), 10(1A)

29. I find the conclusions of Dr Eagle, Mr Sheehan and Ms Wright concerning the risk of re-offending posed by the defendant entirely consistent with what I would infer from the nature and gravity of the index offences, the defendant’s undisputed history of drug and alcohol misuse and his history of non-compliance and repeat offending during parole. I have taken into account the potential utility of an ESO with appropriate conditions to ameliorate the risk.

30. The defendant is presently subject to a Community Correction Order (“CCO”). That appears to have been imposed for the offence of assault occasioning actual bodily harm (the assault on his mother’s former partner on 30 October 2018 during his first period of release on parole) and for failing to comply with reporting conditions of bail in early July 2020. The Community Corrections Order is in force from 21 April 2001 until 20 April 2002. The defendant is also subject to the reporting requirements of the Child Protection (Offenders Registration) Act 2000 (NSW). He will remain on the Register under that Act for 15 years. I do not accept that the constraints under the CCO and/or the reporting requirements of his registration reduce the risk of reoffending to an acceptable level, so that an ESO is not required. The CCO provides for a degree of engagement of the defendant with Community Corrections for the next eight months. The reporting requirements under the Child Protection Register are no doubt useful for monitoring the defendant. These measures, alone, are insufficient to ameliorate the risk posed by the defendant. Notably, they do not provide for longer term constructive intervention of Community Corrections that will be afforded under the conditions of an ESO.

31. For the purposes of s 5B(d), 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 pursuant to an ESO. Having regard to the considerations prescribed in s 9(2) and (3) I have determined that an order should be made of three years duration. Of the conditions sought by the plaintiff, those that are contested by the defendant are considered under the following heading and sub-headings.

Conditions of the ESO – s 11

Monitoring and Reporting

32. The plaintiff seeks a condition following terms (emphasis added):

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.

33. The defendant objects that this condition may require him to incriminate himself and that that could be avoided by substituting the words “not lie in response to”, in place of the words that I have highlighted in bold. It was established in Baldwin v State of New South Wales [2020] NSWCA 112 that the Act clearly and unambiguously permits the imposition of conditions that abrogate any privilege against self-incrimination: at [55] (Basten JA), [70] (Macfarlan JA) and [75] (Emmett AJA). In that case the Court considered conditions in an ESO that required the offender to consent to a search of his residence, his vehicle, any storage facility and/or his person. The following paragraphs are extracted from the judgment of Basten JA:

[50]   [In the decision under appeal, State of New South Wales v Baldwin [2019] NSWSC 1882], the reasoning of the primary judge [Beech-Jones J] continued:

“[91] Nevertheless, it follows that various subsections of s 11(1) specifically and unambiguously authorise the imposition of conditions that, to a large extent, necessarily abrogate any privilege against self-incrimination that might otherwise be invoked by a relevant offender. … However, as noted, the specific subsections of s 11(1) are expressly stated to not limit the general power to impose conditions. Further, given the context and the balance of the provisions of the […] Act, I do not accept that there is somehow preserved some small residual aspect of the privilege against self-incrimination that cuts across the power to impose conditions that are ‘appropriate’.

“[92] As noted, s 12 creates an offence for failing to comply with s 11. Section 12 does not contain any provision contemplating that there is a reasonable excuse or similar for failing to comply with a condition. More importantly, it must be remembered that the […] Act creates a post-parole detention and supervision regime whose primary object is the safety and protection of the community. It puts that scheme into effect by co-opting the judicial arm of government into the process of prospective risk assessment but, nevertheless, leaves the administration of the […] Act, including the post-parole supervision of the offenders, to Corrective Services. Such a regime of supervision, with its primary object of community safety, is incompatible with the offender retaining a privilege of self-incrimination to avoid the disclosure of information or evidence as to their compliance or non-compliance with the conditions under which they are being supervised.”

[51] This reasoning contains four elements of constraint which are important. First, when referring to the possible preservation of “some small residual aspect of the privilege against self-incrimination”, the judge had in mind the limitation that the conditions which may be permitted must qualify as “appropriate” within the chapeau to s 11(1). Whether or not particular conditions are appropriate will depend on the court’s assessment of the nature and scope of the risk of committing another serious offence (if not kept under supervision) posed by the particular offender: s 5B(d).

[52]   Secondly, it follows that the nature of the risk will flow from the offender’s history of offending. That history may be quite limited in scope; for example it may cover sexual assaults on young children and obtaining child abuse material over the internet. A condition which required the offender to provide information with respect to other offences for which he has no past history and of which he may be suspected would not constitute the subject matter of an appropriate condition. The offender’s privilege against self-incrimination would extend to other conduct extraneous to the purpose underlying the supervision order. Privilege may, in such a case, have a wide area of operation; I do not understand the primary judge to have intended otherwise by the reference to a “small residual aspect of the privilege”, when that language is read in context.

[53]   Thirdly, the conclusion at [92] limits the scope of the abrogation of the privilege to disclosure of information or evidence as to compliance with the conditions of the supervision order. Those conditions must be appropriate conditions and the function of the impugned conditions is to monitor compliance with an otherwise appropriate condition. In my view that constrained approach is consistent with the purpose and effect of s 11, read in its statutory context.

[54]   Fourthly, the judge was correct to identify the statutory purpose as involving a primary object of community safety. That does not mean, however, that the court is constructing an exception to the privilege to promote a purpose of community protection, absent statutory authority. This is not a breach of the principle explained in Reid v Howard [(1995) 184 CLR 1 at 16-17 (Toohey, Gaudron, McHugh and Gummow JJ); [1995] HCA 40], relied upon by the applicant, “that the privilege is not to be modified or abrogated in favour of some different protection by judicial decision, but that its modification or the substitute of some different protection can effectively be achieved only by legislation”.

34. Paragraphs [51] and [52] in the above extract have important application to the present case, where the “nature and scope of the risk of committing another serious offence (if not kept under supervision) posed by the particular offender” is quite specific: see [20], [21] and [25] above. Any condition that requires the defendant to answer questions put to him by his DSO has the potential to override his privilege against self-incrimination. In order to confine such a requirement to a field operation that is “appropriate” to achieve the objectives of the Act I consider it necessary to reword the proposed condition as follows:

3.   The defendant must truthfully answer questions from a DSO, or any other person supervising him, about his location, his intended movements and the identity of any person with whom he is in company at the time of the question being asked, or with whom he may be associating at that time or generally, insofar as the answers to such questions are reasonably required by the DSO or other person for the purpose of determining whether the defendant is complying with the conditions, generally, of the Extended Supervision Order.

Electronic monitoring

35. The plaintiff sought a condition for electronic monitoring of the defendant, in the following terms:

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

36. This condition is intended to give the DSO a wide discretion, under which electronic monitoring in combination with detailed weekly schedules of movements would be required in the first instance, with the intention of relaxing the strictness of the scheduling and dispensing with electronic monitoring over time as the defendant demonstrates a capacity to introduce regularity and order into his life and to fulfil intentions with respect to his activities. It is accepted by the Court-appointed expert witnesses that schedules of movements and electronic monitoring are useful rehabilitation tools. Those witnesses consider that such conditions reduce the opportunity for impulsive behaviour, support the development of an offender’s skills in planning and organising his life and, particularly with respect to electronic monitoring, may have an effect of deterring further offending.

37. Mr Sheehan’s opinion is qualified by the following:

[There] should be a timeframe specified for the removal of scheduling and electronic monitoring. When these provisions are not removed in a timely manner, it obscures an understanding of the offender’s true level of self-management, making it difficult to gauge whether further orders are necessary.

38. In his oral evidence Mr Sheehan said that conferring total discretion upon the DSO with respect to the continuance of electronic monitoring and/or reintroduction of it after a lapse of compliance can have the effect of demoralising the offender. The exercise of the discretion may be seen by the offender as arbitrary such that no specific level or duration of compliance will ensure removal of the electronic device. Dr Eagle did not express a strong view in favour of continuous discretionary availability of scheduling and electronic monitoring throughout the period of the ESO.

39. The defendant’s proposed solution is to limit the period within which electronic monitoring may be required to the first two years of the ESO. I have considered whether some further refinement might be introduced, such as the provision for dispensing with electronic monitoring upon the achievement of defined goals and for reintroducing it, for a specified period, in the event of a certain events of non-compliance. There are significant difficulties in the way of formulating a workable condition along those lines.

40. Having regard to the primary objective of the Act as prescribed in s 3(1), namely, “to ensure the safety and protection of the community”, I do not consider it appropriate to remove altogether the possibility of electronic monitoring for the last year of the order. No doubt Community Corrections will be keen to step down the requirements of scheduling the defendant’s movements and of electronic monitoring as rapidly as his progress towards reintegration and rehabilitation permits, even before the final year. To accommodate the competing considerations I have concluded that this condition should be modified to provide that electronic monitoring should cease for the last year of operation of the ESO, provided that the defendant has not been charged with any offence (including an offence of breaching the conditions, under s 12 of the Act) during the preceding 12 months, with further provision for reinstatement of the DSO’s discretion to require electronic monitoring if any charge should be laid during the final 12 months.

41. The modified provision is as follows:

4.   The defendant must wear electronic monitoring equipment as directed by a DSO and must not tamper with remove the equipment, subject to the following:

4.1   From a date that is 12 months before expiry of the Extended Supervision Order (“ESO”), the defendant shall be exempt from having to wear electronic monitoring equipment under this condition provided that he has not been charged with any offence (including an offence of breaching any of these conditions) during the preceding 12 months.

4.2   The exemption under condition 4.1 shall cease in the event that any charge is laid against the defendant during the final 12 months of the ESO.

Schedules of movements

42. The plaintiff’s proposed conditions 5, 6 and 7 would require the defendant to submit to his DSO each week a schedule of his proposed movements and not to deviate from the schedule, once approved, except in case of emergency or pursuant to a change approved on 24 hours’ notice. The defendant’s counter-proposal is that, for the first two years of the order only, he should provide by Friday of each week “an honest summary of his anticipated movements”, limited to nomination of places he intends to travel to, the purpose of travelling there, the dates and the means of travel and the names of persons he proposes to meet. The defendant opposes the requirement that he be prohibited from departing from his stated intentions without prior approval on 24 hours’ notice and suggests that, instead, he merely be required to notify the DSA of a change of plans before implementing them. The defendant’s counsel describes the less prescriptive conditions that he has proposed as “dry scheduling”, a term that I do not find self-explanatory or intuitively meaningful.

43. I consider that the discretion to require that the defendant submit and adhere to schedules should remain available to the DSO for the full term of the order but that it should be in a significantly less restrictive and more flexible form than that proposed by the plaintiff. This view is informed by consideration of the type of offence with respect to which the defendant poses a risk. His past serious sexual offending has not been associated with particular types of locations, such as may be the case for offenders against children, for whom it may be important to ensure that their intended movements do not bring them close to schools, children’s sporting events, amusement or recreation facilities, or the like.

44. The requirement that this defendant provide and adhere to schedules of movements would appear to serve the more general objective of directing him towards an ordered lifestyle, with reduced occasion for impulsive substance abuse and/or consequent unlawful behaviour. Requiring him to adhere to schedules appears likely to reduce opportunities for offending and to create a deterrent, arising from the knowledge that his DSO is aware of his activities. For those purposes, in this case, the following conditions regarding schedules of movements appear to be sufficient:

5.   The defendant must provide to his DSO schedules of his intended movements in accordance with the following:

5.1   If directed by his DSO by no later than Thursday of any week, the defendant must provide to his DSO a schedule of his intended movements and activities for the week commencing on the following Monday.

5.2   The DSO may require successive schedules for subsequent periods of seven days. A requirement for successive schedules may be notified on one occasion with respect to all weeks for a specified duration.

5.3   The defendant must provide a schedule by no later than noon on the Monday of any week for which a schedule is required and it must be completed honestly as to his intentions.

6.   The defendant must substantially adhere to a schedule submitted by him and he must notify his DSO in advance if he intends to depart from it in any significant respect, either as to the nature of any movement or activity or as to its timing. Such notification must be given by the defendant as soon as reasonably practicable.

7.   The defendant must make himself reasonably available by phone or in person to discuss any such schedule of his movements and activities and to receive any counselling or advice with respect to his intended movements and to receive any direction regarding them from his DSO (under Conditions 1 and 3). The defendant must comply with any direction given by his DSO in accordance with Condition 1 that he is not to undertake any specified movement or activity that may be nominated on his schedule.

Non-association

45. The plaintiff’s proposed condition 28 would prohibit the defendant from associating with anyone under 18, except as a result of incidental contact or with the written permission of a DSO. The defendant opposes such a condition and I see no need for it. There is no suggestion in any professional opinion concerning the defendant that he poses a specific threat of sexual offending against children. Although the victim of his index offences in May 2006 was a 15-year-old girl, Mr Sheehan has opined in the passage quoted at [18] above that this does not indicate a paraphilia disorder. Mr Sheehan stated: “I do not regard him as a specific risk to the sexual safety of children in his association”. Further, generally, his past sexual offending has not sprung from association or from social contact or grooming. It is not apparent that precluding contact, except of an incidental nature or pursuant to written permission, with young people under 18 years of age would serve any useful preventive purpose.

46. By condition 33 the plaintiff seeks to impose a requirement that the defendant obtain written permission from a DSO prior to joining or affiliating with any club or organisation. There is nothing in the evidence to satisfy me that the requirement of prior permission is necessary or, indeed, would serve any purpose. I will include a condition in the following terms:

33.   Within 48 hours of joining or affiliating with any club or organisation the defendant must inform his DSO that he has done so and must advise the name and contact details for the club or organisation.

Access to the internet, electronic communications

47. The plaintiff seeks conditions 35-45 by which the defendant would be very tightly monitored with respect to his use of mobile phone, email and internet communications. The proposed conditions would require his DSO’s approval for the use of any electronic device and for any access to the internet. They would prohibit him from using any name other than his real name as an electronic identity or login name or the like. Under these conditions the defendant would be required to provide the DSO with list of all electronic devices used by him and notify changes from time to time. He would be forbidden from gaining access to the internet by any device that had not been seen and approved by the by the DSO. The defendant would also have to supply details of his phone numbers, email addresses, account numbers with carriers and service providers, passwords, PIN codes and so on. He would be forbidden from using any encrypted messaging service and required to obtain his DSO’s permission before joining any social networking service or using any such application. The proposed conditions would require the defendant to permit his DSO to have remote access to his internet, email and social media accounts. The proposed conditions would forbid to defendant from deleting or altering any emails, text messages, call histories Internet search histories and the like.

48. I see no justification for any of these highly restrictive and complex conditions. Mr Sheehan made this observation:

I do not think that these conditions are central to risk management and in my view could be removed without significantly weakening the order. These are not pathways associated with [the defendant’s] offences.

I agree. Everything relevant from the defendant’s past indicates that his tendency towards violent sexual offending is associated with alcohol and other substance abuse and impulsive, unplanned activity. His offending has not been carried out in company or pursuant to premeditation or planning. The proposed conditions concerning access to the internet and electronic communications would be relevant to monitoring the defendant for signs of preparation for future offences and/or for him forming associations, through phone or email or internet contact, that might lead to offending. On the material before the Court, that is not an area of recognised risk.

Access to pornographic material

49. By proposed condition 48 the defendant would be prohibited from obtaining or viewing material that would be “Refused Classification” and he would be required to notify his DSO if he should obtain or view material that would be classified as X18+, Restricted Category 2 or Restricted Category 1. Although these conditions are opposed by the defendant and although access to extreme pornographic material has not been associated with his offending in the past, it is considered by Mr Sheehan that it would be constructive to his case management and treatment to require that the defendant be transparent with his DSO concerning access to pornographic material of the categories referred to. I accept that opinion. I take into account that this condition does not involve a significant intrusion or constraint upon the defendant. For such benefit as it may have with respect to counselling and treatment during the operation of the ESO, this is a reasonable and warranted condition

Medical intervention and treatment

50. By proposed condition 60 the defendant would be required to agree to the disclosure of his criminal history to any healthcare professionals who may be treating him. The defendant seeks a qualification to this condition, that it should only be applicable “if relevant to his risk of reoffending or of rehabilitation”. To introduce that qualification would render the condition uncertain in its operation. The condition as proposed by the plaintiff should be imposed without qualification. One aspect of the defendant’s ongoing medical treatment is the prescription of methadone. It is highly desirable that there should be transparency towards all medical professionals who may be involved in the defendant’s treatment or counselling for drug misuse. They should be aware of the history of serious sexual offending with which his past substance abuse has been associated. That past history informs the seriousness of the defendant’s drug and alcohol problems, from the point of view of protection of the community.

Orders

51. The orders of the Court are as follows (with the numbering of the conditions in Schedule A preserved, as originally proposed by the plaintiff and as referred to in these reasons, although they will be renumbered when the order is entered):

1. Order pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 that the defendant be subject to an extended supervision order for a period of 3 years commencing 1 September 2021.

2. Order pursuant to ss 11 of the said Act that for the period of the extended supervision order the defendant comply with the conditions set out in the schedule to these orders.

**********

Schedule A

STATE OF NSW v sittczenko

SCHEDULE OF CONDITIONS OF SUPERVISIOn

____________________________________

Departmental Supervising Officer (DSO)

Corrective Services NSW (CSNSW)

In these conditions:

“Adapted” means physically modified.

“CSNSW” means Corrective Services NSW.

“Commissioner” means Commissioner for Corrective Services

“Defendant” means Aaron John Sittczenko, also known as Aaron John Riley, the defendant in these proceedings and the subject of the order.

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

“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 for the enforcement and implementation of the ESO or any condition of the Order.

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 his location, his intended movements and the identity of any person with whom he is in company at the time of the question being asked, or with whom he may be associating at that time or generally, insofar as the answers to such questions are reasonably required by the DSO or other person for the purpose of determining whether the defendant is complying with the conditions, generally, of the Extended Supervision Order.

Electronic Monitoring

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

   4.1   From a date that is 12 months before expiry of the Extended Supervision Order (“ESO”), the defendant shall be exempt from having to wear electronic monitoring equipment under this condition provided that he has not been charged with any offence (including an offence of breaching any of these conditions) during the preceding 12 months.

   4.2   The exemption under condition 4.1 shall cease in the event that any charge is laid against the defendant during the final 12 months of the ESO.

Schedule of Movements

1. During the first two years of the defendant must provide to his DSO schedules of his intended movements in accordance with the following:

   5.1 If directed by his DSO by no later than Thursday of any week, the defendant must provide to his DSO a schedule of his intended movements and activities for the week commencing on the following Monday.

   5.2 The DSO may require successive schedules for subsequent periods of seven days. A requirement for successive schedules may be notified on one occasion with respect to all weeks for a specified duration.

   5.3 The defendant must provide a schedule by no later than noon on the Monday of any week for which a schedule is required and it must be completed honestly as to his intentions.

2. The defendant must substantially adhere to a schedule submitted by him and he must notify his DSO in advance if he intends to depart from it in any significant respect, either as to the nature of any movement or activity or as to its timing. Such notification must be given by the defendant as soon as reasonably practicable.

3. The defendant must make himself reasonably available by phone or in person to discuss any such schedule of his movements and activities and to receive any counselling or advice with respect to his intended movements and to receive any direction regarding them from his DSO (under Conditions 1 and 3). The defendant must comply with any direction given by his DSO in accordance with Condition 1 that he is not to undertake any specified movement or activity that may be nominated on his schedule.

4. (Deleted)

Part B: Accommodation

1. 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.

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

3. The defendant must not do anything to cause his discharge or eviction from any approved accommodation.

4. 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.

5. 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.

6. Unless the visitor is on a pre-approved list, 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.

14A   Any other resident of the defendant’s address may have a visitor stay the night. As soon as the defendant becomes aware that the person is going to stay or has stayed the night, he must notify his DSO.

Part C: Place and travel restrictions

1. 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.

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

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

4. (Deleted)

5. 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 first notifying a DSO.

Part D: Employment, finance and educations

1. 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 education, training or participation in personal development programs.

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

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

4. (Deleted)

Part E: Drugs and alcohol

1. The defendant must not:

   a.   Consume alcohol without the prior approval of a DSO.

   b.   Possess or use prohibited drugs or abuse drugs unlawfully obtained.

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

3. 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.

4. 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

1. (Deleted)

Associations with Others (not children)

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

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

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

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

3. The defendant must not engage the services of sex workers, without first notifying a DSO.

4. The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary to address a risk of the commission of the serious violence/sexual offence. Before any disclosure is made, the defendant must first be informed and given the opportunity to make the disclosure himself.

5. Within 48 hours of joining or affiliating with any club or organisation the defendant must inform his DSO that he has done so and must advise the name and contact details for the club or organisation.

Part H: Weapons

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

   a.   a knife (other than a knife that is possessed or used in the course of cooking and consuming food), machete, sword or any other device that consists of a single-edged or multi-edged blade or spike that is designed or adapted to inflict violence, whether actual or threatened; or

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

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

Part I: Access to the internet and other electronic communication

1. (deleted)

2. (deleted)

3. (deleted)

4. (deleted)

5. (deleted)

6. (deleted)

7. (deleted)

8. (deleted)

9. (deleted)

10. (deleted)

11. (deleted)

Part J: Search and seizure

1. If the DSO reasonably suspects that a search of the defendant’s person or residence, or any vehicle in which he is travelling or which is under his effective control, or any computer, electronic and communication device, or any storage facility, garage, locker or commercial facility under his control, is necessary to confirm his continuing compliance with this order, the DSO must inform the defendant the basis of that suspicion. The defendant must then submit to that search or those searches that may be carried out by a DSO or on behalf of a DSO; and consent to the seizure of any object located during the search.

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

Part K: Access to pornographic, violent and classified material

1. If the defendant purchases, possesses, accesses, obtains, views, or participates in or listens to material classified or material that would be classified as X18+, Restricted Category 2 or Restricted Category 1, he must notify a DSO as soon as reasonably practicable. Information regarding the defendant’s interaction with such material may be shared with the defendant’s treating psychologist/s and/or psychiatrist/s.

Part L: Personal details and appearance

1. The defendant must not change his name from “Aaron John Sittczenko” or use any other name without notifying a DSO.

2. The defendant must not significantly change his appearance without first notifying a DSO.

3. 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.

4. 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

1. 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.

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

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

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

5. 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.

6. The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, that is relevant to his risk of re-offending or his rehabilitation, including reports on his progress and attendance, and information he has told them, with each other and with a DSO.

7. The defendant must agree to any information, that is relevant to his risk of re-offending or his rehabilitation, being shared between those persons and agencies that are involved in his supervision.

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

Decision last updated: 31 August 2021