State of New South Wales v Sturgeon (No 2)

[2019] NSWSC 883

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Sturgeon (No.2) [2019] NSWSC 883
Hearing dates:	17 and 18 June 2019
Date of orders:	12 July 2019
Decision date:	12 July 2019
Jurisdiction:	Common Law
Before:	Garling J
Decision:	(1) Order pursuant to s 5B and s 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 three years from the date of the order; and. (2) Order pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006, that the defendant, for the period of the Extended Supervision Order comply with the conditions set out in Annexure A to this judgment.
Catchwords:	HIGH RISK OFFENDER – Final hearing – whether the defendant should be subject to an Extended Supervision Order or Continuing Detention Order - where the defendant concedes that he poses an unacceptable risk of committing another serious offence if not kept under the supervision of an Extended Supervision Order – where the court has the power to make a Continuing Detention Order - the test for considering whether the court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence in the future if not kept in detention under a Continuing Detention Order – comparative test no longer requires consideration of an Extended Supervision Order – current test requires comparison between risk of defendant in community against risk of defendant in detention – the plaintiff’s evidentiary obligation and duty to assist the court in s56 of the Civil Procedure Act – legal tests for imposing conditions of an Extended Supervision Order or Continuing Detention Order – where the plaintiff has submitted standard or common conditions
Legislation Cited:	Child Protection (Offenders Registration) Act 2000 Children (Criminal Proceedings) Act 1987 Civil Procedure Act 2005 Crimes (High Risk Offenders) Act 2006 Crimes (High Risk Offenders) Amendment Act 2017 Crimes Act 1900 Mental Health (Forensic Provisions) Act 1990 Mental Health Act 2007
Cases Cited:	Attorney-General for NSW v Tillman [2007] NSWCA 119 State of New South Wales v Sturgeon [2019] NSWSC 559 State of NSW v Ali [2010] NSWSC 1045 State of NSW v BG (Final) [2019] NSWSC 200 State of NSW v Bugmy [2017] NSWSC 855 State of NSW v Burns [2014] NSWSC 1014 State of NSW v Fisk [2013] NSWSC 364 State of NSW v Green (Final) [2013] NSWSC 1003 State of NSW v Schmidt [2019] NSWSC 764 Wilde v State of NSW [2015] NSWCA 28
Texts Cited:	Second Reading Speech, New South Wales Legislative Assembly, 11 October 2017
Category:	Principal judgment
Parties:	State of New South Wales (P) Mark Douglas Sturgeon (D)
Representation:	Counsel: D New (State) R Wilson (D)   Solicitors: Crown Solicitor’s Office (State) Legal Aid NSW (D)
File Number(s):	2019/58345
Publication restriction:	Not Applicable

Judgment

1. By a Further Amended Summons filed in Court on 17 June 2019, the plaintiff, the State of New South Wales (“the State”), seeks orders pursuant to the Crimes (High Risk Offenders) Act 2006 (“HRO Act”) against Mark Douglas Sturgeon, the defendant.

2. The State seeks a Continuing Detention Order (“CDO”) for a period of one year, followed by an Extended Supervision Order (“ESO”) for a period of five years. In the alternative, the State seeks an ESO for a period of five years.

3. On 17 May 2019, for the reasons expressed, I made an Interim Detention Order (“IDO”) against the defendant, together with other more procedurally focussed orders: State of New South Wales v Sturgeon [2019] NSWSC 559.

4. On 1 July 2019, with the consent of the parties, I made an Interim Supervision Order (“ISO”) including specified conditions for a period of one month.

5. For the reasons expressed in this judgment, I am persuaded that I should make an ESO for three years with the conditions identified, but I am not persuaded that I should make a CDO.

Concessions of the Defendant

6. For the purpose of these proceedings, the defendant conceded the following essential matters specified in ss 5B or 5C of the HRO Act:

1. that he is a person who has served a sentence of imprisonment for a serious offence;

2. that he, at the time this application was filed, was a supervised offender and a detained offender because he was in custody while serving a sentence for an “offence of a sexual nature”;

3. that the application by the State for an ESO and CDO was made in accordance with the provisions of the HRO Act.

7. The defendant did not concede that he posed an unacceptable risk of committing another serious offence if not kept in detention under the proposed CDO – a pre-requisite element for the making of a CDO by the Court: s 5C(b) of the HRO Act.

8. However, he did concede that, with respect to the fourth pre-requisite for the making of an ESO under s 5B(d) of the HRO Act, that the Court would be satisfied that he poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO.

9. The result of these concessions is that the defendant accepts that the Court would make an ESO, but submits that the Court could make such an order for a shorter period than the five years sought by the State. The defendant also opposes a number of the conditions sought by the State in its Summons.

10. The principal issue to be determined by this judgment is whether the Court ought to make a CDO.

Relevant Legislation

11. The HRO Act was amended with effect from 6 December 2017, as a consequence of the passage of the Crimes (High Risk Offenders) Amendment Act 2017 (“the Amendment Act”).

12. The Amendment Act made two significant changes. The first was that it simplified the categories of serious offenders from two discrete categories, a “high risk sex offender” and a “high risk violence offender” into a single category namely a “serious offender”. Secondly, it amended the requirement which the State needed to establish before the Court had the power to make a CDO in accordance with the provisions of s 17 of the HRO Act. That requirement is detailed at [23-25] of this judgment.

13. It is convenient to set out a number of those provisions.

14. Section 3 of the HRO Act sets out the objects of the Act. It provides that the primary object of the HRO Act is to provide for extended supervision and continuing detention of offenders “… so as to ensure the safety and protection of the community”. Section 3 also provides that another object of the HRO Act is to encourage offenders to undertake rehabilitation.

15. Section 5B deals with the power of the Court to order an ESO for the supervision in the community of a person. It is conceded in the circumstances of this case that the Court has such a power.

16. Section 5C deals with the prerequisites for establishing the power in the Court to make a CDO. Section 5C is in the following form:

“5C MAKING OF CONTINUING DETENTION ORDERS--UNACCEPTABLE RISK

The Supreme Court may make an order for the continued detention of a person (a "continuing detention 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 detained offender or supervised offender (within the meaning of section 13B), and

(c)    an application for the order is made in accordance with section 13B, and

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

17. Section 5D provides that when a court is considering the application of s 5C(d), that assessment (whether there is an unacceptable risk of a person committing a serious offence) does not require a determination that the commission of a serious offence is more likely than not.

18. With respect to a CDO, once it is established that a court has the power to make such an order, the determination of whether such an order ought to be made proceeds in accordance with s 17 of the HRO Act. Section 17 is in the following form:

“17 DETERMINATION OF APPLICATION FOR CONTINUING DETENTION ORDER

(1)   The Supreme Court may determine an application under this Part for a continuing detention order:

(a)    by making an extended supervision order, or

(b)    by making a continuing detention order, or

(c)    by dismissing the application.

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

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

(b)    the reports received from the persons appointed under section 15 (4) to conduct examinations of the offender, and the level of the offender's participation in any such examination,

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

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

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

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

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

(e2)    whether it is satisfied that the offender is likely to comply with the obligations of an extended supervision order,

(f)    without limiting paragraph (e2), the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an interim supervision order or an extended supervision order,

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

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

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

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

(j)    in the case of an application made on the basis that the offender has been found guilty of an offence of failing to comply with the requirements of an extended supervision order or interim supervision order--the nature of the failure to comply with those requirements and the likelihood of further failures to comply,

(k)    in the case of an application made on the basis that circumstances have altered since the making of an extended supervision order or interim supervision order against the offender--whether circumstances have altered since the making of the order and whether those altered circumstances mean that the risk of the offender committing a serious offence would be unacceptable unless a continuing detention order were made.

(4A) To avoid doubt, section 11 (2) applies to an extended supervision order made under this section.

(5)   In determining whether or not to make a continuing detention order, the Supreme Court is not to consider the ability to take action for a breach of the order in relation to whether there is an unacceptable risk of the offender committing further serious offences.”

19. If an order is made, s 18 of the HRO Act deals with the term of a CDO.

Power to Make a Continuing Detention Order

20. In accordance with the legislative requirements outlined above, in considering the State’s claim that the Court should order that the defendant be subject to a CDO, the Court must first be satisfied (by reference to the provisions of s 5C of the HRO Act) that it has the power to make such an order. If the Court is so satisfied, it does not follow that a CDO will necessarily be made. That decision requires the Court to address many more considerations than does the question of whether a power exists.

21. In light of the defendant’s concessions recorded earlier, it is only necessary to consider s 5C(d) in the determination of the existence of the Court’s power. This provision requires that this Court needs to be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence in the future “…if not kept in detention under the order”.

22. When assessing unacceptable risk, it is no part of the test to consider, , the defendant's risk if adequately supervised in the community, as was formerly the case. The comparative exercise required by this subsection is to ask whether, if the defendant is not kept in detention, he poses an unacceptable risk of committing a serious offence. This test does not presuppose that the defendant will be the subject of an ESO. The comparison is simply between the circumstance in which the defendant is detained, and the circumstance in which he is not (keeping in mind the identified risks posed by the defendant).

23. I do not have a sense of any legislative ambiguity in the evaluative exercise which is called for by s 5C. Particularly is this so when one has regard to the terms of the Act prior to the amendment in 2017. Recourse to extrinsic materials for the purpose of understanding this provision is unnecessary.

24. Prior to the Amendment Act, the legislation required the Court to consider whether the defendant “…poses an unacceptable risk of committing a serious … offence if … not kept under supervision”. Once constituted as a high risk offender (either sexual or violent), the Court then needed to be satisfied that “… adequate supervision will not be provided by an extended supervision order”. The effect of this comparison was that a CDO could only be made if supervision under an ESO was not adequate.

25. Today, the legislation does not involve such a comparison. The only comparison that can take place is one between the safety of the community having regard to the level of risk, where a person is in detention or not. It is unsurprising then that the Attorney-General in his Second Reading Speech delivered 11 October 2017, said:

“The Bill will strengthen the test for deciding whether to impose a CDO. The test will be reframed so that an offender’s risk to the community is the emphasis, instead of whether he or she can be adequately supervised. Under the reframed test the Court must be satisfied that the risk of the offender committing another serious offence will be unacceptable unless a CDO is made. …”

26. The defendant, as is later demonstrated in this judgment, is a man who has been assessed by two experts as being affected by a number of mental illnesses and, perhaps, a personality disorder. His risk of engaging in further serious sex offending behaviours in the community in the long term is assessed as being a high one. Ms Jenny Howell, a forensic psychologist, assessed it as “well above average”. Dr Jeremy O’Dea, a forensic psychiatrist, said that the defendant’s risk of engaging in further sex offending would be “…considered significantly high”. There is no contradictory evidence to these expert opinions. I accept them.

27. Both Ms Howell and Dr O’Dea also expressed opinions about the likely effect of programs for the supervision of the defendant in the community and addressing the defendant’s risk of committing further offences. However, the legislation requires these opinions to be ignored by the Court in considering this aspect of proceedings of this kind.

28. The evidence is such that I should conclude that I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept in custody. The effect of this conclusion is that the Court has the power to make a CDO. The conclusion does not require the Court to make a CDO.

Should the Court make a Continuing Detention Order?

29. In determining this issue, the paramount consideration for the court is the safety of the community: s 17(2) HRO Act.

30. However, the Court is also to have regard to all of the matters listed in s 17(4) of the HRO Act. Against these criteria, it is necessary to consider the plaintiff’s claim that this Court ought, as a matter of discretion, to make a CDO for a 12 month period.

31. The State has in support of its claim put before the Court a very large quantity of documentary evidence, well over 1,000 pages. Although s 14 of the HRO Act places on the State an evidentiary obligation in support of an application for a CDO, the State’s documentary evidence went far beyond compliance with that obligation. These are civil proceedings: s 21 of the HRO Act. Each party to civil proceedings is under a duty to assist the Court to further the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings: s 56 of the Civil Procedure Act 2005. Much of the large quantity of documentary evidence tendered in these proceedings was not referred to by either party at any time during the oral evidence or the submissions. That is because it was not relevant. It is not readily apparent that either party has given any thought to the duties set out in s 56 of the Civil Procedure Act. They ought do so in the future. See also the comments of Hamill J in State of NSW v Schmidt [2019] NSWSC 764 at [13]-[14]. One course which the Court may need to consider if this approach continues is to make personal costs orders against legal practitioners.

Expert Reports

32. Two expert reports were tendered about the defendant. Dr O’Dea, expressed his opinion in a report dated 11 June 2019, and in oral evidence. Ms Howell, expressed her view in a written report of 5 June 2019, and in also oral evidence. These were the two experts appointed by the Court under s 15(4) of the HRO Act to conduct examinations of the defendant.

33. Dr O’Dea noted that the defendant was engaging and co-operative throughout the interview with him. He did not display any psychoses during the interview. He appeared euthymic during the interview and was able to display an adequate range of emotional responses.

34. Dr O’Dea noted that the defendant has a history of Bipolar Affective Disorder (“BAD”), which was first diagnosed and treated in 2003 when the defendant was 12 years old. BAD is a major mood disorder characterised by both depressive and manic episodes of mood disturbance. Dr O’Dea thought that in the defendant’s case it was long term, relapsing and that it required psychiatric medication. He said this:

“85.   … [It] can be characterised by long term problems with behavioural control, including ongoing problems with anger, aggression and violence, particularly in the context of non-compliance with treatment and ongoing alcohol and/or illicit substance use.”

35. In oral evidence, Dr O’Dea said that the defendant’s diagnosis meant that a combination of medication, such as Avanza and Zyprexa, would be appropriate to stabilise the BAD. Both drugs are known to work in combination to stabilise a person’s mood, and may take some weeks to achieve a therapeutic level.

35. Notwithstanding requests for psychiatric assistance whilst in custody, the first of which was made over 12 months ago, the defendant has not been prescribed this combination of medication. No explanation has been proffered by the State for the non-provision of medication and psychiatric assistance. Counsel for the State, in her final submissions, described this as ”… entirely unsatisfactory and perhaps, unpalatable”. In my view, whilst this was an accurate description, it was an understatement. I would regard the failure of the State to provide the defendant with essential and readily available psychiatric treatment by way of medication as a disgraceful abrogation of the State’s responsibility towards individuals serving a term of imprisonment.

36. Dr O’Dea also noted that the defendant was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”), an oppositional defiance disorder, from the age of five, in the context of behavioural problems.

37. Dr O’Dea remarked that the defendant would also satisfy the psychiatric diagnostic category of a substance use disorder, which in particular related to opioid use and potentially, as well, to alcohol and cannabis use. He noted that the defendant’s illicit opioid use was continuing in custody up to the time of his interview. Dr O’Dea thought that there may be some features of the plaintiff’s behaviour and personality that would qualify him for a personality disorder with some significant antisocial traits and psychopathic traits. However, he recognised that this diagnosis might be complicated by the defendant’s history of BAD and substance use disorder.

38. He said this:

“92.   Although prediction of risk in general, and the risk of an individual engaging in future sex offending behaviours in particular, remains a controversial endeavour in the psychiatric profession, it is generally agreed that the best predictors of future sex offending behaviours are past sex offending behaviours, particularly in the context of untreated or under treated major psychiatric illness, ongoing substance abuse, and specific and significant personality issues.

93.   As such, effective and long term treatment of Mr Sturgeon’s Bipolar Affective Disorder in the community is indicated to manage and minimise the risk of relapse of this illness and further general and sex offending behaviour. This would be best achieved by a structured and supervised community psychiatric treatment program conducted under the provisions of the New South Wales Mental Health Act 2007, by a Community Mental Health Service, with ready availability to inpatient psychiatric treatment as required.

94.   Such a treatment program should be assertive and long term, and involve specific and assertive alcohol and other drug counselling and rehabilitation, including consideration of opiate substitution therapy, with the aim of total abstinence from alcohol and illicit substance use in the community in the long term.

95.   ...

96.   In conjunction with, and as part of, this community psychiatric risk management program, focus should also be placed on Mr Sturgeon’s history of sex offending. As such, and as part of the community psychiatric risk management program, Mr Sturgeon should take the opportunity to explore, in further detail, with a suitably qualified and experienced forensic psychiatrist or forensic psychologist, his sexuality in general, and his sex offending behaviours in particular, with the aim being able to better manage his overall sexuality and his specific risk of engaging in further sex offending behaviours in the community in the long term.”

40. Dr O’Dea went on to express this opinion with respect to an ESO, he said:

“104.   That being said, successful implementation of the above risk management program; with conditions such as those described in the ‘Schedule of Conditions of Supervision’ as set out in the Summons filed on 21 February 2019; and the Risk Management Report dated 31 January 2019, prepared by Marc Corcoran, Senior Community Corrections Officer, NSW Government, Corrective Services, Attorney-General & Justice, Community Corrections; is likely to adequately and appropriately manage Mr Sturgeon’s risk of engaging in further sex offending behaviours; and likely to adequately and appropriately manage his risk of committing a further ‘serious sex offence’ (as defined in Section 5(1) of the New South Wales Crimes (High risk Offenders) Act 2006).”

41. Dr O’Dea was asked in evidence about a Community Treatment Order (“CTO”). He said, and I accept, that such an order would be likely to prove most effective for the defendant and would have the effect that he would be treated in the community under the provisions of the Mental Health Act 2007. He thought that a CTO would be of benefit to the defendant because of the existence of his major psychiatric illness and the difficulties with compliance with his treatment program. Dr O’Dea thought that if the defendant’s treatment was provided for under a CTO, it was likely to include monitoring and assistance with abstinence from alcohol and illicit substances.

42. Dr O’Dea noted that in practice, the obtaining of a CTO can often take two to four weeks, but it can be shorter than such period. In large part, he confirmed that a CTO depended upon the efficiency of the psychiatrist who attended the defendant – whether as an inmate or in the community. Dr O’Dea noted that there would be advantages to a CTO being obtained by the defendant from the psychiatrist responsible for implementing his mental health treatment in the community. He noted that the defendant had a history of attending at the Lake Macquarie Community Mental Health Centre where he had been seen previously by qualified psychiatrists.

43. Dr O’Dea did not express any opinion that the defendant’s psychiatric condition, and his predictable future behaviour, presented risks which could only be managed by keeping the defendant in custody. On the contrary, he was firmly of the view that the defendant would be best managed in the community where adequate care for his mental illness could be provided.

44. Ms Howell, in her report, noted that the defendant appeared to have engaged appropriately in the assessment process which she had undertaken on 30 May 2019. She said that his thought content and cognitive processes were appropriate, and his affect was normal. She did not observe any evidence of formal thought disorder or overt psychopathology.

45. Ms Howell’s assessment of the psychiatric conditions of the defendant largely accorded with those noted by Dr O’Dea. In particular, the defendant told her, correctly, that whilst in custody currently he was not being given any medication for his symptoms of bipolar disorder.

46. Ms Howell noted, that by reference to the typical statistical risk assessment tools available to experts with respect to static risk, the defendant fell into the well above average risk level, with rates of recidivism for sexual offences (not necessarily serious sexual offences) in the order of 24% to 30% over five years. She noted that the dynamic risk factors associated with the defendant’s risk of sexual re-offending suggested that he is in the high risk category.

47. Ms Howell went on to express this opinion:

“It is my view that Mr Sturgeon’s risk of recidivism can be managed effectively in the community under an Extended Supervision Order.

Mr Sturgeon completed the custody-based sex offender program in 2014 and is eligible for the community-based maintenance program through FPS. I understand the program is available in Newcastle and Mr Sturgeon indicated he would participate in the program to reduce his risk of re-offending. He has the option of fulltime employment with his father which offers him a daily purpose, stability and connection to the community in a supported and supervised environment. He intends to live with his father on release and has the broader support of his family in the community. Mr Sturgeon himself stated that he does not want to return to custody and is willing to abide by the conditions of an ESO in order to remain in the community.”

48. In her oral evidence, Ms Howell suggested that an appropriate period for an ESO was two years. When asked to explain why, she said:

“It gives him time to complete the maintenance program around sexual offending. … I think it’s probably really good because he’s able to talk about anything that comes up at that time. So any triggers, any thoughts, any views around getting into trouble and even just checking out what his views are. So I think the treatment program around sexual offending is really very beneficial to him. I think also it allows him to stabilise the fact that the ongoing drug and alcohol issues, which have been long term. And whilst he has been In custody he hasn’t had those problems. … I think there could be a number of stressors on him. All of which I think can be helped with under a Community Treatment Order and over a period of 2 years. Anything longer I think then just puts stress.”

49. Ms Howell did not express an opinion that a CDO would be appropriate to address the risks of the defendant. Rather, she suggested that the appropriate course was for an ESO with relevant conditions.

Risk Assessment Report

50. Mr Samuel Ardasinski, a senior psychologist employed by Corrective Services NSW, prepared a Risk Assessment Report in December 2018 on the basis of file materials, and without the benefit of speaking to the defendant.

51. Mr Ardasinski expressed this conclusion with respect to overall risk:

“50.   The STABLE-2007 can be combined with the STATIC-99R or STATIC-2002R to generate a ‘composite assessment of risk/needs’. Mr Sturgeon’s composite risk/needs level, when combining static and dynamic risk factors using either STATIC scale, was in Level IVb (Brankley, Helmus & Hanson, 2017). In accordance with CSNSW policy, this combined assessment of risk/needs level would suggest Mr Sturgeon will require a High level of intervention and/or supervision, according to the principles of Risk/Needs/Responsivity (Andrews & Bonta, 2010). (emphasis in original)

52. Mr Ardasinski placed a caveat on the use of actuarial instruments of the kind to which he referred to in the extract above. He noted that the recidivism estimates and relative rankings are based on groups of individuals and that those rankings will not necessarily directly reflect the recidivism risk of the individual defendant. He also noted that the STATIC instruments were not sensitive to the changes in an offender’s circumstances that may increase or decrease his actual risk of re-offending. Mr Ardasinski also noted that the re-offending predicted by the STATIC risk assessment tools in a criminal population “… may broadly relate to a range of sexual misbehaviours which may not be considered ‘serious’ offences”.

53. In the course of his report, Mr Ardasinski said:

“Regardless of Mr Sturgeon’s ultimate diagnosis, he has fared better in the community when managed and monitored by a mental health team, and has been medicated.”

54. Mr Ardasinski came to express some conclusions and recommendations. In particular, he compared benefits for the defendant remaining in custody or in the community. He set those out in this way:

“67.   In the event that Mr Sturgeon is considered suitable for a Continuing Detention Order (CDO), the main guarantee would be the protection of the wider community from further potential harm – his incapacitation in CSNSW custody would be a means of ensuring that the risks Mr Sturgeon poses of committing further sexual or violent offences could not eventuate, at least not against members of the general public. In terms of programming, Mr Sturgeon could complete further intervention to address his sexual offending, for instance if the custody-based Maintenance program was available to him. There are no indications this program will run in the near future, though. Monitoring of his custodial behaviour post-treatment may be warranted to ensure that he has consolidated any treatment gains, since behavioural changes can be noted in his daily interactions with staff and inmates. Mr Sturgeon may also be able to participate in the 20-session EQUIPS-Addiction program – although I note that this and other programs which may target Mr Sturgeon’s substance use are also available in the community. While not a hospital environment, incarceration may also provide a safer setting to monitor and manage his mental health, and to gain a better understanding of his treatment needs in this area in order that they can be better managed upon his release.

68.   In the event that he is considered suitable for an ESO, Mr Sturgeon would be subject to intensive supervision, strict monitoring and case management by CSNSW, which may or may not include the following risk management strategies:

a.   He will be referred to the community-based Maintenance program, provided by either Forensic Psychology Services Surry Hills (if he were to reside in Sydney) or Newcastle Community Corrections. He would likely be engaged in further group sessions to monitor his risks in the community. Such community-based group programming may be supplemented with individual interventions which may boost the dosage and thereby the intensity of any such intervention, if required. He may also be required to engage in further community-based intervention, such as alcohol and other drug counselling;

b.   His social contacts would be scrutinised, with the aim of increasing pro-social influences – his peer group may also be scrutinised to ensure he is not associating with single mothers or other vulnerable females for casual sexual encounters, or engaging with the criminal element;

c.   He may be subject to unannounced home visits and breath-analysis urinalysis/drug-swab testing;

d.   He may be obliged to wear electronic monitoring equipment and to provide a schedule of his daily activities, and he may be subject to a curfew. This may assist in his impulsive decision-making. I note he is currently wearing such an anklet, as part of the Domestic Violence electronic monitoring initiative instigated by CSNSW in 2018.

69.   The goal of any ongoing case management would be to encourage the development and maintenance of a stable and sustainable lifestyle, so that newly formed habits can be maintained even when Mr Sturgeon is not under any formal legal restraint.”

Risk Management Report

55. A risk management report was prepared by Mr Marc Corcoran and dated 31 January 2019. The report was prepared after a telephone interview with Mr Sturgeon and an examination of various records and documents.

56. It is fair to say that the defendant was unwilling, as at January 2019, to reveal to Mr Corcoran his post-release plans. Nevertheless, Mr Corcoran set out, in broad terms, a risk management plan that could be put in place to deal with the extent to which the defendant could be reasonably and practicably managed in the community. It is unnecessary to recount all of the details of an overall program. The type of management strategies which could be put in place generally reflect attention to the needs identified by both Dr O’Dea and Ms Howell.

57. What is of importance is the oral evidence of Ms Nicole Ahern, a psychologist employed by Corrective Services NSW and a supervisor of the ESO team, who informed the Court that there were a number of courses that would assist in the rehabilitation of the defendant but which were not available to him in custody. She said that they could be offered to him in the community or, if due to geographical limitations the courses could not be offered to him, substitute services designed to achieve the same effect could be made available in the area of his proposed residence.

Other Relevant Evidence

58. Ms Ahern would ordinarily be responsible for the co-ordination and management of treatment programs for sex and violent offenders in the correctional system in NSW. At the time she gave evidence she was not performing that role, but was on maternity leave. Nevertheless, she gave evidence about the defendant’s participation in various programs designed to assist in his rehabilitation, and whether those programs would be available to him after the conclusion of his sentence.

59. She confirmed that the defendant, whilst in custody, had successfully completed a program now referred to as the “High Intensity Sex Offender Program”. That program usually takes between six and ten months to complete, and involves over 300 hours of face-to-face treatment in a group setting. She expressed her opinion that successful completion of the course can significantly reduce the risk of sex offending.

60. There is a follow up maintenance program for individuals who have completed the High Intensity Sex Offender Program which, Ms Ahern said, used to be available both in custody and in the community. Insofar as it takes place in the community, the program is under the supervision of the Forensic Psychological Services, which is a part of Corrective Services NSW.

61. The maintenance program is not presently offered in NSW for those in custody and Ms Ahern noted that there was no specific plan to re-introduce it in the foreseeable future.

62. Ms Ahern also expressed the view that the maintenance program, which requires significant resources, is carried out for those in the community because it significantly reduces the risk of sexual offending. The defendant had access to that maintenance program during his last period of parole, and whilst that program is not available in the area where the defendant is intending to reside, a similar program can be provided for him by use of a non‑Corrective Services psychologist in his local area.

63. Ms Ahern also indicated that there was a custody-based program called the “Violent Offenders Therapeutic Program” (“VOTP”) which is undertaken in a specific residential area and lasts about 12 months including an assessment and treatment phase. Ms Ahern was of the opinion that VOTP would be an appropriate course to meet the needs of the defendant, who has been assessed as suitable to undertake that program. However, there are significant practical difficulties. First, there are no current and suitable vacancies available in the VOTP. Because of the rolling nature of the VOTP, it is not possible, with precision, to know when the next vacancy may be created. Ms Ahern hoped that that would not be any longer than six months, but she noted that her opinion was really a matter of some speculation.

64. Ms Ahern also agreed that, in the circumstances where the State was seeking only a 12 month CDO and given that the defendant was not presently on the VOTP, the reality was that he would not be able to complete it even if he continued to be detained in custody under the CDO which the State is seeking.

65. There were two other courses which Ms Ahern thought the defendant should undertake - EQUIPS Addiction (which would be available to the defendant in the community) and EQUIPS Domestic Violence (which would not be available in the community to the defendant).

66. However, Ms Ahern agreed that if it were thought that the defendant should address domestic violence issues, he could easily be referred to a number of community-based organisations that run programs about mitigating domestic violence.

67. In summary, Ms Ahern’s evidence was that there was considerable benefit (in terms of the defendant undertaking programs to address his criminogenic needs) for him to be in the community because those programs could be delivered there more readily and more efficiently than in custody.

Defendant’s Criminal History

68. Although the defendant has been committing offences for a considerable period of time (since he was 15 years old), there are two significant offences of a sexual kind. The first was in 2007 when the defendant, who was then 16, was charged with having sexual intercourse without consent with a victim older than who was not a juvenile. The defendant was dealt with as a juvenile under the Children (Criminal Proceedings) Act 1987. The defendant pleaded guilty to this offence, which the sentencing Judge found to be serious. He was satisfied that the defendant’s pre-existing psychiatric and intellectual conditions were causally related to the commission of the offence. The defendant was sentenced to 2 years’ probation subject to supervision by Juvenile Justice officers.

68. The defendant continued to engage in criminal conduct of a relatively minor kind. Much of this conduct was dealt with under the Mental Health (Forensic Provisions) Act 1990. Because of these various offences, the defendant was called up before the original sentencing Judge on the first sexual offence, and the probation order was revoked. He was re-sentenced to a two year Control Order, which was suspended for two years.

69. In October 2012, the defendant committed a further serious sexual offence, being an offence contrary to s 66C(3) of the Crimes Act 1900 (“the Crimes Act”) of having sexual intercourse with a person between the ages of 14 and 16 years. The victim was 15 years and 4 months. The offence occurred whilst the defendant was subject to a suspended Control Order. Accordingly, he fell to be sentenced for this serious sex offence and to be re-sentenced for being in breach of his suspended Control Order. He was sentenced to a total term of 4 years and 8 months imprisonment, with a 3 year non-parole period for the second serious sex offence. He was sentenced to 18 months imprisonment for the first sex offence. All but 6 months of the sentence for this offence was concurrent.

70. Despite having an unchallenged psychiatric expert report before her, the sentencing Judge did not, conclude that there was any relationship between the defendant’s undoubted mental illness and his latter offending.

71. The defendant was released to parole on 19 May 2017 and his sentence expired on 15 November 2017.

72. On 6 February 2018, the defendant was arrested for a number of relatively minor offences with respect to his relationship with his mother. After his arrest, the police gathered evidence that suggested that the defendant might have been in breach of his reporting obligations under the Child Protection (Offenders Registration) Act 2000. In short, the defendant was charged with a breach of the Act because he had failed to report that he had a close relationship with the young children of his then partner including driving them to school, taking them on outings to playgrounds and, from time to time, babysitting the youngest child. For this, he was sentenced to 14 months imprisonment commencing on 5 April 2018, with a non-parole period of 6 months concluding on 4 October 2018. This sentence concluded on 4 June 2019. It was whilst the defendant was serving this sentence that the present application was made.

73. Whilst on parole in late 2018, a Breach of Parole report was submitted by a Community Corrections staff member who identified aggressive behaviour on the part of the defendant and observed a deterioration of his mental health. Although originally the breaches were to be the subject of a warning, Community Corrections staff recommended the revocation of the defendant’s parole because of what the Parole Officer reported as being escalating aggression in the defendant’s demeanour and a refusal to comply with parole directions.

74. The defendant does not accept that there is any matter of substance with respect to his most recent breaching of parole. He attributes the breach of parole to a misunderstanding between his Parole Officer and himself, and a refusal to comply with medication requirements which he perceived to be inappropriate.

Discernment

76. What is plain to me from the defendant’s record and, in particular, the expert reports about the plaintiff’s psychiatric condition, is that a great deal of his offending is causally related to his mental illness and his drug and alcohol addiction.

77. The two serious sex offences which he committed when he was a juvenile resulted in jail terms. They were not insignificant offending. On the other hand, they are not the most serious examples of offences of the kind with which the defendant was charged.

78. I accept that there is a risk that, consistently with his past behaviour, the defendant, particularly if left untreated for his mental illness and his drug and alcohol addiction, will again commit another serious offence. However, that risk can be mitigated by treatment programs which are more readily available to him in the community than if he were to remain detained in custody.

79. The issue which is to be determined is whether, in the exercise of the Court’s discretion, a CDO should be made. As earlier indicated the defendant accepted that an ESO ought be made.

80. The State contended that a CDO ought be made because the accommodation proposals in the community for the defendant were unsuitable, there was no structured mental health plan proposed, and the defendant had ongoing drug and alcohol issues which had not been addressed. The context in which these points gained significance, in addition to the defendant’s past history, was that, when in the community, the defendant had regularly failed to take prescribed medication which would assist him in addressing his mental health illnesses. As well, in the past, he had consistently failed to attend community mental health centres.

81. Finally, the State contended that in light of his past conduct, the Court could not be confident that the defendant would comply with any conditions imposed under an ESO.

82. The State submitted that the 12 month period of a CDO would enable a mental health plan to be formulated prior to his release, his drug and alcohol issues to be addressed and, in particular, medication to be prescribed to stabilise his mood (whilst addressing his BAD) would mean that there would be a greater likelihood that upon release the defendant would comply with the conditions of an ESO.

83. When asked to explain the basis for a 12 month CDO rather than a shorter or a longer period, it became apparent that the 12 month period was not based upon any expert opinion or identified timetable of what was to occur in custody or else the completion of any one or other identified program or course whilst in custody. Rather, it was put by the State that it was a “suitable period of time to allow those matters to be put in place and to observe the defendant”.

84. The State pointed to the difficult relationship between the defendant and his father, and also the offences he committed in the early part of 2018 which involved his mother and which (it was submitted) pointed to the making of a CDO on the basis that there was no suitable accommodation available to the defendant having regard to those past difficulties.

85. This submission, as it seemed to me when made orally, did not address the contents of the affidavit of the defendant’s mother. There was no cross‑examination of the contents of this affidavit, and there seems to be no reason to reject the evidence.

86. The affidavit of the defendant’s mother provided a good deal of context and balance to the defendant’s personality and the events surrounding a number of the earlier offences. In particular, the defendant’s mother drew attention to the difficulties of the marital and domestic relationship between her and her husband which had an adverse impact upon the defendant’s behaviour. She records that she and her husband had now come to an agreement by which any conflict between them would be put to one side so that both of them could ensure that they provided adequate supervision of, and assistance to, the defendant. In particular, the defendant’s mother noted that for the first time she had separate and stable accommodation in which the defendant could live, if he did not wish to live with his father full-time.

87. The defendant’s mother lives in a two bedroom unit about 15 minutes from the house of her husband and the defendant’s father.. Both of the defendant’s parents are willing to have him live with them. The defendant’s father is quite ill. He has been diagnosed with cancer and requires assistance. At the moment, the defendant’s mother is providing that assistance as his care and it is hoped that the defendant will assist in the ongoing provision of some of his care.

88. Given these significantly changed circumstances, and in particular that the defendant’s mother has a separate home in which to live, the risk of re‑occurrence of the circumstances leading to the defendant being arrested for a breach of his parole are less likely.

89. The path ahead for the defendant now seems reasonably clear. If he stays in custody (as sought by the State), the risk of the commission of any serious sexual offence is removed. However, having regard to his history in custody, the Court can have absolutely no confidence that he will receive the appropriate medication to address his BAD, or have access to a proper program for drug and alcohol rehabilitation, nor is it likely, in fact it is unlikely, that he will receive any program directed to any sexual or violent offending. There is simply no plan as to how the defendant’s position will be addressed if he is to remain in custody. On the other hand, if he is released into the community under appropriate supervision, there remains a risk that he will commit a further serious offence. However, I am not satisfied that that is an unacceptable risk such that I should make a CDO.

90. Treatment for his mental illness is more readily available in the community than it would be in custody. As well, he would have the opportunity to engage with a Community Mental Health Team in the area where he will be living and for them to oversee his life in the community. His drug and alcohol addiction can also be addressed.

91. At the moment, the maintenance program for his high intensive therapy program can only be provided in the community. It will be of benefit to him to have that ongoing maintenance program available to him.

92. If those matters are addressed, by conditions on an ESO then, in my view, and in the exercise of my discretion and having regard to the objections of the Act, the safety of the community will be much better addressed by the making of an ESO and not by a CDO.

93. In those circumstances, I reject the plaintiff’s claim that a CDO ought be imposed.

Conditions of an Extended Supervision Order

94. The parties were at issue about the conditions which are appropriate to be imposed on an ESO and also the length of time over which it should continue.

95. The defendant, with some exceptions, did not oppose many of the conditions which were sought by the State to be attached to an ESO.

96. It is convenient to examine the principles upon which conditions ought be imposed before considering those which are disputed.

97. Section 11 of the HRO Act provides that the Court may direct an offender to comply with “… such conditions as [it] considers appropriate”. Little guidance, if any, is provided by that statutory requirement. The section goes on to nominate particular subject matters in respect of which conditions may be imposed. It does not purport to exhaustively list those areas.

98. Section 11(2) of the HRO Act includes the only mandatory condition, namely that an offender is not to leave NSW without the approval of the Commissioner of Corrective Services.

99. The bases upon which conditions are to be regarded as appropriate have been discussed in many cases. It seems that the following matters are regarded as relevant in determining what conditions ought be imposed:

1. an appropriate condition may be one which constrains particular conduct, or else imposes positive conduct obligations which are to be fulfilled: Attorney-General for NSW v Tillman [2007] NSWCA 119 at [10];

2. the imposition of conditions involves striking a balance between relevant considerations so as to provide an outcome which is “fit and proper”: State of NSW v Ali [2010] NSWSC 1045 at [88]; State of NSW v Fisk [2013] NSWSC 364 at [96];

3. as a breach of a condition has the consequence that an offence is committed, for which a term of imprisonment of up to 5 years may be imposed (s 12 of the HRO Act), there is a need for a proper basis to be demonstrated for a condition to be made in the first place: Ali at [88]; Wilde v State of NSW [2015] NSWCA 28 at [48];

4. ordinarily, it will be necessary for any condition which is imposed to be related to the mitigation of the identified unacceptable risk which led to the Court’s conclusion that the person was a high risk offender: State of NSW v Burns [2014] NSWSC 1014 at [59]; Wilde at [53];

5. any condition attached to an ESO must address issues relevant too identified risk factors in relation to future commission of serious offences and not criminal offending generally: State of NSW v Green (Final) [2013] NSWSC 1003 at [36]-[38]; Wilde at [45];

6. any condition which is imposed is not to be unjustifiably onerous or simply punitive: Green at [37];

7. a condition cannot be simply an expression of the State’s paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense, or because it might be a convenient or resource-efficient means for the Department exercising supervision under the ESO: State of NSW v Bugmy [2017] NSWSC 855 at [89].

100. Judges of this Court have for many years drawn attention to the inappropriateness of the State seeking standard or common form conditions in all matters in which an ESO is sought. Such standard or common form conditions do not accord with the relevant constraints to which reference has just been made. The State took such an approach when it first filed the Summons but after the preliminary hearing and as matters were raised, adjusted those conditions. At the start of the final hearing, the State filed a Further Amended Summons which attached the third set of amended conditions which it was seeking.

101. During the course of final oral submissions, the State’s position often changed with respect to particular conditions - counsel would put submissions in support of a particular condition and then, in light of comments made from the Bench or views expressed, would receive instructions not to press for a particular condition or to press for a re-drafted condition; submissions were put which pressed for the imposition of one proposed condition, although counsel conceded that the condition sought was to prohibit some conduct in respect of which there was no risk that the defendant would engage in it.

102. This approach does not accord with the duty of any party in civil proceedings. Rather, it suggests that the State is seeking to avoid its obligation to seek conditions which relate to the risk posed by the particular defendant, and instead to proceed by asking for all standard conditions as a matter of course regardless of the evidence and their relevance to a defendant.

103. As Fagan J noted recently in State of NSW v BG (Final) [2019] NSWSC 200 at [39], if conditions are imposed that are stringent and not reasonably specific to reducing the particular risks of re-offending in the community, they give rise to the real prospect that a breach of them, followed by prosecution and imprisonment, would interrupt and impede the liberty of the defendant and their realistic prospects of rehabilitation. Such a consequence would frustrate the secondary object of the HRO Act, which is to encourage a defendant to undertake rehabilitation.

104. A significant dispute centred upon whether the defendant ought be obliged to submit, in advance, a written weekly plan or schedule of his intended movements and then not to deviate from those scheduled movements without first obtaining approval from the Delegated Supervising Officer (“DSO”). The evidence in support of such a condition was given by Ms Kellie Grabham, an Operational Governance Officer from the ESO team.

105. Her evidence was that a schedule of movements was an important tool “… in the management of offenders who have been in custody for lengthy periods of time [and] who may lack the skills or experience of being in the community in a pro-social way”. The justification for such a condition did not relate directly to the defendant. “Pro-social” is an adjective which is an antonym of anti‑social. Here, I understand it to be used in a way typical of psychologists to mean conduct or actions intended to benefit other people and not oneself. It can also be used to describe behaviour which complies or accords with the standards imposed by a society or a group of people within a society.

106. The benefit of a weekly schedule was described by Ms Grabham in that it would allow “… the DSO to work with an offender to plan a structured and pro-social week whilst providing a framework for the offender to demonstrate how they should seek to function in the community”. Again, this was a generalised justification for the imposition of such a condition.

107. In the case of the defendant, it was said that scheduling would assist him in “structuring his day and providing him with purpose”. It was not explained why structuring the defendant’s day was important, nor what purpose was to be provided to him. Such generalised and vague statements are an unsound basis for the condition proposed which places a significant restriction on the defendant.

108. In her oral evidence, Ms Grabham said that having a schedule would allow the ESO team to be pro-active about the supervision of the defendant. It would also allow a DSO or the ESO team to observe his patterns of behaviour as they developed.

109. In cross-examination, Ms Grabham agreed that the schedule would proscribe the defendant’s movements to those places and at the times identified unless approval was first obtained to vary the schedule. She agreed, by way of example, that the defendant could not leave the house where he was residing and go for a walk if he chose to, unless it was already on the schedule or unless he telephoned and obtained approval to do so. Another restriction which could arise out of the schedule would be that if the defendant planned to attend a shopping centre to buy groceries, he could not enter a clothing shop at the shopping centre to purchase an item of clothing without first telephoning and seeking approval. Alternatively, if he did so it would be a matter for the DSO or ESO team to consider whether to take action (and if so what action) for a breach of his conditions with respect to the schedule of movements. No further justification for such a condition was advanced.

110. Ms Howell, the expert psychologist, expressed the view that for the defendant, scheduling would be likely to be particularly stressful and difficult. She also said that she did not think it would help manage his risks because of the extraordinary levels of stress which the schedule would cause the defendant. She also agreed that the electronic monitoring condition would provide a far more efficient method of tracking the defendant’s movements and developing behavioural patterns, without creating any additional stress arising from the provision of a schedule.

111. Ultimately, Ms Howell’s opinion was expressed in this way:

“It seems to me that monitoring probably meets the needs to know where he is and what he is doing, whereas the scheduling in and of itself will create enormous stress on him, and he doesn’t handle stress well and it certainly affects his mental strength in a very negative way.”

112. I accept Ms Howell’s opinion. I am satisfied that scheduling would be counterproductive to the defendant’s ongoing rehabilitation and that it would not, in his case, do anything which electronic monitoring could not otherwise do to ensure the safety of the community. As well, his serious sex offences were opportunities rather than related to particular locations which present any ongoing risks and may need to be avoided.

113. However, a more diary-like schedule recording his medical and health-related appointments, and any rehabilitation programs, would assist the defendant by reminding him of his upcoming attendances and would enable the ESO team to monitor compliance with those appointments and attendance at those programs.

114. There were other issues about various conditions to be imposed. It will be necessary to consider them separately, but that can be done so with some brevity.

115. Overall, in accordance with the remarks made earlier, the question is whether the condition is appropriate, and addresses the particular risks posed by the defendant.

112. On many occasions, the Court was asked to consider the proposition that the defendant before doing various things or going various places needed first to obtain the approval of the DSO. The defendant in broad terms submitted that it would be sufficient to let the DSO know what he was proposing to do in those particular cases rather than seeking the DSO’s approval and if the DSO took the view that that was inappropriate, he could give a direction accordingly.

113. In general terms, I prefer the defendant’s approach. It does not unduly restrict him and allows him to take responsibility for making decisions about his own life. Such a skill is essential if he is to be able to readily comply with the imposed conditions.

114. The first significant difference between the parties was in respect of the condition providing for accommodation. The State contended that the defendant could only reside at a place which it had first approved. In these particular circumstances, the defendant contended that he be able to reside with his father or else his mother or at any other address that had been approved. The addresses of the defendant’s father and mother were specified.

115. I accept, as the evidence shows, that there is a risk that the defendant’s relations with his parents could break down if he resided with them as has occurred in the past.

116. The solution proposed by the State was that some other accommodation, not necessarily in the area where the defendant has grown up and where his social contacts are, would be a better alternative.

117. I accept Ms Howell’s view that although there are some risks in the defendant residing with his parents, the overall benefits of such an arrangement exceed those risks. That is because the defendants’ parents are able to assist in the managing of the defendant’s condition, guiding him in his behaviours, ensuring that he takes his prescribed medication and assisting him to attend to medical treatments and rehabilitation programs.

118. I propose to impose a condition of the kind contended for by the defendant because it, rather than the one proposed by the State, directly addresses, more effectively, the mitigation of the risks of the defendant committing further serious offences because it provides parental support for him in the community which is most desirable.

119. The State sought a condition that the defendant not permit any person to enter and remain or stay overnight at any approved address without the prior approval of his DSO. The defendant opposed the imposition of such a condition.

120. I am satisfied that such a condition ought not be imposed because it is simply unworkable. The premises at which the defendant will reside are neither owned nor controlled by him. He has no capacity or authority to prevent any person coming on to those premises or staying overnight at the invitation of the person whose house it is. Here, the defendant would be exposed (if this condition was imposed) to committing an offence by being in breach of the conditions of his ESO solely as a consequence of the conduct of others over whom he has no control and lawful capacity to control.

121. I am not prepared to impose such a condition, which would not be appropriate in the circumstances of this case. Amongst other things, there is no demonstrated need for such a condition having regard to the risk posed by the defendant.

122. A number of conditions were directed to providing the DSO with the authority to undertake searches of the defendant’s person, places where he lives or vehicles in which he travels. As well, the capacity to remotely search the defendant’s internet use was also sought.

123. In general terms the conditions sought by the State were such as would enable them to effect those searches if the DSO reasonably suspected that a search was necessary to confirm the defendant’s continuing compliance with the ESO. The defendant accepted that it was appropriate to impose such conditions, but contended that it was only appropriate if the basis was that the DSO had to hold a reasonable suspicion that the defendant might be in breach of one of the conditions of the order.

124. Expressed differently, the State wanted to be able to conduct a search to confirm compliance, whereas the defendant contended for the fact that the State needed first to have a suspicion on reasonable grounds that the defendant was in breach of any of the orders, before any search could be conducted.

125. Conditions of an ESO are not punitive, nor must they exist for the convenience of the DSO or ESO team. I do not see why a search should be able to be conducted at any time to confirm compliance with any conditions of an ESO. Before any search which is intrusive of liberty can be conducted, the DSO must have a suspicion on reasonable grounds that there has been a breach of the condition and that a search should be conducted in order to establish that breach.

126. The conditions imposed will reflect all of these approaches and will accord with those imposed as part of the ISO on 1 July 2019.

Length of Extended Supervision Order

131. The State seeks an ESO for five years. Dr O’Dea concluded that an ESO ought appropriately remain in place for five years. Ms Howell opined that two years was appropriate.

132. The defendant submitted that the Court would accept Ms Howell’s opinion that a shorter period was appropriate, particularly since a shorter period would permit the necessary mental health treatment to be established, the defendant to enter into a reasonable routine and it would be inappropriate and unduly onerous to extend that for a five year period.

133. The State submitted that the Court should accept Dr O’Dea’s opinion that a five year period would be necessary.

134. The decision as to length of time is essentially evaluative and predictive. The State can always make an application for a further ESO at the end of an existing ESO if it determines that the safety of the community requires ongoing protection: s 10(3) of the HRO Act.

135. In my view, the better course is to fix a period which enables the defendant’s risk factors to be addressed, namely his mental illness, his drug and alcohol addiction and his stability in the community, and then to enable the defendant to demonstrate that he can live a stable life.

136. I assess this period as being three years from the date of the first making of the ESO.

Orders

137. I make the following orders:

1. Order pursuant to s 5B and s 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 three years from the date of the order; and.

2. Order pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006, that the defendant, for the period of the Extended Supervision Order comply with the conditions set out in Schedule A to this judgment.

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ANNEXURE A

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

The defendant must submit to the supervision of Corrective Services NSW (CSNSW).

The defendant must report to the Department Supervision Officer (DSO), being an employee of CSNSW, or any other person being an employee of CNSW supervising him.

The defendant must comply with any reasonable directions given by his DSO, or their delegate from CSNSW, for the enforcement and implementation of the Order or any conditions of the Order. 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.

Electronic Monitoring

The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him and when directed to wear such electronic monitoring equipment:

a.   must comply with all instructions given by the DSO or any other persons supervising him in relation to the operation of such equipment, and

b.   must not tamper with or remove such equipment.

Schedule of Movements

If directed, the defendant must orally provide information to his DSO which can be entered into a weekly plan which sets out the details of all medical and other health-related appointments which have been made by or on behalf of the defendant.

Part B: Accommodation

The defendant must reside with his father at 36 Park Avenue, Argenton NSW 2284, or his mother at 5/17 Campbell Street, Warners Bay NSW 2282, or at any other address that has been approved by his DSO (his approved addresses).

The defendant must be at one of his approved addresses or at an approved overnight visiting address where he may be staying in accordance with condition 9 below, between 10pm and 5am unless other arrangements are approved by his DSO.

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

(a)   Subject to (b) below, the defendant must not spend the night anywhere other than at one of his approved addresses without the approval of his DSO.

(b)   Despite (a) above, the defendant may seek approval from his DSO to spend up to two consecutive nights at any other address which has been approved by his DSO as an approved overnight visiting address, subject to the terms of that approval, which may be general or limited as to the number or frequency of visits. Such approval must be sought from the defendant’s DSO at least 24 hours in advance of the commencement of the first overnight visit at any such address.

Part C: Place and Travel Restrictions

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

The defendant must surrender any passports held by the defendant to his DSO.

The defendant must comply with any reasonable direction from his DSO not to go to a particular place.

Without limiting Condition 12 above, without prior approval of his DSO, the defendant must not enter any premises where the defendant knows that persons under 18 ordinarily reside.

Part D: Employment, Finance and Education

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 the DSO.

The defendant must give his DSO notice as soon as possible before commencing any paid employment or volunteer work and must comply with any reasonable direction from his DSO not to engage in particular employment or categories of employment or volunteer work.

Part E: Drugs and Alcohol

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

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

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

The defendant must not enter any licensed premises (excluding restaurants and cafes which are not contained within a licensed hotel or club) without the approval of his DSO.

The defendant must attend and participate in programs 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

The defendant must not associate with any unrelated female between the ages of 14 and 18 years except if he is the company of one of her parents, or else with the prior approval of his DSO.

Associations with others (not children)

The defendant must comply with any reasonable direction from his DSO not to associate with a particular person or persons.

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

The defendant must not knowingly associate with persons whose behaviour the defendant knows, can see or ought reasonably to see, is affected by alcohol.

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

The defendant must notify 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

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 also 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 may be requested by his DSO.

If the DSO suspects on reasonable grounds that the defendant may be breaching one of the conditions of this order and believes on reasonable grounds, that to conduct an inspection of the defendant’s internet information is likely to confirm or allay that suspicion, the DSO (or another CSNSW employee at the request of the DSO) may remotely inspect any internet account used by the defendant, including the defendant’s email addresses, in order to monitor compliance with this order.

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.

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

The defendant must provide a list of communication devices and data storage devices in the defendant’s possession and advise the DSO of any change to the inventory immediately.

Part H: Search and Seizure

If the DSO suspects on reasonable grounds that the defendant may be breaching one of the conditions of this Order and believes on reasonable grounds that a search is likely to confirm or allay that suspicion, the defendant must permit the DSO to conduct a search of the defendant’s approved address, or any vehicle in which he is travelling or which is under his effective control, provided that prior to conducting the search, the DSO has informed the defendant of the basis of that suspicion and the intention to conduct the search.

If the DSO suspects on reasonable grounds that the defendant may be breaching one of the conditions of this Order and believes on reasonable grounds that a personal search is likely to confirm or allay that suspicion, the defendant must permit the DSO to conduct a ‘pat down search’ (i.e. a search confined to those areas of the defendant’s body which are clothed) and consent to a search of any article of the defendant’s clothing carried by him but not worn, and a search of any bag or other receptacle in his possession, provided that prior to conducting any such search, the DSO has informed the defendant of the basis of that suspicion and of the intention to conduct the search.

Where the DSO believes on reasonable grounds, that anything found in the course of executing a search of the kind comprehended by Conditions 32 and 33 is related to behaviour or conduct associated with an increased risk of the defendant committing a serious offence (as defined), the defendant must submit to that item or those items being seized. If the DSO does not form that belief, the items must not be seized.

The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure carried out pursuant to Condition 33 above.

Part I: Personal Details and Appearance

The defendant must not change his name from ‘Mark Douglas Sturgeon’ or ‘Mark Douglas Sexton” or use any other name without the approval of his DSO.

The defendant must not without the approval of his DSO, use any alias, log-in name or a name other than ‘Mark Douglas Sturgeon’ or ‘Mark Douglas Sexton’ or use any email address other than those known to the DSO under Condition 27 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that require the user to have a user identification name or log-in email.

The defendant must not change his appearance without notifying his DSO.

The defendant must let CSNSW photograph him when reasonably requested to do so for the purposes of CSNSW maintaining an accurate image of the defendant’s current appearance.

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 J: Medical Intervention and Treatment

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

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

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

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

The defendant must agree to his healthcare practitioners sharing information with the DSO as to the fact of his attendance at appointments and his overall progress in therapy or counselling including the practitioner’s general opinion as to his development of insight into offending risk factors and strategies to abstain from substance abuse.

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 CNSW.

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Decision last updated: 12 July 2019