State of NSW v French

Case •

[2017] NSWSC 400

•

12 April 2017

No judgment structure available for this case.

Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: State of NSW v French [2017] NSWSC 400
Hearing dates: 10 April 2017
Date of orders: 12 April 2017
Decision date: 12 April 2017
Jurisdiction:Common Law
Before: Adamson J
Decision:

See paragraph [90].

Catchwords:

CRIMES (HIGH RISK OFFENDERS) ACT 2006 – interim supervision order appropriate for defendant with limited insight into depravity of sexual offences – drugged victim before assaulting her

CRIMES (HIGH RISK OFFENDERS) ACT 2006 – interim detention order pending identification of available suitable accommodation refused – real chance of accommodation being sourced before release date – fact of release will improve chances of COSP accommodation being available
Legislation Cited: Crimes Act 1900 (NSW) ss 38, 59, 61, 61I, 61J, 61L
Crimes (High Risk Offenders) Act 2006 (NSW) ss 3, 4, 5(1), 5B, 5B(2), 5H, 5I, 7, 7(4), 9(3), 9(3)(a), 9(3)(c), 9(3)(d), 9(3)(d1), 9(3)(e), 9(3)(f), 9(3)(h), 9(3)(h1), 9(3)(i), 10, 10A, 10A(b), 10C, 10C(1), 11, 12, 13A, 13B, 15(4), 18A, 21, 25, 25(1), 25(3)
Cases Cited: French v R [2006] NSWCCA 361
Category:Principal judgment
Parties: State of New South Wales (Plaintiff)
Barrie James French (Defendant)
Representation:

Counsel:
H Bennett (Plaintiff)
A Cook (Defendant)

  Solicitors:
NSW Crown Solicitor (Plaintiff)
Legal Aid Commission (Defendant)
File Number(s): 2017/80400

Judgment

Introduction

  1. By summons filed on 15 March 2017 the State of New South Wales (the plaintiff) seeks orders under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) in respect of Barrie French (the defendant), including, by way of final relief, a continuing detention order (CDO) for a period of 6 months or the date on which suitable accommodation becomes available; and an extended supervision order (ESO) for a period of five years. All references to legislation in these reasons are to the Act, except where otherwise stated.

  2. At the preliminary hearing in these proceedings on 10 April 2017 the plaintiff sought the following orders:

“1. An order pursuant to s 15(4) of the Crimes (High Risk Offenders) Act 2006 (“the Act”):

a.   Appointing two qualified psychiatrists and/or registered psychologists (or any combination of such persons) to conduct separate psychiatric 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.   Directing the defendant to attend those examinations.

. . .

7.   An order:

a. pursuant to s 18A of the Act, that the defendant be subject to an interim detention order from the date of his proposed release from custody for a period of 28 days.

8. An order pursuant to s 20(1) of the Act that the Court issue a warrant for the committal of the defendant to a correctional centre for the period specified in paragraph 7 above.

9.   In the alternative to paragraphs 7 and 8 above,

a. an order pursuant to s 10A and s 10C(1) of the Act that the defendant be the subject of an interim supervision order from the date of his proposed release from custody for a period of 28 days; and pursuant to s 11 of the Act, an order directing the defendant to comply with the conditions set out in the Schedule attached to this Summons for the duration of the order.”

The relevant legislation

  1. Section 3 of the Act provides:

“Objects of Act

(1) The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high-risk violent offenders so as to ensure the safety and protection of the community.

(2) Another object of this Act is to encourage high-risk sex offenders and high-risk violent offenders to undertake rehabilitation.”

  1. The legislative purpose of the Act is protective, not punitive. As appears from the terms of s 3, the protective purpose is fundamental.

  2. Section 5(1) of the Act defines “serious sex offence”. The definition relevantly includes an offence under Division 10 of Part 3 of the Crimes Act 1900 (NSW) which is punishable by a sentence of imprisonment of seven years or more (such as offences against ss 61I and 61J); and an offence under s 38 of the Crimes Act that has been committed with intent to commit an offence under Division 10 of Part 3 of the Crimes Act which is punishable by a sentence of seven years or more.

  3. Section 5B provides:

“High risk sex offender

(1) An offender can be made the subject of a high risk sex offender extended supervision order or a high risk sex offender continuing detention order as provided for by this Act if and only if the offender is a high risk sex offender.

(2) 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.

(3) The Supreme Court is not 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.”

  1. The plaintiff may apply to this Court for an ESO (s 5H) or a CDO (s 13A). The persons against whom such an application can be made are set out in s 5I (ESO) and s 13B (CDO). A person, who is serving a sentence of imprisonment for a serious sex offence, or an offence of a sexual nature, or for another offence which is being served with a sentence for a serious sex offence or an offence of a sexual nature, is, relevantly, a person in respect of whom such an application can be made.

  2. Section 6 provides that an application for an ESO may not be made until the last six months of the offender’s current custody and must be supported by documentation which includes a report by a relevant expert (qualified psychiatrist, registered psychologist or registered medical practitioner) that assesses the likelihood of the offender committing a further serious sex offence.

  3. Section 7 provides for pre-trial procedures for an application for an ESO; the corresponding provision for a CDO is s 15(4). Section 7(4) (for an ESO) provides:

“(4) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders:

(a) appointing:

(i) 2 qualified psychiatrists, or

(ii) 2 registered psychologists, or

(iii) 1 qualified psychiatrist and 1 registered psychologist, or

(iv) 2 qualified psychiatrists and 2 registered psychologists,

to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and

(b) directing the offender to attend those examinations.”

  1. Section 9(3) provides that the following are to be taken into account in determining whether to make an ESO:

“(a) the safety of the community,

(b) the reports received from the persons appointed under section 7 (4) [court-appointed experts] 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,

. . .

(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,

. . .

(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).

  1. Section 10 provides that an ESO can be made for a total of five years. Section 10A provides for an Interim Supervision Order (ISO) to be made in certain circumstances. The decision whether to make an ISO is to be made by reference to the same considerations as apply to an ESO. Section 10A provides:

“Interim supervision order—high risk sex offender

The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, it appears to the Court:

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

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

  1. The corresponding provision for an Interim Detention Order (IDO) is s 18A.

  2. Section 11 provides for the conditions that may be imposed on an ESO (or ISO). A breach of ESO (or ISO) conditions is an offence under s 12 of the Act.

  3. These proceedings are to be conducted as civil proceedings: s 21. Section 25 of the Act empowers the Attorney-General to require provision of certain information. Any document produced in answer to an order in writing under s 25(1) is admissible in proceedings under the Act, “despite any Act or law to the contrary”: s 25(3).

Evidence

  1. The plaintiff relied on the following evidence:

  1. affidavits of Vincenzo Camporeale affirmed on 15 March 2017 (including exhibit VC-1 to that affidavit); 30 March 2017 and 10 April 2017;

  2. affidavit of Erin Kirkwood affirmed on 30 March 2017.

  1. The defendant did not adduce any evidence at the preliminary hearing.

Facts

  1. The application for an ISO requires me to determine whether it appears that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk sex offender ESO. Accordingly, the following narrative reflects those matters which are to be found in the supporting documentation in the evidence adduced by the plaintiff in support of its application and do not amount to findings of fact beyond the standard required by s 10A(b). I note that the evidence tendered by the plaintiff has not been tested or challenged, except to a very limited extent by the cross-examination of Ms Kirkwood. All that is required for the purposes of deciding whether to make an ISO is that it must “appear” to the Court that the ESO will expire before the proceedings are determined (which is common ground) and “that the matters alleged in the supporting documentation would, if proved, justify the making of” an ESO: s 10A.

  2. Accordingly, the following narrative ought be read with the qualification that it sets out the matters alleged in the supporting documentation. The facts in the narrative ought not be regarded as findings of fact, except on the limited basis required for the purposes of deciding, in accordance with s 10A, whether to make an ISO.

Background

  1. The defendant was born in 1972. His criminal history dates back to when he was 13 years old. His criminal history in the Children’s Court includes offences of stealing; offensive language; possession of prescribed restricted drug; trespass; and assault.

  2. In 1994 the defendant, who was then 22 years old, began a relationship with V1, who was then 18. After the first year, he became verbally abusive and later became physically abusive. He had a pistol and dealt in ecstasy. The defendant kicked and punched V1 and also hit her with a baton and baseball bats. Her coccyx fractured when he kicked her with a steel-tipped boot. She also sustained a fractured rib.

  3. The defendant was charged on an indictment presented in 1999 with an offence of demanding money ($4,000) with menaces. He pleaded guilty to the charge. A pre-sentence report dated 14 April 1999 reported that, in the past 4-5 years, he had resided between his parents’ home and the home of his girlfriend (V1, see further below). Its author noted the defendant’s tendency to become abusive when angry. A Community Service Order of 250 hours was imposed on 15 April 1999 by the District Court. The Community Service Order was revoked in September 2000. A sentence of periodic detention was imposed, which was revoked. A sentence of home detention was imposed but it, too, was revoked. Ultimately a sentence of imprisonment of 5 months and 2 days, which concluded on 23 June 2002, was imposed.

  4. Between January 2001 and July 2002, the defendant took two videotapes of V1 at times when he had drugged her such that she was unconscious. While she was unconscious he committed various offences which he videotaped. The particulars of the indictment, which accord with the statement of agreed facts on sentence, record the following sequences on the videotapes which were taken on separate occasions. The particulars were marked Exhibit D at the sentence hearing.

“TAPE 2”

Count

Timer

Particulars

1

N/A

Administer stupefying drug with intent - relates to the entire video [s 38]

2

09:58

Syringe inserted into complainant's vagina [sexual intercourse without consent - s 61I]

3

11:03

Syringe sticking into elbow [common assault —s 61]

4

11:12

Complainant has a number of syringes inserted into her body, including one through the labia [AOABH - s 59]

5

13:01

Syringe in anus. Syringe is being depressed and liquid expelled into body [Sex. Int. w/o consent s 61I]

6

14:49

Tim tam biscuit inserted into complainant's vagina [sex. Int. w/o consent – s 61I]

7

15:34

Tim tam biscuit inserted into complainant's anus. Biscuit removed and given to accused's dog to eat [sex. int. w/o consent - s 61I]

“TAPE 3”

Count

Timer

Particulars

8

N/A

Administer stupefying drug with intent - relates to the entire video [s 38]   

9

11:19

Digital penetration of vagina [sex. int. w/o consent - s 61I]

10

25:05

Tim tam biscuit inserted into complainant's vagina [sex. int. w/o consent - s 61I]

11

29:45

Accused spits on complainant's vagina, after rubbing silver meditation balls on vagina [indecent assault - s 61L]

12

35:45

Fellatio, accused places penis in complainant's mouth [sex. int. w/o consent - s 61I]

13

39:40

Inserted red dildo into complainant's vagina [sex. int. w/o consent –s 61l]

14

49:37

Accused holds uncapped syringe near complainant's bottom. He inserts syringe into vaginal area [AOABH - s 59]

15

1:03:10

Complainant fellates accused. He is holding a silver knife blade above her head whilst sitting in front of her - implied threat of actual bodily harm [Aggravated sexual intercourse without consent (offensive weapon or instrument/knife) – s 61J(1)(b)]

  1. No report was made by V1 to the police of these offences since she was unaware of their commission, by reason of her having been unconscious at the time. Indeed, she was interviewed by Ms Elbourne, Probation and Parole Officer, for the purposes of a pre-sentence report in respect of the defendant for the sentencing hearing in the District Court on 8 February 2001 (for the plea in respect of demanding money with menaces). Ms Elbourne recorded:

“The offender has been in his present relationship for a period of six years and the couple are expecting their first child in June this year. The relationship appears to be supportive and stable and his fiancée is considered to have a good influence on his attitudes.”

  1. V1 ended the relationship in 2002, though not as a result of the sex offences committed on her, of which she was then still unaware.

  2. According to a statement made by V2 in March 2003, the defendant befriended V2, a woman whom he had met through an associate who was dealing in amphetamines. The defendant and V2 spent some time together in a hotel room and later in his unit over a few days. Before long the defendant became very possessive of V2 and would not allow her to leave the unit without him or permit her to use her mobile telephone to contact her sister. Almost a week after they had met, the defendant proposed that they have sex, which they did. He later suggested that they have anal sex but V2 refused. On a subsequent night, V2 woke in the morning without being able to remember the previous night. The defendant told her that he had given her something to help her sleep. Later the defendant asked her what her view was of handcuffs during sex. She said that she did not want to try them.

  3. On a subsequent evening, 23 March 2003, the defendant told V2 that he had been in gaol. He then locked V2 inside his bedroom and pulled out a big white sack from under the bed which contained hand cuffs; a video camera; rope; leather belts, brown masking tape and a red and yellow belt with Velcro on it. The defendant handcuffed V2 to the bedhead. V2 resisted but gave up because the defendant was stronger than she was. The defendant said to her:

“I’m going to tie you up and do what I want to do to you for as long as I want.”

  1. The defendant later threatened her with a knife and a handgun. He fastened a belt around V2’s eyes and tightened it so that she could not see. He tied each of her legs to the bed. During that night he sexually assaulted her.

  2. V2 reported the matter to police who arranged for V2 and her sister to stay where she would be safe. While she was in a hotel room, a man, whose voice she recognised as the defendant’s, rang her and said:

“Just what the fuck do you think your [sic] doing sending the police around to my Dad’s house saying that I sexually assaulted you. I know where the fuck you are. I’m going to get you and your [sic] not going to get away with it. They’re going to think you wanted it anyway.”

  1. V2 responded, “Well, I didn’t want it,” and hung up. According to a subsequent statement, V2 returned to New Zealand as she was very scared of what the defendant might do to her.

  2. On 25 March 2003 the police applied for, and executed, a search warrant of the defendant’s home, in the course of which they found three videotapes depicting sexual acts with different women, including V1, with whom the defendant had been in a relationship from 1994 until 2002. The details of what was found on two of those tapes became the particulars of the indictment in respect of the offences against V1 and were marked Exhibit D (see above). The police also located bullets; handcuffs with a key; various prescription drugs; amphetamines; and black bag containing female clothing in the defendant’s bedroom.

  3. On 10 April 2003 at 1.50am, police arrested the defendant, who was walking his dog in the company of a woman in Cabramatta, and charged him with aggravated sexual assault on 23 and 24 March 2003. The circumstances of aggravation were that he threatened to inflict actual bodily harm on V2 by means of an offensive weapon, namely a small hand gun. Bail was refused. Ultimately, the charges were not proceeded with as, according to an email from the Office of the Director of Public Prosecutions to the plaintiff’s solicitor, V2 did not want to proceed.

  4. The police first interviewed V1 on 17 April 2003. They showed her the videotapes which they had found at the defendant’s residence. The sentencing judge, Hock DCJ, described the effect on V1 of seeing the video tapes as “devastating”.

  1. The defendant pleaded guilty on 17 August 2004 to various offences involving V1 which are referred to in more detail below. On 16 November 2004 he was interviewed by Ms Britton, a clinical psychologist at Forensic Psychology Services (FPS), for the purposes of a pre-sentence report. Ms Britton opined that the defendant suggested that his perception was that he shared a sexually-motivated relationship with most women he met. Ms Britton noted that the defendant accepted the description of the events portrayed on the video but he argued that the behaviour was “fully consensual”. He displayed no victim empathy and told Ms Britton that V1 had laid charges as part of an elaborate plan to blackmail him and extort money from him. Ms Britton said:

“From the evidence on video, Mr. French’s behaviour during the offence, his sexual activity with an inanimate victim and his elaborate placement of needles in the victim’s body appears highly ritualistic and self-involved. It is apparent from the behaviour recorded that the offender is acting out a sexual fantasy and, given our understanding of the dynamics of sexually offending behaviour, we would hypothesize that the purpose of creating such a tape would be to use it as a prompt for further fantasy and associated sexual gratification.”

  1. Ms Britton said of the risk posed by the defendant:

“Mr French had little insight into the nature of his offence or the effect his behaviour may have had on the victim. He does not see himself as a sex offender, yet holds several cognitive distortions surrounding women and coercive or demeaning sexual practices. On actuarial measures he falls in the moderate/high category of risk of sexual recidivism, and issues raised by his mental health suggests this may be an underestimate.”

  1. In November 2004 the defendant was interviewed and assessed by Ms Duffy, a psychologist, at the request of his solicitors for the purposes of the sentence hearing for the crimes against V1. Ms Duffy noted the defendant’s version of the offences as follows:

“Barry described his and V1 sexual relationship as one in which they both enjoyed bondage and discipline. He was sure she was consenting to these acts and denies using force or intimidation. He said if he did intimidate her, he was not aware. Nonetheless, he states that he would undertake any sex offender programme available to him whilst he is in custody and had been assessed the day before our interview by a psychologist from the Sex Offender Unit.”

  1. Following receipt of Ms Duffy’s report, the defendant’s solicitors requested that Ms Duffy view the two videotapes for the purposes of preparing a supplementary report. In her report dated 21 March 2005, which was prepared after she had viewed the videotapes, Ms Duffy said:

“It is thought that this acting out a fantasy of control and humiliation, was seemingly at variance with the dynamics he described to me in his long relationship with V1.”

  1. The defendant’s solicitors also instructed Dr Westmore to prepare a report for the sentencing judge, which was dated 4 January 2005. It is plain from the report that Dr Westmore was unaware of the report made by V2; had not viewed the videotapes; and had relatively little information about the facts of the offences committed against V1.

  2. On 13 May 2005 Hock DCJ imposed the sentences on the defendant which are set out in the table below. The effect of the sentences was to impose a total term of 14 years which commenced on 10 April 2003 and was due to expire on 9 April 2017, with a non-parole period of 10 years which was due to expire on 9 April 2013. I note that the defendant’s period of incarceration was extended to 23 April 2017 because of offences committed on parole.

Counts

Offence

Crimes Act 1900

Maximum penalty/ years imprison-ment

Sentence imposed

NPP = non-parole period

1 & 8

Administer stupefying drug with intent x 2

S 38

25 years

1: Fixed term of 6 years commencing on 10 April 2005

8: Total term of 10 years commencing 10 April 2007; with NPP of 6 years

2, 5, 6, 7, 9, 10, 12, 13

Sexual intercourse without consent x 8

S 61I

14 years

2 & 6: fixed term of 4 years commencing 10 April 2003

5 & 7: fixed term of 4 years commencing 10 April 2004

9, 10, 12 & 13: concurrent fixed terms of 4 years commencing on 10 April 2006

3

Assault

S 61

2 years

3: (concurrent with 4) fixed terms of 3 months from 10 April 2003

4 & 14

Assault occasioning actual bodily harm x 2

S 59

5 years

4: (concurrent with 3) fixed terms of 3 months from 10 April 2003

14: (concurrent with 11) fixed term of 6 months commencing on 10 April 2006

11

Indecent assault

S 61L

5 years

11: (concurrent with 4) fixed term of 6 months commencing on 10 April 2006

15

Aggravated sexual intercourse without consent

S 61J(1)(b)

25 years

15: 5 years to commence on 10 April 2007

  1. Her Honour said in the sentencing judgment:

“It is not necessary to describe in detail the offender’s conduct. The particulars are set out in Exhibit D. Suffice to say that the offender subjected the complainant to many acts of degradation of the grossest kind. Not only was she drugged, she was also bound and tied up to the bed head.

. . .

In respect of these sexual acts the complainant had her capacity to consent completely denied to her by the administration of these stupefying drugs. The offender’s conduct was clearly premeditated. His videoing of the offences was a further insult to the complainant and its purpose was no doubt to enable him to have continual sexual gratification. It is well established that the use of stupefying drugs so as to engage an unsuspecting victim in sexual activity constitutes a particularly serious form of criminality.”

  1. Her Honour took into account as a mitigating feature that the defendant “has shown some remorse”. A 10% discount was given for the plea of guilty for its utilitarian value.

  2. On 1 March 2006 the defendant filed a notice of appeal in which he sought to withdraw his pleas of guilty and, in the alternative, sought leave to appeal against sentence. In his affidavit affirmed on 13 April 2006, the defendant maintained that he was not guilty of any of the charges as he did not believe that V1 was not consenting. The appeal was dismissed: French v Regina [2006] NSWCCA 361. At [37] Adams J (McClellan CJ at CL and Latham J agreeing) said:

“In short, I believe that the appellant has lied to this Court about the circumstances in which he came to plead guilty and the reasons for doing so. Nor do I accept that the appellant has told the truth about his lack of memory about the events in question, either to this Court or, for that matter, to Dr Westmore. Such a failure of recollection is inherently unlikely. Moreover, the conduct of the applicant as shown in the videotapes is quite inconsistent with the suggestion that he was intoxicated by any drug at the time. His actions are deliberate, careful and controlled and display no impairment of movement or fine motor skills. His voice is quiet and normal in tone, though what he says cannot be properly heard. Furthermore, I would reject the appellant as a witness of truth. It follows that it should not be concluded either that he was adversely affected by drugs at the time of the offences or that he has no memory of the relevant events.”

  1. On 22 January 2013 a pre-release report was prepared in respect of the defendant, as his non-parole period was about to expire. The report concluded:

“Given Mr French’s failure to accept responsibility for his criminal behaviour and his tendency to proportion [sic] blame on the victim, his release to conditional liberty as an untreated sex offender is not recommended.

It is therefore respectfully recommended that Mr French complete the CUBIT program prior to further parole consideration.”

  1. On 14 February 2013 the State Parole Authority concluded that release to parole was not appropriate until the defendant addressed his sex offending behaviour through therapeutic programs in custody. A pre-release report prepared on 31 January 2014 recorded that the defendant was engaging in a Custody Based Intensive Treatment (CUBIT) Program and that release was not recommended until the program had been completed. It also noted that the defendant was motivated to do CUBIT so that he could be released to parole. He commenced the CUBIT Program on 9 October 2013 and completed it on 29 May 2014. A CUBIT Treatment Report dated 13 June 2014 reported on his participation in the program.

  2. It is apparent from the content of the CUBIT Treatment Report that its authors were unaware of the report made by V2 to police which led to the search warrant being issued. Accordingly, the authors were under the misapprehension that the offending with respect to V1 was the only relevant conduct. The report recorded that, at the beginning of the CUBIT Program, the defendant had maintained that V1 had consented to the conduct depicted in the videotapes. As treatment progressed, he said that he accepted that his offending behaviour was non-consensual, which he apparently considered to be sufficient acknowledgement of his responsibility.

  3. The section of the CUBIT Treatment Report entitled “Pathways to Offending” said in part:

“Pathways to Offending In developing their offence pathway participants identify the series of events, internal and external, that they believe lead up to their sexual offence(s).

23. Due to his difficulties accepting responsibility for his unhelpful attitudes and beliefs, and his general sense of entitlement, Mr French had some difficulty acknowledging the factors that led to his decision to sexually offend and to maintaining this behaviour over a lengthy period. However, he demonstrated some insight into the background and immediate factors that led to his offending.

24. In the background to Mr French's offending, ongoing unhelpful life patterns were evident, such as his sense of entitlement, hostility towards women, difficulties coping, and difficulties solving problems in appropriate ways.

. . .

25. In the more immediate lead up to his offending, Mr French felt powerless, had limited control in his relationship with the victim, and felt betrayed and resentful. He felt as though his pride had been "hit", so he felt humiliated. He

wanted to regain a sense of control over his life, over the victim, and over their relationship. He wanted to seek revenge on the victim and express his hatred for her by showing her "how low she had stooped". Mr French was sexually aroused to behaviour that humiliated others, so his offending was also a means, by which to gain sexual gratification and feel better about himself. Videotaping the offences was a further means by which to humiliate and degrade the victim (e.g., he could use it as evidence against her later). Although Mr French denied watching the videos, it is possible that the videotapes served as further sexual gratification.

26. As a result of this work, Mr French identified that at the time of offending the following factors resulted in a sexual offence: drug use; unhelpful attitudes to women; sense of entitlement/sexual entitlement; unhelpful relationships; unhelpful influences; not managing thoughts and feelings; not caring about the consequences; thinking about using sex to seek revenge; and, sexual arousal to humiliating/degrading behaviour.”

  1. The CUBIT Treatment Report assessed the defendant’s risk rating as moderate-low on dynamic risk factors. The authors of the report recommended that, during his parole period, he participate in sessions with Forensic Psychology Services (FPS); that he engage with community-based services to assist him with his rehabilitation and that he engage in pro-social activities.

  2. On 27 June 2014, by reason of his completion of the CUBIT Program, the defendant’s application for parole was supported and, ultimately, he was released to parole and went to live with his grandmother in Wollongong. He attended FPS on 28 July 2014 as part of his conditions of parole. The note of the second session on 4 August 2014 recorded:

“Throughout session, Mr French expressed frustration and hostility towards FPS. He stated that it was a waste of time attending here, it was difficult for him to get here and he saw no reason for it. He stated that the junky fucking hoar who he had partnered for 10 years then turned around and accused him of rape 7 years later and, because of some tapes, he got charged. He believes that he is low risk and that this is what is reported and so he does not see the need for any further intervention. He requested paperwork he could sign so that he didn’t need to attend any further sessions. Mr French stated that his parole officer (Barney) had agreed with him on this and said that he could get work in WA working in the mines whilst on supervision.”

  1. On 22 August 2014 the defendant was permitted to live with his father in Cabramatta. However, he was alleged to have assaulted his father and was bailed to appear at Liverpool Local Court on 9 September 2014. Parole was revoked on 7 September 2014 and the defendant was returned to custody to serve the balance of his term until 23 April 2017.

  2. The defendant was released to parole again on 18 February 2016. He was allocated a bed at Nunyara Community Offender Support Program Centre (COSP).

  3. The defendant attended FPS again on 18 March 2016. The treatment notes recorded that he gave the following history of the circumstances of the index offences:

“Barrie is currently single. He spoke of his ex-partner V1 and he said that he has no ill feelings towards her. He said that the sexual activity took place at the beginning of their 10 year relationship and it was only when they were going to break up that she threatened him with it. He said that he does not trust people generally, as he has had to fend for himself, but in particular does not trust women.”

  1. On 23 March 2016 the defendant attended a further session with FPS. The notes recorded as follows:

“There have also been concerns flagged that Barrie may be drug dealing. Barrie was communicative, although his eyelids appeared quite droopy. He said that he was planning on meeting a girl called P14. He tried to find a picture of her in his phone, but could not find one. He said that she is a glamour and although they ad[sic] made several attempts to meet up, the COSP stuffed things up because of the schedule. Barrie said that he got her detail by his friend, providing her with his email address and her getting in touch with him. He said that there are a few women whom he is currently in contact with and he [sic] trying to arrange to meet them, but is waiting to get out of the COSP so it is easier to do.

Barrie said that he had had some fun since getting out, but is not sure if he is ready for a relationship.”

  1. On 23 March 2016 Nunyara COSP issued the defendant with an eviction notice due to his poor attitude, staff safety concerns and lack of compliance with program conditions. On 24 March 2016 the defendant’s parole was revoked because he was found to be in possession of a prohibited drug. Attempts to find accommodation for the defendant on his release were made by Community Corrections Officers on his behalf. It was noted in a pre-release report on 8 June 2016:

“Mr French has demonstrated little insight into the seriousness of his current circumstances. The behavioural issues and non-compliance, which were apparent in the community, appear to have continued since his re-entry into custody.”

  1. In a subsequent report dated 28 July 2016 a Community Corrections Officer noted that the defendant’s “previous non-compliance and aggressive behaviour have impeded efforts to source post-release accommodation”. Statements to similar effect were repeated in subsequent reports. However, sustained attempts to find suitable post-release accommodation continued to be made.

  2. On 2 September 2016 Dr Richard Parker, Senior Psychologist, prepared a risk assessment report in relation to the defendant. Dr Parker noted that, although the defendant had completed all relevant custody-based treatment programs and sessions, he lacked insight into his offending and his response to treatment was superficial. His Executive Summary concluded as follows:

“If the Court were to impose an Extended Supervision Order, Mr French would be closely supervised and have access to maintenance services from Forensic Psychology Services. A Continuing Detention Order would not provide any further rehabilitation, as Mr French has already completed all the recommended programs.”

  1. On 15 November 2016 Cornelius Van Ryn, Senior Community Corrections Officer of the ESO Team, prepared a risk management report. Mr Van Ryn noted the lack of suitable accommodation (at the time of writing the report). He also recorded that the defendant had lost the support of his father and grandmother, whom he had alienated during his periods on parole, and that the defendant had not had any contact with his mother or any sibling since 2003. Mr Van Ryn opined that the defendant’s tendency to lie could hinder the management of the risks he posed and noted that his performance on parole did not augur well for risk management. He recommended a requirement for the provision of schedules and electronic monitoring as well as unannounced visits and a curfew as a way of managing the risks. In this context, Mr Van Ryn stressed the requirement for stable accommodation. Mr Van Ryn referred to issues with substance abuse, which suggested that random urinalysis was appropriate.

  2. On 14 December 2016 the High Risk Offender Assessment Committee considered whether an application for an ESO ought be made in respect of the defendant. The Committee was of the view that the defendant did not meet the threshold for the making of such an order.

  3. On 21 January 2017 the defendant was assessed by Dr Chew, psychiatrist, at the request of the Commissioner of Corrective Services. The defendant told Dr Chew that he would be “very very happy on release to community to engage in any treatment follow-up necessary”. Dr Chew asked the defendant about the index offence and recorded the following response:

“Mr French admitted that there was one victim his “ex-missus” over a number of occasions. He however told me that in the context of this that they were both heavily using illicit substances. He told me that at the time he assumed it was consensual activity.”

  1. Dr Chew recorded that the defendant told him that he had had four significant relationships with adult females and that most of his sexual activity was in the context of those relationships. He said that he had a “very active sex life” with his ex-partner and that it was related to drug-taking on both sides. He said, when not under the influence of drugs, his sexual interests were “vanilla”. Dr Chew expressed the following opinion:

“Although his index offending behaviour was of a sexual aggressive nature he did not report any symptoms definitively consistent with a formal diagnosis of any disorders of sexual deviance.”

  1. On 1 March 2017 there was a verbal conflict between the defendant and another inmate in gaol, following which the defendant left the cell and then returned a few minutes later, threw hot water over the other inmate and then hit him over the head with a metal cup a number of times. The inmate was taken to Justice Health for medical treatment and was later escorted to Prince of Wales Hospital for treatment to a gash on the left side of his head. As a consequence the defendant was put into segregated custody.

  2. On 14 March 2017 the ESO Team assumed responsibility for identifying and assessing the defendant’s post-release accommodation, all other efforts made on his behalf having been unsuccessful. In her affidavit of 30 March 2017 Ms Kirkwood, the defendant’s current Departmental Supervising Officer (DSO), deposed as to the considerable attempts that had been made to obtain post-release accommodation for the defendant. She deposed, at [29] of her affidavit:

“To date, there are no further identified accommodation pathways to assist the defendant. He is considered to be unsuitable for placement in emergency housing or temporary accommodation, due to his assessed level of risk and recent noted volatile behaviour in custody.”

  1. After the incident with the other inmate, the High Risk Offender Assessment Committee agreed to recommend that an application for a short CDO be made (so that the defendant could obtain accommodation) followed by an ESO.

  2. At the hearing on 10 April 2017, Ms Kirkwood gave evidence that, on 7 April 2017, since swearing her affidavit, she made enquiries of Providential Homes. Although the enquiry is still outstanding, she said that there was a possibility of housing being available there. In cross-examination, Ms Kirkwood accepted that, once a particular inmate’s options for accommodation had been exhausted, the COSP facilities tend to be more flexible in deciding to admit that person, even if the person had earlier been rejected on the grounds of unsuitability. Ms Kirkwood confirmed that an inmate who had been released from custody but was subject to an ESO would be able to reside in Emergency Housing arranged by the ESO Team until a permanent option could be found.

Whether an interim detention order ought be made

  1. The only purpose for which an IDO was sought by the plaintiff was to enable suitable accommodation to be identified for the defendant. In light of the evidence of Ms Kirkwood, I am satisfied that, if the defendant is released from custody, suitable accommodation will be found for him by 23 April 2017 at premises from which he can be supervised by the ESO Team. In these circumstances I proposed to address only those statutory provisions which relate to ISOs and ESOs, rather than IDOs and CDOs.

Whether the defendant is a “high risk sex offender”

  1. The defendant meets the definition of “sex offender” in s 4 of the Act, having been sentenced for a number of “serious sex offences”. In these circumstances he is a “high risk sex offender” if I am satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision: s 5B(2). I am satisfied of that matter for the reasons given below.

  2. I note that the sentence to which the defendant is subject will expire at midnight on 23 April 2017, before these proceedings are determined and, accordingly, any ISO should commence before that expiry.

Section 9: the matters to be taken into account

  1. I shall address each of the matters in s 9(3) in turn, in so far as each is relevant. However, I propose to address safety of the community (s 9(3)(a)) in a compendious way at the end since many of the other factors also concern this matter and are also relevant to the assessment or risk and whether it is “unacceptable”.

Section 9(3)(c): assessments prepared by other psychiatrists or psychologists and statistical or registered medical practitioner as to the likelihood of the offender committing a further relevant offence and the level of participation in such assessment

  1. The reports of Dr Parker and Dr Chew are referred to above. It is of concern that neither was aware of the circumstances of V2 and her reporting of the defendant’s conduct. They therefore approached the question of the risk of re-offending on the mistaken assumption that the conduct underlying the index offences was the only relevant conduct. Moreover, although they were provided with some documentary material, it did not appear to include either Hock DCJ’s remarks on sentence or the particulars of the indictment. Thus, to a significant extent, the experts were reliant on the defendant’s history of his offending conduct. This circumstance is of particular concern in the present case as the defendant’s statements about his offending tend to exhibit a marked lack of insight, when compared with the actual conduct, as described by Hock DCJ and the particulars.

  2. I note that Dr Parker assessed the defendant as being at high risk of committing further non-sexual offences and at moderate risk of committing further sexual offences.

  3. Dr Chew specifically noted the defendant’s history that there was one victim only; whereas the documents relating to V2 suggest a similar course of conduct with at least one other woman. Dr Chew confirmed that he was not specifically asked to opine about the defendant’s risk of re-offending. He did not note the discrepancy between the defendant’s version of his sexual history and other versions given, or that the version given to him was minimal and self-serving. Dr Chew noted that the defendant was “very very happy” to participate in treatment. The defendant’s statement would appear to be substantially at odds with his engagement, or lack thereof with FPS, as recorded in the notes.

Section 9(3)(d): the results of any statistical or other assessment as to the likelihood of the defendant committing a further relevant offence

  1. The statistical likelihood of the defendant’s re-offending was considered in the CUBIT Treatment Report by reference to Static-99R, a statistical tool for predicting future risk of re-offending by reference to certain static factors. The defendant scored 3, which placed him as a moderate to low risk relative to other male sex offenders. That the defendant lived with his partner for over two years is assessed by Static-99R as being a protective factor. However, as the circumstances of the offending show, it was the relationship which provided him with the opportunity to offend. Furthermore, there is no reference to V2 in the CUBIT Treatment Report because the matter did not proceed to trial, which meant that the assessment was done on the basis that there was only one victim, V1.

  2. I note that Ms Britton assessed the defendant in 2004 by reference to Static-99, the predecessor to Static-99R. She assessed his score as placing him in the medium to high category. As the tool relies largely on static factors, the difference in classification might relate to revisions between the versions, or could be explained by the fact that the defendant was older when assessed by Dr Parker (since age is a relevant factor). I note Ms Britton’s view as expressed in the extract set out above that the actuarial measure may be an underestimate in the defendant’s case.

Section 9(3)(d1): any report prepared by Corrective Services NSW as to the extent to which the defendant can reasonably and practicably be managed in the community

  1. In his report dated 15 November 2016 Mr Van Ryn set out the ways in which the risks posed by the defendant could be managed in the community. He identified the various conditions that could be placed on an ISO or ESO to ameliorate the risk. Mr Van Ryn also identified the aspects of the defendant’s personality or conduct which could compromise the task of managing the risk but did not opine that these matters would be insuperable barriers to the reasonable and practical management of the risk the defendant posed if released to the community.

Section 9(3)(e): any treatment or rehabilitation programs in which the defendant has had an opportunity to participate; his willingness to participate and the level of his participation

  1. I note that the defendant has participated in all available programs while in custody, including the CUBIT Treatment Program. Ms Cook, who appeared for the defendant, submitted that the defendant has learned something from such programs. I do not accept this proposition and note the observations referred to above, which tend to indicate that the defendant’s participation was superficial. The defendant’s incapacity to acknowledge the gravity of his offending conduct is a substantial indication of the colourable nature of his participation and that any gains were more apparent than real. Although it appeared from the CUBIT Treatment Report that, throughout the course, the defendant had come to an acceptance that V1 was not consenting, he soon reversed his position and does not appear to have any concept of his responsibility for the crimes. The version given to Dr Chew would appear to be grossly at odds with the facts as described in the remarks on sentence and in the particulars of the indictment.

  2. Moreover, although the defendant told Dr Chew that he would be “very very happy” to participate in the services provided by FPS, his attitude, as recorded in the FPS notes on 4 August 2014, was one of frustration and hostility. I note the comments to the effect that the defendant undertook CUBIT in order to be released on parole. Once released, he was either unwilling, or unable, to comply with conditions which led to his being returned to custody.

Section 9(3)(f): the level of the offender’s compliance with any obligation to which he has been subject when released on parole

  1. As the narrative set out above indicates, the defendant remained at liberty for only short periods because of his breaches of parole, as a result of which he was returned to custody. Further, before the index offences, when he was sentenced to a Community Service Order for demanding money with menaces, the order was revoked and a periodic detention order made, which was revoked and a home detention order was made, which was ultimately converted into a sentence of full-time imprisonment. These instances show the defendant’s poor compliance with limitations while at liberty.

Section 9(3)(h): the offender’s criminal history and any pattern of offending behaviour disclosed by that history

  1. The defendant’s criminal history is set out above. The circumstances concerning V2 do not form part of that history as the indictment was no-billed as a result of V2’s unwillingness to testify. However, it is important to note that the index offences occurred during a period of up to eighteen months with a woman whom the defendant was then in a long-term intimate relationship. The “pattern” was that the defendant would administer a drug to his victim who would then be unconscious and therefore incapable of resisting the various sexual acts to which he wanted to subject her for his gratification and her degradation.

Section 9(3)(h1): the views of the sentencing court at the time the sentence of imprisonment was imposed on the defendant

  1. I have extracted in the chronological narrative above the views of Hock DCJ in the District Court, when the sentence was imposed, and the views of the Court of Criminal Appeal when the conviction was sought to be set aside. These remarks indicate the gravity of the offences, their depravity, the defendant’s dishonesty and the terrible and devastating harm to the victim, who was unaware of what had occurred until police showed her the videotapes which the defendant had created while committing the offences.

Section 9(3)(i): any other information that is available at to the likelihood that the offender will in future commit offences of a sexual nature

  1. The material referred to above concerning V2 falls into the category of “other information that is available at to the likelihood that the offender will in future commit offences of a sexual nature”. It is admissible under s 25(3) of the Act and is relevant because of the extent to which the defendant’s conduct with V2 is reflected in his conduct with respect to V1. I note, in particular, the circumstance that the defendant did not exhibit any desire to live out his sexual fantasies at an early stage of his relationship with V1. V1 said that the first year of their relationship was good and that it was only thereafter that he began to abuse her. Even then, he drugged her rather than have her resist which meant that she did not even know what he had done until much later.

  2. As for V2, the defendant befriended her and spent a few nights with her before they had sex. He appears to have groomed her by having consensual sex for a period before raising the topic of anal sex and handcuffs. In the case of V2, the defendant may have drugged her for the purposes of performing sexual acts, she was conscious and restrained by handcuffs and ties for the events described by V2 in her statement. The defendant’s attempts to intimidate V2, as described in her statement, were successful. She returned to New Zealand out of fear of reprisals and did not want to proceed with the prosecution.

Section 9(3)(a): the safety of the community

  1. The defendant’s apparent pattern of behaviour as exhibited by the index offences and the conduct towards V2 is of particular concern in light of the statement made by the defendant to FPS on 23 March 2016. Although he had only been at liberty on parole for four weeks he told the psychologist that he had “already had some fun since getting out”. The defendant is obviously capable of presenting well and attracting women who may be lured into thinking that they are safe with him. However, his controlling behaviour with respect to V2 (locking the room, preventing her from speaking to her sister on the phone and, ultimately, handcuffing her and tying her to the bed) followed relatively soon after the initial period when he behaved appropriately towards her.

  2. The defendant has shown himself to be disingenuous in many situations, including to Dr Chew, who was not in a position to doubt the history because of limited material with which he had been provided. Ms Duffy’s conclusion that the history she had been given was “at variance” with what she observed in the video can only be described as a substantial understatement. The defendant’s facility for lying makes him an even greater risk having regard to the nature of the index offences, and the conduct with respect to V2 which did not proceed to trial.

  3. The defendant’s display of remorse is too variable and inconsistent to be genuine. Although the sentencing judge found some remorse, such remorse as there might have been had disappeared by the time the defendant applied to withdraw his plea of guilty. There is a substantial amount of material to indicate that the defendant remains in denial about his culpability and may even still believe that V1 was consenting, although he had rendered her unconscious before subjecting her to sustained acts of sexual degradation and depravity. I consider that, on the basis of the material tendered before me at this preliminary hearing, the defendant poses a substantial risk to the safety of the community and, in particular, to that section of the community that comprises adult women.

  4. It is also of significance to the factor of the safety of the community that the defendant’s conduct towards V1 and V2 all took place in secret. In the case of V1, not only did the defendant’s conduct deprive her of the capacity to resist or withhold consent, but it also deprived her of any awareness that it had actually occurred. Had the defendant not videotaped his offences, not only would V1 have been entirely ignorant of the commission of various crimes against her, but no one else could, or would, have known of them and the defendant would never have been charged, prosecuted, convicted or sentenced for them. In this respect, the defendant’s conduct is particularly devious and dangerous because of the difficulties of detection and prosecution of such crimes.

  5. Ms Cook submitted, in support of her submission that the safety of the community would not be jeopardised were the defendant to be released without supervision, that the defendant had been assessed by a “disproportionate” number of experts, none of whom had diagnosed paraphilia, a sexual disorder or sexual deviance disorder. Although the lack of such diagnosis can be accepted, it has very little weight in the circumstances. None of the doctors or experts has been privy to all of the material that was before the Court on the preliminary hearing. The absence of such a diagnosis does not significantly affect the assessment of risk in the present case.

  6. The evidence indicates that the defendant does not have any real insight into his culpability for the crimes and no real appreciation of their effect on others. When released to parole he was impatient to leave COSP so that he could commence sexual relationships with women. In the absence of either insight or remorse, the defendant poses a substantial risk of re-offending with any woman with whom he embarks on a sexual relationship.

Conclusion

  1. Having considered the factors in s 9(3) of the Act addressed above, in the context of the narrative of facts, it appears to me that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO on the basis that the defendant poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision.

  2. Accordingly, I am persuaded that it is appropriate, and necessary, to protect the safety of the community, to order an ISO pursuant to s 10A of the Act for the maximum period of 28 days permitted under s 10C of the Act.

  3. I am obliged, in these circumstances to make orders under s 7(4) of the Act appointing relevant experts to conduct examinations and report to the Court for the purposes of the final hearing at which the Court will determine whether to make an ESO in respect of the defendant, and, if so, for what period.

  4. The parties have provided me with draft orders in the event that I was satisfied that it was appropriate to make an ISO in respect of the defendant. The form of these orders is agreed. Accordingly, I propose to make orders in terms of the short minute of orders provided to me, the content of which is set out below.

Orders

  1. For the foregoing reasons, I make the following orders:

  1. Pursuant to s 15(4) of the Crimes (High Risk Offenders) Act 2006 (the Act), the Court appoints two qualified psychiatrists, Dr Andrew Ellis and Dr Jeremy O’Dea to conduct separate psychiatric examinations of the defendant and to furnish reports on the results of those examinations to the Court by 5:00 pm on 15 May 2017.

  2. The defendant is directed to attend examinations by the above named Court-appointed psychiatrists.

  3. Pursuant to ss 10A and 10C(1) of the Act that the defendant be the subject of an interim supervision order from 23 April 2017 for a period of 28 days; and that, pursuant to s 11 of the Act, for the period of the interim supervision order, the defendant is to comply with the conditions in the Schedule to these reasons for judgment.

  4. The plaintiff to file and serve any affidavit evidence on which it relies by 5pm on 29 May 2017.

  5. The plaintiff to file and serve submissions on which it relies by 5pm on 2 June 2017.

  6. The defendant to file and serve any affidavit evidence on which he relies by 5pm on 5 June 2017.

  7. The defendant to file and serve submissions on which he relies by 5 pm on 9 June 2017.

  8. The matter be listed for hearing on 16 June 2017 at 10am with an estimate of 1 day.

  9. That access to the Court’s file by a non-party in respect of any document shall not be granted without the prior notification by the Registrar of the Court to the parties of the non-party’s application for access, and such access will not be granted without the leave of a Justice of the Court.

  10. Liberty to apply to relist the matter on one days’ notice.

**********

SCHEDULE OF CONDITIONS OF SUPERVISION

BARRIE JAMES FRENCH

Departmental Supervising Officer (DSO)

Corrective Services NSW (CSNSW)

*Any reference to DSO includes any other person supervising the defendant

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

1.   The defendant must accept the supervision of CSNSW until the end of the Order.

2.   The defendant must report to the DSO.

3.   The defendant must follow all reasonable directions by his DSO.

Electronic Monitoring

4.   The defendant must wear electronic monitoring equipment as directed by the DSO.

Schedule of Movements

5.   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.

6.   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

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

8.   The defendant must truthfully answer questions from his DSO, about where he is, where he is going and what he is doing.

Part B: Accommodation

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

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

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

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

13.   The defendant must not permit any 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

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

15.   The defendant must surrender any passports held by the defendant to the Commissioner of CSNSW.

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

17.   The defendant must not attend any place used solely or mainly for the sale or display of sexually explicit material, or sexually explicit entertainment.

Part D: Employment, finance and education

18.   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.

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

20.   The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by his DSO.

21.   The defendant must not sign any legal instrument that gives the defendant control of any money or assets of another person or organisation, without prior approval of the DSO.

22.   The defendant must not sign any lease, mortgage, contract for sale for goods or services above the value of $500, hire agreement, power of attorney, deed, or any instrument relating to obtaining any credit, opening of any account held at a bank, credit union, building society or similar institution, without prior approval of the DSO.

23.   The defendant must not form any corporation, partnership, unincorporated association or register any business names without prior approval of the DSO.

Part E: Drugs and alcohol

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

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

26.   The defendant must not enter any licensed premises without the approval of his DSO (except licensed restaurants/cafes).

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

Part F: Non-association

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

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

30.   The defendant must not associate with any people who are consuming alcohol without prior approval of his DSO.

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

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

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

Part G: Access to the internet and other electronic communication

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

35.   The DSO may remotely inspect any internet account used by the defendant, including the defendant's email addresses, in monitoring compliance with this order.

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

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

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

Part H: Search and seizure

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

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

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

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

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

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

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

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

g.   search and examination of his person.

40.   For the purposes of the above condition:

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

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

NOTE:

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

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

41.   During a search carried out pursuant to condition 34 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise:

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

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

or

c.   the defendant's compliance with this order;

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

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

43.   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 [39] to [42] above.

Part I: Access to pornographic, violent and classified material

44.   The defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification, X18+, R18+, Restricted Category 2 and Restricted Category 1, or any other material as directed by the DSO.

Part J: Personal details and appearance

45.   The defendant must not change his name from “Barrie James French” or “Barrie James Shlyman” or use any other name without the approval of his DSO.

46.   The defendant must not use any alias, log-in name, or a name other than “Barrie James French” or “Barrie James Shlyman” or use any email address other than those known to the DSO under condition 34 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.

47.   The defendant must not make any permanent changes to his appearance without the approval of his DSO.

48.   The defendant must let CSNSW photograph him.

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

Part K: Medical intervention and treatment

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

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

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

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

54.   The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his DSO. The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW.

Amendments

12 April 2017 - Amendment to paragraph [15], [27],[32], [77] and [90]

18 April 2017 - Amendment [15]

Decision last updated: 18 April 2017

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Cases Citing This Decision

1

State of New South Wales v French (Final) [2017] NSWSC 1475
Cases Cited

1

Statutory Material Cited

2

French v Regina [2006] NSWCCA 361