State of New South Wales v Woods (Preliminary)

[2022] NSWSC 68

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Woods (Preliminary) [2022] NSWSC 68

Hearing dates:

2 February 2022

Decision date:

09 February 2022

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

(1) Order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW):

(a) Two qualified psychiatrists or two registered psychologists, or a combination of one of each, be appointed to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court;

(b) The defendant is directed to attend those examinations;

(2) Order pursuant to ss 10A and 10C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) that the defendant be subject to an interim supervision order commencing on 10 February 2022 (“the interim supervision order”) for a period of 28 days from that date;

(3) Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), direct that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule attached to this judgment;

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

Catchwords:

HIGH RISK OFFENDER – preliminary hearing – application for interim supervision order – serious sex offender – no controversy about making of order – dispute limited to conditions imposed – discussion of appropriateness of various conditions

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 5B, 5D, 6, 7, 9, 10A, 10C, 11

Cases Cited:

Attorney General for New South Wales v Tillman [2007] NSWCA 119

Category:

Procedural rulings

Parties:

State of New South Wales (Plaintiff)
Shawn Michael Woods (Defendant)

Representation:

Counsel:
C Melis (Plaintiff)
K Heath (Defendant)

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

File Number(s):

2021/295438

Judgment

1. HIS HONOUR: By summons filed on 18 October 2021, the plaintiff seeks interim and final orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). Orders are sought for the appointment of two forensic psychiatrists and/or psychologists to examine the defendant and furnish their reports to the Court, and directing the defendant to attend their examination (s 7(4)). The plaintiff also seeks orders subjecting the defendant to, and obliging him to comply with, an interim supervision order (“an ISO”) for a period of 28 days from 10 February 2022 (ss 10A, 10C(1) and 11), which is the date that his present sentence of imprisonment expires. The defendant presently resides in the community pursuant to a parole order.

2. By way of final orders, the plaintiff seeks an extended supervision order (“an ESO”) for a period of three years from the date of that order, and an order requiring the defendant’s compliance with it (ss 5B, 9(1)(a) and 11).

3. Finally, an order is sought that would forbid access to the court file by a non-party without prior notification to the parties, so as to allow them an opportunity to be heard.

4. The defendant does not suggest that the application does not comply with the statutory prerequisites for an application for an ESO which are set out in s 6 of the Act as to the relevant timeframe and the documentation which must accompany the application. I am satisfied that the application meets those requirements.

5. The defendant does not oppose the interim orders sought by the plaintiff or the order restricting access to the court file. The defendant does, however, oppose some of the conditions to the ISO that are proposed by the plaintiff. The defendant’s acquiescence to the interim orders does not relieve the Court of a statutory obligation to refrain from making an ISO unless it is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if he is not subject to such supervision. I am so independently satisfied. I will outline the material and principles that are relevant to my reasoning in making that determination and then turn to the terms of the conditions that attach to the ISO.

The defendant’s offending

Sexual offences

6. The defendant is a 49 year old Indigenous man who has two teenage children, a daughter and son. He has four convictions for sexual offences against females under the age of 18 years. The brief details of those offences, in the order of his convictions for them, are as follows.

7. In 2002, the defendant was convicted of a count of committing an act of indecency towards a person aged 16 years or over contrary to s 61N(2) of the Crimes Act 1900 (NSW), as it then was. The offence was committed in December 2001, at which time he was aged 29 and the complainant, who was a daughter of his sister-in-law, was aged 16. He received a suspended term of imprisonment of 2 years. The circumstances of the offence were that the defendant entered the complainant’s bedroom naked, stood about a metre away from her bed and started masturbating himself. He sat on her bed and unsuccessfully attempted to pull her hand towards his penis. He then fondled her breasts until she told him to leave. He was placed on the Child Protection Register (“CPR”) on 22 October 2002. The defendant was called up in October 2003 following a conviction for breaching an apprehended domestic violence order (“an ADVO”) and sentenced to 6 months imprisonment. He was separately sentenced to 2 months imprisonment for the breach of the ADVO, to be served concurrently.

8. In 2011, the defendant pleaded guilty to two counts of sexual intercourse without consent, contrary to s 61I of the Crimes Act (“the 2011 offences”). The complainant was the daughter of a woman with whom he was in a relationship at the time. The first offence was committed when the complainant was aged 16 and the second when she was aged 17. He was sentenced to a term of imprisonment of 5 years and 1 month commencing on 26 January 2011 and concluding on 25 February 2016, with a non-parole period of 3 years which expired on 15 January 2014.

9. In 2019, the defendant pleaded guilty to two counts of sexual intercourse with a person aged over 14 and under 16 years, contrary to s 66C(3) of the Crimes Act. The offences were committed in 2017. The complainant, who was aged 14 at the time, was the daughter of a woman with whom he was in a relationship. Both offences were committed while he slept with his partner and the complainant in the same space. Both offences involved penile-vaginal sexual intercourse. The second offence was committed whilst he was on bail for a charge of failing to comply with his reporting obligations under the terms of his registration on the CPR. A condition of bail was that he not contact the complainant.

10. Three offences were taken into account on a Form 1. They were the offence of failing to comply with his reporting obligations, possessing child abuse material and attempting to pervert the course of justice. The circumstances of the latter offence were that, whilst on remand awaiting trial, he asked his son to call the complainant and put pressure on her to withdraw her police statement. The defendant received an aggregate sentence of imprisonment of 3 years and 3 months, commencing on 5 December 2017 and concluding on 4 March 2021, with an aggregate non-parole period of 2 years and 5 months that concluded on 4 May 2020. Together with the two counts contrary to s 66C(3), these will be referred to subsequently as “the 2019 offences”.

The index offences

11. The earliest sexual offences committed by the defendant were the subject of his most recent convictions (“the index offences”). In 2016, he was arrested and charged with historical child sex offences said to have occurred between 1991 and 1995, when he was aged between 19 and 23. While on bail awaiting trial for these offences, he committed the offences for which he was convicted in 2019. Following a trial in 2019, he was convicted of two counts of indecent assault in circumstances of aggravation, being that the victim was under the age of 16 years, contrary to s 61M(1) of the Crimes Act, as it then was. The complainant was a younger sister of the defendant. At the time of the first offence she was aged between 10 and 13, and at the time of the second she was aged between 11 and 14. Both offences involved the defendant approaching his sister when she was asleep and touching her body; in the first offence, touching her breasts and vagina and, in the second, her breasts. He was sentenced in May 2020 to an aggregate sentence of a term of imprisonment of 2 years and 4 months, commencing on 11 October 2019 (which was 22 months after the commencement of the aggregate sentence he received for the 2019 convictions) and concluding on 10 February 2022. A non-parole period of 1 year and 9 months was set, which expired on 10 July 2021. He was released to parole on that date.

The defendant’s non-sexual offences

12. The defendant has other convictions, for possessing and cultivating a prohibited drug in 1991, and again in 2010 (1 month imprisonment), assault occasioning actual bodily harm in 1999, two counts of common assault in 2003 (4 months imprisonment), contravening an ADVO in 2008, failing to comply with reporting obligations in 2008 and again in 2017, stalking or intimidating in 2010 (4 months imprisonment) and various driving offences.

The defendant’s parole history

13. The defendant was not released to parole for the 2011 offences until June 2014, In January 2015 a urine analysis detected the presence of methylamphetamine and amphetamine, leading to a breach of his parole and his return to custody. The breach of parole report detailed a generally unsatisfactory response to supervision. In addition, it noted that he had commenced a relationship with a 22 year old woman (the defendant was then aged 42) who had significant vulnerabilities and two children who were in her parents’ care. He was re-released to parole in November 2015.

14. On 6 March 2020, the State Parole Authority (“SPA”) refused the defendant’s application for parole on the expiration of the non-parole period for his 2019 offences.

15. Since his release to parole for the index offences in July 2021, the defendant has resided on a rural property. He was issued with a warning on 26 July 2021 for non-compliance with the conditions of his electronic monitoring, after attending his neighbour’s home without prior approval or notifying the electronic monitoring room.

16. On 7 September 2021, the defendant again left the approved boundary of his property without permission and was on a neighbouring property for approximately one and a half hours. He was subsequently provided with a formal direction that clarified the boundaries of his property as the approved area which he can utilise without prior approval.

17. At a meeting with his Community Corrections officer on 29 July 2021, the defendant was reported as minimising the seriousness of his offending behaviour and focussing on how his convictions had negatively impacted his own life. He failed to display any empathy or concern regarding the impact on the victims and blamed their mothers.

The defendant’s treatment history and forensic assessment of his level of risk

18. In 2014, while in custody, the defendant completed a treatment program for sex offenders, known at the time as the Custody-Based Intensive Treatment program (“CUBIT”). The CUBIT treatment report, dated 9 May 2014, noted that he engaged well with supervision throughout treatment, although he had limited understanding of concepts:

“He latched on to certain phrases/concepts and used them despite limited understanding, e.g., he indicated an intention to use the ‘Three Step Challenge’ to manage unhelpful thoughts, but could not describe how he would use this strategy.”

19. A proper understanding of this observation requires consideration of evidence as to the defendant’s level of intellectual functioning and his skills in relevant domains. On 2 September 2021, the defendant’s intellectual capacity and functioning was assessed by his clinical psychologist, Allan Anderson, utilising the Wechsler Adult Intelligence Scale, Fourth Edition (“the WAIS-IV”). Mr Anderson concluded:

“[The defendant’s] overall cognitive ability, as evaluated by the WAIS-IV, cannot easily be summarized because his nonverbal reasoning abilities are much better developed than his verbal reasoning abilities. [The defendant’s] reasoning abilities on verbal tasks are generally in the borderline range … while his nonverbal reasoning abilities are significantly higher and in the average range ... [The defendant’s] ability to sustain attention, concentrate, and exert mental control is in the low average range ... [The defendant’s] ability in processing simple or routine visual material without making errors is in the low average range when compared to his peers ... However, due to variability between the two subtests that compose the [processing speed index], caution is warranted when interpreting scores and a closer look at the individual subtests is recommended.” (scores omitted)

20. A risk assessment report dated 13 August 2021 (“the RAR”) concluded that the defendant continues to pose significant risks in terms of sexual offending and has outstanding treatment needs. The author of the report, Catherine Sapula, who is a senior psychologist, noted that when the defendant’s risk level was last assessed in December 2019, which was undertaken using the Level of Service Inventory – Revised (“the LSI-R”), his level of risk for general and violent offending within 12 months of release was within the medium to high-risk category. At the same time, the defendant’s static risk factors were assessed using the STATIC-99R, which is an actuarial risk assessment instrument. His score indicated that his risk of sexual reoffending compared to other adult male sex offenders was well above average.

21. Ms Sapula also noted the results of an assessment of the defendant in February 2020 for dynamic risk factors related to sexual reoffending, utilising the STABLE-2007. His score suggested a “High density of criminogenic needs”. Ms Sapula concluded:

“[The defendant] is a 49-year-old Aboriginal man whose risk of sexual re-offending is estimated to be in the Well Above Average (High) risk category relative to other men who have offended sexually. [The defendant’s] criminal history suggests an antisocial predisposition since his teenage years. Throughout his adult life [the defendant] continued to offend in a sexual manner, alongside other criminality that included violence and routine disregard for the conditions of legal orders. Although [the defendant] completed a sex offender treatment program, he then went on to offend in almost an identical manner. The typology of [the defendant’s] victims appears to be rather consistent: females under the age of 18 years, to a lesser degree this could include pre-pubescent females, and an exploitation of a pre-existing relationship with the child’s parent.

If [the defendant] were to be subject to an Extended Supervision Order, the mitigation of future risk may be enhanced by ongoing community supervision and support. This would require consideration as to whether his risks of serious sexual offending can be adequately managed in community settings with intensive supervision.”

The defendant’s current living arrangements

22. The defendant resides with his mother on a rural property about 25km inland from the Mid North Coast, which his parents purchased in 1985. His father died in 2015. In her interactions with Community Corrections, the defendant’s mother has said that she does not believe that the defendant is guilty of anything, saying on one occasion that, “a lot of the offence is bullshit and lies”.

23. The defendant is presently unemployed and has medical conditions that affect his prospects of obtaining employment. He suffers from membranous glomerulonephritis (stage 1), a condition that causes his legs to swell. He has chronic low back pain. He suffers from depression, for which he is prescribed daily medication. He was treated in prison for Hepatitis C. An Offender Integrated Management System (“OIMS”) case note of 30 June 2021 notes that the defendant told a Service and Programs Officer that he has renal failure and is on chemotherapy treatment, although there is no material before me that supports these contentions. He is presently applying for the Disability Support Pension and inclusion in the National Disability Insurance Scheme (“the NDIS”).

The relevant statutory provisions and principles

24. Section 7(4) of the Act provides that if, following the preliminary hearing, the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, it must make orders of the type sought by the plaintiff for the appointment of forensic experts. If the Court is not so satisfied, it must dismiss the application: s 7(5) of the Act.

25. Accordingly, although this is a preliminary hearing, it is necessary to evaluate the sufficiency of the supporting material to make an ESO, pursuant to the relevant statutory test. Section 5B of the Act stipulates four prerequisites for the making of an ESO. The first three, subss (a), (b) and (c), concern aspects of the defendant’s status as an inmate or supervised offender in the community, which are not contested and which I am satisfied have been met.

26. This leaves the key provision of s 5B(d) for consideration, namely, whether the Court:

“… is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.”

27. Section 5D provides that the Court is not required to determine that the risk of an offender committing a serious offence is “more likely than not” in order to determine that there is an “unacceptable risk” of the person committing such an offence.

28. I note that s 9(2) of the Act provides that in determining whether or not to make an ESO, “the safety of the community must be the paramount consideration of the Supreme Court”, consistently with the stated primary object of the Act, which is “the safety and protection of the community”: s 3(1). A secondary object of the Act is to encourage offenders who come within the Act to undertake rehabilitation: s 3(2). In making its determination, the Court does not weigh the supporting documentation or predict the result at the final hearing: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98], in relation to comparable provisions in an earlier version of the Act.

Determination

29. The defendant’s record of non-sexual offences, taking into account the penalties imposed, is relatively minor. His record of repeated sexual offending, however, and his assessed risk of further sexual offending are serious. As noted, he committed the second of the offences for which he was convicted in 2019, of sexual intercourse without consent against the 14 year old complainant, whilst he was on bail with a condition that he not approach her and after having completed the CUBIT program.

30. I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if he is not kept under supervision.

Conditions

31. Prior to and during the course of the hearing, the parties negotiated and settled most of their initial disagreement concerning the proposed terms of the conditions that would attach to an ISO. It remains for me to determine those that remain in dispute, with brief reasons for my decision.

31. Proposed condition 7 was that the defendant must not deviate from his approved schedule of movements except in an emergency. The defendant sought to amend the condition so as to permit a deviation if he has a reasonable excuse to do so, that term being “an emergency”, to attend to urgent bodily functions (now agreed by the plaintiff) and “attending to urgent incidents on the property of the defendant’s mother”. At the time that the variation was proposed by the defendant, he was concerned that he would be unable to attend to an emergency, should it arise, on a property leased by his mother that is adjacent to the property she owns (“the leased property”). The plaintiff has clarified that it accepts that he may regard the leased property as having the same status as the property owned by his mother for the purposes of the ISO, and therefore the further cut-out is unnecessary. I accept the plaintiff’s submission. I also reject the proposed amendment that the condition be framed as subject to the defendant having “[a] reasonable excuse” for not complying, which is not further defined other than by reference to the three cut-outs.

32. Proposed condition 9 was that the defendant must be at his approved address between 9:00pm and 6:00am unless other arrangements are approved by a Departmental Supervising Officer (“a DSO”). The defendant opposed the condition as unnecessary, in light of other unopposed conditions that he may be subject to electronic monitoring of his movements, a weekly plan agreed three days in advance, and that he not spend the night elsewhere without prior approval of his DSO. The plaintiff submitted that it was necessary because his prior offending was committed at night and it would assist in detecting any new romantic relationship, as well as reduce exposure to alcohol and drugs outside his residence. I reject the condition as unnecessary, in view of the combined restraint on the defendant’s movements obtained by the other conditions.

33. Proposed condition 12 would oblige the defendant to:

“… promptly notify a DSO of any visitor entering and remaining at his approved address and must not permit any person to stay overnight, at his approved address (other than persons who ordinarily reside at his approved address), without the prior approval of a DSO.”

35. The defendant submitted that this condition should be amended so that the obligation to notify the DSO would only apply if a visitor remaining on the property or staying overnight was under the age of 18. The plaintiff countered that the condition was necessary in view of the age group of the defendant’s past victims of sexual assault, and that restricting the age to those under 18 would deprive the DSO of knowing who was remaining on the property and who he might be building a relationship with. Prior notice would enable a DSO to vet the visitors to determine whether they had children who were under the age of 18.

36. Proposed condition 23, which is not opposed by the defendant, forbids him from “associating” with persons who he knows or reasonably should know, are under the age of 18, other than by way of incidental contact in a public place, unless he has the written permission of a DSO. The term “Association” is defined to include “[h]aving a person under the age of 18 years at his home”. That being so, he would be unable to have a visitor to his home who is under the age of 18 for any period of time without prior written permission. To the extent that the defendant’s proposed amendment to condition 12 would imply he could have a visitor at his home who is aged 18 for a fleeting visit without the prior written permission of a DSO, it is contradicted by the terms of condition 23. Therefore, I reject the condition as proposed by the defendant.

37. I note that other conditions have the effect of informing a DSO of the identity of persons visiting the defendant and remaining there overnight, so that there is no purpose served by the condition as proposed by the plaintiff, in terms of its objective. Accordingly, I reject proposed condition 12.

38. Proposed condition 15 would forbid the defendant from attending:

“… any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment, without the prior approval of a DSO.”

39. This proposed condition was opposed by the defendant on the basis that there is no evidence that depriving the defendant of the right to use such services would reduce the risk of him committing a serious offence. The plaintiff has proposed an amendment, whereby he would be obliged only to advise a DSO before attending such a place. I approve the plaintiff’s proposed condition, as so amended.

40. Proposed condition 18 was that the defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by a DSO. The plaintiff submitted that it would allow those supervising the defendant to monitor any expenditure related to alcohol or drug use, or the purchase of gifts or transfer of money as a gift to women or children for the potential grooming of victims. The defendant submitted that the unopposed conditions provide sufficient oversight in relation to such matters. I am not satisfied that the condition is necessary and reject it.

41. Proposed conditions 19 to 21, insofar as they are objected to, concern the defendant’s use of alcohol. They would oblige him to not possess or consume alcohol without prior approval of a DSO (condition 19), to submit to alcohol testing (condition 20) and to not enter premises where it is sold without prior approval of a DSO (condition 21).

42. The proposed conditions are pressed on the basis that excessive alcohol consumption has accompanied some of his past offending, although the RAR noted that it has not necessarily been a pre-requisite or primary contributing factor to his sexual offending. The plaintiff notes that in November 2021, the defendant admitted to drinking “a couple” of cartons a week of Jim Beam.

43. I note that the CUBIT treatment report, dated 9 May 2014, identified “binge drinking” as a warning sign that the defendant would be having difficulty managing risk factors. In particular, I note the following paragraph:

“Binge drinking, ruminating over not being in a relationship, regular visits to sex workers in order to feel connected to others, and attempts to get closer to young people (either directly or through older adults who might associate with younger people), may all be indications of significant difficulty managing risk related behaviour. If [the defendant] is observed to be engaging in these behaviours, intervention by others is required.”

44. I approve interim conditions 19 to 21 as proposed by the plaintiff, conscious that the issue of the defendant’s alcohol consumption in terms of his risk of re-offending will doubtless be addressed by the forensic experts in their forthcoming reports.

45. Proposed sub-condition 26(a) is related. It would prohibit the defendant from “associating” with “any people who he knows are consuming or under the influence of alcohol without the prior approval of a DSO”. “Association” is a broad, undefined concept. While it is as well to remove temptation of consuming alcohol from the defendant, it would be, in my view, unreasonable to require him, for example, to not socialise with a friend who he may meet in town who clearly had been drinking alcohol. I reject the proposed sub-condition.

46. The defendant also objects to proposed sub-conditions 26(b) and (c), which would prevent him from associating with persons who he knows are consuming or under the influence of illegal drugs, and persons in custody without the prior approval of a DSO. I accept that those two sub-conditions are appropriate.

47. Proposed condition 28 would oblige the defendant to not engage the services of sex workers without the prior approval of a DSO. This overlaps with proposed condition 15, which concerns, inter alia, “sexual services”. Consistently with condition 15 as approved, I have re-drafted the condition so that the defendant must notify a DSO in advance of him doing so and provide details of the location and time that he intends to attend the place where the service will be provided.

48. The defendant objected to proposed condition 31, which would prohibit him from possessing or using firearms at all or possessing or using certain items except in limited circumstances. The defendant’s objection was particularly to him not being able to possess certain items that have a potentially lawful use on a rural property. The plaintiff has proposed a variation that addresses that particular concern but avoids the defendant holding such an implement when a DSO visits him at the property. I accept the proposed condition, as varied by the plaintiff.

49. Proposed condition 33 concerned certain restrictions on the defendant’s use of the internet, email as well as device log-in details and would impose obligations upon him to disclose such details to a DSO. There were two objections to this condition. Firstly, that it would oblige the defendant to always use a log-in name of “Shawn Woods”, whereas some sites sometimes reject proposed names, for example, because they have already been taken. Secondly, that the reporting obligation is so phrased that it would be difficult for the defendant to understand, and therefore for him to comply with it.

50. During the course of the hearing, the plaintiff proposed an amendment to assist with the first issue, whereby the defendant would be obliged to notify a DSO shortly after adopting a different log-in name. Discussions continued after the hearing, and a proposed variation and further submissions were received in chambers from the plaintiff and defendant by a set deadline. I have adopted the terms of proposed condition 33 as varied by the plaintiff since the hearing. That is intended to overcome the issue on an interim basis. I note that the terms oblige the defendant to provide details of all internet sites he visits. While potentially onerous, as an interim condition it allows the parties to further negotiate its terms if it transpires that the Court in due course orders an ESO.

51. Proposed conditions 35 and 36 also concerned the use of electronic devices, phones, access to the internet and messaging services. They were opposed by the defendant. The plaintiff agreed to them being deleted if its proposed condition 33 is adopted, so the defendant’s objection to 35 and 36 is met.

52. Proposed condition 37 would oblige the defendant to not use an application or service that is “coded” or uses encryption. The defendant opposed the condition on the basis that it would prevent him from using social messaging services which are widely used, particularly by those who cannot afford text messages. Examples are “WhatsApp” and “Signal”. Another concern is that it is not necessarily apparent which internet services are encrypted, so there is a potential for the defendant to inadvertently breach such a condition.

53. The plaintiff pressed the condition as a necessary measure to allow the authorities to monitor the defendant’s electronic communications. The defendant submitted that, if the Court accepted the plaintiff’s concern, the condition be modified to permit a DSO to allow a particular encrypted service to be used. As an interim measure, I am inclined to allow the condition as modified in terms proposed by the defendant. As a final condition, should the defendant in due course be made subject to an ESO, I can appreciate its potentially restrictive impact on his social interactions. That will be a matter for the court at that time, should it arise.

54. Proposed condition 41 would oblige the defendant to not delete or alter data and applications on an electronic device without the prior approval of the DSO. The defendant opposed the condition for the reason that compliance may cause him to exceed the capacity of his phone. I regard that scenario as so unlikely as to be an insignificant concern and approve the terms of the proposed condition, having regard to the obvious importance of the defendant’s text messages and other communications, and sites visited, being retained.

55. I have made a minor variation to proposed condition 46 which concerns changes to the defendant’s appearance.

Orders

56. I make the following orders:

1. Order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW):

1. Two qualified psychiatrists or two registered psychologists, or a combination of one of each, be appointed to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court;

2. The defendant is directed to attend those examinations;

2. Order pursuant to ss 10A and 10C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) that the defendant be subject to an interim supervision order commencing on 10 February 2022 (“the interim supervision order”) for a period of 28 days from that date;

3. Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), direct that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule attached to this judgment;

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

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Conditions of Supervision (167391, pdf)

Decision last updated: 09 February 2022