State of New South Wales v Strudwick

[2018] NSWSC 424

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Strudwick [2018] NSWSC 424

Hearing dates:

5 April 2018

Date of orders:

12 April 2018

Decision date:

12 April 2018

Jurisdiction:

Common Law

Before:

Davies J

Decision:

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

 

a.   That Dr Jonathon Adams and Dr Yolisha Singh be appointed to conduct separate psychiatric examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by 18 May 2018.
b.   The defendant is directed to attend an appointment with Dr Jonathon Adams on a date to be advised.
c.   The defendant is directed to attend an appointment with Dr Yolisha Singh on a date to be advised.

 

Interim supervision order

 

2. An order pursuant to ss 10A and 10C(1) of the Act, that the defendant be subject to an interim supervision order from midnight on 26 April 2018 (the time at which the defendant’s sentence expires) for a period of 28 days (“the interim supervision order”), unless renewed on further application by the plaintiff for another period of 28 days or the proceedings are finally determined.

 

3. An order pursuant to s 11 of the Act directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule to the Summons.

 

Final hearing date

 

4.   The proceedings are listed for final hearing on 21 June 2018.

 

5.   The plaintiff is to file and serve any evidence and written submissions on which it relies by 7 June 2018.

 

6.   The defendant to notify the plaintiff if any court appointed experts or any of the plaintiff’s witnesses are required for cross examination at the final hearing by 11 June 2018.

 

7.   The defendant is to file and serve any evidence and written submissions on which it relies by 14 June 2018.

 

8.   The plaintiff to notify the defendant if any of the defendant’s witnesses are required for cross examination at the final hearing by 18 June 2018.

 

Other

 

9.   An order that access to the Court’s file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

 

10.   The parties have liberty to restore on 2 days’ notice.

 

SCHEDULE OF CONDITIONS OF SUPERVISION

 

Part A: Reporting and Monitoring Obligations

 

Monitoring and Reporting

 

1.   The defendant must accept the supervision of Corrective Services NSW (CSNSW) until the end of the Order.
2.   The defendant must report to the Departmental Supervising Officer (DSO) or any other person supervising him as directed by the DSO.
3.   The defendant must follow all reasonable directions by his DSO or any other person supervising him.
4.   The defendant must attend the police station nearest to his approved accommodation within 3 days of the date of this order and provide a copy of this order.

 

Electronic Monitoring

 

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

 

Schedule of Movements

 

6.   If directed, the defendant must provide a weekly plan (called a schedule of movements) 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 his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period.
8.   The defendant must not deviate from his approved schedule of movements except in an emergency.
9.   The defendant must truthfully answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing.

 

Part B: Accommodation

 

10.   The defendant must live at an address approved by his DSO.
11.   The defendant must be at his approved address between 9:00pm and 6:00am unless other arrangements are approved by his DSO.
12.    The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.
13.   The defendant must not spend the night anywhere other than his approved address without the prior approval of his DSO.
14.   The defendant must not permit any person to stay overnight, at his approved address, without the prior approval of his DSO.

 

Part C: Place and travel restrictions

 

15.   The defendant must not leave New South Wales without the prior approval of CSNSW.
16.   The defendant must surrender any passports held by the defendant to the Commissioner.
17.   The defendant must not go to a place if his DSO tells him he cannot go there.
18.   In addition to condition 17 above the defendant must not go, without the prior approval of his DSO, to any:

 

a.   Day-care centres, pre-schools and schools;
b.   Amusement parlours, amusement parks and theme parks
c.   Cinemas;
d.   Libraries and museums;
e.   Camping grounds and caravan parks;
f.   Children’s playgrounds, parks, and areas with play equipment provided for the use of children;
g.   Pools, playing fields and sporting facilities;
h.   Concerts, theatre shows, movies, events and activities intended for the entertainment of children;
i.   Residences where the defendant knows that persons under 18 ordinarily reside; or
j.   Internet cafes or other businesses which provide public access to the internet either for payment or for no charge (other than employment agencies).

 

19.   The defendant must not attend any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment without the prior approval of his DSO.
20.   The defendant must not attend any place where alcohol or drugs are illegally sold.

 

Part D: Employment, finance and education

 

21.   If the defendant is unemployed, the defendant must make himself available for employment, education, training or participation in a personal development program as directed by his DSO.
22.   The defendant must not start any job, volunteer work or educational course without the prior approval of his DSO.
23.   Without limiting condition 22 above, the defendant must not attempt to seek employment or volunteer work at any of the following places:

 

a.   Day-care centres, pre-schools and schools;
b.   Amusement parlours, amusement parks and theme parks
c.   Cinemas;
d.   Libraries and museums;
e.   Camping grounds and caravan parks;
f.   Children’s playgrounds, parks, and areas with play equipment provided for the use of children;
g.   Pools, playing fields and sporting facilities;
h.   Concerts, theatre shows, movies, events and activities intended for the entertainment of children;
i.   Residences where the defendant knows that persons under 18 ordinarily reside; or
j.   Internet cafes or other businesses which provide public access to the internet either for payment or for no charge (other than employment agencies).

 

Part E: Drugs and alcohol

 

24.   The defendant must not possess or use alcohol or illegal drugs, and he must not possess or use prescription medication other than as prescribed.
25.   The defendant must submit to testing for drugs and alcohol as directed by his DSO.
26.   The defendant must not enter any licensed premises without the prior approval of his DSO.
27.   The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as directed by his DSO, and must not discharge himself from such programs and courses without prior approval of his DSO.

 

Part F: Non-association

 

Association with Children

 

28.    The defendant must not approach or have contact with anyone who he knows or ought reasonably to know is under 18 unless, prior to that contact, his DSO tells him he can and, at the time of such contact, the defendant is with someone who has been pre-approved in writing by his DSO to accompany him.

 

Associations with Others (not children)

 

29.   The defendant must not associate with people that his DSO tells him not to.
30.   The defendant must not associate with any people who are consuming or under the influence of illegal drugs.
31.   The defendant must not associate with any people who are consuming alcohol without the prior approval of his DSO. If the defendant associates with any people consuming alcohol without the prior approval of the DSO, he must notify the DSO of that contact within 24 hours.
32.   The defendant must not engage the services of sex workers without the prior approval of his DSO.
33.   If the defendant starts a relationship with someone involving sexual or intimate contact, he has to tell his DSO who may want to tell the person about his criminal history.
34.   If the defendant starts a relationship with someone who has children or has direct or indirect contact with children, he has to tell his DSO who may want to tell the person about his criminal history.
35.   The defendant must obtain written permission from his DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service

 

Part G: Access to the internet and other electronic communication

 

36.   The defendant must give his DSO a list of all devices, services and applications he uses to communicate with or to access the internet. This includes phones, tablet devices, data storage devices or computers. This includes the details of telephone numbers, service provider account numbers, email addresses or other user names and relevant passwords and codes, used by the defendant and the nature and details of the internet connection, as directed.
37.   The defendant must only use an electronic device which has the ability to access the internet after the device has been disclosed in accordance with condition 36 above, and the device has been seen and approved for use by his DSO.
38.   The defendant must not access, join and/or connect to any social networking service or application without the prior approval of his DSO, including use of internet-based email, instant messaging services, online community services and other telecommunications based services including text and voice services.
39.   The DSO (or any other person requested by the DSO) may remotely inspect any internet account used by the defendant, including the defendant's email addresses, in monitoring compliance with this order.
40.   The defendant must obey any reasonable directions by his DSO about the use of phones, tablet devices, data storage devices, computers and other devices, including any reasonable directions relating to his access to the internet.
41.   The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO.
42.   The defendant must advise his DSO immediately of any change to the inventory provided in compliance with condition 36 above.

 

Part H: Search and seizure

 

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

 

a.   for the safety and welfare of residents or staff or persons present at the defendant’s approved address;
b.   to monitor the defendant’s compliance with this order; or
c.   because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence;
then the DSO may direct, and the defendant must submit to:
d.   search and inspection of any part of, or any thing in, the defendant’s approved address;
e.   search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant;
f.   search and inspection of any part of, or any thing in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or
g.   search and examination of his person.

 

44.   For the purposes of the above condition:

 

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

 

NOTE:

 

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

 

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

 

45.   During a search carried out pursuant to condition 43 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise:

 

a.   the safety of residents or of staff at the defendant's approved address;
b.   the welfare or safety of any member of the public or any other person; or
c.   the defendant's compliance with this order;

 

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

 

46.   The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use.
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 conditions 43 to 46 above.

 

Part I: Access to pornographic, violent and classified material

 

48.   The defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification, X18+, R18+, Restricted Category 2 and Restricted Category 1, or any other material without the prior approval of his DSO.

 

Part J: Personal details and appearance

 

49.   The defendant must not change his name from “Michael Clint Strudwick” or use any other name without the approval of his DSO.
50.   The defendant must not use any alias, log-in name, or a name other than “Michael Clint Strudwick” or use any email address other than those known to his DSO under condition 36 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email.
51.   The defendant must not change his appearance without the approval of his DSO.
52.   The defendant must let CSNSW photograph him.
53.   If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details.

 

Part K: Medical intervention and treatment

 54.   The defendant must notify his DSO of the identity and address of any healthcare practitioner, psychologist, psychiatrist or counselling service that he consults.
55.   The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend in respect of the defendant’s potential risk of re-offending.
56.   The defendant must take all medications that are prescribed to him by his healthcare practitioners.
57.   If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify his DSO within 24 hours of ceasing to take the medication.
58.   The defendant must agree to the persons referred to in condition 54 above sharing information including reports on his progress and information he has told them with each other, with his DSO and with any other persons involved in his supervision.
59.   The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW.

Catchwords:

CRIMINAL LAW – high risk offender – high risk sexual offender – application for extended supervision order – preliminary hearing – two counts of sexual intercourse with a child of 10 years – other offences of a sexual nature – defendant with mental health an drug issues – assessed as high risk – no opposition to interim order – whether a need for electronic monitoring during interim order

Legislation Cited:

Crimes Act 1900 (NSW) ss 61E, 61M, 61N, 66C
Crimes (High Risk Offenders) Act 2006 (NSW) ss 4, 5, 5B, 5D 5I, 9
Summary Offences Act 1988 (NSW) ss 4, 5

Cases Cited:

Anderson v State of New South Wales [2016] NSWCA 86
Attorney-General for the State of New South Wales v Hayter [2007] NSWCA 983
Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119
State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118

Texts Cited:

Nil

Category:

Procedural and other rulings

Parties:

State of New South Wales (Plaintiff)
Michael Clint Strudwick (Defendant)

Representation:

Counsel:
D New (Plaintiff)
B Kennedy (Defendant)

  Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2018/55293

Publication restriction:

Nil

Judgment

1. The State of New South Wales seeks an Extended Supervision Order for a period of two years under s 5B and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW). The defendant’s current sentence expires on 26 April 2018. Accordingly, the State seeks an Interim Supervision Order from that date, and an order appointing of two qualified psychiatrists to conduct separate psychiatric examinations of the defendant and to furnish reports to the Court on the results of those examinations.

Legislation

2. Section 5B of the Act provides:

5B Making of extended supervision orders—unacceptable risk

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

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

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

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

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

3. Section 5I(2) defines a supervised offender in the following way:

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

(a) while serving a sentence of imprisonment:

(i) for a serious offence, or

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

(iii) for an offence under section 12, or

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

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

4. Section 4 defines serious offence as, relevantly, meaning:

(a)   a serious sex offence, or

(b)   a serious violence offence.

5. Section 5(1) sets out a number of categories of offences that constitute a serious sex offence. Those categories relevantly include:

(a) an offence under Division 10 of Part 3 of the Crimes Act 1900, where:

(i) in the case of an offence against an adult or a child, the offence is punishable by imprisonment for 7 years or more, and

(ii) in the case of an offence against an adult, the offence is committed in circumstances of aggravation (within the meaning of the provision under which the offence arises),

…

6. Section 5(2) contains a large number of categories of offences that constitute an offence of a sexual nature. Those categories relevantly include:

(a) an offence under Division 10 of Part 3 of the Crimes Act 1900,

…

7. Section 5D provides:

For the purposes of this Part, the Supreme Court 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.

8. Although the Act has been reordered to some extent since some of the earlier decisions that construed its provisions, what was said in Anderson v State of New South Wales [2016] NSWCA 86 still represents the correct approach. The Court there said:

[14] It suffices in order to summarise and resolve the essential submissions which arise on this appeal to observe that ss 5B and 5D mandate a two stage process. The first question is that posed by s 5B, which is whether the person is a high risk sex offender. This entails the Court being satisfied, to a high standard, that the offender would pose an “unacceptable risk of committing a serious sex offence if he or she is not kept under supervision”. Only if the answer to that question is affirmative can there be power to make either a continuing detention order or an extended supervision order.

[15] The second question only arises if the person is a high risk sex offender. It is the question posed by s 5D, which is whether the Court is satisfied that adequate supervision will not be provided by an extended supervision order. If the answer to that question is affirmative, then there is power to make a continuing detention order. (For the purposes of this appeal, we put to one side the separate discretion whether to make a continuing detention order at all, discussed in State of New South Wales v Donovan [2015] NSWCA 280 at [14]-[15].)

[16] There are at least four important differences between the questions posed by ss 5B and 5D. The first two differences flow directly from the text of the statute. One is that the Act requires a different level of satisfaction to be achieved in relation to the first, as opposed to the second. Another is that the second question is only reached in the event that the first question has been answered affirmatively.

[17] A third is that it is established that the test of “adequate supervision” in s 5D is not “anchored” to an assessment of “unacceptable risk”, but involves a wider ranging inquiry, including having regard to the secondary purpose of the Act of encouraging rehabilitation: see State of New South Wales v Donovan.

[18] A fourth is that there is a wide range of conditions which could be imposed by an extended supervision order, so that the issue posed by s 5D also involves considering a range of conditions and whether if imposed they would constitute adequate supervision: see Lynn v State of New South Wales [2016] NSWCA 57.

9. Section 9(2) now provides:

9 Determination of application for extended supervision order

…

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

10. The task of the Court at the preliminary stage for an interim order is not to predict the ultimate result. Rather, the test is said to be one similar to the prima facie test applied by Magistrates in committal proceedings: Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119; Attorney-General for the State of New South Wales v Hayter [2007] NSWCA 983 and State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11].

Background

11. The defendant was born on 17 June 1973 and is now aged 44 years. His offending commenced in January 1988 when he was only 14 years of age. He was then convicted of sexual assault contrary to s 61E (now repealed) of the Crimes Act 1900 (NSW) (an offence of a sexual nature under the High Risk Offenders Act) and wilful and obscene exposure contrary to s 5 of the Summary Offences Act 1988 (NSW). The offences involved the defendant exposing his erect penis to a woman in a telephone booth. The victim finished her call and returned to her car. The defendant rode his push bike to the side of the victim’s car where he said to her “Don’t you like a bit of dick”. He then reached into the car and grabbed her breast.

12. On 6 March 1988, whilst on remand for the offences just described, he exposed his penis to the mother of two young children at a park. He was convicted of wilful and indecent exposure contrary to s 5 of the Summary Offences Act.

13. Between 1988 and 2004 he committed several break, enter and steal offences and some summary drug offences in respect of which he was variously sentenced to terms of imprisonment, community service orders and fines.

14. On 14 September 2006 he was convicted and sentenced at Cobar Local Court for the following offences:

(a) Aggravated indecent assault occurring in September 2003 for which he was sentenced to a s 9 bond for three years. That was an offence at the time under s 61M(1) (contained in Pt 3, Div 10) of the Crimes Act) with a maximum penalty of seven years’ imprisonment. It constituted a “serious sex offence” under s 5(1) of the High Risk Offenders Act;

(b) An act of indecency occurring in August 2005 for which he was sentenced to 12 months’ imprisonment with a non-parole period of nine months, suspended on entering a s 12 bond for 12 months. This was an offence under s 61N(1) of the Crimes Act, with a maximum penalty of two years’ imprisonment. It constituted an “offence of a sexual nature” under s 5(2) of the High Risk Offenders Act; and

(c) An act of indecency occurring in August 2005 for which he was sentenced to 12 months’ imprisonment with a non-parole period of 16 weeks and six days. This was also an offence under s 61N(1) of the Crimes Act, and amounted to an “offence of a sexual nature” under s 5(2) of the High Risk Offenders Act.

15. The first two of these offences were committed against the 13 year old daughter of a person with whom the defendant had been in a de facto relationship for some years. The agreed statement of facts prepared for the purpose of sentence signed by the defendant stated:

The defendant acknowledges that the above matters were not isolated events but rather were part of a course of conduct which persisted over a number of years. [The victim] made complaints to friends, the school, and her mother over this period. The defendant’s behaviour over this period made [the victim] feel scared and unsafe.

16. The facts of the third offence referred to were that the defendant was at the home of a friend of his partner. The defendant became intoxicated and when the partner’s friend fell asleep on the couch the defendant exposed his penis to the 13 year old daughter of the friend.

17. In 2007 the defendant pleaded guilty to two counts of having sexual intercourse with a child of 10 years of age contrary to s 66C(1) of the Crimes Act, for which the maximum penalty was 16 years’ imprisonment. That offence is a “serious sex offence” under the High Risk Offenders Act. On 5 August 2008 Judge Puckeridge at Dubbo District Court sentenced the defendant to a sentence of eight years and three months’ imprisonment with a non-parole period of five years.

18. There were two victims, both of whom were known to the defendant. The defendant’s brother was in a relationship with victim 2’s mother. Victim 1 was a friend of Victim 2.

19. On 8 June 2007 the two children went to the defendant’s caravan to watch television while the adults were playing cards at Victim 2's mother’s place. When the defendant returned to the caravan he gave both the children alcohol, cigarettes and cannabis. They became highly intoxicated and Victim 1 blacked out.

20. The defendant then proceeded to put each of the children in turn on top of him and penetrated the vagina of each with his penis.

21. The defendant’s sentence expired on 7 September 2016 but he was released to parole on 7 June 2013. Whilst on parole he committed a number of offences.

22. On 25 and 26 February 2016, the defendant twice exposed his penis to a woman walking by while he was standing on the veranda at his unit in Surry Hills. The first incident occurred on 25 February 2016 when the woman was walking past the defendant's unit to pick her daughter up from primary school. When the same thing occurred on the following day, the woman reported it to police.

23. On 29 February 2016, a second woman walked past the defendant's unit complex in Surry Hills and saw the defendant standing at the front entry gate. The defendant exposed his penis to her and masturbated. The victim crossed the road and immediately contacted the police.

24. On 1 March 2016 the defendant was charged with one count of behaving in offensive manner in or near a public place/school, contrary to s 4(1) of the Summary Offences Act, in respect of the incident on 29 February 2016. On 21 April 2016 the defendant was charged with two counts of wilful and obscene exposure in a public place, contrary to s 5 of the Summary Offences Act, in respect of the incidents on 25 and 26 February 2017.

25. On 12 May 2016, at Central Local Court, the defendant was convicted and sentenced on each of the February 2016 offences to 4 months imprisonment commencing on 7 February 2016, to be served concurrently.

26. On 27 January 2017 the defendant caught a train from Central to Circular Quay and other City Circle line stations thereafter. During that journey the defendant exposed his penis and masturbated in front of passengers on the train, indiscriminate of age or gender (the index offence). He was arrested that day.

27. The defendant was charged with five acts of indecency to persons over 16 years, an offence under s 61N(2) of the Crimes Act, two acts of indecency to persons under 16 years, an offence under s 61N(1) of the Crimes Act, and one act of wilful and obscene exposure, an offence under s 5 of the Summary Offences Act.

28. All the charged acts of indecency are "offences of a sexual nature" under s 5(2) of the High Risk Offenders Act.

29. On 3 May 2017, at Central Local Court, the defendant was sentenced to a total term of 15 months imprisonment commencing on 27 January 2017 and expiring on 26 April 2018 with a non-parole period eight months.

30. The defendant was released to parole on 26 September 2017.

31. In relation to all this offending, it should be noted that, for the purposes of s 5B of the High Risk Offenders Act, the only relevant serious offences are the two offences for which the defendant was sentenced by Judge Puckeridge in 2008. Although the 2003 offence of aggravated indecent assault is a “serious sex offence” under the High Risk Offenders Act, the defendant was not sentenced to a period of imprisonment for that offence. Section 5B(a) has as a condition of the making of an ESO that a person is an offender who is serving or who has served a sentence of imprisonment for a serious offence either in custody or under supervision in the community. The sentence imposed for that first serious sex offence was a s 9 bond, which is not a sentence of imprisonment to be served within the community.

Risk assessments

32. The defendant was interviewed for the purpose of the present application by a senior psychologist from the Serious Offenders Assessment Unit, Mr Samuel Ardasinski on 3 November 2017.

33. Mr Ardasinski noted that the defendant had been diagnosed with schizophrenia characterised by auditory hallucinations (hearing voices and mumbling), ideas of reference (believing that the television is about him), persecutory delusions (believing that people are following him) and grandiose delusions (believing that he is a warlock and at times invisible). Mr Ardasinski noted that the defendant had some awareness of his mental health needs and appeared to have insight into his sexual disorder when his mental health was stable – primarily his preference to expose himself to females for his own sexual gratification.

34. Mr Ardasinski assessed the defendant’s risk of reoffending using four protocols. On the Static-99R he scored 8 placing him in the high risk category. On the Static-2002R he scored 11 putting him in the high risk category. On the STABLE-2007 he scored 14 suggesting a high density of criminogenic needs. Those three protocols can be combined to generate a composite assessment of risk/needs. The defendant’s composite risk/needs level was at level IVb. That combined assessment suggested that the defendant required a high level of intervention and/or supervision.

35. In addition, Mr Ardasinski assessed the defendant using the Risk of Sexual Violence Protocol, which is structured professional judgment tool whereby the offender is considered against a specific list of 22 dynamic risk factors deemed important in the scientific and professional literature. Mr Ardasinski considered, using that Protocol, that the defendant fell into the high risk category for repeat sexual violence.

36. Mr Ardasinski considered that the defendant’s most likely scenario for further sexual offending would involve exhibitionist exposure and/or masturbating in public, which would likely be preceded by a period of declining mental health and/or a return to substance abuse. However, he considered that without intervention or if the defendant were to gain access to a child victim, the offending may escalate to ‘hands on’ sexual offences, likely in his or the victim’s home, and may involve penetrative sexual activity with pre-pubescent or pubescent female children. If the defendant maintained stable mental health and abstained from drug and alcohol, however, the risk of a further serious sexual offence eventuating would be moderated greatly.

37. In the Risk Management Report prepared by the Community Corrections officer and endorsed by the High Risk Offender Applications and Operational Governments officer in November 2017, it was noted that the defendant had a history of non-compliance with supervision. He had only completed one parole order successfully in 2015. He had otherwise breached his parole with new offending and technical breaches.

38. In March 2016, whilst on parole he admitted to using a non-prescribed drug (Buprenorphine). However, results from drug testing indicated that he had consumed amphetamines, methadone and metabolites. After his release to parole on 29 September 2017 he admitted to cannabis use in interviews on 2 and 22 November 2017.

Determination

39. I am satisfied that the threshold requirements in s 5B(a), (b) and (c) are met. The defendant is a supervised offender because he is serving a sentence for an offence of a sexual nature, being the offences of 27 January 2017 contrary to s 61N(1) and (2) of the Crimes Act, being offences contained in Div 10 of Pt 3 of that Act. Further, the defendant is an offender who has served a sentence of imprisonment for a serious offence being the offences of having sexual intercourse with a child of ten years of age contrary to s 66C(1) of the Crimes Act.

40. On the basis of the material I have seen, particularly the report of Mr Ardasinski, I am satisfied that if that evidence was accepted at a final hearing, a continuing supervision order ought to be made.

41. I note that the defendant did not oppose the Interim Supervision Order being made, nor the appointment of the two psychiatrists. Counsel for the defendant did not challenge any of the conditions sought to be imposed in relation to the Interim Supervision Order. Counsel reserved the defendant’s rights to argue against the ESO at the final hearing and to challenge the conditions sought to be imposed in such an order.

42. I raised the question of whether electronic monitoring was necessary for the purpose of the Interim Supervision Order. The plaintiff’s counsel drew attention to entries in the defendant’s case note reports of Wednesday 17 January 2018. On that day the relevant supervising officer had telephoned the defendant on his mobile phone to enquire about his whereabouts so that she could meet up with the defendant to conduct his weekly interview. The defendant said that he was currently on his way to Dubbo to visit his brother and would not be back until late the following Saturday night. The significance of that, in particular, was that the daughter of the wife of the defendant’s brother was one of the two victims of the defendant’s offending for which he was sentenced by Judge Puckeridge in 2008.

43. Subsequently on that day a number of further calls were made to the defendant but no contact was made with him. Eventually a call was made to Orange Police Station and a police officer from that station required the defendant to travel back to Sydney.

44. Condition 5 requires the defendant to wear electronic monitoring equipment if the Departmental Supervising Officer requires him to do so. The trip to Dubbo in contravention of the defendant’s arrangements, the failure for the period of that day after the initial call to make contact with the supervising officer, and the fact that the defendant was intending to travel to the home of one of his victims, makes it appropriate to give the DSO the power to require electronic monitoring during the course of the Interim Supervision Order.

45. I am satisfied that the conditions sought as part of the Interim Supervision Order should be made.

46. Accordingly, I make the following orders:

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

a.   That Dr Jonathon Adams and Dr Yolisha Singh be appointed to conduct separate psychiatric examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by 18 May 2018.

b.   The defendant is directed to attend an appointment with Dr Jonathon Adams on a date to be advised.

c.   The defendant is directed to attend an appointment with Dr Yolisha Singh on a date to be advised.

Interim supervision order

2. An order pursuant to ss 10A and 10C(1) of the Act, that the defendant be subject to an interim supervision order from midnight on 26 April 2018 (the time at which the defendant’s sentence expires) for a period of 28 days (“the interim supervision order”), unless renewed on further application by the plaintiff for another period of 28 days or the proceedings are finally determined.

3. An order pursuant to s 11 of the Act directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule to the Summons.

Final hearing date

4.   The proceedings are listed for final hearing on 21 June 2018.

5.   The plaintiff is to file and serve any evidence and written submissions on which it relies by 7 June 2018.

6.   The defendant to notify the plaintiff if any court appointed experts or any of the plaintiff’s witnesses are required for cross examination at the final hearing by 11 June 2018.

7.   The defendant is to file and serve any evidence and written submissions on which it relies by 14 June 2018.

8.   The plaintiff to notify the defendant if any of the defendant’s witnesses are required for cross examination at the final hearing by 18 June 2018.

Other

9.   An order that access to the Court’s file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

10.   The parties have liberty to restore on 2 days’ notice.

SCHEDULE OF CONDITIONS OF SUPERVISION

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

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

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

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

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

Electronic Monitoring

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

Schedule of Movements

6.   If directed, the defendant must provide a weekly plan (called a schedule of movements) 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 his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period.

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

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

Part B: Accommodation

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

11.   The defendant must be at his approved address between 9:00pm and 6:00am unless other arrangements are approved by his DSO.

12.    The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.

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

14.   The defendant must not permit any person to stay overnight, at his approved address, without the prior approval of his DSO.

Part C: Place and travel restrictions

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

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

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

18.   In addition to condition 17 above the defendant must not go, without the prior approval of his DSO, to any:

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

b.   Amusement parlours, amusement parks and theme parks

c.   Cinemas;

d.   Libraries and museums;

e.   Camping grounds and caravan parks;

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

g.   Pools, playing fields and sporting facilities;

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

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

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

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

20.   The defendant must not attend any place where alcohol or drugs are illegally sold.

Part D: Employment, finance and education

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

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

23.   Without limiting condition 22 above, the defendant must not attempt to seek employment or volunteer work at any of the following places:

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

b.   Amusement parlours, amusement parks and theme parks

c.   Cinemas;

d.   Libraries and museums;

e.   Camping grounds and caravan parks;

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

g.   Pools, playing fields and sporting facilities;

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

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

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

Part E: Drugs and alcohol

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

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

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

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

Part F: Non-association

Association with Children

28.    The defendant must not approach or have contact with anyone who he knows or ought reasonably to know is under 18 unless, prior to that contact, his DSO tells him he can and, at the time of such contact, the defendant is with someone who has been pre-approved in writing by his DSO to accompany him.

Associations with Others (not children)

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

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

31.   The defendant must not associate with any people who are consuming alcohol without the prior approval of his DSO. If the defendant associates with any people consuming alcohol without the prior approval of the DSO, he must notify the DSO of that contact within 24 hours.

32.   The defendant must not engage the services of sex workers without the prior approval of his DSO.

33.   If the defendant starts a relationship with someone involving sexual or intimate contact, he has to tell his DSO who may want to tell the person about his criminal history.

34.   If the defendant starts a relationship with someone who has children or has direct or indirect contact with children, he has to tell his DSO who may want to tell the person about his criminal history.

35.   The defendant must obtain written permission from his DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service

Part G: Access to the internet and other electronic communication

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

37.   The defendant must only use an electronic device which has the ability to access the internet after the device has been disclosed in accordance with condition 36 above, and the device has been seen and approved for use by his DSO.

38.   The defendant must not access, join and/or connect to any social networking service or application without the prior approval of his DSO, including use of internet-based email, instant messaging services, online community services and other telecommunications based services including text and voice services.

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

40.   The defendant must obey any reasonable directions by his DSO about the use of phones, tablet devices, data storage devices, computers and other devices, including any reasonable directions relating to his access to the internet.

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

42.   The defendant must advise his DSO immediately of any change to the inventory provided in compliance with condition 36 above.

Part H: Search and seizure

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

a.   for the safety and welfare of residents or staff or persons present at the defendant’s approved address;

b.   to monitor the defendant’s compliance with this order; or

c.   because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence;

then the DSO may direct, and the defendant must submit to:

d.   search and inspection of any part of, or any thing in, the defendant’s approved address;

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

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

g.   search and examination of his person.

44.   For the purposes of the above condition:

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

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

NOTE:

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

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

45.   During a search carried out pursuant to condition 43 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise:

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

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

c.   the defendant's compliance with this order;

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

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

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 conditions 43 to 46 above.

Part I: Access to pornographic, violent and classified material

48.   The defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification, X18+, R18+, Restricted Category 2 and Restricted Category 1, or any other material without the prior approval of his DSO.

Part J: Personal details and appearance

49.   The defendant must not change his name from “Michael Clint Strudwick” or use any other name without the approval of his DSO.

50.   The defendant must not use any alias, log-in name, or a name other than “Michael Clint Strudwick” or use any email address other than those known to his DSO under condition 36 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email.

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

52.   The defendant must let CSNSW photograph him.

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

Part K: Medical intervention and treatment

54.   The defendant must notify his DSO of the identity and address of any healthcare practitioner, psychologist, psychiatrist or counselling service that he consults.

55.   The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend in respect of the defendant’s potential risk of re-offending.

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

57.   If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify his DSO within 24 hours of ceasing to take the medication.

58.   The defendant must agree to the persons referred to in condition 54 above sharing information including reports on his progress and information he has told them with each other, with his DSO and with any other persons involved in his supervision.

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

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Decision last updated: 12 April 2018