State of NSW v Mitchell

[2009] NSWSC 606

CITATION:	State of NSW v Mitchell [2009] NSWSC 606
HEARING DATE(S):	29 June 2009
JUDGMENT DATE :	30 June 2009
JUDGMENT OF:	Buddin J
DECISION:	I order, pursuant to s 9(1)(a) of the Crimes (Serious Sex Offenders) Act that, for a period of 5 years from today that the defendant be subject to an extended supervision order by complying with the conditions contained in the attached Schedule. I note that the defendant has signed each page of the Schedule setting out those conditions. I revoke the Interim Supervision Order which I made on 19 June 2009.
CATCHWORDS:	Serious sex offender - application for extended supervision order - no opposition to making of order or conditions attached thereto
LEGISLATION CITED:	Crimes (Serious Sex Offenders) Act 2006
CATEGORY:	Principal judgment
CASES CITED:	Cornwall v Attorney General for NSW [2007] NSWCA 374 State of New South Wales v Mitchell [2009] NSWSC Tillman v Attorney-General for NSW (2007) 178 A Crim R 133
PARTIES:	The State of New South Wales (Plaintiff) Barry James Mitchell (Defendant)
FILE NUMBER(S):	SC 2009/11614
COUNSEL:	A Stenmark SC/A Mitchelmore (Plaintiff) D Thiering (Defendant)
SOLICITORS:	IV Knight (Crown Solicitor for State of NSW) (Plaintiff) S O'Connor (Solicitor for Legal Aid) (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

TUESDAY 30 JUNE 2009

11614/2009 – THE STATE OF NEW SOUTH WALES v BARRY JAMES MITCHELL

JUDGMENT

1 HIS HONOUR: By further amended summons dated 29 June 2009 the plaintiff seeks an order, pursuant to s 9(1)(a) of the Crimes (Serious Sex Offenders) Act 2006 (the Act), that the defendant be made subject to an extended supervision order for a period of 5 years. As an incident of that order it seeks, pursuant to s 11 of the Act, that the defendant be directed to comply with the conditions set out in the Schedule to the Summons.

2 On 16 April 2009 I conducted a preliminary hearing into the matter. At the time the defendant was in custody serving a sentence of imprisonment which was then due to expire on 29 April 2009. I then made the following orders to which there were no opposition:

1 Pursuant to section 7(4)(a) of the Crimes (Serious Sex Offenders) Act 2006 ("the Act"), two qualified psychiatrists are to conduct separate psychiatric examinations of the defendant and each of those psychiatrists is to furnish a report to the Court on the results of those examinations on or before 4.00 pm on 14 May 2009. I note that Dr Jeremy O’Dea and Dr Anthony Samuels will conduct those examinations.

2 Pursuant to section 7(4)(b) of the Act, the defendant is directed to attend the examinations referred to in Order 1 above.

3 Pursuant to section 8(1) of the Act, the defendant is to be subject to an interim supervision order with effect from 29 April 2009 for a period of 28 days and he is to comply with the conditions which are set out in the Schedule which is annexed to this judgment. I note that the original of the Schedule has been signed by the defendant and by the solicitor for the plaintiff.

3 I also gave reasons for making those orders. See State of New South Wales v Mitchell [2009] NSWSC [the preliminary judgment]. Much of what appears in that judgment remains relevant to the present proceedings and accordingly is to be treated as having been incorporated into these reasons.

4 The defendant was duly released from custody on 29 April. On 22 May, I renewed the interim supervision order without objection, for a period of 28 days with effect from 27 May. I also made an amendment to one of the conditions of the order as well as various other consequential orders. On 19 June, I again renewed the interim supervision order without objection, for a further period of 28 days with effect from 23 June. I also again made various consequential orders.

5 The matter came on for final hearing yesterday. The defendant does not oppose the making of the order and nor is any objection raised as to any of the conditions which are sought. I should indicate that the defendant initially raised concerns about several of the conditions but I was informed that, following discussions between the parties, those concerns had been addressed. Notwithstanding the approach taken by the defendant, it is still necessary for the court to satisfy itself that the statutory requirements have been meet.

The evidence

6 A large body of evidence has been placed before the court. In considering the present application, I have had regard to the material that was tendered in support of the application for an interim supervision order, which consisted of two affidavits of Nicholas Matti Kelly, affirmed on 24 March 2009 and 8 April 2009 respectively, together with two folders of supporting documents. The additional material which is now before the court consists of the reports of the two qualified psychiatrists who examined the defendant in accordance with the orders which were made on 16 April. The report of Dr Anthony Samuels is dated 13 May and the report of Dr Jeremy O’Dea is dated 27 May. In addition, there is a report, dated 16 June 2009, from the defendant’s treating psychiatrist, Dr Andrew Ellis. I have also been furnished with an affidavit from Sunil Nambiar, affirmed on 15 June 2009. Mr Nambiar is employed by the Department of Corrective Services (the department) and occupies the position of Acting Senior Compliance and Monitoring officer with the Community Compliance Group (the CCG) which is based at Campbelltown. He is the departmental officer with the ultimate responsibility for supervising the defendant who has been residing at the Community Offender Service Program (COSP) facility at Campbelltown since his release from custody. I also have received a report from Ms Carollyne Youssef, who is employed as a forensic psychologist by the department. She is based at Forensic Psychology Services (FPS) which is a branch of the department’s Sex Offenders Programs division.

7 The only evidence upon which the defendant relies is an affidavit affirmed 18 June 2009 from his solicitor, Lauren Jane Hrouda. It indicates that the defendant has been placed on a waiting list for a hip replacement and that the delay for that procedure is presently in the order of 12-14 months.

8 It is convenient to now refer to the additional material commencing with the psychiatric evidence. Dr Samuels provided the following answers to the various questions which he was asked to address in his report:

1 Based on your examination of Mr Mitchell and your review of the documentation, with reference to the Act’s definition of “serious sex offence”, whether Mr Mitchell is likely to commit a further serious sex offence if released into the community and not kept under supervision.
Mr Mitchell states that he has received great benefit from the CUBIT treatment program, that he now has an ability to monitor his thinking patterns and to change his thinking patterns. He states that he has never had this kind of therapy in the past and until now was unaware that what he was doing was harmful. He also states that he is now on medication which has reduced his sexual feelings, thinking and erections. He states that he is determined to change his life and to not reoffend. He is adamant that he will not be using alcohol and tells me that in fact he has not used alcohol for eight years and has never used any other substances. I certainly can find no features to suggest that he is suffering from a significant mental illness at the present time. He has no prior history of significant mental illness.
He does have some medical problems and is now 68 years of age but the fact that his last offence occurred at around the age of 65 suggests that his age is not necessarily a protective factor against reoffending.
Mr Mitchell is a socially isolated man with few supports. He has a background history of violent upbringing in what he described as a dysfunctional family setting. He was also exposed to sexual abuse from around the age of 10 and he is of the view that his early experiences of sexual and physical abuse influenced the way in which he viewed his victims.
Over the last 29 years he has been convicted of five sexual offences all involving males aged between 12 and 20. Two of his victims had intellectual disabilities. I note that on actuarial measures including the Static-99 he rates as 6.
Thus on the basis of my review of his offending history, my clinical examination today and perusal of the risk assessment data that I have been provided, Mr Mitchell is likely to commit a further serious sex offence if released into the community and not kept under supervision .
There are some positive aspects of his presentation. He does indeed seem to have got some benefit from the CUBIT program and the fact that he is on an antidepressant with anti-libidinal properties may be a protective factor. Alcohol clearly is a risk factor. The fact that he has, according to his self report, not used alcohol for eight years is encouraging but if he were to start drinking again I would have serious concerns in relation to his risk of reoffending.
Thus in my view it would seem that putting in place appropriate measures to monitor him in the community, to reinforce the treatment gains that he has made, to reduce his libido through pharmacological means and to minimise his opportunities for offending are interventions most likely to minimise risk of offending in the future .

2 Your view as to any conditions that would be appropriate, including any necessary components of any management plan that should be put in place in respect of Mr Mitchell if the Court were to make an extended supervision order and the suitability of the length of the proposed extended supervision order, namely five years.

Many of the conditions that are now in place would seem to be entirely appropriate. The most important interventions would include treatment and monitoring through the Community Forensic Team, the Forensic Psychologist Services and his general practitioner. He will need to take medication as directed and to continue with cognitive behavioural therapy. It is positive that he has not had any alcohol for eight years but I would still regard him as being at some risk of relapse given his past history of heavy drinking. It would be important for his general practitioner to monitor his lever functions including his mean cell volume and gamma glutamyl transferase as a way of ensuring that he is not drinking excessively or harmfully. He seems somewhat reluctant to have follow up with drug and alcohol services or to attend AA and states that he would contact these organisations if he needed them. In my view it would be appropriate if follow up through his local drug and alcohol service was made a mandatory requirement and this would be an initial safeguard. The frequency of contact with such a service could be determined by the treating practitioner and Mr Mitchell.
Mr Mitchell is extremely socially isolated and it seems that his only real contacts are in Henty but it would obviously be difficult to put in place an appropriate treatment and monitoring program in that locale. He should in the early stages remain in the COSP facility and then be moved to a living situation in which ideally he would have some supports and there would be capacity for monitoring. He should be restricted by a curfew and there should restrictions in regard to whom he associates with and he certainly should not be allowed unsupervised contact with young males. I understand there are already provisions that he should notify Probation and Parole and the team that will monitor him in the community of any new contacts or acquaintances that he makes, including their full contact details and this would be entirely appropriate. He should be limited in his access to establishments that serve alcohol. He obviously should not be allowed to frequent areas where there are children and he obviously should not work in either a paid or voluntary capacity in any situation in which he might have access to potential victims.
The issue of age does have relevance to the length of the extended supervision order. Mr Mitchell does have some health problems, particularly in relation to mobility and possibly some lung-related problems secondary to his smoking history. I would suggest that a shorter period of extended supervision be considered in the first instance – perhaps three years – as it is very likely that over the course of the next five years his health status will change considerably and this could significantly impact on his risk of reoffending .
3. The extent to which and the means by which any alcohol-related disorder of Mr Mitchell should be medically treated in the community
As noted above, Mr Mitchell tells me he has had no desire to drink for the last eight years and plans to remain abstinent. I do have some concerns however that given social isolation and other factors he could relapse. I think it would be appropriate that he is followed up by a drug and alcohol service and that the frequency of contacts be determined by his treating practitioner. If the drug and alcohol service feel there is a need for regular blood testing, urine drug screening or any other interventions Mr Mitchell will need to comply with these. They may also feel that he should attend a drug and alcohol support group and this would be appropriate as well if that was there (sic) recommendation.
4. The suitability of Mr Mitchell for anti-libidinal medication, including any issues related to the prescription or administration of anti-libidinal medication
Currently Mr Mitchell is on an SSRI-type antidepressant. He states that this has reduced his sexual thinking and capacity for erections. He is happy to take the medication but says he is getting some side effects in the form of headaches and gastrointestinal disturbance. These are quite common problems associated with SSRI-type antidepressants and tend to get better over time.
If there is any evidence that Mr Mitchell is continuing to have deviant sexual thinking it may become necessary to contemplate a more powerful anti-libidinal medication such as cyproterone acetate. He is quite frail and elderly and has some underlying medical conditions and there may be some contraindications to the use of that type of medication (emphasis added)

9 Dr O’Dea expressed his conclusions in the following terms:

As before, I did not diagnose Mr Mitchell as suffering from a major psychiatric illness.
I note his history of alcohol use disorder that was reportedly in remission with reported abstinence from alcohol for approximately 11 years. I note that he related some but not all of his sex offences to alcohol abuse.
I note, as in my report dated 25 July 2006, his apparent problems with short term memory and now apparent problems with attention and concentration on routine testing, and his IQ testing in the low average intelligence range. As before, I would recommend that he undergo some formal and complete psychometric testing of his cognitive functioning as part of his ongoing assessment in order to further clarify his level of cognitive functioning and any impact it may have on his overall management. His level of intelligence and potential cognitive impairment may further limit the impact and effectiveness of psychological interventions alone in helping manage and minimise his risk of engaging in further sex offending behaviours in the community in the long term.
As before, Mr Mitchell reported awareness of a specific, strong, long term sexual attraction to male children around puberty, and a criminal history of repeated sex offences against male children around puberty as well as older vulnerable males. Although this sexual attraction to pubertal males was not exclusive, Mr Mitchell described it as a predominant focus of his sexual interest. As such, he would satisfy the psychiatric diagnostic category of Paedophilia, Sexually attracted to males, Non exclusive, Not limited to incest (homosexual paedophilia).
As before, and on the basis of his history of specific sexual deviance (homosexual paedophilia), repeated sex offending against male children and vulnerable young adults, his history of alcohol use disorder (albeit in apparent remission), his level of cognitive functioning and his apparent social isolation, on full clinical psychiatric risk assessment and taking into consideration actuarial risk management tools (such as the STATIC-99), Mr Mitchell would be considered to fall into the group of sex offenders with a significantly high risk of engaging in further sex offending behaviours in the community in the long term and of committing a further “serious sex offence” as defined by the New South Wales Crime (Serious Sex Offenders) Act 2006. It would seem reasonable to assume that this risk would be of a nature and severity to warrant specific risk management on his return to the community .
I note that Mr Mitchell’s age and increasing musculosketetal problems that may attenuate this risk, and increasingly so with age. However, at least at this stage, neither are likely to reduce the risk to a clinically significant level that specific risk management strategies were not appropriate.
As has been continually discussed in relation to the New South Wales Crime (Serious Sex Offenders) Act 2006 , and similar legislation elsewhere, although Mr Mitchell’s risk of engaging in further sex offending behaviours would be considered significantly high, I do not consider that the current evidence regarding the assessment of risk is suitably advanced to predict his risk of committing a further “serious sex offence” with the required degree of accuracy.
Although Mr Mitchell’s score on the STATIC-99 (of 7/12) would place him in the group of individuals with a high risk of engaging in further sex offending in the long term, as judged by this instrument, limitations in the use of this tool are widely discussed, including by the authors of the instrument. As implied in the name, the instrument measures static and therefore for the most part unchangeable parameters. The margins of error for risk estimates using this test, particularly in endeavouring to make risk predications for an individual with an individual score, are considered so high as to significantly reduce the appropriateness of relying on this score alone to make decisions about release of individuals into the community. Of additional relevance is the fact that the STATIC-99 measures the risk of an individual engaging in a further sexual offence as defined by this measure, rather than a further “serious sex offence” as defined in the New South Wales Crimes (Serious Sex Offenders) Act 2006, that is set at a higher threshold.
The single most important risk factor identified in Mr Mitchell’s case pointing to a significant clinical risk of him engaging in further sex offending behaviours in the community in the long term would be his history of homosexual paedophilia .
To date psychological interventions alone have not proved successful in preventing him committing further sex offences. His accounts of the benefits of the CUBIT and other recent psychological interventions appear at best superficial. I was not able to convince myself, or even have significant confidence, that he had a good working understanding of the concepts he told me he had learnt from CUBIT, and that he would be able to translate this knowledge into a significant reduction in his risk of engaging in further sex offending behaviours in the community in the long term.
I note that he continued to deny at least significant components of his sex offending behaviours. As before, I am not aware of good evidence that denial in and of itself predicts the commission of further serious sex offences. However, in conjunction with his identified homosexual paedophilia, and his level of intellectual and psychological functioning, this may point to the judicious use of specific testosterone lowering medication being likely to be more effecting in assisting him to control his homosexual paedophilia and sex offending behaviours in the community in the long term.

I understand that Mr Mitchell has commenced antidepressant medication (Zoloft) in an assumed attempt to reduce his libido and sexual performance and therefore assist him to better manage his sexually deviant urges. Whilst this medication can assist in this process, with Mr Mitchell’s sex offending history and his identified homosexual paedophilia, I would consider that the judicious use of testosterone lowering medication (such as cyproterone Acetate, aka Androcur, or Medroxy Progesterone Acetate, aka Provera) is likely to prove more effective in reducing his sex drive and therefore his homosexual paedophilic urges, fantasies and behaviours.
In addition, it would seem crucial that Mr Mitchell remain abstinent from alcohol or illicit substance use in the community in the long term in order to minimise his risk. It would seem appropriate from a risk management perspective that monitoring and supervision, as is in place with COSP and Forensic Psychology, continue. It would seem sensible and appropriate that he (sic) part of a risk management program be that Mr Mitchell not be supervising children or in the company of children without direct adult supervision.
In the absence of marked and significant deterioration in Mr Mitchell’s physical status, his risk of engaging in further sex offending behaviours in the community is likely to be relatively long term and of at least 5 years duration . Whilst the prescription of psychiatric medication should be reviewed regularly and on at least a 1 to 3 monthly basis when stabilised, it would seem reasonable to review the other conditions of any long term risk management program on a yearly basis . (emphasis added)

10 Dr Ellis was asked to address the following questions:

1. What medication is Mr Mitchell taking, and in what dosage have you prescribed that medication?
2. In broad terms, what does the medication do for Mr Mitchell and what are the potential side effects?
3. Are the side effects Mr Mitchell is currently experiencing like to improve? If so, what is the likely timeframe of that improvement?
4. Is there any time limit with respect to the duration for which a patient can safely continue to take SSRI-type medication that Mr Mitchell is taking? If there is any such time limit, for how long are patients able to safely take the medication?
5. Are there any other medications you recommend for Mr Mitchell and if so, what are they and why do you recommend them for Mr Mitchell?

11 He expressed his conclusions in the following terms:

1. Mr Mitchell is current (sic) prescribed Sertraline, a Selective Serotonin Reuptake Inhibitor (“SSRI”) antidepressant (brand name – Zoloft) at a dose of 100mg daily. He is also prescribed a Calcium and Vitamin D supplementation and treatments for arthritis and gastroesophageal reflux.
2. Broadly speaking SSRI medication increases the availability of a particular neurotransmitter (serotonin) in the junctions between nerve cells in the brain. This chemical effect has been associated with decreases in depressive ruminations, obsessional thinking and specifically in the case of Mr Mitchell associated with reduction in the frequency, intensity and duration of recurrent deviant sexual fantasies. It has also been associated with reduction in physical sexual arousal to deviant stimuli. SSRI medications are also anxiolytic in that they reduce the experience of anxiety. SSRI medications are generally well tolerated and most persons taking them do not experience side-effects. The typical side-effects of these medications can include headaches, tremors and gastro and intestinal disturbance. These side affects are usually transitory. More longer term side-effects are difficulty with erectile function, ejaculation and reduced libido.
3. As with my last review of Mr Mitchell on the 2 June 2009, all side effects with regard to sertraline medication had resolved, which as discussed in the question above is a typical pattern. He reports a benefit from the medication in that he is sleeping better, he feels more relaxed and calm in his mood and finds that he concentrates better. He reports that he does not experience any erections in the morning. He reports that he has no sexual fantasises while taking the medication. He reports that he has not engaged in any masturbation for the past six months. It is likely that the early headaches and gastro and intestinal side-affects that he has experience will not reoccur. It is likely that diminished sexual function will continue if he is compliant with the medication.
4. SSRI medications have been used extensively over the past 30 years. They have been used for lengthy periods of time and there does not appear to be significant problems with taking them for decades. As long as Mr Mitchell’s general cardiovascular health remains good, it is likely that he will be able to continue taking SSRI medication.
5. Another medication class that could be considered in Mr Mitchell’s case is cyproterone acetate or medroxyprogesterone acetate respectively androcur and depo-provera in trade name. These medications are colloquially termed anti-libidinal medications. Both of these medications exert their therapeutic effect by reducing the availability of the male sex hormone testosterone. Both these medications have been more extensively studied in the treatment of deviant sexual fantasy and arousal. Both have laboratory evidence of decreasing physical arousal and decreasing sexual fantasy and preoccupation. Observational studies of these medications indicate low rates of sexual recidivism when taken at an adequate dose. The use of these medications requires the full informed consent of the patient. The use of these medications also require that the person be in an adequate state of physical health. Mr Mitchell has one relative contra indication to the use of this medication, in that his bone mineral density is somewhat diminished. A recent bone mineral density scan indicates that he has osteopenia which indicates that his bone mineral density is below that of other men his age. It does not necessarily confer an increased risk of fractures, however the use of anti-libidinal medication can lead to increased de-mineralisation of bones. It is certainly medically possible for him to take this medication, particularly if he is supplemented with vitamin D and calcium to protect existing bone mineral density. Advantages of anti-libidinal medication are that compliance can be effectively monitored by serum blood testing. Compliance can also be monitored with depo-provera as it is given in injection form. There are theoretical reasons why it maybe more effective than SSRI medication given that it directly affects the male sex hormone. The evidence surrounding their use in the treatment of paraphilias is more extensive than that of SSRIs. Disadvantages to its use are that they tend to have more side-effects than SSRI medication and are less well tolerated. Possible side-effects of this medication include development of increased breast tissue which can be painful and embarrassing, decreased bone mineral density and fractures, weight gain, lethargy, an increased risk of development of clotting disorders and liver function impairment. With appropriate medical monitoring these side-effects can be minimised. Mr Mitchell has had the rationale for these medications explained to him and in the opinion of this author has complementally refused their use at this point. He has entertained their use in the future should he find a recurrence of sexual fantasies or urges towards children. These kinds of medications are indicated in Mr Mitchell’s case given the clinical diagnoses of a paraphilia (pedophilia) with corresponding contact offences related to this paraphilia.

12 Mr Nambiar sets out in some detail in his affidavit the functions performed by the CCG which has responsibility for monitoring the compliance of offenders who are subject to community based orders, such as the one to which the defendant is subject. He also provided a considerable amount of information about the fashion in which the various COSP centres function. Mr Nambiar observes that his dealings with the defendant to date have been positive and that the defendant’s response to supervision has been “one of compliance and cooperation”. He states that his current expectation is that the defendant will reside at the COSP facility for a period of up to six months. He says however that there is no “absolute time limit” upon how long he may stay there and that he can remain there “until suitable alternative accommodation is found for him”. That is an important consideration since the defendant’s expressed desire to move to the Albury area is not deemed to be suitable because the Department would not be able to effectively supervise him in that location.

13 Ms Youssef is involved in the Community Maintenance Program the aim of which she says “is to promote the successful reintegration of offenders by providing follow-up sexual offender services to offenders who have completed…CUBIT.” Ms Youssef has particular responsibility for the maintenance group in which the defendant participates. In her report she explains how the group, which has 8-12 participants in it, operates. The defendant’s progress within the group, which he attends weekly, appears to have been entirely satisfactory.

The legal requirements

14 It is common ground that the application is authorised by s 6 of the Act [see paras 5-6 of the preliminary judgment]. The court’s power to make an extended supervision order derives from s 9(1)(a) of the Act whilst s 9(2) identifies the test which the court is to apply: see Tillman v Attorney-General for NSW (2007) 178 A Crim R 133 at 147; Cornwall v Attorney General for NSW [2007] NSWCA 374 [at 21]. Section 9(3) sets out a list of factors which the court must have regard to, in addition to any other matter which is considered relevant, in determining whether or not to make an extended supervision order.

15 For the purposes of the preliminary hearing, I analysed at some length each of the factors identified in s 9(3) of the Act which were relevant to the application for an interim supervision order. [See paras 13-47 of the preliminary judgment].

16 In particular I made the following observations:

Ensuring the safety of the community is one of the primary objects of the Act. All of the matters to which reference has been made are relevant to that issue.

In that context, the following factors remain of significance:

(i) As Ms Jones and Dr Ellis point out in their report:

Mr Mitchell meets the criteria for paedophilia, homosexual orientation, according to the DSM-IV-TR. He reported experiencing a recurrent fantasy involving sexual activity with a particular boy “James”, throughout his life span. He has a history of sexual offending towards young boys, approximately 13 years of age, and towards young adult men with intellectual impairment.

(ii) the defendant engages in grooming behaviours.

(iii) the defendant is aware that his offending takes a particular pattern, but has been unable in the past to capitalise on the benefits from treatment which he has received. On the other hand, it is important to recognise that the treatment which he has previously received was not of the intensity of the CUBIT program, and nor was the treatment provided by people with expertise in treating sex offenders.

(iv) other than perhaps two people who live in the town where he committed the index offences, the defendant has no social support network. Following a pre-release visit, a probation and parole officer expressed the view that it was unlikely that he could resume living there due, inter alia, to the high level of community resentment towards him and especially as the victim still lives in the town.

(v) the defendant has a history of alcohol abuse, and on at least one occasion has offered alcohol to a victim as a means of encouraging that person to visit his home.

(vi) the defendant is prone to isolation, low self-esteem and rumination ; and

(vii) the defendant has a patchy record whilst subject to supervision, with the 1999 offence occurring whilst he was on parole.

In the light of the material which has been placed before the court, I am satisfied that the matters alleged in it would, if proved, justify the making of the orders which are sought. Nor are there any countervailing factors which would justify the court in refusing to make them. In my view the need to protect the community and the need to facilitate the defendant’s rehabilitation require that the defendant be subject to conditions upon his release from custody. [paras 48-50 of the preliminary judgment]

17 Section 10(1)(b) of the Act provides that an extended supervision order may be made for a period not exceeding 5 years. A second or subsequent order of that character can be made: s10(3) of the Act. Section 13 provides that such an order can be varied or revoked on application by either the State of New South Wales or the offender.

18 As I have indicated, I must now also have regard, pursuant to s 9(3)(b) of the Act, to the reports of Dr Samuels and Dr O’Dea, as well as to the other additional evidence to which I have referred. It is very heartening that the defendant has been making positive progress since his release from custody. That said, the opinions expressed by the two psychiatrists reinforce my view that it is highly probable that the defendant is likely to commit further serious sex offences if not kept under supervision. In other words I am satisfied that the requirements of s 9(2) of the Act have been established by the plaintiff. In arriving at that conclusion I have applied the test as is described in the authorities to which I referred earlier. I am of course aware that the test, has a different application at this, the final stage of the proceedings. As I understand the situation, both of the psychiatric experts are also of the view that the proposed conditions are necessary in order that the process of supervising the defendant can be facilitated.

19 As I have indicated, Dr Samuels had initially considered that an order for a period of perhaps 3 years might meet the circumstances of the case. However, he gave short evidence at the hearing in which he indicated that he had revised his view. His ultimate opinion is that an order for a period of 5 years ought to be made. In arriving at that view, he said that he had had regard to the defendant’s history and pattern of offending behaviour, as displayed in a document setting out the chronology of that offending, and to the opinion expressed by Dr O’Dea in his report.

20 It is readily apparent that making an order in the terms sought by the plaintiff will impact significantly upon the defendant in a number of respects. The conditions which are proposed are onerous. Nevertheless I must keep firmly in mind the objects of the Act. Section 3 provides:

(1) The primary object of this Act is to provide for the extended supervision and continuing detention of serious sex offenders so as to ensure the safety and protection of the community.
(2) Another object of this Act is to encourage serious sex offenders to undertake rehabilitation.

21 Having considered the entirety of the material which has been led on the application, I have reached the conclusion that it is appropriate to grant the relief which is sought by the plaintiff. I am fortified in that view by the fact that the defendant does not oppose the orders being made.

22 I order, pursuant to s 9(1)(a) of the Crimes (Serious Sex Offenders) Act that, for a period of 5 years from today that the defendant be subject to an extended supervision order by complying with the conditions contained in the attached Schedule. I note that the defendant has signed each page of the Schedule setting out those conditions.

23 I revoke the Interim Supervision Order which I made on 19 June 2009.

**********

SCHEDULE TO FURTHER AMENDED SUMMONS:

SUPERVISION CONDITIONS

COURT DETAILS
Court Supreme Court of New South Wales
Division Common Law Division
Registry Sydney
Case number 11614/09 TITLE OF PROCEEDINGS
Plaintiff The State of New South Wales
Defendant Barry James Mitchell
SUPERVISION CONDITIONS:
The conditions referred to in order 1 of the Amended Summons in these proceedings are as follows:
Reporting and monitorinq
1. During the period of the extended supervision order the defendant must accept the supervision and guidance of the Probation and Parole Service, the Community Compliance Group and the Child Protection Watch Team for as long as necessary as determined by the Departmental Supervising Officer.
2 The defendant must report personally once a week to the Departmental Supervising Officer and as otherwise reasonably directed by that officer.
3 The defendant must comply with any reasonable direction given by the Departmental Supervising Officer or any other officer of the Department of Corrective Services who may from time to time be involved in the supervision of the defendant.
4 For at least the first twelve months of the extended supervision order the defendant must wear electronic monitoring equipment if and as directed by the Departmental Supervising Officer and must comply with all instructions given by a Corrective Services officer in relation to the operation of such equipment. The defendant must not tamper with or remove such equipment. At the end of twelve months the Commissioner of Corrective Service (the "Commissioner") must review this condition and must, following such review, not unreasonably refuse to discontinue the use of the electronic monitoring equipment.

4A The Court notes that if the electronic monitoring is discontinued and the Commissioner is of the view that it should be recommenced, the plaintiff has liberty to apply to the Court on 24 hours notice.
5 The defendant must inform the Departmental Supervising Officer of his proposed daily movements 48 hours in advance (or for a lesser period if directed by the Departmental Supervising Officer) and must obtain prior approval from that officer for any proposed change 24 hours in advance.
6 Condition 5 does not apply if the defendant requires urgent medical attention and he is either unable to inform the Departmental Supervising Officer of his proposed movements in advance or is unable to obtain prior approval from the Departmental Supervising Officer for any proposed change 24 hours in advance.
7 The defendant must not be found guilty of either a `serious sex offence' as defined by s. 5(1) Crimes (Serious Sex Offenders) Act 2006 (NSW) or an `offence of a sexual nature' as defined by s. 5(2) Crimes (Serious Sex Offenders) Act 2006 (NSW).
Accommodation
8 For the duration of the extended supervising order the defendant must reside at such accommodation as is approved in advance by the Departmental Supervising Officer.
9 The defendant must accept home visits at the approved accommodation, including visits without prior notice by the Departmental Supervising Officer or any other officer of the Department of Corrective Services.
10 For the first twelve months of the extended supervision order the defendant must be at his address between the hours of 9 pm and 6 am the following morning, unless his presence at another place during those hours has been approved in advance by the Departmental Supervising Officer.
11 The defendant must not leave New South Wales without the prior written permission of the Commissioner or his delegate.

Restrictions on employment and other activities

Employment
12 The defendant is not to take up employment during the period of the final supervision order.
Alcohol and other drugs
13 The defendant must not consume any alcohol or illicit drugs or abuse prescription medication.
14 The defendant must submit to drug and alcohol testing as directed by the Departmental Supervising Officer.

14A The defendant must not go to any licensed premises, including but not limited to hotels, bars, licensed clubs and race courses unless his attendance is approved by the Departmental Supervising Officer.

Association with children
15 The defendant must not approach or have any unsupervised contact with children aged 16 years or under.
16 Without limiting the immediately preceding condition, the defendant must not associate with any persons if so reasonably directed by the Departmental Supervising Officer.
17 The defendant must not attend any child care centres, preschools, primary schools, high schools, amusement parlours, any children's playground or area in a park where children are present, caravan parks or houses where children 16 years or under ordinarily reside unless accompanied by a person approved by the Departmental Supervising Officer.
18 The defendant must not approach or have any contact with children under 16 years of age at any sporting facility, sporting venue or public swimming pool.

Personal details and appearance
19 The defendant must not change his name from Barry James Mitchell, use or be known by any other name without prior approval of the Departmental Supervising Officer.
20 The defendant must not, without the approval of the Departmental Supervising Officer, change his facial appearance, including facial hair or the colour of his hair and must not alter the length of his hair to the extent that he cannot be reasonably recognised.
21 If the defendant's proposed change of appearance is approved, he must allow himself to be photographed by or on behalf of the Departmental Supervising Officer.

Treatment
22 The defendant must participate in treatment, including maintenance provided by the Forensic Psychology Services, and rehabilitation as directed by the Departmental Supervising Officer, including attendance at and engagement in community maintenance programs for sex offenders.
23 The defendant must accept psychological and psychiatric treatment as may be provided by an Area Health Service in consultation with or by the Community Forensic Mental Health Service (CFMHS), including counselling and psychological therapy.
24 The defendant must accept such assessments as may from time to time be required to determine what is required for the treatment referred to above in orders 22 and 23.
25 The defendant must take selective serotonin re-uptake inhibitors, or any other anti­libidinal medication, if prescribed by his CFMHS psychiatrist or any other psychiatrist.
26 The defendant must attend regular medical consultations, physical examinations and pathology testing as directed by the Departmental Supervising Officer in consultation with the Area Health Service and/or the CFMHS.
27 [DELETED]
28 The defendant must disclose to his Departmental Supervising Officer the identity of any other medical or mental health practitioner, including psychologists, whom he consults.

Disclosure of information
29 The defendant must waive his right to the confidentiality of all information disclosed by him during treatment to his doctors, including any psychiatrist or other specialist and any psychologist.
30 The defendant must consent to his general practitioner, his other medical practitioner, his treating psychologists or psychiatrists, the Area Health Service, CFMHS, and Forensic Psychology Services sharing information about him, including reports on his progress and information he has disclosed during treatment with each other and with the Departmental Supervising Officer and other officers of the Department of Corrective Services involved in his supervision.
31 The defendant agrees to all sharing of information between the Departmental Supervising Officer, the Department of Corrective Services ("the Department"), CFMHS, any treating Area Health Service, the defendant's general practitioner and any treating psychologist or psychiatrist.
32 The defendant must attend a six monthly meeting with all agencies or parties in attendance if required by the Departmental Supervising Officer at which point the management plan may be reviewed and adjusted if considered appropriate.
33 The defendant must comply with any direction made by the Departmental Supervising Officer regarding access to or use of the World Wide Web and the internet by him and without limitation the Departmental Supervising Officer may direct the defendant to use on any computer a parental lock or other device or software that may restrict access to or permit access only to certain websites.
34 If and as directed by the Departmental Supervising Officer, the defendant must:
(a) permit the Departmental Supervising Officer and any computer technician employed or engaged by or on behalf of the Department to assist or advise the Departmental Supervising Officer to access and inspect any computer owned by the defendant, including the temporary removal of the computer from his place of residence for the purpose of inspection;
(b) provide the Departmental Supervising Officer and the computer technician with any requested assistance to enable them to access and inspect any computer owned or used by the defendant, including providing them with any required passwords;
(c) permit the Departmental Supervising Officer and the computer technician to make copies of any files or materials on any computer owned by the defendant that the Departmental Supervising Officer reasonably believes may be relevant to the management of the defendant's risk of reoffending.

35. Should the defendant propose to enter into an intimate relationship with another person, he must notify his Departmental Supervising Officer of the proposed relationship at the earliest opportunity. He must notify the other person of his offences if so directed by the Departmental Supervising Officer and consent to the Departmental Supervising Officer disclosing his sexual offending history to that other person.