State of NSW v Tiggelen (Final) - [2020] NSWSC 578

Supreme Court

New South Wales

Medium Neutral Citation: State of NSW v Tiggelen (Final) [2020] NSWSC 578
Hearing dates: 12 May 2020
Decision date: 20 May 2020
Jurisdiction: Common Law
Before: Hoeben CJ at CL
Decision:
(1) Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006, the defendant Gerardus Tiggelen is subject to an Extended Supervision Order for a period of 3 years from the date of these orders.
(2) Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 direct the defendant for the period of the ESO to comply with the conditions set out in Annexure “A” to this judgment.
(3) That any reports prepared for the purpose of Order (1) to be provided to Corrective Services NSW, any agency involved in the defendant’s supervision and the defendant’s treating clinicians or health care practitioners.
(4) That access to the Court file in respect of any document shall not be granted to a non-party without the leave of a Judge of the Court and if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

Catchwords: HIGH RISK OFFENDER – final hearing – application for an Extended Supervision Order – defendant has multiple convictions for sexual offending – extensive criminal history generally – where defendant does not oppose making of an Extended Supervision Order – necessity for Court to be satisfied that Extended Supervision Order should be made – community safety paramount – dispute as to form of conditions to be imposed – Extended Supervision Order made and conditions imposed.
Legislation Cited: Child Protection (Offenders Registration) Act 2000 (NSW) – ss 3, 9, 11, 17
Crimes Act 1900 (NSW) – s 61J
Crimes (High Risk Offenders) Act 2006 (NSW) – 3, 5B, 7, 9, 10, 11
Cases Cited: Attorney General for the State of New South Wales v Steadman [2016] NSWSC 174
Cornwall v Attorney General for New South Wales [2007] NSWCA 374
Lynn v State of NSW [2016] 91 NSWLR 636; [2016] NSWCA 57
State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483
State of New South Wales v Fisk [2013] NSWSC 364
State of New South Wales v French (Final) [2017] NSWSC 1475
State of New South Wales v Kamm (Final) [2016] NSWSC 1
State of New South Wales v King (Final) [2019] NSWSC 151
State of New South Wales v Pacey (Final) [2015] NSWSC 1983
State of State of New South Wales v Sleeman (Preliminary) [2018] NSWSC 562
Turner v State of NSW [2019] NSWCA 164
Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28
Category: Principal judgment
Parties: State of NSW – Plaintiff
Gerardus Tiggelen – Defendant
Representation:
Counsel:
D New – Plaintiff
S Hall – Defendant
Solicitors:
Crown Solicitor for NSW – Plaintiff
Legal Aid NSW - Defendant

File Number(s): 2018/243910

JUDGMENT

HIS HONOUR: The State of New South Wales (the plaintiff) filed a Further Amended Summons on 12 May 2020 whereby it sought an Extended Supervision Order (ESO) in respect of Gerardus Tiggelen (the defendant) under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act).
The plaintiff seeks an order:

pursuant to ss 5B and 9(1)(a) of the Act that the defendant be subject to an ESO for a period of three years from the date of the order; and

pursuant to s 11 of the Act, that the defendant, for the period of the ESO, comply with the conditions set out in Annexure “A” to this Summons.

The plaintiff also seeks an order permitting any reports prepared for the purpose of the Interim Supervision Order (ISO) and the ESO be provided to Corrective Services NSW (CSNSW), any agency involved in the defendant’s supervision and the defendant’s treating clinicians or health care practitioners. The plaintiff seeks an order that access to the Court’s file in respect of any documents shall not be granted to a non-party without the leave of a Judge of the Court and that if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.
The defendant does not oppose the making of an ESO but has raised various issues as to the appropriateness of some of the conditions of the ESO.
Although there is that concession by the defendant, it is a matter for the Court to be satisfied that all of the statutory pre-conditions have been met before orders are made. The very helpful submissions of counsel for the plaintiff set out the relevant legislative provisions, and explained the way they have been construed by the Court of Appeal and this Court. They also provided an analysis of the evidence that is before the Court and made submissions as to how that evidence satisfies all of the legislative requirements. Having looked at the evidence myself, and considered the substantially uncontested submissions of the plaintiff, I am satisfied for the following reasons that the ESO sought by the State should be made.

Factual background

By Summons filed 8 August 2018, the plaintiff sought an ISO under the Act in relation to the defendant.
On 14 September 2018, Harrison J who presided over the preliminary hearing, found that the matters alleged in the supporting documentation would, if proved, justify an ESO and as required under s 7(4) of the Act appointed two experts to assess the defendant’s risks:

Dr Richard Furst, forensic psychiatrist, was appointed and provided two reports, dated 30 November 2018 (2018 Furst report) and 7 March 2020 (2020 Furst report); and

Dr Katie Seidler, clinical psychologist, was appointed and provided two reports, dated 26 November 2018 (2018 Seidler report) and 6 March 2020 (2020 Seidler report).

As the defendant’s parole period of sentence was to expire on 30 November 2018 (before any anticipated hearing date) Harrison J ordered that the defendant be subject to an ISO from that date. The conditions of the ISO largely reflected those sought by the plaintiff in these proceedings.

Events and offences while on parole or subject to the ISO

On 30 July 2018, the defendant was released to parole.
Between 22 September 2018 and 3 October 2018, the defendant’s parole officer observed that the defendant had been staying at a residence in Railway Road Marayong very frequently, if not weekly. “ Joe” resided there. It was a condition of the defendant's obligations under the Child Protection (Offenders Registration) Act 2000 (NSW) (CPOR Act) that the defendant disclose to police a locality in which he would generally be found. No disclosure had been made.
On 2 October 2018, during an interview with his parole officer, the defendant disclosed he had once again visited “Joe” at the address in Marayong on a weekend. Consequent to an oral drug swipe test, the defendant returned a positive result to amphetamine or “methamphetamine”:
On 9 October 2018, the defendant denied to his parole officer that he was using illicit substances stating that he had been in a small car with his friends “Joe” and “Joe’s brother” who had been smoking a pipe at the time. The defendant told his parole officer that he must have passively inhaled that smoke to explain the positive result.
However, the defendant admitted to Dr Furst (in the March 2020 assessment) that he had used methylamphetamine while on parole.
On 3 October 2018, the defendant was arrested and charged with failing to comply with an obligation under the CPOR Act. This is treated as “an offence of a sexual nature” (s 5(2)(f) of the Act). On the same day, the defendant pleaded guilty, was convicted and sentenced to a 12 month Community Corrections Order.
On 3 December 2018, the defendant was arrested and taken into lawful custody (bail refused). He was charged with:

three counts of failing to comply with conditions of his ISO;

driving a registered vehicle without using authorised number plates;

driving while disqualified; and

an offence of larceny. (The 2018 Local Court charges).

When the defendant was taken into lawful custody, the ISO was suspended (s 10C(1A) of the Act). The conditions of the ISO which the defendant breached were failing to comply with the Departmental Supervising Officer (DSO) directions, failing to wear the electronic monitoring bracelet, and leaving NSW without the approval of the Commissioner for Corrective Services.
The background to the ISO breaches were that on 29 November 2018 the defendant refused to answer a telephone call from his DSO and later texted the DSO that he was “going to go bush”. Investigations revealed that the defendant was in Victoria. The DSO directed him to return to Blacktown Community Corrections by midday the following day to report and be issued his electronic monitoring bracelet. The defendant failed to attend. On 3 December 2018, the defendant was arrested by police in South Australia.
On 22 January 2019, Magistrate K Robinson sentenced the defendant (who had entered guilty pleas to the 2018 Local Court charges) to 2 years imprisonment, commencing on 5 December 2018 and expiring on 4 December 2020, with a non-parole period of 18 months. On 11 March 2019, his Honour Judge Bennett SC confirmed the sentence consequent upon a severity appeal. The defendant will be first eligible for release to parole on 4 June 2020.
The hearing to finalise the ESO was originally listed for 31 January 2019. That hearing date was vacated and the final hearing listed closer to when the defendant would be released to parole. The experts re-interviewed and re-assessed the defendant in March 2020 and provided their supplementary reports.

The Act

The threshold consideration and settled principles

The Act expressly states that protection of the community is paramount:

section 3(1) provides that the “primary object of the Act” is to “ensure the safety and protection of the community”;

section 9(2) provides that the “safety of the community must be the paramount consideration” when determining whether an ESO should be granted; and

these words are distinctly different from the other object of the Act which is to “encourage ... offenders to undertake rehabilitation”.

Justice Basten in Turner v State of NSW [2019] NSWCA 164 (Turner) reiterated the Court’s settled understanding that “the purpose of the orders which may be made under the Act is to protect the community from unacceptable risks of further serious offending” (at [32], Bathurst CJ and Payne JA agreeing).
The following considerations pursuant to s 5B of the Act must be met before the Court can grant an ESO:

the defendant is an “offender” who is serving or has served a sentence of imprisonment for a “serious offence” (s 5B(a));

when the application is made, the defendant must be a “supervised offender” within the meaning of s 5I (s 5B(b)(c));

it is the status of the offender at the time the application is filed that is relevant (Turner); and

the Court must be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a further serious offence if not kept in detention (s 5B(d) (hereafter referred to as “the unacceptable risk test”).

The defendant meets s 5B(a) to (c) requirements. He is over 18 years old, has been sentenced to imprisonment for “serious sex offences” and when the application was filed, the defendant was a “supervised offender” as he was on parole for the index offence, which is an offence of a sexual nature (s 5(2)(f)).

Settled principles for the evaluative task in s 5B(d)

The unacceptable risk test in s 5B(d) is an evaluative task and requires the exercise of a discretionary judgment: Lynn v State of NSW (2016) 91 NSWLR 636; NSWCA 57 (Lynn) at [82] (Basten JA). The objects of the Act should be kept in mind when undertaking this evaluative task: Lynn per Beazley P (at [55]).
Intrusions on the defendant’s right to liberty and privacy by the ordering of an ESO are not relevant considerations for the first stage of analysis: Lynn per Beazley P (at [44]).
The Court must be satisfied that the existence of the unacceptable risk is higher than the civil standard of proof and is “beyond more probably than not”: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21] per Mason P, Giles and Hodgson JJA. However, the Court does not need to find that the defendant is more likely than not to commit a serious offence to find that he poses an unacceptable risk: s 5D of the Act.
Determining what is an “unacceptable risk” includes a consideration of the type and nature of the offences that have been committed absent supervision:

the nature of the risk posed is assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition (Lynn per Basten JA at [126] and Beazley P at [51]).

understanding the characteristics and circumstances of the defendant that underpinned his offending behaviour may assist the Court to evaluate the degree of probability that the defendant poses of committing a further serious offence if unsupervised: Lynn at [51] per Beazley P (at [51]).

An “unacceptable risk” is one that is intolerable or “so far from a required standard, norm, expectation, etc. as not to be allowed”: Lynn per Beazley P at [50] and [51]. The evaluative task involves a consideration of both the likelihood of the risk eventuating and the gravity of that risk if it eventuates: Lynn at [51], Beazley P. In State of New South Wales v Pacey (Final) [2015] NSWSC 1983 Harrison J observed:

“43 It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable.”

In State of New South Wales v Kamm (Final) [2016] NSWSC 1 Harrison J stated:

“41 The determination of what is an unacceptable risk may require consideration of various factors (such as the perceived likelihood of recidivism and the type and nature of offences that may be committed absent supervision) and may entail a balancing of factors in cases where they might point towards differing outcomes (such as a low risk of recidivism versus likely drastic consequences to the victim if an offence occurs).”

The Court may legitimately find that a person poses an unacceptable risk for the purpose of the unacceptable risk test even if the likelihood of the person committing a further serious offence is determined to be low: Kamm per Harrison J (at [43]); State of State of New South Wales v Sleeman (Preliminary) [2018] NSWSC 562 per R A Hulme J (at [13]); State of New South Wales v King (Final) [2019] NSWSC 151 per Walton J (at [16]).

Evaluating risk and s 9(3) factors

The Court has consistently considered the s 9(3) factors to evaluate the nature of the defendant’s risk of reoffending and the degree of probability that the defendant poses for the unacceptable risk test: See State of New South Wales v Fisk [2013] NSWSC 364 (Beech-Jones J at [22]) and Kamm (Harrison J at [42]) as well as determining whether the Court should grant an ESO.

The experts’ reports and statistical assessments – s 9(3)(b)(c) and (d) factors

The 2018 and 2020 Furst Reports

The defendant participated in the interview and assessment process with Dr Furst. Dr Furst had also treated the defendant while he was a forensic patient in custody.
The 2018 and 2020 Furst reports were largely similar in what they said concerning the terms of risk assessment and diagnostic criteria. The defendant more readily disclosed and discussed a childhood history of sexual abuse with Dr Furst in March 2020. Dr Furst considered this an additional risk factor in the later report.
Dr Furst diagnosed the defendant with the following mental disorders:

Substance Use Disorder (alcohol and amphetamines) – because of the recurrent pattern of substance abuse;

Anti-social Personality Disorder – because of his criminal versatility, dishonesty offences, opportunistic offending, unreliability, attitudinal problems, his institutionalisation, irresponsibility and disregard for the consequences of his actions; and

Major Depressive Disorder: which was in remission (being present during the time of the death of his son in 2015).

Dr Furst having considered the diagnoses above and the risk factors identified in the statistical assessment and professional judgment tools which he applied opined that the defendant posed a moderate to high risk of committing further serious sex offences:

applying the STATIC 99R Dr Furst categorised the defendant in the moderate to high risk range (or above average risk range) of further sex offending. The defendant’s age at release (being over 60) had a significant impact on reducing the score;

in the 2020 Furst report, because of a further disclosure of a childhood history of sexual abuse, Dr Furst considered that this was a significant dynamic risk factor that increased the defendant’s risk of further sex offending in addition to his personality disorder, poor insight and absent therapy:

a history of sexual abuse is considered a risk predictor of further serious sex offending because it contributes to low self-esteem, personality disorders and substance abuse. Dr Furst noted that a number of studies of sex offenders, including a study in June 2012, found there was a significant increase in the rate of sexual offending in males who had been the victim of abuse; and

applying the HCR-20 V3 it was the clinical and future risk factors that put the defendant in the moderate-high risk category:

of the historical factors, those present were violence, antisocial behaviour, relationships and substance misuse. In the 2020 Furst report, consequent to the disclosure of sexual abuse history, Dr Furst added a history of traumatic experience as a risk factor;

of the clinical or dynamic risk factors, those present in the defendant were lack of insight into motivations behind his offending or awareness of his treatment needs and superficial response to treatment. It was worthy of note that the defendant did not have any apparent thoughts of violence or sexual preoccupation at the time of the assessment (which might be responsible for the moderate to high risk range); and

of the future risk management factors, the most pertinent were drug abuse and problems with supervision.

The 2020 Furst report commented that the defendant disclosed to Dr Furst that he had used methylamphetamine during his last parole period in 2018. Dr Furst opined that:

“There are clear attitudinal problems towards authority, coupled with a lack of victim empathy and low level of insight into his offending.”

Dr Furst further opined that an ESO would manage the defendant’s risks, stating:

“The need for ongoing supervision, monitoring and treatment is based on a review of the available history, including the serious nature of his past sexual and violent offences, an antisocial personality disorder and ongoing drug dependency issues, especially in relation to methylamphetamines. He has serious attitudinal problems, breaching prior parole and reporting requirements in multiple jurisdictions. He also has poor insight into his offending and need for treatment, denial and minimization of past offences, risk factors that will require ongoing monitoring and risk-management to the level generally provided under an ESO supervision order.”

Dr Furst stated that the suite of conditions in the ISO could manage the defendant’s risks and further suggested a treatment plan that included seeing a clinical psychologist and treatment with respect to his sexual and violent offending and with a focus on relapse prevention (CUBIT or CUBIT maintenance), drug counselling, rehabilitation and relevant specialists that could address his prostate and bowel cancer.

Dr Furst supported a duration of three years noting the defendant’s risk factors for reoffending in a sexual or violent manner were unlikely to change much, being largely based on past offending, past behaviour when supervised, attitudes, insight, personality and substance abuse.
It should be noted that in addressing the contents of Dr Furst’s reports and when dealing with expert and other material which has been placed before the Court, I have had regard to the undoubted seriousness of his previous sexual offending but have not focused on material placed before the Court which was said to indicate that the Court could make an ESO based also on the occurrence of “serious violence offences”. On that issue, the defendant submitted that his offending, insofar as violence was concerned, did not meet the definition of “serious violence offence” as defined in s 5A of the Act.
I agree with this submission. I am not satisfied on the material currently before me that the defendant’s offending, which involved some violence, amounted to a “serious violence offence” as defined in the Act:

“5A   Definition of “serious violence offence”
(1)   For the purposes of this Act, a “serious violence offence” is a serious indictable offence that is constituted by a person;
(a)   Engaging in conduct that causes the death of another person or grievous bodily harm to another person with the intention of causing or while being reckless as to causing the death of another person or grievous bodily harm to another person, or
(b)   Attempting to commit or conspiring with or inciting another person to commit an offence of the kind referred to in paragraph (a).
(2)   An offence that includes the elements referred to in subsection (1)(a) is a serious violence offence regardless of how those elements are expressed and whether or not the offence includes other elements.
(2A)   A reference in subsection (1)(a) to:
(a)   Conduct that causes the death of another person with the intention of causing the death of another person includes a reference to murder by an act done (by a person or an accomplice) in an attempt to commit or during or immediately after the commission of a serious crime; and
(b)   Conduct that causes the death of another person while being reckless as to causing the death of another person includes a reference to manslaughter caused by an unlawful and dangerous act; and
(c)   Conduct that causes grievous bodily harm to another person includes conduct that causes the wounding of another person but only if the conduct was engaged in with the intention of causing the death of another person or grievous bodily harm to another person.”

The plaintiff’s submissions allege that in the course of what is referred as the “2008 violence offence”, the conduct of the defendant “could have amounted to an offence of wounding with intent to cause grievous bodily harm” pursuant to s 5A(2A)(c) of the Act.
The difficulty with this submission is that it ignores what is contained in the agreed facts that were before the Court when the defendant was sentenced for the offence of Specially Aggravated Detained for Advantage. Those facts certainly record that the defendant struck the victim to the back of the head and “struck him with a tomahawk and then a walking stick”. The facts go on to record the injuries of the victim. However, contrary to the submission of the plaintiff, there was not a wound to the head of the victim but rather what the facts describe as “a minor graze to the front side of the head which had bled”. The rest of the injuries included bruising and marks.
On the material currently available to me, I am satisfied that there was an offence which did involve violence and the seriousness of the conduct is reflected in the maximum penalty of the offence with which the defendant was charged. However, there is nothing in the conduct described nor the injuries received by the victim that would constitute what is required pursuant to s 5A(2A)(c). There is no evidence of wounding and the injuries themselves do not obviously invite an inference of an intention to cause death or grievous bodily harm to the victim. One could readily infer that if that were the case, a different charge would have been proffered.
On the basis of that evidence, I am not satisfied that I can safely find that the defendant had committed a serious offence such as would constitute a “serious violence offence”. Accordingly, I have based my decision to make an ESO on the various serious sexual offences which the defendant has committed and which he does not contest. I have, of course, taken the 2008 violence offence into account as part of the history of offending which the experts had to consider.

The 2018 and 2020 Seidler reports

Dr Seidler’s assessment was limited in 2018 in that the defendant refused to be interviewed and little was gained. The second interview was more productive but the defendant ended it after one hour. Apart from that consultation, Dr Seidler based her assessment on documents which were placed before her, such as the Risk Assessment Report (RAR). Accordingly, Dr Seidler’s assessment has to be read having regard to those limitations.
Dr Seidler opined that the defendant had an antisocial personality disorder because of his versatile and extensive criminal history and antisocial lifestyle.
Dr Seidler identified the following risk factors that had underpinned his offending:

drug use (crystal methamphetamine): the defendant acknowledged that his violent offence was precipitated by this drug and that he relapses soon after release to the community because he cannot cope;

poor coping skills and negative emotional states;

trauma history: the defendant acknowledged to Dr Seidler in the March 2020 interview that he required treatment if only to address his difficulties consequent to childhood abuse and neglect he suffered; and

negative peer influences.

The defendant acknowledged to Dr Seidler that the above factors contributed to his offending.
Dr Seidler’s primary opinion on risk was:

“[The defendant] has not yet engaged in offence-focused intervention and his personality structure remains and continues to influence his behaviour, relationships and decisions, although I take Mr Ardasinski’s point that this may be attenuating with age. Even so, it appears there can be little confidence that [the defendant] has the skills to manage himself, cope with negative life experiences or emotions, challenge his unhelpful thinking or engage prosocially in the community to a degree that is sufficient to attenuate his risks to a level that he would be considered safe.” (The reference to Mr Ardasinski is a reference to the author of RAR.)

Dr Seidler considered that the defendant was a vulnerable person, who had few positive coping skills, which ultimately resulted in him relapsing into drug use and reoffending.
Dr Seidler noted that the defendant’s poor physical prognosis might bring about a reduction in risk factors if he focused on meaningful, personal matters and developing relationships. Alternatively, the defendant might develop fatalistic attitudes thereby increasing his risk.
Dr Seidler recommended the making of an ESO because:

“[The defendant’s] criminogenic needs remain unaddressed and/or unresolved. Further to this, given that he has not yet participated in specialist treatment, [the defendant] does not have the insight into the antecedents to his offending behaviour, nor does he have the skills to manage his risks safely. For these reasons, it is suggested that [the defendant] will likely need external supervision and management in order to assist in managing his risk safely in the community.”

Dr Seidler noted that in the second interview the defendant had expressed an understanding of the need and benefit of an ESO for addressing his risks.
Dr Seidler conducted statistical assessments and applied professional judgment tools to categorise the defendant’s overall risk of future sexual recidivism as in the average range compared to other sex offenders, low to moderate range for violence and very high range for recidivism. She noted that her assessments were limited because of the defendant’s lack of disclosure and co-operation. Dr Seidler applied the following tools to categorise the defendant’s risk:

applying the STATIC 99-R and STATIC 2002 the defendant was in the Average or Level 111 category (again noting a reduction of three points for the defendant’s age at the time of his release). The score represented a sexual recidivism rate of 0.72 times greater than that of the average sex offender for the STATIC 99R. The defendant’s score on the STATIC 2002R had a higher sexual recidivism rate of 1.38 times the rate of offenders in the middle of risk distribution.

Dr Seidler noted that a significant limitation about these scores was that the last sexual offence was more than 10 years ago and that current research supports that for every five years an offender remains in the community sex-offence free, their risk of sexual reoffending halves;

the problem with this caveat having application to the defendant, is that he has not been in the community, offence free, for a period of five years or more;

applying the Structured Assessment of Protective Factors for Violence Risk tool (SAOPF) Dr Seidler observed that the defendant endorsed some positive future goals, the capacity to achieve these and some positive protective factors such as some capacity for self-control. She found, however, that this was outweighed by risk factors such as insecure attachment experiences, poor coping skills and endorsing maladaptive schemas. Dr Seidler noted:

“[The defendant] does not consider that he has a need to actively manage his risk for sexual offending nor is he presently engaged in a therapeutic alliance.”

applying the HCR-20 V3, Dr Seidler categorised the defendant in the low to moderate risk of future violence. Similarly to Dr Furst, Dr Seidler considered poor coping skills, substance abuse and extensive antisocial conduct were the defendant’s primary risks.

applying the Level of Services/Case Management Inventory Dr Seidler scored the defendant 33, which equated to a very high risk range; meaning that the defendant required a high level of intervention and supervision in relation to his risk of engaging in future criminal conduct.

Dr Seidler considered that the defendant’s risk of general recidivism was high, however there was not necessarily a high risk of the defendant committing a serious sex offence or serious violence offence.
The plaintiff submitted that the report of Dr Furst and the RAR, conducted by Mr Ardasinski, were to be preferred to the opinion of Dr Seidler. This is because Dr Furst and Mr Ardasinski had more fulsome interviews and assessments with the defendant and were able to better assess his clinical factors and in particular his untreated trauma history. The plaintiff regarded it as significant that the defendant said he relapsed to using crystal methamphetamine in July to December 2018 when he was on parole. The plaintiff submitted that substance and alcohol abuse created toxic environments where the defendant acted impulsively, violently and committed serious sex offences and serious violence offences.

The RAR

The contents of the RAR are somewhat dated given that the interview took place well before 2018. Mr Ardasinski categorised the defendant in the moderate to high risk category of serious reoffending. The RAR identified that the defendant lacked insight into his offending and the reasons for it.
Mr Ardasinski opined that the defendant might meet the diagnostic criteria for paedophilia because of the 1993 serious sex offence and the 2003 serious sex charge. Mr Ardasinski stated:

“While the defendant denied any deviant sexual interest in interview, the possibility of a longstanding endogenous predisposition to having sexualised thoughts about young female children cannot be discounted and may warrant further exploration within a therapeutic context.”

The RAR identified the following additional dynamic risk factors (utilising the Risk of Sexual Violence Protocol professional judgment tool):

entrenched antisocial attitudes noting that the defendant “has frequently returned to the safety of the criminal element, abusing drugs and committing crimes...”;

substance abuse problems;

intimacy deficits: this appeared to be relevant to his serious sex offending which has been linked to loneliness and lack of intimacy; and

childhood abuse and attachment deficits: Mr Ardasinski opined that the defendant’s childhood history of sexual abuse might cause him to sexualise children and that the defendant might resort to committing a serious sex offence as a coping mechanism.

Mr Ardasinski combined the results of the following statistical assessments and professional judgment tools to categorise the defendant in the above average risk:

the Level of Service Inventory-Revised (LSI-R) (which was performed while the defendant was in custody on 24 February 2017): The defendant was categorised in the medium to high range category for general and violent offending;

the STATIC 99R and STATIC 2002R: The defendant scored five on the Static 99R and six on the STATIC 2002R, which placed him in the “Above average” risk category. The rate of recidivism for individuals with the same score as the defendant is estimated to be about two times higher than that of the “typical” sex offender;

the STABLE-200761: The defendant scored 12 suggesting a high density of criminogenic needs relative to other male sexual defendants; and

the Violence Risk Appraisal Guide-Revised (VRAG-R): The defendant scored 22 placing him in the high risk category for violent recidivism. Fifty eight per cent (58%) of violent offenders in this category reoffended violently within five years.

Any other reports as to the likelihood of the defendant committing a further serious offence (s 9(3)(c))

Ann Watts (intern psychiatrist) and Dr John Baron (psychiatrist) assessed the defendant’s risk of recidivism and provided a report to the Parole Board dated 15 June 2001 for the Board to consider the defendant’s risk before deciding whether to release him to parole on the 1993 serious sex offence.
Although the report was dated, there were identified risk factors which appear present today:

the report noted that the defendant’s offences had been alcohol or drug related;

the defendant minimised the 1993 serious sex offence suggesting that the victim was a storyteller. However, as the interview progressed the authors of the report noted that the defendant appeared to accept that the facts pointed to him being there and because he was “so drunk he may have committed the offence even if he didn’t remember it”;

the defendant used inebriation and “memory loss” to evade responsibility which the authors of the report considered “the most worrying indicator of risk”; and

the defendant expressed to the authors of the report a “strong resolve” to establish a more positive and stable lifestyle:

it was noted the defendant, on his release to parole, despite this expression of commitment to rehabilitation, went on to be charged for the 2003 serious sex charge, committed a series of other theft and driving related offences, committed the 2008 violence offence and breached his obligations under the CPOR Act.

The defendant’s serious offences: s 9(3)(h) and (h1)

The 1990 serious sex offence

In January 1990, the defendant was charged with four counts of rape, two counts of indecent assault and one count of intentional injury to V2, his former de facto. The defendant pleaded not guilty and he went to trial before a jury in a Victorian County Court. The jury returned a guilty verdict to all charges. Judge Murdoch sentenced the defendant to 4 years and 6 months imprisonment with a 3 year non-parole period.
The facts found, by the jury’s verdict, as set out in the Remarks on Sentence, were:

the defendant had lived with V2 since 1978 with periods of separation. They had two children together, aged 10 and six years at the time;

in July 1989, following a period of separation, the defendant returned to live with V2;

in early December 1989, V2 asked the defendant to move out and he did;

about midday on 31 December 1989, the defendant went to V2’s home and waited in his car for V2 to return home. While waiting for her return, the defendant drank alcohol;

V2 returned home at 1am. Shortly after that, the defendant knocked on the door and when V2 opened it, the defendant punched her mouth with a closed fist. V2 fell to the ground and it split her lower lip (count 1);

the defendant tore off V2’s underpants, carried V2 to the bedroom and licked her vagina (count 3);

the defendant put his penis into V2’s mouth, raping her (count 4);

on three separate occasions the defendant moved V2 into different positions and each time inserted his penis in her vagina (the rape counts 5, 6 and 7);

afterwards the defendant made V2 stand near the end of the bed and the defendant fondled V2 in the area of her vagina (count 8 indecent assault);

V2’s evidence at trial was that she did not resist the defendant because she was afraid of him;

afterwards the defendant drank more alcohol and went to sleep;

V2 telephoned her sister and told her what had happened. V2 went to her sister’s home and they called the police;

the defendant, in his police interview, did not deny that sexual intercourse occurred but stated that it was consensual. The defendant denied punching V2:

in the defendant’s interview with the experts he maintained that the sexual intercourse was consensual and that he was intoxicated. He effectively denied the harm he caused V2 and did not acknowledge any insight into his serious sex offending history.

The 1993 serious sex offence

In August 1993, the defendant was released to parole for the 1990 serious sex offence.
On 7 November 1993, the defendant was arrested and charged with the 1993 serious sex charges (two counts of aggravated indecent assault and one count of aggravated sexual assault on a 10 year old girl). Between 1993 and 1996, a warrant was extant for the defendant’s arrest as he had breached bail. The defendant had also been charged with further property, drug, theft and fraud offences. In January 1996, the warrants were executed and the defendant was taken into custody.
On 28 February 1996, the DPP presented an indictment naming the defendant and charging him with one count of sexual intercourse without consent, an offence at that time under s 61J of the Crimes Act 1900 (NSW) or in the alternative, one count of aggravated sexual assault, an offence at that time under s 61M(1) of the Crimes Act.
On 17 May 1996, the defendant pleaded guilty to the alternative charge and the DPP accepted that plea in full satisfaction of the indictment. This was the 1993 serious sex offence.
On 9 August 1996, Judge Hosking QC convicted and sentenced the defendant to 4 years imprisonment (1 year NPP) commencing on 13 December 1999 (after the 4 years fixed term for robbery and fraud charges expired).
The facts of the 1993 serious sex offence were:

on 6 November 1993, the defendant went to V2’s home. V2 was living with another partner at the time, M10, who had a 10 year old daughter (V3). Also at the home was a 10 year old girl (M4) and a 13 year old boy (the biological children of V2 and the defendant);

in the early hours of the morning, the defendant woke V3 who was asleep in the top bunk. M4 was in the bottom bunk;

the defendant put his hand inside V3’s vagina. While this was occurring, the defendant spoke to M4 in the bottom bunk;

the defendant unzipped his pants and climbed into the top bunk;

as the defendant was nearing V3 she could feel the defendant's penis against her;

the defendant told V3 not to scream or something would happen. V3 screamed and the defendant left the house;

V2 entered the bedroom and found a knife, usually kept in the kitchen, on the floor beside the bunk;

V2 and M10 called the Police and reported the incident;

the defendant denied ever being in the house but the victim and M4, the defendant’s daughter, each told police they saw the defendant in their bedroom that evening:

the defendant in his interview with the experts stated he had no recollection of the 1993 serious sex offence (blaming alcohol). The defendant admitted being in the bedroom to Dr Furst but stated he did not commit any serious sex offence on V3. The defendant told Dr Furst he regretted pleading guilty to the offence (denying it happened).

The 2003 serious sex charge

On 22 October 2002, the defendant was released to parole for the 1993 serious sex offence. On 20 August 2003, the defendant was charged with aggravated indecent assault of a nine year old girl (V5), an offence (at that time and now) under s 61M(1) of the Crimes Act. The offence was alleged to have occurred in January 2003 (three months after the defendant was released to parole).
The Police facts state:

the defendant was friends with V5’s parents;

in January 2003, the defendant was in a relationship with a woman, M22 who had a BBQ at her residence;

prior arrangements were made for the defendant to bring V5 to the BBQ at M22’s house as V5’s parents could not be there;

on the way to the BBQ, the defendant stopped at his home with V5;

while inside his unit, V5 picked up a magazine that had been left out that contained pornographic material. The defendant told V5 to put the magazine away;

V5 asked the defendant questions about the magazine;

the defendant told V5 to lie on the bed. The defendant touched V5’s vagina through her clothing before V5 pushed his hand away;

about a month later V5 disclosed the allegation to M22 (who had since separated from the defendant); and

when questioned by police on 20 August 2003, the defendant denied the incident.

V5’s evidence contained in her record of interview corroborated the police facts.
There were three complaint witnesses who corroborated V5’s evidence, namely M22 and V5’s parents. M22 noted that at the BBQ on the day of the alleged offence, V5 was “clingy” to her and the defendant was keeping his distance from her and V5 which M22 commented was “unusual”.
The defendant elected a judge alone trial which commenced on 23 August 2004 before Judge Bell. V5 gave evidence in that trial. M22 gave her evidence-in-chief on 24 August 2004 and was to be cross-examined on 25 August 2004.
On 25 August 2004, the Crown advised it could not find M22.
In the outcome, on 25 August 2004, Judge Bell terminated the trial and relisted the matter so that another trial date could be set.
The bail report showed that on 7 and 25 October 2004 the DPP determined not to proceed with the charges. The plaintiff surmised that this was because of witness availability issues and not because the DPP determined there was insufficient evidence to meet the indictment.
It should be noted that s 9(3)(i) of the Act provides that the Court can consider any other relevant factor when determining whether an ESO should be granted. As submitted earlier, charged but not convicted acts have been considered by the Court in the evaluative task under s 5B(d): Attorney General for the State of New South Wales v Steadman [2016] NSWSC 174, Adamson J at [27], [124]; State of New South Wales v Sleeman (Preliminary) [2018] NSWSC 562 R A Hulme J at [14].

The charges may also be relevant to “the safety of the community” (s 9(2) of the Act): State of New South Wales v French (Final) [2017] NSWSC 1475 Walton J at [46], applied in State of New South Wales v Sleeman.

The Court can give weight to the 2003 serious sex charge when evaluating the defendant’s risk because:

unlike a not guilty verdict, the DPP elected not to proceed on the charge because of what appeared to be witness availability issues;

the nature of the 2003 serious sex charge parallels the 1993 serious sex offence suggestive of a pattern of behaviour: the ages of the female victims are almost identical and the defendant commenced each assault by touching both victims on their vagina with his hands; and

V5 seemed credible and reliable and her evidence was corroborated by the complaint witnesses. In a civil context this charge may be taken into account.

2008 violence offence

On 23 June 2008, the defendant was released to parole in respect of driving and theft offences. On 12 July 2008, the defendant was arrested and charged for the 2008 violence offence.
On 2 December 2008, the defendant pleaded guilty to the charge in Nowra Local Court and was committed to Sydney District Court for sentence.
On 17 July 2009, the defendant was sentenced by his Honour Judge McLoughlin SC in the Downing Centre District Court to 6 years imprisonment with a non-parole period of 4 years and 6 months.
The facts of the offence were:

the victim, V6, knew the defendant, and the co-accused, M40 (male) and M41 (female);

on 11 July 2008 V6 went to M41’s house consequent to M41 texting him. The defendant, M40 and M41 were there;

shortly after arriving at M41’s house, while V6 had a cup of coffee and a cigarette, the defendant struck V6 to the back of the head. At that time M41 went to her bedroom;

V6 fell to the floor and was kneed and punched by M40 whilst the defendant struck V6 with a tomahawk and then a walking stick. V6 was also verbally threatened by the two men;

at one point during the assault, V6’s mobile phone rang. V6 managed to pick it up and run into a bedroom and shut the door. V6 saw that it was his mother who called and he yelled into the phone that he was at M41’s house and to send the police;

the door was kicked off its hinges and V6 was pulled from the room. The defendant took V6's phone and threatened V6;

V6 bled from his injuries. M40 went downstairs to the bathroom to vomit;

the defendant continued to threaten V6 who was asking for medical help;

V6 was allowed to go to the toilet and wash his face. V6 returned to the lounge room where the defendant tied V6’s hands;

the three accused took V6 to a shed about 30 to 40 metres from the house but still on M41’s property;

the defendant had the tomahawk on him and threatened to put it in V6's skull if V6 “tried anything”;

the defendant tied the rope to a bed and gave the rope to M41 who tied V6’s hands and feet to a chair. V6 was told he would be shot with a gun if he tried to escape;

M41 boarded up a window in the shed and the three accused bolted and locked the door from the outside;

the defendant left the property around 8:30 pm in V6’s car;

M40 and M41 checked on V6 a number of times after the defendant had left. M40 lay V6 on the bed and he slept;

V6 was detained for the next 7 hours before he managed to escape and eventually telephoned emergency services;

V6 sustained bruises, scratches and a wound to the front of his head; and

the defendant declined to be interviewed by police.

The 2015 CPOR Act offence

As a consequence of the 1993 serious sex offence, the defendant was required to be registered on the Child Protection Register pursuant to s 3A of the CPOR Act.
On 11 January 2015, the defendant’s sentence expired and he was released from prison. The defendant had until 17 January 2015, to contact police and register his details (s 9A of the CPOR Act). The defendant had been notified of his CPOR Act obligations on several occasions. On 17 April 2015, the defendant had still not reported his details to police and was consequently charged with an offence under s 17 of the CPOR Act.
On 19 November 2015, the defendant was sentenced in Blacktown Local Court to 3 months imprisonment. The sentence was confirmed on appeal.

The Index offence

On 9 December 2016, the defendant was released to parole. Between 7 April 2017 and 28 July 2017, the defendant committed three offences under s 17 of the CPOR Act:

the defendant was not contactable for a period in April 2017 and had not notified police of his location;

when the defendant was arrested by police, he provided police with a new mobile phone number that he had for a few months. The defendant failed to notify police of this new mobile number when first in possession of it;

the defendant had been using a vehicle and did not notify police of the vehicle’s details.

On 28 July 2017, the defendant’s vehicle was stopped by police in Unanderra. The defendant provided a false name. The defendant was in due course identified and was arrested for the index offence, possession of a prohibited drug and other offences, including driving while disqualified.
On 31 July 2017, the defendant pleaded guilty and Magistrate Stoddart at Wollongong Local Court sentenced him to 16 months imprisonment with a 12 months non-parole period commencing that day.

Sentencing remarks

The remarks on sentence (ROS) of Judge Murdoch (for the 1990 serious sex offence), Judge Hosking QC (for the 1993 serious sex offence) and Magistrate Stoddart (for the index offence) do not contain any remarks of relevance to this application.
Judge McLoughlin SC assessed the crime as being in the mid-range of objective seriousness noting the incident was:

“very serious and involves the deprivation of a person's liberty and inflicting of repeated gratuitous violence for no apparent reason”.

His Honour considered the defendant was the principal offender.

Judge McLoughlin SC noted that the defendant gave sworn evidence that at 52 years of age he had seen “the error of his ways and wished to cease his drug habits and be a reasonable person in the community”. However, his Honour had little confidence this would occur having regard to the defendant’s criminal history and did not find the defendant a good prospect for rehabilitation.

Any treatment or rehabilitation programs the defendant participated in and his level of participation: s 9(3)(e)

The defendant had not participated in any custody based treatment programs targeting sex offending. The defendant is untreated.
The defendant had been offered placements in rehabilitative programs throughout his time in custody but has consistently refused to participate.
In the experts’ reports, the defendant has purportedly shown a shift in attitude and suggested that he is open to participating in community based treatment to address his trauma history and difficulties re-integrating into society. Whether the defendant can commit himself to treatment is yet to be tested.
In the past, the defendant had expressed an intention to rehabilitate but when released to parole he committed further offences (for example before the release to parole in 2002, the defendant expressed a desire to positively re-integrate into society but later committed the offending described in the 2003 sex charge. The same pattern was repeated recently in relation to the ISO). Significantly, the State did not submit that the defendant’s intention was not genuine but submitted that it was necessary to understand that despite intention, re-integration had been an understandably difficult task and the defendant’s old habits return. The plaintiff submitted that this evidenced the need for an ESO which could order the defendant to commit to a treatment plan and provide a measure of oversight more intensive than parole to address and reduce the risks of reoffending.

Any report prepared by Corrective Services NSW (CSNSW) to the extent to which the defendant can be reasonably and practically managed in the community and options if any that might reduce the likelihood of the defendant reoffending over time: s 9(3)(d1) and (e1)

The Risk Management Report (RMR) proposes a plan that addressed the defendant’s criminogenic needs and his institutionalisation. The plan sought to reduce the defendant’s risk by requiring him to engage in weekly interviews, unannounced home visits, electronic monitoring, weekly reporting of schedules, referrals to psychologists for treatment and drug and alcohol counselling and testing.
Ms Kirkwood (the author of the RMR) noted that the limitations of the management strategy were the reliance on the defendant’s compliance with the conditions.

“The defendant cannot be trusted to abide by his conditions which may justify the need for electronic monitoring in the short term to ensure the defendant is where he says he is.”

There was nothing in the RMR to suggest there would be impediments from the CSNSW perspective to supervising the defendant. The limitations were largely reliant on the level of the defendant’s compliance.
Dr Furst and Dr Seidler support any treatment programs that can address the defendant’s trauma history and sexual abuse history. They proposed that if he were on an ESO, the defendant would have the opportunity to participate in Forensic Psychology Services, which is a group based program that could provide such treatment.

The likelihood of compliance with obligations under the ESO, the level of the defendant's compliance with conditions of parole and the level of the defendant's compliance with obligations under the CPOR Act: s 9(3)(e2), (f) and (g)

A consideration of the defendant’s criminal record shows that his compliance with conditional liberty and his obligations under the CPOR Act have been poor. He has breached every release to parole and has shown deliberate disregard for purpose of the CPOR Act and the ISO .
His breaches of parole or offences under the CPOR Act include:

committing further offences;

failing to report to Community Corrections or attend his required interviews;

failing to disclose to police a residence at which he regularly stayed;

testing positive for amphetamine/methamphetamine;

having his whereabouts unknown;

not arriving at post-release accommodation the first day of his release to parole and thereafter his location being unknown;

residing at an address not agreed upon by Community Corrections;

leaving NSW.

This deliberate disregard for conditions of his ISO, his parole and obligations under the CPOR Act is evidence of a denial by the defendant of his risks and a lack of understanding of those matters that elevate his risk (such as negative peers, illicit substance use and difficulty coping). This warrants the need for a considerable intensity of supervision. The ESO can be protective because, absent supervision, there is a high degree of probability that those characteristics that underpin the defendant’s offending will return.

The unacceptable risk test

The evidence is all one way to the effect that the defendant poses an unacceptable risk of committing a further series of offences and that an ESO should be granted. As earlier indicated, the defendant accepts the inevitability of such an order being made and does not oppose it.
There are other considerations which point in the same direction. It is clear that the defendant has been institutionalised which places him at risk of returning to illicit substances and/or alcohol when he cannot cope. This increases his risk of reoffending if he is not properly supervised.
The defendant’s denial of sexual attraction to young girls and untreated dynamic risk factors mean that he lacks insight into the factors that underpin his sexual offending behaviour. I accept that there is a high degree of probability that, if faced with a scenario where the defendant has contact and access to a young girl that he knows, the defendant lacks the tools or motivation to regulate his behaviour and stop himself from serious sex offending.
The lack of protective factors identified in the defendant’s life on his release, i.e. no family support and no employment and his fatalistic attitude may also escalate such a risk.
The severity of the unacceptable risk and the likelihood of the defendant offending have to be taken into account when carrying out the evaluative task of determining whether or not there is an unacceptable risk of such offending.
The risk of recidivism of a serious sex offence is to be balanced against the fact that the defendant committed these offences soon after release to parole, that the offences were committed later in his adult life (after the age of 30) and that the consequences of the risk are drastic for any victim. These considerations have satisfied me to a high degree of probability that the unacceptable risk test required by the Act has been met and that there is not only a prima facie case for an ESO but a very strong one.
The “safety of the community must be the paramount consideration” of the Court. In those circumstances, an ESO would be protective, both for the community and of the defendant. It would also provide the defendant with an intensity of supervision he has yet to receive. Self evidently, the defendant’s rehabilitation would also contribute to the protective objects of the Act.

Conditions of supervision

Pursuant to s 11 the Court has the power to impose a condition that the Court considers “appropriate”. A condition is “appropriate” if it addresses the risk of the future offending of the type which is the basis for the order: Wilde v State of New South Wales [2015] NSWCA 28; 249 A Crim R 65.
The Court is to impose the least intrusive conditions, consistent with its assessment of the risk posed by the defendant. There needs to be an assessment of what conditions are likely to be effective having regard to the interests of the defendant in liberty and privacy being properly treated as a relevant consideration. This is to ensure that unjustifiable conditions are not imposed ( Lynn at [661], [129]-[130] and [149].
As was stated by her Honour Justice Natalie Adams in State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 (at [36]):

“Ultimately, the purpose of conditions is to mitigate the risk of the defendant’s committing further sexual offences. For this reason, it is obvious that there need not be a link between the condition and the circumstances of the offences that have triggered the order or the way in which they were committed. The conditions must address identified risk factors but these must be considered in a realistic way and not treated as some statutory scheme. In the nature of things, there can be no bright line: the relevant factors are inherently incommensurable. The condition must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice.”

The last matter to be considered is the duration of the ESO. The experts agree that three years is an appropriate length of time and that has not been opposed by the defendant. I am satisfied that the duration of the ESO to be imposed should be 3 years.

Conclusion

The two serious sex offences and the alleged third sex charge, although dated, are severe in nature and present an intolerable risk. The defendant has had little time in the community since the commission of these offences to demonstrate that these risks are no longer present to a high degree of probability.
As I have indicated, I am satisfied to a high degree of probability that absent supervision, the defendant who is institutionalised will find it hard to cope with re-integration and life stressors, may relapse to drug and alcohol abuse and may resort to violence to resolve conflicts with any woman with whom he has a relationship. The defendant’s childhood trauma also informs the high degree of that risk eventuating.
It follows from the above that the threshold considerations in s 5B of the Act have been satisfied and the ss 9(2) and (3) factors satisfy me that the making of a ESO is justified and appropriate.

Conditions

The only real contest in this matter concerns the conditions to be imposed as part of the ESO. A considerable amount of agreement has been arrived at between the parties and I congratulate them for their efforts in that regard. Despite those efforts, there do remain some outstanding matters which need to be resolved.

The first condition which is disputed is Condition 12. The form submitted by the plaintiff is:

“12. If so directed, the defendant must be at his approved address between 9pm and 6am unless other arrangements are approved by his DSO.”

The defendant opposes the words “If so directed” in that condition but otherwise accepts the rest of the condition.
The defendant submits that the wording suggested by the plaintiff unduly complicates what is a simple proposition that the defendant must be at the approved address at the time specified unless other arrangements have been approved by his DSO.
The plaintiff submitted that the words “If so directed” apply to the fact that a curfew is proposed whereas the words “unless other arrangements are approved by his DSO” apply to changes to the curfew or exceptions to the curfew.
I am not persuaded that the wording proposed by the plaintiff is necessary. The wording proposed by the defendant achieves exactly the same result and does not unduly complicate the issue of a curfew being imposed. The qualification “unless other arrangements are approved by his DSO” is extremely wide and covers the implementation of a curfew as well as any changes or exceptions to the curfew from time to time.
The next condition which is disputed is 15 and 15A. The wording proposed by the plaintiff is:

“15. The defendant must notify his DSO of any person over 18 staying overnight at his approved address.
15A. The defendant must not permit any person under the age of 18 years to remain or stay overnight at his approved address without prior approval of his DSO.”

The defendant opposes the imposition of both those conditions on the basis that they merely repeat what is contained in Condition 27 which places limitations on the contact which the defendant can have with a person under 18.
I am not persuaded that the content of Conditions 15 and 15A cover the same matters as are dealt with in Condition 27. I am of the opinion that Conditions 15 and 15A do have a direct application to the defendant’s circumstances and have a real job to do over and above the matters raised by Condition 27. I accept the plaintiff’s submissions on this issue.
The next condition which is disputed is Condition 24. The wording proposed by the plaintiff is:

“24. The defendant must not consume alcohol unless given prior approval by his DSO and only in the manner approved (approval may be given in a general sense and for consumption to a particular blood/alcohol level or approval may be given in relation to a particular event).”

The defendant opposed the inclusion in such a condition of a particular blood/alcohol level. This was because short of him having his own breathalyser, it was not possible for the defendant to accurately measure the amount of alcohol which he consumed. The defendant submitted that such a condition would invite him being tested to see whether he had exceeded the specified limit. He submitted that the consequences for him failing such a test were significant in that he was liable to be charged and then face a maximum penalty of 5 years imprisonment. When invited, the defendant was unable to formulate an alternative condition which would enable him to drink a moderate amount of alcohol without an arbitrary limit being imposed on such consumption.
This is an important condition. The excessive consumption of alcohol has been a problem for the defendant and has accounted for much of his offending over the years. For the ESO to operate so as to protect the community but also assist the defendant towards rehabilitation, there has to be a limit imposed on his consumption of alcohol. Of its very nature, such a limit would have to be arbitrary. Such a condition would also need to be objectively capable of being tested rather than depending upon some observation as to whether or not the defendant were adversely affected by the consumption of alcohol.
In the absence of any alternative form of words, I am of the opinion that the condition proposed by the plaintiff should be imposed. In doing so, I am conscious of the fact that should the defendant demonstrate over a period of time that he is capable of responsibly consuming alcohol, this condition is flexible enough to allow a more generous consumption of alcohol on the part of the defendant.
The next condition is Condition 32. The wording proposed by the plaintiff is:

“32. If the defendant starts an intimate relationship with someone, he has to tell his DSO as soon as practicable the name of that person and truthfully answer any questions that the DSO asks regarding that relationship. The DSO may want to tell the person about his criminal history if it is relevant to his risks. The DSO will notify the defendant of the intended disclosure and the defendant must permit it.”

The defendant opposed the imposition of that condition on the basis that it was too wide. The defendant submitted that conditions such as these are not always implemented in a way which is productive of a defendant’s rehabilitation. The defendant submitted that his concern was that the requirement to “truthfully answer any questions that the DSO asks” leaves open the possibility of very intimate and disrespectful questions being asked and required to be answered.
The defendant repeated the earlier proposition that should a very personal and unwarranted question be put to him under this condition, he has to provide a truthful answer or be subject to a significant criminal penalty. The defendant did not, however, put forward an alternative wording for this condition.
Given the principal object of the Act is to protect the community, a DSO has to have the power to make the kind of inquiries envisaged by Condition 32. This is particularly so given the nature of the defendant’s sexual offending. That being the case, it really becomes a matter of trust that a DSO will not unreasonably intrude on the privacy of the defendant’s relationship with any partner while still having regard to what has to be revealed to such a partner for her or his protection.
In the absence of an alternative wording for the condition, I am of the opinion that the plaintiff’s proposed condition should be included in the ESO.
There was originally a dispute as to the wording of Condition 35. That was resolved in the course of the proceedings. The wording agreed to is as follows:

“35. 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. The defendant must advise the DSO of any change to the inventory as soon as is reasonably practicable.”

The final condition which was in dispute was Condition 55. The concern of the defendant was put by his counsel as follows:

“I note the plaintiff’s amended position. On the face of it, it appears to deal with [the defendant’s] concern that his history of disclosure relating to his childhood sexual abuse not be disclosed. That is his concern. So long as the condition is framed in a way to ensure that then I think something appropriate can be realised.” (T.7.47)

As I read Condition 55 in the form proposed by the plaintiff, it achieves that aim. It follows that I include Condition 55 as proposed by the plaintiff in the ESO.
Accordingly, Condition 55 will read as follows:

“55 The defendant agree to any information (with the exception of details of the defendant’s disclosure regarding any history of childhood trauma) being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW for the purpose of administering this Order and to mitigate the risk of the defendant committing a serious offence (as defined in the Crimes (High Risk Offenders) Act 2006).

The Court makes the following orders:

(1) Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006, the defendant Gerardus Tiggelen is subject to an Extended Supervision Order for a period of 3 years from the date of these orders.

(2) Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 direct the defendant for the period of the ESO to comply with the conditions set out in Annexure “A” to this judgment.

(3) That any reports prepared for the purpose of Order (1) to be provided to Corrective Services NSW, any agency involved in the defendant’s supervision and the defendant’s treating clinicians or health care practitioners.

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

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ANNEXURE “A”

SCHEDULE OF CONDITIONS OF SUPERVISION

GERADUS TIGGELEN
Departmental Supervising Officer (DSO)
Corrective Services NSW (CSNSW)
Part A: Reporting and Monitoring Obligations
Monitoring and Reporting
1.   The defendant must submit to the supervision of a DSO and obey all reasonable directions of a DSO
2.   Where a direction may be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service.
3.   The defendant must truthfully answer questions from a DSO, or any other person supervising him, about where he is, where he is going, who he is with, what he is doing and the nature of his associations.
Electronic Monitoring
4.   The defendant must wear electronic monitoring equipment as directed by the DSO and must not tamper with or remove the equipment.
5.   If the defendant is not charged with breaching the conditions of the supervision order, or any other criminal offence, for a period of 24 continuous months from the date of commencement of the interim supervision order, the defendant will no longer be required to wear electronic monitoring equipment and condition 4 will cease to apply.
6.   If electronic monitoring is removed because of condition 5 and the defendant is then charged with any offence of breaching the order, or with any criminal offence, condition 4 may be reactivated.
Schedule of Movements
7.   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.
8.   If the defendant wants to change anything in his schedule of movements once it is approved by his DSO, he must seek approval from a DSO about the change 24 hours in advance, unless the DSO approves a shorter period.
9.   The defendant must not deviate from his approved schedule of movements except in an emergency.
10.   Deleted
Part B: Accommodation
11.   The defendant must live at an address approved by his DSO and notify a DSO of any plans to change the defendant’s address or living arrangements.
12.   The defendant must be at his approved address between 9pm and 6am unless other arrangements are approved by his DSO.
13.   The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.
14.   The defendant must not spend the night anywhere other than his approved address without the prior approval of his DSO.
15.   The defendant must notify his DSO of any person over 18 staying overnight at his approved address.
15A. The defendant must not permit any person under the age of 18 years to remain or stay overnight at his approved address without prior approval of his DSO.
Part C: Place and travel restrictions
16.   The defendant must not leave New South Wales without the approval of the Commissioner of Corrective Services.
17.   The defendant must surrender any passports held by the defendant to the Commissioner.
18.   The defendant must not frequent or visit any place specified by a DSO.
19.   Without limiting condition 18 above, the defendant must not go to any of the following places without prior approval of his DSO:
a.   Day-care centres, pre-schools and schools;
b.   Amusement parlours, amusement parks and theme parks;
c.   Cinemas;
d.   Libraries and museums;
e.   Camping grounds and caravan parks;
f.   Children’s playgrounds, parks, and areas with play equipment provided for the use of children;
g.   Pools, playing fields and sporting facilities;
h.   Concerts, theatre shows, movies, events and activities intended for the entertainment of children; or
i.   Residences where the defendant knows that persons under 18 ordinarily reside.
20.   The defendant must not knowingly attend any place where drugs are illegally sold.
Part D: Employment, finance and education
21.   If the defendant is unemployed, the defendant must make himself available employment if and as directed by the DSO or make himself available for employment, education, training or participation in a personal development program as directed by the DSO.
22.   The defendant must not start on his own initiative any job, volunteer work or educational course without the prior approval of a DSO.
Part E: Drugs and alcohol
23.   The defendant must not possess or use alcohol or illegal drugs, and he must not possess or use prescription medication other than as prescribed.
24.   The defendant must not consume alcohol unless given prior approval by his DSO and only in the manner approved (approval may be given in a general sense and for consumption to a particular blood/alcohol level or approval may be given in relation to a particular event).
25.   The defendant must submit to testing for drugs and alcohol as directed by his DSO.
25A. The defendant must not enter any licensed premises including hotels, bars, race courses and licenced clubs, but excluding cafes and restaurants, without the prior approval of a DSO.
26.   The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as reasonably directed by his DSO, and must not discharge himself from such programs and courses without prior approval of his DSO and any persons treating the defendant in those programs.
Part F: Non-association
Association with Children
27.   The defendant must not approach or have contact with anyone he knows or suspects is under 18 without prior approval of his DSO and only if the defendant is in the company of an approved adult. Incidental contact with a person under 18 in the ordinary course of life such as contact with a shop assistant when he is making a genuine purchase is not a breach of this condition.
27A. If the defendant associates with a person who is the parent or guardian or has care and control of a child under the age of 18 years, he must notify the DSO of that association as soon as possible. The DSO may want to tell the person about the defendant’s criminal history and the defendant must permit that disclosure.
Associations with Others (not children)
28.   The defendant must not associate with people that his DSO tells him not to.
29.   The defendant must not knowingly associate with any people who are consuming or under the influence of illegal drugs.
30.   Deleted
31.   Deleted
32.   If the defendant starts an intimate relationship with someone, he has to tell his DSO as soon as practicable the name of that person and truthfully answer any questions that the DSO asks regarding that relationship. The DSO may want to tell the person about his criminal history if it is relevant to his risks. The DSO will notify the defendant of the intended disclosure and the defendant must permit it.
33.   The defendant must obtain 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: Weapons
34. The defendant must not possess or use any firearm within the meaning of s.4 of the Firearms Act 1996 or prohibited weapon as defined in s.4 and Schedule 1 of the Weapons Prohibition Act 1998.
Part H: Access to the internet and other electronic communication
35.   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. The defendant must advise the DSO of any change to the inventory as soon as is reasonably practicable.
36.   The DSO (or any other person requested by the DSO) may remotely inspect any internet account used by the defendant, including the defendant's email addresses, in monitoring compliance with this order.
37.   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.
38.   The defendant must provide consent for his telephone and/or internet service provider to share information about his accounts with his DSO.
39.   Deleted
Part I: Search and seizure
40.   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.
41.   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.
42.   During a search carried out pursuant to condition 40 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.
43.   The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use.
44.   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 40 to 43 above.
Part - Access to violent, pornographic and classified material

45.   Deleted
Part J: Personal details and appearance
46.   The defendant must not legally change his name without the prior approval of his DSO. The defendant may use the following names: Gerardus Tiggelen, Gerry Tiggelen, Gerardus Van Tiggelen, or Gerry Van Tiggelen.
47.   The defendant must not use any alias, log-in name, or a name other than “Gerardus Tiggelen” or use any email address other than those known to the DSO under condition 46 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.
48.   The defendant must not make significant changes to his appearance without the prior approval of his DSO.
49.   The defendant must let CSNSW photograph him.
50.   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
51.   The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults.
52.   The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend.
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 and anyone else supervising him as considered appropriate by those treating practitioners for the defendant’s rehabilitation and risk mitigation in relation to a serious offence (with the exception of details of the defendant’s disclosure regarding any history of childhood trauma).
55.   The defendant must agree to any information (with the exception of details of the defendant’s disclosure regarding any history of childhood trauma).being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW for the purpose of administering this Order and to mitigate the risk of the defendant committing a serious offence (as defined in the Crimes (High Risk Offenders) Act).

Decision last updated: 20 May 2020

Medium Neutral Citation:	State of NSW v Tiggelen (Final) [2020] NSWSC 578
Hearing dates:	12 May 2020
Decision date:	20 May 2020
Jurisdiction:	Common Law
Before:	Hoeben CJ at CL
Decision:	(1) Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006, the defendant Gerardus Tiggelen is subject to an Extended Supervision Order for a period of 3 years from the date of these orders. (2) Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 direct the defendant for the period of the ESO to comply with the conditions set out in Annexure “A” to this judgment. (3) That any reports prepared for the purpose of Order (1) to be provided to Corrective Services NSW, any agency involved in the defendant’s supervision and the defendant’s treating clinicians or health care practitioners. (4) That access to the Court file in respect of any document shall not be granted to a non-party without the leave of a Judge of the Court and if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.
Catchwords:	HIGH RISK OFFENDER – final hearing – application for an Extended Supervision Order – defendant has multiple convictions for sexual offending – extensive criminal history generally – where defendant does not oppose making of an Extended Supervision Order – necessity for Court to be satisfied that Extended Supervision Order should be made – community safety paramount – dispute as to form of conditions to be imposed – Extended Supervision Order made and conditions imposed.
Legislation Cited:	Child Protection (Offenders Registration) Act 2000 (NSW) – ss 3, 9, 11, 17 Crimes Act 1900 (NSW) – s 61J Crimes (High Risk Offenders) Act 2006 (NSW) – 3, 5B, 7, 9, 10, 11
Cases Cited:	Attorney General for the State of New South Wales v Steadman [2016] NSWSC 174 Cornwall v Attorney General for New South Wales [2007] NSWCA 374 Lynn v State of NSW [2016] 91 NSWLR 636; [2016] NSWCA 57 State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 State of New South Wales v Fisk [2013] NSWSC 364 State of New South Wales v French (Final) [2017] NSWSC 1475 State of New South Wales v Kamm (Final) [2016] NSWSC 1 State of New South Wales v King (Final) [2019] NSWSC 151 State of New South Wales v Pacey (Final) [2015] NSWSC 1983 State of State of New South Wales v Sleeman (Preliminary) [2018] NSWSC 562 Turner v State of NSW [2019] NSWCA 164 Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28
Category:	Principal judgment
Parties:	State of NSW – Plaintiff Gerardus Tiggelen – Defendant
Representation:	Counsel: D New – Plaintiff S Hall – Defendant Solicitors: Crown Solicitor for NSW – Plaintiff Legal Aid NSW - Defendant
File Number(s):	2018/243910