State of New South Wales v Wilde (No 2)

[2017] NSWSC 1501

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v Wilde (No 2) [2017] NSWSC 1501
Hearing dates:	17 October 2017, 18 October 2017, 19 October 2017 and 25 October 2017
Date of orders:	03 November 2017
Decision date:	03 November 2017
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	(1) Pursuant to s 5C and s 9(l)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) the defendant is subject to a high risk sex offender extended supervision order ("the extended supervision order") for a period of 2 years from the date of the order; and  (2)   Pursuant to s 11 of the Act, the defendant is directed, for the period of the extended supervision order, to comply with conditions.
Catchwords:	HIGH RISK OFFENDER – serious sex offences – third application for extended supervision orders – order made – terms of order – conditions of order
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW) Legal Aid Commission Act 1979 (NSW)
Cases Cited:	Attorney General for the State of New South Wales v Wilde [2008] NSWSC 14 Cornwall v Attorney General for New South Wales [2007] NSWCA 374 Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46 Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 R v Wilde (District Court (NSW), Mathews DCJ, 27 March 1985, unrep) Regina v John Allan Wilde (Court of Criminal Appeal (NSW); Street CJ, Lee and Lusher JJ; 10 April 1986 State of New South Wales v Wilde [2008] NSWSC 1148 State of NSW v Wilde [2008] NSWSC 1211 State of New South Wales v Wilde [2014] NSWSC 305 State of New South Wales v Wilde (Supreme Court (NSW), 8 January 2014, Fullerton J, unrep) State of New South Wales v Wilde [2017] NSWSC 1056 State of New South Wales v Wilde (Supreme Court (NSW), Fullerton J, 8 January 2014, unrep) State of New South Wales v Wilde (Supreme Court (NSW), 4 October 2017, Beech Jones J, unrep) Wilde v R (1988) 164 CLR 365; [1988] HCA 6 Wilde v State of New South Wales [2015] NSWCA 28
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) John Alan Wilde (Defendant)
Representation:	Counsel: Ms D New (Plaintiff)   Solicitors: Crown Solicitors Office (Plaintiff) Mr Wilde, unrepresented (Defendant)
File Number(s):	2017/237568
Publication restriction:	None

Judgment

1. By its amended summons the State sought a further three year extended supervision order against Mr Wilde under the Crimes (High Risk Offenders) Act2006 (NSW). The conditions sought were later amended after expert evidence was received, but Mr Wilde opposed the application and in the event that it succeeds, the term and conditions of the order pressed.

2. Campbell J made interim supervision orders on 10 August 2017, also over Mr Wilde’s objection: State of New South Wales v Wilde [2017] NSWSC 1056. Those orders were later extended by Campbell J on 29 August 2017. Beech-Jones J further extended those orders on 4 October 2017, also over Mr Wilde’s objection: State of New South Wales v Wilde (Supreme Court (NSW), 4 October 2017, Beech Jones J, unrep).

3. Orders for the appointment of two qualified psychiatrists and/or psychologists to examine Mr Wilde and furnish reports to the Court were made by Campbell J on 29 August. Attached to those orders were the terms in which the experts were to be instructed, his Honour having heard the parties over their dispute about those terms.

Mr Wilde’s stay applications

4. Mr Wilde has appeared unrepresented throughout the proceedings, for reasons ventilated before Campbell J, Beech-Jones J and myself.

5. At the commencement of the final hearing, by way of a motion which he was given leave to file in court, Mr Wilde, who is on a disability support pension, made an application to have these proceedings permanently stayed. That application was supported by an affidavit which he swore on 16 October 2017, as well as by written and oral submissions.

6. Even though the State accepted that Mr Wilde would be placed in a difficult position if he had to continue representing himself, given what was in issue and the potential consequences for his liberty, if the application succeeded, the stay was opposed.

7. I refused Mr Wilde’s application, indicating that I would later give reasons for that decision. In final submissions the application was renewed. These are the reasons for the rejection of those applications.

8. Mr Wilde appeared unrepresented, on his case, despite having repeatedly sought legal aid and having sought to pursue a review of the refusal of his applications, to which he had received no response from Legal Aid. Mr Wilde said that he understood from a conversation that he had had with a Legal Aid officer, that the refusal was because of the view taken that he had the financial means to obtain legal representation.

9. Mr Wilde did not, however, tender the documents by which he had made any applications for legal aid; which established that his applications had been refused; or which disclosed the reasons for such refusal. Nor did he tender documents by which he had pursued either a review or appeal from such refusals.

10. Earlier, before Campbell J on 10 August, Mr Wilde told his Honour that he was unrepresented, but not through choice; that Legal Aid had not concluded its consideration of the merits of his application for assistance in these and what he considered to be related civil proceedings; and that the Law Society would not assist, until that decision had been made. He also said:

“HIS HONOUR: The reason why I am asking you these questions Mr Wilde is that it sounds like what you are telling me today anyway is that you would want legal aid to represent you?

WILDE: No I don't.

HIS HONOUR: That's what I thought. From reading your papers I thought you didn't want legal aid.

WILDE: No, what I do want is legal representation, just not through legal aid because they won't do their job. All I am after is an instructing solicitor that can do a pro bono who I haven't been able to get and if I can do that then I can get a barrister on pro bono who I am aware of who will take my case up, but not without an instructing solicitor.

HIS HONOUR: Who is that?

WILDE: Nicholas Kirby.

HIS HONOUR: I've come across Mr Kirby.

WILDE: He will take my case up if I have an instructing solicitor.”

11. In his judgment Campbell J observed at [39] – [41]:

“39    I have just dealt with a matter under the Crimes (High Risk Offenders) Act (NSW) and made some interim orders. Mr Wilde, who is the defendant, tells me that he has been refused Legal Aid for this matter, a most unusual circumstance, but there may be reasons for it having to do with his relationship with them. But he has been told by Mr Nicolas Kirby of counsel that he would be prepared to appear for him on a pro bono basis if only an instructing solicitor was prepared to accept reference on the same basis. I am empowered under r 7.36 of the Uniform Civil Procedure Rules (NSW), if I am satisfied that it is in the interests of the administration of justice, to refer a litigant to the Registrar for referral to a barrister or solicitor on a pro bono panel for legal assistance.

40    Mr Wilde is on a disability support pension. Given what I have said about Legal Aid, he does not have the capacity to find other legal assistance outside the scheme and he tells me that the Law Society cannot do anything unless they get something in writing from Legal Aid.

41    These proceedings must come on quickly. They are complex and important. They are complex because Mr Wilde has been under an ESO for about eight years. There is a long history to be considered. They are important because of the type of restrictions that the State is seeking to impose upon his liberty so long after he has served his sentence.

42 Given that Mr Kirby apparently is prepared to assist, I think it appropriate that under r 7.36 I refer Mr Wilde to the Registrar for referral to Mr Kirby of counsel, if he confirms he is prepared to accept the referral, and to a solicitor to instruct him solely for the purpose of defending the State's summons under the Act.”

12. This legal representation was not forthcoming, nor was any other, despite his Honour referring Mr Wilde for pro bono assistance.

13. Before Beech Jones J Mr Wilde remained unrepresented. His Honour noted in his ex-tempore judgment of 4 October 2017 that:

“One matter that has been raised concerns the continuing efforts to obtain legal representation for Mr Wilde. Campbell J put into place various steps designed to progress an application for legal aid on Mr Wilde’s behalf. It appears to have resulted in something of a stand-off. The Crown Solicitors’ Office has written to Legal Aid requesting that they provide him with legal assistance. The Legal Aid Commission has responded, pointing to the privacy provisions in the Legal Aid Commission Act 1979 which prevent it disclosing information concerning any possible application made by Mr Wilde. The Legal Aid Commission also noted that subs 25(4)(l) of the Legal Aid Commission Act 1979 allows a disclosure of certain limited information to a court including information about whether an application has been made, the basis for its refusal and whether an appeal has been made. The Legal Aid Commission stated that there had been no request by the court for that information.

From the bar table Mr Wilde stated that he, in fact, had been refused Legal Aid because of an application of an assets test which had led to a concern that he did have the assets to pay for legal representation, specifically a motor bike. He said that he posted an appeal from that decision but had received no acknowledgement from Legal Aid that the appeal had been received.

The difficulty with the Court making any order or direction or even request of Legal Aid for information of the kind referred to in subs 25(4)(l) is that there is actually no substantive application currently before the court for which that information is required.

There has not been and I do not suggest there could be any application to stay these proceedings pending the obtaining of any legal representation. The courts simply do not make requests of the kind envisaged by subs 25(4)(l) because it might be a good idea for someone to be represented.

All it can simply do is urge Legal Aid to assist Mr Wilde to actually lodge his appeal and determine that application with expedition.

I would add that, if the ultimate outcome of the application of an assets test by Legal Aid was that Mr Wilde was to be unable to obtain legal representation, then that will undoubtedly lead to further expense and delay for the State in the conduct of its case. If that circumstance arises, it will be for the State to reflect on how that circumstance has arisen and whether in the future it needs to take its own steps to ensure that people are legally represented.”

14. The State relied on an affidavit sworn by Mr Vasiliou, a solicitor, on 22 September 2017, which revealed that the State had made representations to Legal Aid about Mr Wilde being provided with legal assistance in these proceedings.

15. In its correspondence the State had sought to confirm that Mr Wilde had been declined legal aid and if he had been, to enquire whether the decision could be reviewed, given the “prospect of Mr Wilde being subjected to further restrictions on his liberty long after the conclusion of the sentences which he has served”, which made it “desirable that he be represented”. The State was advised that the confidentiality provisions of s 25 and s 26 of the Legal Aid Commission Act 1979 (NSW), precluded Legal Aid from divulging or discussing its dealings with Mr Wilde. He did not waive that confidentiality.

16. To support his application for a stay, Mr Wilde relied on Dietrich v R (1992) 177 CLR 292; [1992] HCA 57, where it was concluded that a criminal trial had miscarried, because the trial judge had not stayed or adjourned the trial until arrangements were made for counsel to appear at public expense with the result that, in the circumstances of that case, Mr Dietrich had been deprived of his right to a fair trial and of a real chance of acquittal.

17. While these are not criminal proceedings, if successful, they will undoubtedly have onerous consequences for Mr Wilde and his right to unfettered liberty, he having already served the sentences imposed upon him for his past serious sexual offending and having already twice been made the subject of extended supervision orders. If the State’s application succeeds, the result will be the imposition of a further extended supervision order, subjecting him to onerous conditions, years after he finished serving the sentences imposed for his offending.

18. Mr Wilde also relied on Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46, where in issue were questions as to the right to a speedy trial and undue delay amounting to an abuse of process. These were not questions of immediate relevance to these proceedings, given the requirements of the statutory scheme under which the State’s application was made.

19. Nevertheless, I accepted that it would have been in not only Mr Wilde’s best interests, but desirable for the administration of justice and of real assistance to the Court, if he had had legal representation in these proceedings.

20. That was what undoubtedly moved Campbell J to refer Mr Wilde for pro bono legal assistance; Beech-Jones J to make the observations I have referred to; and the State to make representations to Legal Aid, urging that Mr Wilde be provided with assistance. The failure of all of these endeavours resulted in the proceedings being more difficult and taking longer than they otherwise would have.

21. While these were relevant considerations, Mr Wilde’s undesirable position had to be weighed in the balance with the fact that the State’s application raised serious questions going to the public interest, given the risk which on its case, Mr Wilde still poses. That is the risk of committing further serious sexual offences, when he is no longer subject to the ongoing supervision for which the Crimes (High Risk Offenders) Act provides.

22. These matters all had to be considered in the context that s 3 of the Crimes (High Risk Offenders) Act specifies that the primary object of this Act is to ensure the safety and protection of the community and another is to encourage high risk sex offenders such as Mr Wilde, to undertake rehabilitation.

23. It was also necessary to take into account that s 6 of the Crimes (High Risk Offenders) Act specifies the time at which an application for an extended supervision order must made, in the case of a supervised sex offender such as Mr Wilde, not until the last six months of his current supervision. Note also had to be taken of s 10A, which permits the Court to make the interim orders Campbell J earlier made, only in circumstances where:

“(a)    .. the offender’s current custody or supervision will expire before the proceedings are determined, and

(b)    .. the matters alleged in the supporting documentation would, if proved, justify the making of a high risk sex offender extended supervision order.”

24. Campbell J had earlier formed the statutory opinion, for the reasons his Honour explained: see State of New South Wales v Wilde [2017] NSWSC 1056 at [28].

25. It was also relevant to consider that such orders may be made only for a period of 28 days and that they may be renewed for no longer than periods totalling three months: s 10C. In Mr Wilde’s case, that period expires on 5 November 2017.

26. I concluded that weighing all of the relevant considerations, which included the nature of the potential outcome of the proceedings; the desirability of Mr Wilde being legally represented; the efforts which had been made to achieve such representation; Mr Wilde not having led evidence to reveal the circumstances in which his applications were refused; Mr Wilde’s stated attitude to legal aid; the views which Campbell J formed as to the existence of circumstances which could justify the making of a third extended supervision order in Mr Wilde’s circumstances, to which I will return; and the protection of the community which such orders are intended to achieve - the stay had to be refused.

27. Even on his further application I was satisfied that in Mr Wilde’s circumstances, considerations of the public interest in community protection outweighed the desirability of him being legally represented on the hearing of the State’s application, as a matter of procedural fairness.

28. In his written submissions Mr Wilde renewed his application for a stay. He contended, amongst other things, that these proceedings were vexatious, as that term is defined in s 6 of the Vexatious Proceedings Act2008 (NSW), they involving an abuse of process. That was explained to be because he had been denied legal representation, through no fault of his own, in proceedings pursued to harass and annoy him, on the excuse of a trumped up knife charge. Further, that charge had been instituted without reasonable grounds, given that it had resulted from his possession of a butter knife and had been conducted so as to cause him detriment, because it has not been listed for hearing until January 2018.

29. While it will be necessary to refer further to various of these matters, Mr Wilde’s case that these proceedings are vexatious and accordingly, had to be stayed, could not be accepted, given the orders earlier made by Campbell and Beech-Jones JJ.

30. Mr Wilde also argued that he was an innocent person, who had been wrongly charged with a minor offence, in order to severely detriment him, by putting him at risk of a further extended supervision order being made. In those circumstances, he argued that the earlier refusal of the stay was inconsistent with the requirements of s 58 of the Civil Procedure Act 2005 (NSW), given what the interests of fairness, justice and the community required, the refusal of his application involving as it did a high degree of injustice.

31. This was also not a basis upon which the stay Mr Wilde sought could be granted. Section 58 provides:

“58    Court to follow dictates of justice

(1)    In deciding:

(a) whether to make any order or direction for the management of proceedings, including:

(i)    any order for the amendment of a document, and

(ii)    any order granting an adjournment or stay of proceedings, and

(iii)    any other order of a procedural nature, and

(iv)    any direction under Division 2, and

(b)    the terms in which any such order or direction is to be made,

the court must seek to act in accordance with the dictates of justice.

(2)    For the purpose of determining what are the dictates of justice in a particular case, the court:

(a)    must have regard to the provisions of sections 56 and 57, and

(b)    may have regard to the following matters to the extent to which it considers them relevant:

(i)    the degree of difficulty or complexity to which the issues in the proceedings give rise,

(ii)    the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,

(iii)    the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,

(iv)    the degree to which the respective parties have fulfilled their duties under section 56 (3),

(v)    the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,

(vi)    the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,

(vii)    such other matters as the court considers relevant in the circumstances of the case.”

32. Section 56 establishes the overriding purpose which binds both the Court and the parties, namely, the just, quick and cheap resolution of the real issues in the proceedings. Section 57 is concerned with case management.

32. In the circumstances, I was well satisfied that none of these considerations provided a proper basis for the grant of the stay which Mr Wilde pressed.

Mr Wilde falls within the statutory requirements

34. Section 5B(1) of the Crimes (High Risk Offenders) Act stipulates that orders of the kind sought by the State can only be made by this Court, when an offender falls within s 5B(2), which provides:

“An offender is a high risk sex offender if the offender is a sex offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision.”

35. While it is Mr Wilde’s view that the extended supervision orders which have earlier been made against him are invalid and unjust and that the further orders sought should be refused, he did not contend that he did not fall within the statutory provisions which empower the Court to make the orders sought by the State.

36. This reflects that a “sex offender” is defined in s 4 to mean a person over the age of 18 years who has at any time been sentenced to imprisonment following his or her conviction of a serious sex offence. A “serious sex offence” is defined in s 5(1) in terms which encompass the sexual offences of which Mr Wilde has been convicted, including as the definition does, offences punishable by imprisonment for 7 years or more: s 5(1)(a)(i). His offending also brings him within the definition of an “offence of a sexual nature” in s 5(2).

37. An application for a high risk sex offender extended supervision order may be made only in respect of a “supervised sex offender”, defined in s 5I(b) to mean “a sex offender who, when the application for the order is made, is in custody or under supervision … pursuant to an existing extended supervision order or continuing detention order”. Being subject to an interim extended supervision order, Mr Wilde also satisfies this definition.

38. There was also no issue that the requirements for pursuit of an extended supervision order under s 6 have been fulfilled by the State and that the term finally pressed, of three years, does not exceed the five year permissible term under s 10(1A).

39. The term “a high degree of probability” used in s 5B is not defined in the Act. In Cornwall v Attorney General for New South Wales [2007] NSWCA 374 its meaning (in predecessor legislation) was held to be:

“21   … something “beyond more probably than not”; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt. On the other hand, the risk or likelihood itself does not have to be a probability to the civil standard of proof, but rather a sufficiently substantial probability to satisfy the criterion “likely” as explained in TSL.”

40. The term “unacceptable risk” is also not defined. Consideration of the risk which Mr Wilde poses thus involves an evaluative judgment, which must be undertaken in light of all of the evidence, in the way discussed in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [50] - [51] and [55]:

“50    …. by reference to dictionary definitions, the word “unacceptable” requires context in which, or parameters against which, the “unacceptable” risk can be measured. Thus, according to the Macquarie Dictionary, that which is unacceptable is “so far from a required standard, norm expectation, etc as not to be allowed”. The Oxford Dictionary defines the word by reference to its antonym “acceptable”. Something is “acceptable” if it is “tolerable or allowable, not a cause for concern; within prescribed parameters”.

51    What the court, therefore, must find to be unacceptable is the “risk” that the offender poses “of committing a serious violence offence if … not kept under supervision”. The respondent accepted that the precise parameters or standard or norm against which that determination is to be made are not immediately evident from the text of the provision. That must be so. A determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made.

…

55    This Act provides, as stated in its Long Title, for the extended supervision or continued detention of high risk offenders. The purpose of the legislation, as the primary object of the legislation states, is to “ensure the safety and protection of the community”. The evaluation of whether an offender is a “high risk violent offender” has to be undertaken in that context. The further context in which that evaluation is undertaken is provided by s 5E(2) itself, namely, whether the offender poses an “unacceptable risk” of committing a serious violence offence, when regard is had to the safety and protection of the community, unless the person is kept under supervision, either by way of making an extended supervision order or an extended detention order. As this Court pointed out in State of New South Wales v Donovan [2015] NSWCA 280 at [24], a finding that a person poses an “unacceptable risk” within the meaning of s 5E(2):

“… is the gateway to the power to make an order under s 5F or s 5G … and applies to an assessment of likelihood (‘unacceptable risk’) in the absence of any supervision.”

41. On the evidence I will discuss, I am satisfied to a high degree of probability that Mr Wilde does pose such an “unacceptable risk”, this assessment involving as it does an evaluative task, with this Court not being “required to determine that the risk of a person committing a serious sex offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious sex offence”: Crimes (High Risk Offenders) Act, s 5B(3).

Should a further extension order be made?

42. In determining the State’s application, regard must be had to the requirements of s 9(3) of the Crimes (High Risk Offenders) Act which provides:

“(3)    In determining whether or not to make an extended supervision order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant:

(a)    the safety of the community,

(b)    the reports received from the persons appointed under section 7 (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 relevant 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 relevant 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,

(f)    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 earlier 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 in future commit offences of a sexual nature (in the case of an application for a high risk sex offender extended supervision order) or serious violence offences (in the case of an application for a high risk violent offender extended supervision order).”

43. The State’s application was supported by an affidavit sworn by Ms Senanayake, a solicitor employed in the Crown Solicitor’s Office, annexing various relevant documents, as well as other documents and evidence called from various witnesses.

44. The incident reports relating to Mr Wilde were received over his objections. Mr Wilde disputed their accuracy, given that he had not been consulted about their preparation. Nevertheless I was satisfied that they were relevant and admissible, being business records falling within the s 69 hearsay exemption in the Evidence Act 1995 (NSW).

45. Mr Wilde cross-examined, at length, Ms Dewson and Dr Eagle (the two experts who produced reports to the Court in response to Campbell J’s orders); Mr Ardasinski (the psychologist who he had earlier cross-examined before Campbell J); Ms Thomson (Mr Wilde’s Corrective Services Department supervising officer); and Ms Farroway (the Department’s High Risk Offender Applications and Operational Governance Officer).

46. Mr Wilde also gave evidence and was cross-examined. He led no expert evidence himself, for reasons explained in his submissions to include his lack of legal representation and his financial means.

Mr Wilde's criminal record

47. Given the nature of what is in issue on this third application for an order for Mr Wilde’s extended supervision, some eight years after he completed his sentence for his most recent sexual offending, it is necessary to give close attention to his criminal record, which commenced in his childhood.

48. Mr Wilde is now aged 55. His extensive record includes convictions of serious sexual offending, as well as offences involving violence, offences committed while he was in custody, as well as breaches of his earlier supervision orders.

49. In 1981, when Mr Wilde was aged 19, he pleaded guilty to one count of rape and another of common assault, offences which he had committed in the home of one of the victims, only a few days after he had been given a bond for offences of breaking, entering and stealing. For this offending he was sentenced by Nagle CJ to 5 years of penal servitude for the rape and 12 months for the common assault. The non-parole period expired in March 1981 and the sentence in March 1983.

50. In Nagle CJ’s sentencing remarks his Honour noted that no great physical harm had been done to either of Mr Wilde’s victims. One young girl had suffered cuts to her hand, when she attempted to seize the knife with which Mr Wilde was threatening her and the other victim, who he raped, having not received physical injury of consequence. Nevertheless, his Honour concluded that his actions had been terrifying and the rape victim had been horrified by his acts.

51. His Honour noted evidence that Mr Wilde had a personality disorder, his environment having prevented him growing up as a normal young man. He had also suffered a variety of illnesses, but had had the devotion of his mother and grandmother. His Honour also referred to evidence that 12 years previously, while a relatively young child, Mr Wilde had been identified by a psychiatrist, Dr Wright-Short, of being at risk of developing a disturbance.

52. Nagle CJ also noted the bizarre explanations Mr Wilde had advanced for his offending, the details of which do not appear in the sentence remarks. His Honour concluded that the feelings of the public and the necessity to make it obvious that offences of this kind could not be committed with impunity, had to be taken into account on sentencing. His Honour recommended that Mr Wilde be given the benefit of psychiatric checks during his sentence.

53. In his evidence, while Mr Wilde contended that he is innocent of the sexual offences of which he was convicted in 1983 and 1991, he acknowledged his guilt for the 1981 offending. Despite that evidence, this application must be decided in light of Mr Wilde’s record of convictions.

54. In 1985, only three months after he had been released on parole, Mr Wilde was charged with eight further offences. A jury found him guilty of offences committed on 28 and 29 September 1983 of:

“a.   Threaten to inflict actual bodily harm with intent to have sexual intercourse;

b.   Two counts of indecent assault;

c.   Stealing;

d.   Break, enter and steal; and

e.   Larceny of a motor vehicle.”

55. The sexual offences involving two victims were committed on different days, but the trials were conducted together. There was a substantial issue at trial as to identity. The Crown case relied on the unexplained presence of Mr Wilde’s fingerprint on the flyscreen at one victim’s house, which had been removed from the window by which the attacker had gained access. It also relied on a silver ingot found in the victim’s bedroom, which evidence established Mr Wilde had earlier admitted was his, on that his mother having given it to him. At trial he denied in his unsworn statement that the ingot belonged to him, or that he knew anything about it. He also called supportive evidence from his mother.

56. The Crown also relied on the presence outside a neighbour's house, of a blue Sigma sedan similar to that which had been stolen on 28 September and which Mr Wilde was driving on his arrest. There were also two rings then found in his possession, both of which the victim identified as belonging to her. The Crown also relied on that the victim’s clear and detailed description of her attacker, which fitted Mr Wilde. She had also identified him in court.

57. In evidence was also an admission made by Mr Wilde in a handwritten statement, which was consistent with aspects of the account which the victim gave. It said:

"I went to a house at Nth Rocks on Thursday. There was a window open & I got in. Prior to this I was seen by 2 men who I've seen only once before, they bashed me after I refused to help them and they said that they wanted the house at Nth Rocks ripped off and if anyone caught me in there they were to be hurt bad. I was told if I didn’t do it either myself or a friend or family would be hurt or killed if I didn’t do it. So I went there and proceeded to rip the place when the owner came home. I grabbed her tied her up and gagged her. I ejaculated all over her then left without taking any-thing. I was up to the time of being arrested trying to find the 2 men so that all this could be stopped. So that no one else would be hurt and that I wouldn't have to do anything more illegal. I took the woman’s child from her car into the house so the child Wouldn’t be hurt from the heat or anything else I took the child in the house and didn’t & I wouldn't hurt him."

58. In Mr Wilde’s unsworn statement he said:

"Ladies and Gentleman of the Jury, I am absolutely not guilty of any of these charges. All I remember of these events is what I remember on Monday of the long weekend of the 3rd October. I remember waking up in the cell and feeling sore and in a lot of pain. I remember feeling my face and my body and finding that I was bruised and sore, namely, my eyes, my nose, my cheeks and my ribs. I had a great difficulty in breathing because of my ribs we’re being so sore. My left wrist and left leg were also very sore and stiff. As I came to in the cell I could not make out what I was doing in there and it was only later that I found out that I was in Parramatta Police Station. I can at one stage remember being tied or handcuffed to a piece of furniture and being asked a lot of questions and being belted by the people who were asking those questions and I believe that to be the police although I can't say who it was or where the assault took place. I have no memory at all of ringing my mother or seeing her at the police station and I have no memory of writing any statements or anything, any way of confessions. I believe that if I did write those, that I would have been severely bashed by the police into doing so and they were not made of my own free will. I have no memory of hurting anybody or being in anybody's house at all and I don't believe that I done any of those things and I believe that the women in question are mistaken when they say it was me. If in their astute observations of the intruder they pointed out quite a lot of things regarding the description of that person. Now if that was me, why did they not identify a tattoo of a dragon that is on my left thigh which covers nearly the whole of the thigh. In regards to the rings and ingots, I can definitely say that those are not mine and I can't say as to where they were found. In regards to any of these matters I have no memory and I don't believe that I've done these things and I believe that I'm not guilty. Thank you”

59. Mathews DCJ, as her Honour then was, directed Mr Wilde’s acquittal of one offence with which he was charged and the jury acquitted him of another. On the charges of which he was convicted, her Honour sentenced Mr Wilde to 10 years penal servitude for the threat offence and 3 years for the other offences, with a non-parole period of 6 years: R v Wilde (District Court (NSW), Mathews DCJ, 27 March 1985, unrep).

60. In her Honour’s sentencing remarks she observed that Mr Wilde had invaded his victim’s home when she returned there with her two baby sons. He had threatened her with a knife, gagged her, bound her hands and then treated her “with the greatest degradation and depravity”. Her Honour found that the victim must have been terrified and terrorised by what he had done. It was, her Honour said, with grave misgivings, that she gave Mr Wilde the benefit of a non-parole period, his offending falling within the worst category, although not the worst conceivable offending of this type.

61. Mr Wilde’s appealed his conviction on grounds that there should have been separate trials; that the judge had erred in directing that the sexual attack on the second victim could be used as similar facts, for the purpose of establishing the identity of the attacker of the second victim; and that the judge had erred in declining to discharge the jury at the end of the Crown case, on all charges.

62. Mr Wilde’s appeal failed, despite it being accepted that the trial judge had erred in admitting the similar fact evidence, the Court of Criminal Appeal concluding that the Crown’s case on the charges had been overwhelming: Regina v John Allan Wilde (Court of Criminal Appeal (NSW); Street CJ, Lee and Lusher JJ; 10 April 1986). In the result, there had not been a substantial miscarriage of justice, the error not having been fundamental and Mr Wilde not having lost a chance of acquittal.

63. In its judgment the Court of Criminal Appeal described the offending on 28 September 1983 as having involved Mr Wilde, who the victim identified, having seized her from behind, while armed with a kitchen knife. She was pushed to the floor, her hands tied behind her back with a pantyhose pulled from his jacket and gagged with a wad of tissues and a scarf, which he took from a cupboard, before he sexually assaulted her. Mr Wilde then sat on a chair and told this victim that he had been coerced by others into attacking her, before removing the gag and bonds and leaving through the front door.

64. The Court of Criminal Appeal described the offending on 29 September as involving some similar elements and some which differed from the attack the previous day. This victim had noticed the blue Sigma sedan parked outside a neighbour’s house when she returned from shopping with her six month old twins. That car had been stolen from the first victim’s house, the previous day.

59. The second victim carried one child into the house, where she was confronted by Mr Wilde, who she identified. He was armed with a penknife and threatened to kill her, if she made any noise. He took the child, pushed her to the floor, slapped her and threatened to kill her and her kids, a threat which he repeated during his assault. He took her upstairs to her ransacked bedroom, where he placed her child onto the bed, pushed her onto the bed, tied her hands behind her back with a leather belt which he took from the floor and stuffed a white petticoat which was also on the floor into her mouth. He then tied a pair of stockings around her mouth and left her, while he went and got the other child.

60. Mr Wilde took the children out of the room, then sexually assaulted the victim. He then brought the children back and sexually assaulted her again, as well as subjecting her to demeaning acts, which it is unnecessary to describe. After threatening her again, he left.

61. Mr Wilde’s appeal to the High Court was also dismissed: Wilde v R (1988) 164 CLR 365; [1988] HCA 6. There the strength of the Crown case against Mr Wilde was not in issue. Mr Wilde appealed on the basis that the admission of the evidence relating to the attack on 28 September, as to the identification of Mr Wilde as the attacker on 29 September, was an irregularity of such gravity that no proper trial had taken place: at [12]. The charges were there explained to have been, at [2] - [3]:

“2    The next two counts in the indictment related to events which occurred at premises in Warrawee, on 28 September 1983. The third count charged that the applicant broke and entered the premises and stole a car key and the fourth count charged that he there stole a Sigma sedan. The applicant was convicted on these counts.

3    The remaining four counts related to events which occurred on 29 September 1983 in a house at North Rocks. The fifth, sixth and seventh counts charged that the applicant committed a series of sexual offences against a woman, and the eighth count charged that he stole two rings and $80 in money from her. The applicant was convicted on all of these counts. The complainant on this occasion was a mother with twin babies, who arrived home during the morning and observed a blue Sigma sedan parked outside her neighbour's house. (The Sigma sedan which was stolen on 28 September was a blue Sigma sedan.) She entered her house with one of her children, leaving the other in her car. In the hallway she was confronted by a man with a knife in his hand who forced her upstairs to the main bedroom. The contents of her dressing-table drawers had been emptied on the floor and her jewellery box had been emptied on the bed and on the floor. The intruder pushed the complainant towards the bed, tied her up and gagged her. He then went downstairs and recovered the other child. He placed both the children in another room and returned to the bedroom where he forced the complainant to engage in various acts of a sexual nature, including an act of oral intercourse. The man then took from the complainant's bag a sum of money amounting to about $80 and, following a visit to the kitchen, left. Subsequently, the complainant observed that the flyscreen on a downstairs window had been removed and that the window had been opened further than she had left it. She also found in the bedroom lying upon a bedside table a silver ingot which did not belong to her or any member of her family and which she had not seen before. Some weeks later the complainant missed a sapphire ring which had been in her bedroom.”

68. It was concluded that the wrongly admitted evidence could not have carried significant additional weight on the 29 September counts, given the other evidence about those offences. Given the strength of the prosecution case upon those counts and the weakness of Mr Wilde’s defence, it was concluded that the trial judge’s error was not of a fundamental kind and that a reasonable jury would inevitably have convicted Mr Wilde, even if the error not been made: at [13].

69. In June 1993 a jury found Mr Wilde guilty of various further offences, all committed on 6 November 1991, while he was at liberty on parole. Ducker DCJ sentenced him in November 1991 to:

“a.   Nine years of penal servitude commencing on 6 November 1991 and expiring on 5 November 200 in respect of the offence of break and enter with intent to commit a felony;

b.   10 years of penal servitude commencing on 6 November 1991 and expiring on 5 November 2011 in respect of one count of aggravated sexual assault;

c.   10 years of penal servitude commencing on 6 November 1991 and expiring on 5 November 2011 in respect of a second count of aggravated sexual assault;

d.   12 years of penal servitude commencing on 6 November 1991 and expiring on 5 November 2003 with an additional term of four years expiring on 5 November 2007, in respect of a third count of aggravated sexual assault; and

e.   Two years of penal servitude commencing on 6 November 1991 and expiring on 5 November 1993 in respect of the offence of malicious wounding.”

70. Ducker DCJ described that offending as having involved Mr Wilde knocking on the door of the victim’s home at 11.30am. After refusing him entry, Mr Wilde pushed his way in, while the victim screamed. He pulled out a large hunting knife and said “”Be quiet and I won’t hurt you”. After looking around the unit, he took her to a bedroom, closed the door, threatened to kill her and sexually assaulted her, after telling her that her boyfriend owed someone a lot of money. Mr Wilde then sexually assaulted her again. It was during this assault that she bit him on the penis, causing him to scream. There was a struggle during which the victim was cut on the fingers. The victim’s evidence was that survival was at that point her primary concern, but his Honour found that although his acts were despicable, Mr Wilde had not formed an intention to kill.

71. Mr Wilde then told the victim to remove her clothing, before punching her in the face, tying her hands with football socks and asking when her boyfriend was returning and threatening to kill her, if she lied. He then sexually assaulted her again in various ways, before untying her. He also told her that her boyfriend and brother, with whom she lived, owed other people a lot of money and that someone was making him “do this”.

72. It was at this point that police, who had been alerted by a neighbour and friend of the victim who had heard her screams, arrived at the unit. They knocked, but Mr Wilde would not let the victim answer the door. When they entered police found Mr Wilde still in possession of the knife, together with the victim in the bedroom. After police drew a pistol, they were able to take possession of the knife and the victim made immediate complaint of having been raped. On later interview Mr Wilde gave a bizarre story, which he later denied having given. His defence at trial was that he had had consensual sex with the victim.

73. In his sentencing remarks Ducker DCJ found that the offences were premeditated and utterly despicable, with Mr Wilde’s version of events wildly improbable, full of extraordinary coincidence and fantastic happenings, which the jury had rejected. His Honour concluded:

“The present prisoner has shown, at no stage, the slightest sign of remorse or contrition. His attitude throughout has been one of truculent self concern and apparent total indifference to the suffering of his victim. He exudes a sense of latent, only barely concealed violence, which does not bode well for his future, nor that of the community when he is released.

Neither of this prisoner's terms of imprisonment, neither of them, apparently, has had any deterrent effect whatever. Certainly, it has not stopped him from committing the present, highly premeditated offences.

As I have said, the present offences were premeditated, cold blooded, humiliating, and terrifying to the victim. And the prisoner emerged, by his commission of these acts, as a dangerous sexual predator who, so long as he was at large within the community, represented a considerable threat to women.”

74. Ducker DCJ also referred to the alarming similarities between these offences and the acts involved in his earlier sexual offending, as well as his concern about Mr Wilde’s dangerous mental state, given expert psychiatric reports in evidence. On that evidence his Honour concluded that Mr Wilde’s chances of reform were not only below average, but remote, and that he would be a considerable risk to society, particularly women, if at large.

Earlier orders under the High Risk Offenders Act

75. In January 2008 Price J made a continuing detention order against Mr Wilde: Attorney General for the State of New South Wales v Wilde [2008] NSWSC 14. In September 2008 McClellan CJ at CL made an interim supervision order: State of New South Wales v Wilde [2008] NSWSC 1148. In December 2008 Kirby J made an extended supervision order for three years, expiring on 11 December 2011: State of NSW v Wilde [2008] NSWSC 1211.

76. Mr Wilde breached this first extended supervision order on four separate occasions and served sentences of imprisonment for each of those breaches as follows:

“(a)   On 18 March 2009, he was sentenced to 2 months imprisonment for possession of a knife in a public place;

(b)   On 21 October 2009, he was sentenced to 6 months imprisonment for threatening staff;

(c)   On 21 May 2010, he was sentenced to 9 months imprisonment for attempting to contact a female through "WIRES" (an Australian Wildlife Rescue Organisation) contrary to a direction;

(d)   On 16 November 2011, he was sentenced to 12 months imprisonment (8 months non-parole) for failing to inform his supervisor of his movements in advance, during which time, he attended the home of a female. This defendant had provided a schedule which deliberately excluded seeking approval to attend this female's home. The defendant stated his reason was to see how the house had changed.”

77. In February 2014 Fullerton J made another interim supervision order: State of New South Wales v Wilde (Supreme Court (NSW), Fullerton J, 8 January 2014, unrep). In April 2014 Hall J made a second, three-year extended supervision order against Mr Wilde: State of New South Wales v Wilde [2014] NSWSC 305. That order expired on 12 August 2017, because of further time Mr Wilde spent in custody on other charges.

78. Mr Wilde did not appeal the making of Hall J’s orders, but in Wilde v State of New South Wales [2015] NSWCA 28, Mr Wilde’s appeal against various of the conditions imposed upon him was dismissed. Those conditions related to place and travel restrictions; non association; access to pornographic, violent and classified material; alcohol and drugs; search and computer searches.

79. On 31 March 2015, Mr Wilde was arrested and charged with three counts of failing to comply with the second extended supervision order and one of driving a motor vehicle while disqualified. He was released from custody in August 2015, after receiving a suspended sentence of 12 months imprisonment, upon entering a bond for one of the breach charges. His conviction of the driving offence was later quashed on appeal.

80. On 11 April 2017 the High Risk Offender Assessment Committee decided not to seek a further order for Mr Wilde’s extended supervision. In June 2017, some five weeks after the electronic monitoring condition to which he had been subject was relaxed, Mr Wilde was charged with having custody of a knife in a public place. That charge concerned a knife found by police in Mr Wilde’s possession while he was riding a motorbike. Duct tape and rope were also then found.

81. At the final hearing the State did not accept Mr Wilde’s descriptions of the knife the subject of this charge. Initially he described it to be a butter knife and later, a butter knife which had a serrated edge. In his evidence he said that he had often carried such a knife, which he used to prepare food. This charge is due to be heard in January 2018 at a time, on Mr Wilde’s case, which the State had contrived, in order to disadvantage him on this application, by allowing a police officer to take long service leave. Mr Wilde believes that he will be acquitted of that charge, his case being that he was carrying the knife to use to prepare sandwiches, for which he was also carrying bread and butter, although the State did not accept that bread and butter were also found in Mr Wilde’s possession.

82. It should be noted that when I raised with Mr Wilde the possibility of adjourning the hearing, so that the outcome of the knife charge could be taken into account on the State’s application, he objected, given that would have required the interim order to be continued, until the determination of that charge.

83. In any event, on the State’s case, given the applicable provisions of the Crimes (High Risk Offenders) Act, the Court had no power to continue the interim order, even by consent, to that time. That was not put in issue and in the result, the hearing of the application proceeded.

84. In August 2017, in coming to the conclusion that the interim order sought should be made, Campbell J took the view that the knife charge and the circumstances in which it came to be laid were significant: at [33]. His Honour also considered that it was relevant to take into account that in his previous offending, Mr Wilde had threatened each of his victims with a knife and had also bound and gagged them, observing at [31] that “it is obvious that the knife could be used for that purpose; the duct tape could be an effective gag; and the rope could be used to bind.”

85. These remain relevant considerations on this application.

Mr Wilde’s supervision

86. The application was supported by risk assessment reports prepared by Ms Thomson and Mr Ardasinski, who were both cross examined, Mr Ardasinski also having been cross-examined before Campbell J. Mr Wilde also cross-examined Dr Eagle, Ms Dewson and Ms Farroway.

87. Ms Thomson authored the risk management report of 17 July 2017 on which the State relied before Campbell J. She had also been involved in Mr Wilde’s supervision, including of his internet usage and requests for approval of employment. On her evidence, she had not refused such requests.

88. In cross-examination Ms Thomson confirmed that Mr Wilde had become a member of the God Squad motorcycle organisation and that he had been given approval to participate in events such as Christmas charity runs and had maintained stable relationships with his sponsors from that organisation, and for a time, with others. She did not agree with the cause of the breakdown of other of Mr Wilde’s relationships, or the number of times he had sought approval for things like trips to Mudgee to visit family members.

89. Ms Thomson explained the Departmental system of case review every three months, to monitor progress, confirming that supervised persons such as Mr Wilde do not have the opportunity to attend such reviews. There were also two monthly reviews conducted with the supervised individual. She also explained how requests such as to change accommodation were dealt with, the checks undertaken and how decisions were made.

90. From the tenor of Mr Wilde’s cross-examination and the way in which Ms Thomson responded, not all of which is captured by the transcript, it became apparent that there was tension between them. When asked whether she knew of any occurrences where he had been outwardly hostile to women, by which Mr Wilde explained he meant aggressive, threatening behaviours, seeking harm, Ms Thomson said that he had been aggressive in tone to her, while she had supervised him. When pressed she referred to him being verbally aggressive, shouting and name calling and then finishing with “oh look its not about you”. Ms Thomson also said, however, that she had never felt the need to protect herself, or to have Mr Wilde charged with any wrongdoing. While she considered his behaviour to be highly inappropriate, she had not felt threatened or in danger.

91. Ms Thomson said that Mr Wilde’s requests to associate with outlaw motorcycle gangs had not been approved, because of the associated element of criminality involved in such gangs and the view taken that his participation would not involve him in pro-social activities.

92. Ms Thomson also explained how the electrical monitoring system operated and agreed that on more than one occasion Mr Wilde had brought to her attention that he had been directed by the monitoring team to cease an activity for which he been given prior approval. She had discussed those issues with the head of the monitoring team. She also explained how activities and changes in activities could be approved, in some cases immediately and how contact was made with Mr Wilde, when it appeared that he had deviated from his schedule.

93. In her evidence Ms Farroway also explained how conditions of supervision were implemented, monitored and reviewed. She agreed that those subject to the Court’s orders could not attend strategic review meetings, or have formal input into these reviews, but that they could raise concerns with their supervising officer and the unit leader, who could raise matters at the meeting. If a decision was made with which the supervised person was aggrieved, a request for a review to the supervisor or unit leader.

94. Ms Farroway also explained that the aim was for the supervisor and the supervised person to develop a good working relationship and in cases where that had not been achieved, supervisors had been changed. Ms Farroway agreed that Mr Wilde’s case notes reflected occasions when he had raised matters he was concerned about and when he was concerned that matters he had raised, were not properly dealt with. The case notes in evidence supported this evidence.

95. Ms Farroway was asked about a condition which required Mr Wilde to follow all reasonable directions given by his supervisor and whether a refusal of a request to go to a cafe at 2am, when he was not subject to a curfew, would be reasonable. She explained the considerations which would arise, and the associated risks which would have to be assessed, including the location of the café and how he would be travelling. Ms Faraway said that such a decision was not made simplistically and that she could foresee situations in which it would be reasonable to refuse such a request.

The expert evidence

96. The experts all assessed Mr Wilde to pose a high risk of further offending, notwithstanding his age and the time which has passed since his last sexual offending. In his report Mr Ardasinski concluded:

“[65]   Mr Wilde is a 55-year old Australian man whose risk of sexual reoffending is estimated to be in the High risk category relative to other men who have offended sexually, when taking into account actuarial measures of risk, but who has not reoffended sexually since his release in 2008 and whose last sexual offence was committed over 20 years ago. It is likely that, by virtue of his personality factors alone, Mr Wilde would continue to fall in the high risk range regardless of how long he remained under supervision on an ESO. If the Court deems that Mr Wilde's risk remains unacceptability high, it may need to be considered that he will require lifelong supervision with repeated applications for ESOs under the HRO Act.

[66]    In the event that Mr Wilde is considered suitable for a further ESO, he will be subject to ongoing intensive supervision and case management by CSNSW (the Metro ESO Team, based on Blacktown). Under such supervision, it has been noted that Mr Wilde's compliance was linked with reductions in his level of monitoring - he became more compliant and less belligerent as he progressed to Stages 3 and 4 of his electronic monitoring regimen, which entailed his not being subject to weekly schedules (but still being subject to electronic monitoring - Stage 3) and then not being subject to electronic monitoring at all (Stage 4) but still being subject to all of his other ESO conditions. Mr Wilde suggested in interview that he would not tolerate a further ESO - he said he would be a “ticking time-bomb" and that he had sustained himself thus far with the knowledge that his ESO had an end date (which he disputed, but he was willing to wait for the "court ordered" freedom at the expiry of his ESO). It is noted that Mr Wilde's behaviour deteriorated after he was made subject to his second ESO in 2014, but he then gradually improved again over the subsequent three years. Further ESOs would need to give careful consideration? to a lessening of the conditions which would be required to manage any latent risk - for instance, the routine carrying of any cutting weapon could be targeted through a specific condition, but conditions relating to work or associations may be less relevant to Mr Wilde’s risk.

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AMENDED SCHEDULE OF CONDITIONS OF SUPERVISION

JOHN ALAN WILDE

Departmental Supervising Officer (DSO)

Corrective Services NSW (CSNSW)

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

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

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

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

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

Electronic Monitoring

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

6.   If the defendant is not charged with any offence of breaching the ESO, or with any other criminal offence, for a period of 12 continuous months from the date of the commencement of the ESO, the defendant will no longer be required to wear the electronic monitoring equipment and condition 5 will cease to apply.

7.   If electronic monitoring is removed because of condition 6 and the defendant is then charged with any offence of breaching the ESO, or with any other criminal offence, the DSO or any other person supervising the defendant may reapply condition 5.

Schedule of Movements

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

9.   If the defendant wants to change anything in his schedule of movements once it is approved by his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period.

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

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

Part B: Accommodation

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

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

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

15.   The defendant must not permit any female person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO.

Part C: Place and travel restrictions

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

17.   The defendant must surrender any passports held by the defendant to the Commissioner for Corrective Services.

18.   The defendant must not frequent or visit any place or areas specified by the Departmental supervising officer.

19.   The defendant must not attend any premises that he knows to be frequented by any person who he knows to be a member and/or associate of any Outlaw Motorcycle Gang, Organised Criminal Network, or Criminal Organisation (as declared under the Crimes (Criminal Organisations Control) Act 2012).

20.   The defendant must not hitchhike or pick up anyone who is hitchhiking.

Part D: Employment, finance and education

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

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

23.   The defendant must agree that, if the Departmental supervising officer considers it appropriate to do so, the Departmental supervising officer may contact any supervisor, employer or prospective employer of the defendant, for the purpose of obtaining information relating to the defendant's employment activities or educational courses.

NOTE: The defendant accepts that if the Departmental supervising officer considers it appropriate for the defendant to disclose to any prospective employer or supervisor information relating to the defendant's criminal history and / or that the defendant is subject to this order and the terms of the order, and the defendant refuses to make such a disclosure, then it is a basis upon which the employment or educational activity may not be approved.

Part E: Drugs and alcohol

24.   The defendant must not possess or consume any illicit drugs.

25.   The defendant must not possess or consume any alcohol (including any alcohol-based products such as methylated spirits), without prior approval of the Departmental supervising officer.

26.   The defendant must submit to drug and alcohol testing as directed by the Departmental supervising officer or any officer of Corrective Services NSW who from time to time supervises the defendant.

Part F: Non-association

Non-associations generally

27.   The defendant must not associate, contact or communicate with any persons specified by the Departmental supervising officer.

28.   The defendant must not contact or communicate by any means (directly or indirectly) with, or attempt to contact or communicate by any means (directly or indirectly) with, the victims of the sexual offences for which the defendant was sentenced on 18 November 1981, 1 March 1985 and 11 June 1993.

29.   The defendant must not knowingly associate with any person convicted of a “serious sex offence” or an “offence of a sexual nature” as defined by the Act without the prior approval of the Departmental supervising officer and except in the course of living in an approved address, undertaking any educational programs, employment activities, maintenance, treatment or rehabilitation programs that have been approved by the Departmental supervising officer.

30.   The defendant must not associate with any person he knows to be a member and/or associate of any Outlaw Motorcycle Gang, Organised Criminal Network, or Criminal Organisation (as declared under the Crimes (Criminal Organisations Control) Act 2012), without the prior approval of the Departmental supervising officer.

Relationship

31.   The defendant must notify the Departmental supervising officer as soon as possible of any relationship with another person (“the other person”) involving sexual or intimate contact.

32.   The defendant must allow the Departmental supervising officer to disclose the defendant's offence history and that the defendant is on this order (and details of the order) to the other person if the Departmental supervising officer is satisfied that to do so is necessary or desirable in the interests of the safety of the other person.

Club affiliations

33.   The defendant must obtain written permission from the Departmental supervising officer prior to joining or affiliating with any club or organisation.

Part G: Weapons

34. The defendant must not possess or use any firearm within the meaning of s. 4 of the Firearms Act 1996 or prohibited weapon as defined in s. 4 and Schedule 1 of the Weapons Prohibition Act 1998.

35.   The defendant must not carry on his person, at any time he has left his residence, any knife, syringe or other cutting instrument or any rope, cord, cable ties, or other instrument of restraint.

Part H: Access to the internet and other electronic communication

36.   The defendant must give his DSO a list of all devices, services and applications he uses to communicate with or to access the internet or which are in his possession. 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 directed. The defendant must advise the DSO of any change to this inventory immediately.

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

38.   The defendant must comply with any direction given by the Departmental Supervising Officer regarding access to the internet by the defendant on any computer or other device (including mobile phone or tablet computer), including but not limited to:

the use of parental lock or other device or software that may restrict access to or permit access only to certain web sites;

the times and places that the defendant is permitted to access the internet;

accepting the presence of an appropriate person, being a person previously approved in writing by the Departmental supervising officer for the purpose of this condition;

restricting the use of the internet for specified purposes; and

the use of Skype or any Voice over Internet Protocol (VoIP) or other similar services without the prior approval of the Departmental supervising officer.

39.   The defendant must provide the Departmental supervising officer with details of the type of any internet connection used, or intended to be used, by the defendant, including whether the connection is a wireless, broadband, ADSL or dial-up connection.

40.   The defendant must provide the Departmental supervising officer with details of any email addresses, internet user names, instant messaging user names, chat room user names or any other user name or identity used, or intended to be used, by the defendant through the internet.

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

Social networking services

42.   The defendant must not access, join and/or connect to any internet based social networking service, including web-based, e-mail, instant messaging services and on-line community services (“internet based social networking services”), without the prior approval of the Departmental Supervising Officer.

43.   In circumstances where the defendant is approved under condition 42 to access, join and/or connect to any internet based social networking service, the defendant must:

inform the Departmental Supervising Officer of any login identification name and password for any internet based social networking service the defendant joins and / or connects to; and

comply with the rules and conditions of that service.

Part I: Search and seizure

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

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

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

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

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

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

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

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

search and examination of his person.

45.   For the purposes of the above condition:

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

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

NOTE:

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

“Pat-down search” means a search of a person where the person’s clothed body is touched.

46.   During a search carried out pursuant to conditions 44 and 45 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found in the defendant's approved address, any vehicle owned, hired by or under the control of the defendant, or on the defendant's person, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise:

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

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

the defendant's compliance with this order;

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

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

48.   The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions 44 to 47 above.

Part J: Access to pornographic, violent and classified material

49.   The defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification and X18, or any other material as directed by the DSO.

Part K: Personal details and appearance

50.   The defendant must not change his name from “John Alan Wilde” or use any name other than John Alan Wilde without the prior approval of his DSO.

51.   The defendant must not use any alias, log-in name, or a name other than “John Alan Wilde” or use any email address other than those known to the DSO under condition 33 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email.

52.   The defendant must not, without the approval of the Departmental supervising officer, change his or her appearance to the extent that the defendant cannot be easily recognised.

53.   The defendant must let CSNSW photograph him.

54.   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.

55.   The defendant must provide the Departmental supervising officer with information regarding any tattoos or permanent distinguishing marks that the defendant has (including details of any tattoo or mark that has been removed).

Part L: Medical intervention and treatment

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

57.   The defendant agrees to the persons referred to in condition 56 above sharing information, including reports on his progress and information he has told them, with each other, with his DSO, and with any other persons involved in his supervision.

58.   The defendant must undergo any assessment as recommended by the persons referred to in condition 56 above, or by his DSO, or by any other person involved in his supervision to determine what is required for treatment in respect of the defendant's potential risk for reoffending.

59.   If those persons referred to in condition 56 above or those persons who have assessed the defendant in accordance with condition 58 above consider it necessary or appropriate that the defendant attend psychological or psychiatric treatment or counselling to address his risk of reoffending, the defendant must attend that treatment, as directed by the DSO.

Decision last updated: 03 November 2017