State of New South Wales v Tannous

[2020] NSWSC 292

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	State of New South Wales v Tannous [2020] NSWSC 292
Hearing dates:	6 March 2020
Date of orders:	23 March 2020
Decision date:	24 March 2020
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	1. Pursuant to ss. 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), orders that the defendant be subject to an Extended Supervision Order (“the ESO”) for a period of 3 years from the date of the order; and 2. Pursuant to s. 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), directs that the defendant, for the period of the ESO, comply with the conditions set out in the attached Schedule. 3. Orders that access to the Court’s file in respect of any document shall not be granted to a non-party without the leave of the 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 of access.
Catchwords:	HIGH RISK OFFENDER – final order for ESO made – issues as to Conditions to apply – duration of ESO – electronic monitoring – search and seizure – treating practitioner’s conveyance of information to DSO, only in some circumstances
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW), ss 4A, 4(1), 5(1), 5B(b), 5I(2), 10A, 11 Crimes Act 1900 (NSW), s 66C(1)
Cases Cited:	State of New South Wales v Grooms (Final) [2019] NSWSC 353 State of New South Wales v Holschier [2016] NSWSC 234 State of New South Wales v Lidster [2020] NSWSC 275 State of New South Wales v McQuilton (Final) [2019] NSWSC 265 State of New South Wales v Single [2019] NSWSC 176
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) Steven James Tannous (Defendant)
Representation:	Counsel: A Bhasin (Plaintiff) N Steel (Defendant)   Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant)
File Number(s):	2019/350353

Judgment

1. HIS HONOUR: By Summons dated, originally, 7 November 2019, the State of New South Wales (hereinafter “the plaintiff”) sought orders under the Crimes (High Risk Offenders) Act 2006 (NSW) (hereinafter “the Act”), being an Extended Supervision Order (hereinafter “ESO”) against Steven James Tannous (hereinafter “the defendant”). That application also sought an Interim Supervision Order (hereinafter “ISO”), a number of which have been granted and the latest of which expires today, 23 March 2020. The ISO’s which have been issued by the Court and imposed upon the defendant, also imposed Conditions pursuant to s 11 of the Act.

2. The initial orders that the Court made also ordered the examination of the defendant by psychiatrists and/or psychologists for the purpose of assessing the defendant as a high-risk offender.

3. Accordingly, the Court is required to deal with whether it should make final orders for an ESO. The defendant does not oppose the making of an ESO binding upon him but takes issue with its duration, and a number of the Conditions that the plaintiff seeks to impose upon him.

Principles

4. The Court recently granted an ISO, in other proceedings, and, in doing so, discussed, of necessity, the principles that apply to the jurisdiction and discretion reposed in the Court by the Act in the making of an ESO. Before one can impose an ISO on a defendant, it is necessary for the Court to be satisfied that the allegations, if proved, would satisfy the Court that an ESO ought to issue, imposing Conditions on the defendant.

5. The principles that apply to the making of an ESO have been the subject of comment by the Court on many occasions. To repeat that analysis would be to put in different words principles that are well accepted and have been recited on numerous occasions. Instead, the Court, as presently constituted, refers to State of New South Wales v Lidster [2020] NSWSC 275, and, in particular, [9]-[30], as a statement of the principles, without repeating those comments. Necessarily, the statement of principles in Lidster, supra, is a statement in the context of the imposition of an ISO, but, with the necessary changes being made, is applicable to these proceedings.

6. As earlier stated, the parties are agreed that an ESO should issue, binding upon the defendant. But, as the Court has stated on a number of occasions, which is particularly apposite to an ESO, as distinct from ISO, the jurisdiction to impose Conditions on a defendant and issue an ESO is a jurisdiction that depends upon the satisfaction of the Court. Agreement of the parties, while allowing the Court to deal in more summary form with the principles that are being applied, does not obviate the necessity for the Court to be satisfied of the preconditions prescribed by the Act.

The Risk

7. As earlier stated, the defendant is currently subject to an ISO under s 10A of the Act, the latest of which expires on 23 March 2020. As a consequence, the time of the hearing for the final order, and at the time of the writing of these reasons for judgment, the defendant is “supervised” within the meaning of s 5I(2) of the Act.

8. The term “offender” is defined in s 4A of the Act as a person who is of or above 18 years of age and has been sentenced to full-time imprisonment following conviction for a serious offence. A serious offence is defined to include a serious sex offence, which, in turn, is defined to include “an offence against a child under Division 10 of Part 3 of the Crimes Act 1900, punishable by imprisonment for 7 years or more”: see ss 4A, 4(1), 5(1) and 5(1)(a) of the Act.

9. The defendant was born on 6 January 1979 and is above 18 years of age. He was convicted on 10 June 2014 by the District Court at Lismore, in a judge alone trial before Wells DCJ, on five counts of having sexual intercourse with a child above the age of 10 under the age of 14. The maximum sentence for each of those offences is 16 years’ imprisonment: s 66C(1) of the Crimes Act 1900 (NSW), which section is found in Div 10 of Pt 3.

10. As a consequence of the foregoing, the defendant is a supervised offender within the meaning of s 5B(b) of the Act. The application was made in the last nine months of the defendant’s custody or supervision, in accordance with s 6(1) of the Act.

11. As stated, by reference to my judgment, this week, in Lidster, the Supreme Court must be satisfied “to a high degree of probability” that the defendant poses “an unacceptable risk” of committing another serious offence if not under supervision. This is a precondition to the making of an ESO.

12. Also stated is the concept that the assessment of the unacceptability of the risk is an assessment that weighs, on the one hand, the likelihood that the risk will manifest and, on the other hand, the consequences if or when the risk does manifest. Thus, if the consequences of the manifestation of a risk are extremely grave, then the level of probability or likelihood that the risk will manifest may be proportionately lower. Conversely, if the risk of the manifestation of a serious offence is high, then the consequences of the manifestation of that risk can be less serious.

13. The Court possesses a discretion as to whether to grant an order, but that discretion is not in the assessment of the unacceptability of the risk. Rather, it exists at the point where the Court is required to determine whether an order should be imposed.

14. As earlier stated, the index offences, upon which the plaintiff relies, involved five counts of sexual intercourse with a 10-year-old child committed in mid-2012. These were offences under s 66C of the Crimes Act. The facts of the offending can be stated shortly.

15. The offences occurred during a four day camping trip in the Nymboida area involving the defendant, the victim, the victim’s uncle and uncle’s four-year old son.

16. The first offence occurred when the defendant told the victim to wake him early. When this occurred, they collected firewood and during that episode the defendant put the victim’s penis in the defendant’s mouth (Count 1).

17. The four other offences occurred on 31 July 2012, when the defendant again asked the victim to wake him early, at which time the defendant put the victim’s penis in his mouth (twice) and inserted his fingers in the victim’s anus (also twice). During the commission of these offences (between the first occasion of each of the physical assaults and the second of the physical assaults) the victim tried to dress and escape but was physically restrained by the defendant.

18. The defendant pleaded not guilty and was convicted. He was sentenced on 10 June 2014 to an overall sentence of 7 years and 6 months imprisonment, with a non-parole period of 4 years and 6 months, dating from 28 July 2012.

19. The sentencing remarks note that the defendant was a long-term user of cannabis and was using about 50 cones a day to self-medicate for stress. He also stated that he did not remember the offences.

20. The defendant’s criminal history includes other offences of a sexual nature, albeit that the victims in each case were not as young as the victim in the index offences.

21. There were offences in 1999 in which the defendant was convicted of an act of indecency and threatening injury to a person with intent to commit an indictable offence. The victim in that case was an 18-year-old female at a point in time that they were both smoking marijuana in a hotel room. It also involved the defendant using a knife close to the victim’s face and neck and attempting to handcuff her wrists. It also involved other sexual conduct.

22. In 2004, the defendant was convicted of an offence that was committed on 23 June 2002, being aggravated indecent assault against a 15-year-old. To that offence the defendant pleaded guilty and the offence, according to the Agreed Facts, involved the defendant approaching the male victim at a skate park and pushing him, against his will, into a Girl Guides Hall. After that, the defendant grabbed the victim’s arm and ushered the victim into a toilet block and pinned him against a wall. He then committed the offence of fondling the victim and exposing himself. This offence was committed while the defendant was on parole in relation to the 1999 offence.

23. The defendant has also been convicted of common assault and drug offences, on a number of occasions. One of those common assaults involved a 13-year-old boy who was led into a toilet block.

24. At the age of 21, the defendant made public his homosexuality before which there was a period of confusion for him. The reports before the Court both historically and currently, suggest a high libido and a significant number of different sexual partners, at least since he was 18.

25. Expert reports are before the Court from Dr Andrew Ellis, being a report of 13 February 2020, and of Mr Patrick Sheehan, dated 16 February 2020. Dr Ellis is a Forensic Psychiatrist and Mr Sheehan is a Forensic Psychologist. Each of them is known to the Court and each of them is experienced and of renown.

26. Dr Ellis, in a thorough report, discusses the issues associated with deviant sexual arousal as “the most prominent risk factor for sexual reoffence”, referring to authorities in that respect. He also refers to the defendant’s offence history likely indicating this pattern of arousal given the male child victims and coercive force and other such matters. Dr Ellis describes the defendant’s offending as chronic over the years and involving, in relation to the most recent convictions, psychological coercion, being the luring of the victim away from others and the implication of a special relationship.

27. Dr Ellis also deals with antisocial personality orientation as another factor consistently identified with sexual reoffending. Dr Ellis makes it clear that the defendant is not diagnosed with Antisocial Personality Disorder but has displayed poor interpersonal function in his adult years. He raises the possibility that this is a result of or relates to delays in neurodevelopment maturity.

28. Dr Ellis opines that the defendant will require ongoing support for his treatment to moderate his interpersonal functions. Further, Dr Ellis, while discounting substance use as having a strong association with sexual offending, refers, instead, to the type of possible sexual offence that would be considered a risk. Dr Ellis expresses the opinion that, given the opinion on sexual arousal, victims would likely be unsupervised male children and that it was a real possibility that threats of physical overpowering would be employed. Nevertheless, Dr Ellis suggests that the offending would probably be opportunistic.

29. Ultimately, Dr Ellis expresses the view, after considering actuarial, structured professional and clinical parameters, that, in the absence of any treatment or supervision, the defendant would fall into a group of persons with a statistically high risk for sexual offending, being a risk that is greater than a theoretical average offender. Specific treatment, according to Dr Ellis, together with supervision would be likely to reduce the risk, which, Dr Ellis suggests, is demonstrated by his current reasonable community transition under supervision and support.

30. Mr Sheehan reaches much the same conclusions, independently. In the executive summary of his report, after stating the history, including the sexual offences, he describes the sexual offence history as spanning a 13-year-period and as “showing perseverance and insensitivity to punishment, with diversity of gender, victim age and relationship to victim”. Mr Sheehan points to the two years of community supervision that the defendant has enjoyed, without reoffending, revocation or drug use, which Mr Sheehan describes as “notable”.

31. Nevertheless, Mr Sheehan, after considering all of the available information, is unable to express “confidence that [the defendant] is sufficiently rehabilitated to the point where he could manage himself independently in the absence of supervision”. He described the defendant’s substantial risk of deterioration and the making of poor decisions, which would elevate his risk of sexual re-offending. He expressed the opinion that a period of two years may be sufficient to achieve more enduring community adjustment.

32. In the course of his report, Mr Sheehan refers to the defendant having “engaged in a high level of casual, impersonal and often anonymous sexual activity with other males in his lifetime, with hundreds of partners, sourced through sex clubs and social media sex applications”. There is also a reference to his sexual activity in the prison system that was more pronounced than the defendant seems to accept or admit.

33. Mr Sheehan referred to the static and dynamic testing provided to the defendant which granted a score of 8, still current, on the Static-99R. Such a score places the defendant in the high-risk or well-above average risk category, relative to other male sexual offenders. Other testing confirmed the reliability of the tests administered and upon which Mr Sheehan relied.

34. Static testing has significant limitations, of which all judges that have dealt with high-risk offenders are aware. The static testing will rarely, if ever, alter, except in the very long term, because it relies upon historic aspects of the defendant in question.

35. Mr Sheehan went on to deal with the Risk of Sexual Violence Protocol (RSVP), which is a structured professional judgement tool in which the offender is assessed in relation to a list of 22 dynamic risk factors, deemed important in statistical studies in the scientific and professional literature. In dealing with those factors, Mr Sheehan referred to the sexual violence history which is a risk marker for sexual violence and noted that the defendant’s convictions span a period of 13 years, which would be regarded as chronic in terms of persistence.

36. There are multiple victims and a diversity of offending in terms of relationship to victims (being persons who were known to the defendant as against those who are strangers). There is also a diversity in the victim’s age (offences were committed against children, adolescents and adults) and gender. Clear evidence of physical coercion exists, but minimal psychological coercion, and there is evidence of escalation of the offending with the most recent offences being the most serious.

37. In discussing psychological adjustment, Mr Sheehan notes that the defendant has, in the past, denied or severely minimised his sexual offending. Nevertheless, of recent time, he has progressed significantly in that regard. The defendant’s self-appraisal remains an ongoing problem and there are chronic problems with stress and coping that substantially impair his functioning. The defendant denies any history of child abuse.

38. Mr Sheehan notes that sexual deviance is strongly and specifically associated with sexual violence, but that may not on its own be a necessary or sufficient basis for the perpetration of sexual violence. Other risk factors include psychopathic personality, major mental illness, substance use, and violent/suicidal ideation. Substance use is an obvious issue in relation to the defendant, but Mr Sheehan would not regard the defendant as psychopathic.

39. In terms of social adjustment, Mr Sheehan repeats that problems with social adjustment may precipitate sexual violence by increasing vulnerability to life stressors. He describes the defendant as having problems with intimate and non-intimate relationships and oscillating between inappropriate or conflict-prone relationships to social isolation. He also has problems maintaining employment and has a history of non-sexual criminality, but not for 20 years.

40. Without repeating all of the discussion of Mr Sheehan in his report, it is sufficient for present purposes to note that, while prediction of the offence type is less reliable because of the diversity of the defendant’s sex offending, the defendant would seem more at risk of offences against young males. That offending would likely involve touching and frottage, but could involve sexual intercourse offences. The presence of aggression is a possibility but serious or life-threatening injury would be inconsistent with the history of offending.

41. In summary, Mr Sheehan assesses the defendant as within the high-risk or well-above average-risk category with regard to actuarial factors and also identifies a number of dynamic risk factors that would appear to support such a categorisation. He, quite appropriately, notes some amelioration in a number of dynamic risk factors over the years, and, in that regard, refers particularly to the time in the community under supervision that has occurred over the last two years. The two-year supervision, while significantly reducing risk, does not have “sufficient protective value to reduce his overall risk rating at this time”, according to Mr Sheehan.

42. Mr Sheehan estimates the defendant’s risk of committing a sex offence to be in the high-risk category relative to other adult male sexual offenders.

43. Mr Sheehan expresses the view that supervision, and the Conditions that could be imposed under supervision, could adequately and reasonably manage the risk of sexual recidivism posed by the defendant. Mr Sheehan also comments on the Conditions that were proposed by the plaintiff.

44. In light of the opinions of Dr Ellis and Mr Sheehan, the agreement between the parties, as to the unacceptability of the risk posed by the defendant of the commission of a serious sex offence, is one that reflects the circumstances. The Court agrees with the assessment of the plaintiff and the defendant that there is an unacceptable risk that warrants the making of an ESO binding the defendant to Conditions, pursuant to the terms of s 11 of the Act.

Conditions and Duration

45. As earlier stated, there was agreement between the parties that an ESO should issue, binding on the defendant. The disagreement between the parties related to the Conditions and the terms of the Conditions that should be imposed under s 11 of the Act, binding on the defendant, as well as the duration of the ESO.

45. The Court is not bound to impose Conditions within a narrow band, but the Conditions must be relevant to the risk factors associated with the defendant and seek to achieve the purposes of the Act. I bear in mind that the safety of the community must be the primary objective of the issuing of an ESO and the Conditions that are imposed in that ESO, pursuant to the terms of s 11 of the Act.

46. Of the latest set of Conditions, proposed by the plaintiff, those that were in dispute are Conditions 4, 12, 23, 29, 37, 38, 39 and 40. During the course of the hearing, agreement was reached in relation to Condition 29, obviating the Court from dealing with it to any great extent.

47. Further, the latest version of Conditions, supplied by the plaintiff, refers to a number of Conditions which have been the subject of discussion between the parties and have been agreed. The Court congratulates the defendant, in particular, and the legal representatives of both the plaintiff and the defendant on the common sense and compromise that has been shown and is evidenced by the level of agreement in the Conditions. Each of the agreed Conditions is appropriate and will be included in the Order.

48. I deal with the Conditions that have not been agreed, seriatim, save for the issues of the electronic monitoring (Condition 4) and the duration of the ESO. In relation to the duration of the ESO, the issues of electronic monitoring and the other Conditions, I bear in mind that the plaintiff has the capacity to apply to vary the Conditions and/or to renew the ESO.

49. As already stated, there is significant agreement between the parties as to the nature of the Conditions that should be imposed. I have been provided with a schedule of Conditions highlighting those Conditions that are not agreed together with a schedule, being the “JOINT TABLE OF CONDITIONS IN DISPUTE FOR THE FINAL HEARING”, which were Marked for Identification 2 and 1 respectively. I reiterate my congratulations to the parties not only for the level of cooperation but also for the assistance provided to the Court in dealing with the issues.

Condition 12

51. The difference between the parties relates to whether this Condition should apply to all co-residents or exempt the defendant’s parents. Further the difference between them relates to allowing people to stay overnight, as distinct from inviting people to stay overnight, without the express approval of his Department Supervising Officer (hereinafter “DSO”).

52. It seems that the Condition that he not allow people to stay overnight in circumstances where he is living with his parents is an unnecessary restriction, which will achieve none of the goals or purposes of the Act. Nevertheless, there may be times when his parents may be absent overnight. As a consequence, it seems to me that the exemption for his parents should be part of the Condition, but there should be a provision that requires the defendant to notify the DSO if, in the circumstances of such an invitation, his parents are not staying overnight at their residence.

53. In those circumstances, it seems that the exemption should be in the following terms: “(other than his parents, when his parents are at the residence)”, which provision shall be inserted immediately after the words “co-residents”, where first appearing in proposed clause 12(A) of MFI 1.

54. In relation to Condition 12(B) I accept that the Condition ought not prevent an adult person entering, remaining or staying overnight whilst the defendant is residing with his parents. As a consequence I accept the proposed Condition that the defendant has put forward, subject to the view I have expressed in relation to Condition 12A.

Condition 23

55. The terms of Condition 23, proposed by the plaintiff, are not unusual for an ESO (or ISO). The defendant has been at liberty for a 2 year period, during which he has attended a therapist, who is dealing with the defendant’s past abuse of drugs.

56. The defendant continues to attend his therapist and there is no reason for any other drug or alcohol rehabilitation programme or course. In the unlikely event that the defendant prematurely or inappropriately ceases his therapy, then the plaintiff can apply to the Court for the insertion of an appropriate condition. The proposed Condition 23 will not be imposed.

Condition 29

57. The issue between the parties in relation to the wording of this Condition does not relate to significant issues of principle. It is not an issue between the parties that in the circumstances to which Condition 29 relates, the person with whom the defendant is in a relationship, being a sexual relationship, where that relationship is likely to bring the defendant into contact with children, then the person should be aware of the defendant’s criminal history, so that the person can safeguard and/or protect those children. The difference relates to how the person will be informed.

58. The plaintiff proposes that the DSO is entitled to tell the person about the defendant’s criminal history. During the course of the evidence of the two experts, Dr Ellis and Mr Sheehan, there was, it seems to the Court, a degree of consensus between the experts in this area. It is preferable, from the point of view of the rehabilitation of the defendant, to encourage a stable relationship. Further, that stable relationship is encouraged best by allowing either the defendant or the defendant’s therapist to inform the person with whom the defendant is in such a relationship. Obviously, such a therapist would do so only with the permission of the defendant.

59. The defendant proposes a Condition that seeks to deal with that proposition, but the wording of it, in the Court’s view, needs to be amended so that the DSO can be assured that the information has been conveyed.

60. As a consequence, the Court proposes the following Condition:

“29    If the relationship is reasonably likely to bring the defendant into contact with children, and the DSO believes, on reasonable grounds, that it is necessary to tell that person about the defendant’s criminal history for the safety and protection of the children, then the defendant must satisfy the DSO that his criminal history has been disclosed to the person or provide consent for the DSO to disclose his criminal history to the person.”

61. The foregoing deals with issues raised by the Court, otherwise, the proposal of the defendant had been agreed.

Conditions 37- 40

62. The difference between the parties is one that turns on a difference in the attitude of the Court to search and seizure Conditions that should be applicable. Some judicial officers, who have dealt with search and seizure Conditions, seek to have those Conditions reflect better the common law’s protection of the citizenry against arbitrary search and seizure: per Hamill J in State of New South Wales v Single [2019] NSWSC 176 at [37].

63. In that regard attention is also drawn to the discussion by Hidden J in State of New South Wales v Holschier [2016] NSWSC 234 at [42]. See also Fagan J in State of New South Wales v McQuilton (Final) [2019] NSWSC 265. The foregoing reasons for judgment were discussed by Fullerton J in State of New South Wales v Grooms (Final) [2019] NSWSC 353 in which her Honour said:

“[106]    I am conscious, as was Hamill J in Single and, more recently, Fagan J in McQuilton at [103] citing his Honour’s earlier decision in BG (Final) at [74]-[79], that the sweeping powers of search and seizure in the common form conditions sought by the State under the Act are without the variety of checks and balances against the misuse of the search and seizure power expressly provided for in Parts 4, 5 and 6 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).

[107]    Mr Wilson did not invite me to come to a different view to that reached by Hamill J. It was his submission, however, that in the circumstances of this case there was simply no justification for the imposition of a condition allowing for the defendant or his premises to be searched. He submitted that the absolute prohibition on the defendant taking or possessing prohibited drugs, and the qualified prohibition on him entering licensed premises or drinking alcohol without prior approval, coupled with an obligation that he submit to drug and alcohol testing as directed (conditions to which he raised no objection) were sufficient to address the identified risk of him committing a further serious offence whilst under the influence of alcohol or prohibited drugs.

[108]    I am satisfied that a condition allowing for the search of the defendant or his premises should be provided for but in a modified form so as to bring it into closer alignment with the statutory powers of search and seizure in the Law Enforcement (Powers and Responsibilities) Act. I am satisfied that it is appropriate to provide for that condition in this case but only where the departmental supervising officer forms a reasonable suspicion that the defendant is in possession of alcohol, drugs or a drug-related item, it being the view of the court-appointed experts that there is an enhanced risk of the defendant committing of a further serious offence were he to abuse drugs or use alcohol. I am not satisfied, however, that there is any justification to allow for a departmental supervising officer to search any portable electronic device or computer in the possession of or operated by the defendant, whether on that basis or on any other basis.”

64. Of course every situation, facing a judge, required to assess the appropriateness of a particular Condition or its terms, will reflect the particular circumstances of the offender against whom an ESO is sought to be made. The proposal of the defendant which affects both Conditions 37 and 38 is, in terms, similar to that imposed by Fullerton J in Grooms.

65. Unlike the plaintiff’s suggested Conditions it restricts the right to search and seizure to the confirmation of continuing compliance with Conditions 21 (drugs), 31 (weapons) and 32 (electronic devices). Whereas the plaintiff suggests an unlimited right of search and seizure so long as it is necessary for the safety and welfare of residents, staff or persons at the defendant’s approved address; to monitor the defendant’s compliance with the order; or based upon a reasonable suspicion by the DSO that the defendant is behaving or conducting himself in a manner which involves an increased risk of the defendant committing a serious offence. There are some aspects of the defendant’s proposal which are, in my view, important. First under the defendant’s proposal the DSO is required to state the basis of the suspicion as to the precondition prior to the defendant being required to consent to the search.

66. In all of the circumstances, particularly those relating expressly to this offender, I consider that the conditions for search ought not be limited to those Conditions to deal with drugs, weapons or electronic devices. Apart from that, it seems to me that the Conditions and terms of the defendant’s proposal are more restrictive and better serve the purposes of the Act. I make it clear that I consider that the defendant’s proposal, unrestricted as to Condition, conforms with the Court’s primary concern as to the safety of the community, but I also accept that it will assist in the rehabilitation of the defendant.

67. In that regard, and subject to the removal of the Conditions, compliance with which is sought to be confirmed, the defendant’s proposal for Condition 39 is also adopted. As a consequence, the Court proposes Conditions 37, 38 and 39 in the following terms:

“37.    If the DSO reasonably suspects that a search of the defendant’s approved address, or any vehicle in which he is travelling or which is under his effective control is necessary to confirm his continuing compliance with these Conditions, the DSO must inform the defendant of the basis of that suspicion. The defendant must then, if directed by the DSO, consent to that search or those searches.

38.    If the DSO reasonably suspects that a search of the defendant’s person is necessary to confirm the defendant’s compliance with the Conditions of the ESO, the DSO must inform the defendant of the basis of that suspicion. The defendant must then, if directed by the DSO, consent to “a pat down search” (that is 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.

39.    Where the DSO believes, on reasonable grounds, that anything found in the course of executing a search of the kind comprehended by Conditions 37 and 38 is related to behaviour or conduct associated with an increased risk of the defendant committing a serious offence (as defined) or a breach of this ESO, the defendant must submit to that item or those items being seized. If the DSO does not form that belief, the item or items must not be seized.”

68. Related to the foregoing is the proposal of the plaintiff that Corrective Services be permitted to search any phone, tablet device, data storage device or computer that the defendant may use. The defendant opposes that Condition and seeks an amendment to Condition 41 to reflect the deletion of Condition 40.

69. Bearing in mind the two expert reports provided and the risk of escalation, it is not inconceivable that the defendant could seek to use his phones and other electronic communication devices to contact potential victims and the requirement to allow Corrective Services to search such communication devices is not, in my view, unreasonable. Nor is it unrelated to the sexual offending in question. In those circumstances, the Court will not delete Condition 40 and will not amend Condition 41. I turn then to deal with the duration of the ESO and the Condition as to electronic monitoring.

Duration of ESO and Electronic Monitoring

70. The plaintiff proposes a duration for the ESO of 3 years, based, it is said, on the expression of opinion by Dr Ellis that the period of 3 years for an ESO was reasonable. Mr Sheehan, on the other hand, expressed the view that a period of 2 years may be sufficient to achieve more enduring community adjustment, as I have recited earlier. As a consequence of that latter opinion, the defendant proposes a period of 2 years.

71. In my view, a period of 2 years is insufficient, if the Court is required to put the safety of the community as the primary purpose in the making of an ESO. There is no doubt that the 2 years in which the defendant has been at liberty, and during which the defendant has not offended, are a strong indication that the defendant has sufficiently rehabilitated to warrant a shorter, rather than longer, ESO.

72. Nevertheless, the most that Mr Sheehan opines is that the 2-year period “may be sufficient”. In my view, a 3-year period is neither unreasonable nor inappropriate and will allow for continuing rehabilitation and treatment in the matters to which each of the experts refer. The ESO will last for 3 years.

73. The Court is dealing with the duration of the ESO and the electronic monitoring together, for obvious reasons. There can be little doubt that the ESO is an imposition on the defendant. There are few people who could, subject to the permission of another, comply with the Conditions required of the defendant in this ESO, or any defendant in any ESO.

74. However, those Conditions are implemented because of the particular and high risk of reoffending in these serious offence areas. But the greatest imposition in terms of liberty is the requirement to wear an ankle bracelet or other device for the purpose of electronic monitoring. That is why it is necessary to deal with the duration of the ESO and Conditions on the requirement to wear electronic monitoring as related items.

75. As earlier stated, the defendant has been in the community, for a period of two years, under a supervised regime, during which the defendant has not acted in any way that is of concern. One of the issues that the Court must balance, in fixing an appropriate term for the duration of an ESO and, relatedly, the duration of electronic monitoring, is to ensure that the defendant is not so overborne by the length of time in the ESO and for which he would be required to wear electronic monitoring that he either surrenders any attempt to comply with “normative” behavioural patterns or becomes so depressed that he is incapable of compliance.

76. The defendant’s excellent behaviour, for the period of time that the defendant has been on conditional liberty, allows the Court to be significantly more confident that a substantially shorter period for the wearing of electronic monitoring equipment will satisfy the purposes of the Act and ensure an appropriate amelioration of any concern for the safety of the community. As a consequence, the Court is minded to accept the principles sought to be achieved by the proposal of the defendant.

77. However, there are difficulties with the defendant’s proposals. First, it is conditioned upon the commission of an offence or the charging for an offence. There may be many breaches or significant conduct that would inevitably lead to a breach of Conditions and which it is best, for the purpose of rehabilitating the defendant, not to charge. Further, there may be other criminal offences that might be committed which do not add to any increased risk in the defendant. I am not here encouraging the commission of any criminal offence.

78. At the same time, the DSO could reasonably come to the opinion that there has been a breach or that a criminal offence has been committed, but there has been insufficient time for the police to collect the evidence necessary to charge the defendant with or to convict him of a criminal offence. As a consequence, the Conditions proposed by the defendant, particularly Condition 4A, will be preconditioned, not by the “charging” of a breach of the order or other criminal offence, but with conduct that, in the reasonable opinion of the DSO, has breached the ESO or involves the commission of another offence.

79. Again, I am minded to reiterate that, if difficulties occur short of a breach of the order or the commission of a criminal offence, it is in the discretion of the plaintiff to apply for a variation of the Conditions of the ESO. I am also minded to insert a subjection to the provisions of what will become Condition 4. That subjection will be inserted at the commencement of the first sub-clause and will be in the following terms: “Subject to the operation of the other Conditions 4A, 4B and 4C”.

80. Further, the period, in Condition 4A, during which the defendant has not, in the reasonable opinion of the DSO, breached the order or committed any criminal offence, will require the removal of the electronic monitoring equipment, will be eight (8) months. Conditions 4 – 4C will now read:

“4    Subject to the operation of Conditions 4A, 4B and 4C, the defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him.

4A   If the defendant has not, in the reasonable opinion of the DSO, breached the ESO, or committed any other criminal offence, for a period of eight (8) months from the date of the commencement of this ESO, the defendant will no longer be required to wear electronic monitoring equipment and, subject to Conditions 4B and 4C, Condition 4 shall cease to operate to allow the DSO to require the defendant to wear electronic monitoring equipment.

4B   If, pursuant to the operation of Condition 4A, electronic monitoring is removed and, thereafter, the defendant, in the reasonable opinion of the DSO, breaches this ESO or has committed any other criminal offence, the DSO, or any other person supervising the defendant, may direct the defendant to wear electronic monitoring equipment, in which circumstance the provisions of Condition 4 operate again and Condition 4A ceases to operate.

4C   If Condition 4B has operated and the defendant has again been directed, pursuant to the provisions of Condition 4, to wear electronic monitoring equipment, and it later becomes clear, by virtue of an acquittal to any charge based on the conduct that was the catalyst for the operation of Condition 4B, or the DSO forms the opinion that the ESO was not breached nor any other criminal offence committed, then that conduct can no longer be a basis for the operation of Condition 4B, and Condition 4A will again operate to disentitle the DSO from directing the defendant to wear electronic monitoring equipment.”

Conclusion

81. The Court makes orders that include the usual terms requiring the defendant to be bound by an ESO and the Conditions that reflect the foregoing reasons for judgment and restricting access to the file. The terms of those Conditions are annexed to these reasons for judgment.

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Decision last updated: 25 March 2020