State of NSW v Weribone

[2016] NSWSC 1474

Supreme Court

New South Wales

Medium Neutral Citation:	State of NSW v Weribone [2016] NSWSC 1474
Hearing dates:	12 October 2016
Date of orders:	19 October 2016
Decision date:	19 October 2016
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	See [83]
Catchwords:	HIGH RISK OFFENDER – Application for Extended Supervision Order – Whether defendant a high risk violent offender – No point of principle
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW)
Cases Cited:	Anderson v State of NSW [2016] NSWCA 86 State of NSW v Conway [2011] NSWSC 925 State of NSW v Conway [2011] NSWSC 976 State of NSW v Thorne [2016] NSWSC 233 State of NSW v Veeran [2015] NSWSC 75 State of NSW v Weribone [2016] NSWSC 1046
Category:	Principal judgment
Parties:	State of NSW – Plaintiff Archie Weribone – Defendant
Representation:	Counsel:    I Fraser – Plaintiff M Johnston SC – Defendant   Solicitors: Crown Solicitor for NSW – Plaintiff Legal Aid NSW – Defendant
File Number(s):	2016/206202
Publication restriction:	Nil

Judgment

INTRODUCTION

1. By an amended summons filed in court on 12 October 2016 the plaintiff seeks the following:

An order pursuant to s. 17(1)(a) of the Crimes (High Risk Offenders) Act 2006 that the defendant be subject to a High Risk Offender Extended Supervision Order for a period of 5 years from the date of the order and, pursuant to s. 11 of the Act, a direction that for the period of the Extended Supervision Order the defendant comply with the conditions set out in the schedule to this further amended summons.

2. The defendant does not accept that he is a high risk violent offender. In the event that I find that he is, he raises no opposition to the making of an Extended Supervision Order (“ESO”) under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). However, he takes issue with:

1. the plaintiff’s suggested duration of 5 years of any ESO; and

2. the terms of some of the conditions which the plaintiff seeks to attach to such order.

THE EVIDENCE

3. The following affidavits were read without objection in the plaintiff’s case:

1. Emma Bayley of 7 July 2016;

2. Emma Bayley of 15 September 2016;

3. Emma Bayley of 10 October 2016;

4. Danielle Anna Matsuo of 16 September 2016;

5. Georgina Matthews of 10 October 2016;

6. John Bede Devoy of 14 September 2016.

4. In addition, some short oral evidence was given by Mr Devoy at the hearing.

THE PROCEDURAL HISTORY

5. The proceedings were commenced on 7 July 2016. At that time the defendant was serving the following sentences of imprisonment:

1. a sentence imposed for an offence of assault occasioning actual bodily harm in company, which commenced on 10 July 2014 and concluded on 9 July 2016; and

2. a sentence imposed for an offence of assault occasioning actual bodily harm, which commenced on 28 August 2015 and concluded on 27 November 2016, the non-parole period of which concluded on 3 August 2016.

6. The defendant was released from custody on 3 August 2016. As a consequence, he was simultaneously subject to both a parole order and an Interim Supervision Order (“ISO”), the latter order having been made by Wilson J on 29 July 2016: State of NSW v Weribone [2016] NSWSC 1046. The ISO has since been extended.

THE RELEVANT LEGISLATION

7. The written submissions of counsel for the plaintiff helpfully set out the relevant provisions of the Act, which may be summarised as follows.

8. Proceedings for an ESO in respect of a high risk violent offender may only be brought in the circumstances set out in ss. 5J and 13C. Those circumstances relevantly require that the offender:

1. is a high risk violent offender; and

2. is in custody or under supervision at the time that the application is made, and is serving a sentence of imprisonment for a serious violence offence, or a sentence for another offence which is being served consecutively, or partly consecutively, upon a sentence for a serious violent offence.

9. Pursuant to s. 6(2), an application for an ESO may only be made in the final six months of an offender’s current custody or supervision. Current custody or supervision for those purposes is that which is referred to in s. 5J(2). The application for an ESO must be supported by the documentation specified in s. 6(3).

10. Section 15 makes provision for pre-trial procedures. In the present case, Wilson J previously made orders (inter alia) appointing experts, pursuant to s. 15(4) of the Act. I have referred in some detail below to the reports of those experts.

11. Under s. 5E(1) of the Act, an ESO may only be made if the offender is a “high risk violent offender”. Under s. 5E(2), a “high risk violent offender” is a violent offender in respect of whom the court is “satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a ‘serious violence offence’ if the offender is not kept under supervision”.

12. In determining whether to make an ESO, I am required to engage in a two-step process. The first step is to determine whether the defendant is a high risk violent offender. If I determine that he is, the second step is to determine whether an ESO should be made: Anderson v State of NSW [2016] NSWCA 86 at [14]-[15]. Under s. 9(3) of the Act, I must, in addressing that second question, have regard to:

(a) the safety of the community,

(b) the reports received from the persons appointed under section 7 (4) to conduct examinations of the offender, and the level of the offender’s participation in any such examination,

(c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further relevant offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment,

(d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further relevant offence,

(d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community,

(e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender’s participation in any such programs,

(f) the level of the offender’s compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order,

(g) the level of the offender’s compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004 ,

(h) the offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history,

(h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender,

(i) any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature (in the case of an application for a high risk sex offender extended supervision order) or serious violence offences (in the case of an application for a high risk violent offender extended supervision order).

13. An allegation that has not resulted in a finding of guilt or a conviction is not relevant to an offender’s criminal history pursuant to s. 9(3)(h), although it may be taken into account under s. 9(3)(a) and 9(3)(i): State of NSW v Conway [2011] NSWSC 976; State of NSW v Veeran [2015] NSWSC 75.

14. There is no issue in the present case that:

1. it is open to the plaintiff to make the application for an ESO;

2. at the time of commencing the proceedings, the defendant was a “detained violent offender” as defined by s. 13C(2)(a)(iii) of the Act, on account of the fact that he was in custody for an offence which was to be served consecutively with a sentence imposed in respect of a serious violence offence;

3. at the time of commencing the proceedings, the defendant was in custody serving a sentence for two offences of assault occasioning actual bodily harm;

4. the proceedings were commenced when the defendant was serving a sentence which fell within s. 13C(2)(a)(iii) of the Act; and

5. the plaintiff’s application was made within the time stipulated by s. 13C(3) of the Act, and was supported by all necessary documentation as required by s. 14.

THE FACTUAL BACKGROUND

15. In making the ISO, Wilson J set out the following relevant aspects of the defendant’s background (commencing at [8]) which I gratefully adopt:

“[8] The defendant was born in February 1993 and is now 23 years old.

…

[10] The defendant’s first encounter with the criminal courts came when he was 11 years old, and appeared before the Broken Hill Children’s Court charged with offences of break enter and steal, and larceny of a motor vehicle. Control orders were imposed upon him at first instance, although those sentences were quashed on appeal and, in lieu, bonds with supervision were imposed, pursuant to s 33(1)(B) of the Children (Criminal Proceedings) Act 1987(NSW).

[11] For similar offences committed within days of his first set of crimes the defendant also received, ultimately, further supervised bonds.

[12] There followed regular appearances before the Children’s Court in Broken Hill throughout each of 2004, 2005, and 2006, for offences including break enter and steal, larceny, shoplifting, property damage, entering inclosed lands, having custody of a knife in a public place, having goods in custody, possessing implements, affray and taking and driving a conveyance.

[13] The sentences imposed upon the defendant for these crimes were most frequently supervised bonds, although control orders were also imposed.

[14] In August 2007 the defendant was before the Parramatta Children’s Court charged with an offence of violence, being common assault. A control order was imposed. Further violent offences followed, together with numerous offences of dishonesty.

[15] In August 2009 the defendant made his first appearance before the District Court to be dealt with at law, having pleaded guilty to an offence of specially aggravated break and enter with intent to steal, with wounding, contrary to s 113(3) of the Crimes Act.

[16] The defendant was sentenced in the District Court at Penrith to a term of imprisonment for 3 years and 9 months, to date from 2 January 2009, with a non-parole period of 2 years specified. The sentence was to be served in juvenile detention. An appeal against severity of sentence to the Court of Criminal Appeal was dismissed: AW v R [2010] NSWCCA 249.

[17] After his release to parole, the defendant’s frequent appearances before the criminal courts continued, for offences of dishonesty, but also for offences of violence.

[18] In May 2012 the defendant was sentenced before the Parramatta District Court to a further term of imprisonment of 3 years, this time as an adult, for an offence of recklessly cause grievous bodily harm in company contrary to s 35(1)(a) of the Crimes Act. The sentence commenced on 21 March 2012; a non-parole period of 18 months was specified.

[19] An offence of this nature is a “serious violence offence” for the purposes of s 5A(1)(a) of the Act.

[20] On 7 August 2014 a further term of imprisonment was imposed upon the defendant, being a term of 2 years imprisonment for an offence of assault occasioning actual bodily harm in company, contrary to s 59(2) of the Crimes Act, an offence committed at a time the defendant was subject to parole.

[21] The sentence commenced on 10 July 2014 and expired on 9 July 2016. The sentence was consecutive upon the sentence imposed on 9 May 2012 for a serious violence offence, and was current when the State commenced these proceedings, on 7 July 2016.

[22] Two further offences of assault occasioning actual bodily harm contrary to s 59(1) of the same Act, which were committed within days of the offence of 29 March 2014, when the defendant was subject to parole, were also dealt with on 7 August 2014. Those offences also attracted custodial sentences.

[23] The first was dealt with by way of a sentence of 1 year and 3 months with a non-parole period of 11 months and 7 days. The sentence commenced on 28 August 2015 and will expire on 27 November 2016. The defendant will be released to parole on 3 August 2016.

[24] For the second of the s 59(1) offences a term of 1 year, 10 months and 14 days imprisonment was imposed, commencing on 3 April 2014 and expiring on 16 February 2016. A non-parole period of 1 year, 4 months and 26 days expired on 28 August 2015.

[25] The defendant is thus a “detained violent offender” as provided by s 13C(2)(a)(iii) of the Act, with the timing of the State’s application meeting the requirements of s 13C(3).

THE ISSUES

Is the defendant a “high risk violent offender”?

16. Section 5E of the Act is in the following terms:

5E High risk violent offender

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

(2) An offender is a "high risk violent offender" if the offender is a violent offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence if he or she is not kept under supervision.

(3) The Supreme Court is not required to determine that the risk of a person committing a serious violence offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious violence offence.

17. A “serious violence offence” is defined in s. 5A of the Act as follows:

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 or actual bodily harm to another person, or

(b) attempting to commit, or conspiring with or inciting another person to commit, an offence of a 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.

(3) A "serious indictable offence" is:

(a) an offence committed in New South Wales that was a serious indictable offence (within the meaning of the Crimes Act 1900 ) at the time that it was committed, or

(b) an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be a serious indictable offence within the meaning of the Crimes Act 1900 at the time that it was committed, or

(c) an offence that, at the time that it was committed, was not a serious indictable offence but which was committed in circumstances that would make the offence a serious indictable offence if it were committed at the time an application for an order against the person is made under this Act.

18. Senior counsel for the defendant took issue with the proposition that the defendant was a high risk violent offender. Whilst he accepted that the defendant was “at some risk” of re-offending, he submitted that there was insufficient evidence to be satisfied to a high degree of probability that the defendant posed an unacceptable risk of committing a serious violence offence. In these circumstances, he submitted that there was no basis upon which the court could make the order sought, and submitted that the proceedings should be dismissed.

19. Counsel for the plaintiff pointed, in particular, to the defendant’s criminal history. In doing so, he emphasised the defendant’s convictions for violent offending, as well as for offences of dishonesty such as theft and break enter and steal. He submitted that in light of the defendant’s criminal history, I would be satisfied to the high degree of probability required by s. 5E(2) of the Act.

Consideration

20. The defendant’s criminal history was summarised by Wilson J in her judgment commencing at [10] (set out in [15] above).

21. The nature and frequency of the defendant’s prior offending, particularly in so far as that offending involves matters of violence, satisfies me, to a high degree of probability, that the defendant poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision. I am fortified in that view by the opinion of Mr Sheehan psychologist, and Dr O’Dea psychiatrist. In his report of 21 August 2016 (at para. 94) Mr Sheehan said:

“Without the influence and containment of supervision, there may be few impediments to Mr Weribone returning to the same milieu and lifestyle associated with his previous acts of violence. In those circumstances I would find it likely that he would engage in interpersonal violence within a relatively brief period (a matter of months). Whether that violence would be a serious violence offence is less certain, but the recklessness used in Mr Weribone’s violence does increase the risk of serious injury.”

22. In his report of 5 September 2016, Dr O’Dea said (commencing at para. 74):

“74. … from a full clinical psychiatric risk management perspective, Mr Weribone’s risk of engaging in further violent offending behaviours in the community in the long term would seem to be considered significantly high, particularly if he were to continue to abuse alcohol and/or cannabis or other illicit substance use in the community in the long term, and (is) appropriate for specific psychiatric treatment as outlined above.

75. More specifically, it would seem reasonable to consider that there would be a high degree of probability that Mr Weribone would pose an (sic) significant risk of committing a further ‘serious violence offence’ … in the community in the long term, if these above outlined treatment interventions, and in particular abstinence from alcohol and illicit drug use in the community in the long term, were not successfully implemented in the context of community supervision and monitoring.”

Should an ESO be made?

23. As I have already indicated, it was the position of the defendant that in the event that I found that he was a high risk violent offender, he raised no opposition to the making of an ESO, subject to being heard on the question of the duration of, and the conditions attaching to, such order. However notwithstanding that position, it remains necessary for me to have regard to the matters in s. 9(3) of the Act in considering whether an ESO should be made.

The safety of the community – s. 9(3)(a)

24. The defendant is 23 years of age. He has, on any view of it, a significant number of convictions for offences of violence. The evidence establishes that in the majority of instances of such offending, the victim has been a total stranger to him. In some cases, the victim had sought to challenge the behaviour of the defendant, and/or those persons in whose company he was in at the time.

24. In all of these circumstances, the safety of the community is an important consideration. In light of his history of offending, the defendant obviously poses an ongoing risk to the community. Having regard, in particular, to the expert reports which are before me, that risk would, without supervision, escalate into one which was plainly unacceptable. It follows that the need to protect the safety of the community weighs in favour of making the ESO sought.

Reports received from persons appointed to conduct examinations – s. 9(3)(b)

26. Mr Sheehan interviewed the defendant on 5 August 2016. His report contained the following executive summary:

Mr Weribone is a 23-year old Aboriginal male currently serving a sentence for 'Assault occasioning actual bodily harm'. He has an established history of violent offending commencing from the age of 12 years, with two sets of violence convictions meeting the threshold as serious violence offences as defined in the Crimes (High Risk Offenders) Act 2006. His use of violence is embedded in the social context of his family environment and social milieu, where he was poorly socialised, neglected, exposed to regular sanctioned violence, crime and substance abuse. His use of violence would appear underpinned by internal anger and frustration, which he seeks to express by

seeking situations in which he can feel justified to engage in violence, often in

circumstances where he can feel that he is playing the role of righteous protector. Substance use may play a further role in disinhibiting his aggression. His return to the family unit and familiar socially disadvantaged community has been associated with his rapid relapse into substance use, crime, violence followed by re-arrest. He has had only a negligible period of community-based living outside of custody since the age of 12 years. Mr Weribone has not yet completed a treatment program, has an inadequate post supervision plan, and his institutional behaviour does not infer any confidence that he has overcome the vulnerabilities underlying his history of violence. He was released to parole on the 3 August 2016 and is currently accommodated at Nunyara COSP, with his current sentence expiring on 27 November 2016. In the absence of intensive supervision I would estimate that there is a high risk of Mr Weribone returning to a lifestyle where violent confrontation is inevitable, and the there is a real likelihood that the violence could escalate to a serious violence offence. I believe that an ESO would be adequate to reduce the risk of violence (by controlling a number of environmental correlates of violence and interrupting cyclic behaviours) but not to extinguish the risk (given that violence can erupt spontaneously). Given the chronic nature of his behavioural and personality problems, I would suggest that an ESO of five years duration appropriate to realistically oversee a plan of change to successfully transition Mr Weribone into community life.

27. Mr Sheehan reported (commencing at para. 7) that the defendant was raised by his mother and step-father, and has five siblings. His biological father left the family unit, although this occurred prior to the defendant being able to form any memory of it. Both his parents and his step-father are Indigenous. His family life was “chaotic”, characterised by unemployment, cannabis use and heavy drinking, leading to brutal interpersonal violence and police involvement. The defendant reported that he was often beaten himself, mostly as a form of punishment, but sometimes randomly. He described being terrified and panicked by such violence, but said that over time, he came to accept it as normal. He was diagnosed with Attention Deficit Hyperactivity Disorder and Conduct Disorder at a young age. He would regularly absent himself from home and stay with a relative. There was a general absence of disciplinary boundaries, or order generally, in his home life.

28. Mr Sheehan reported that the defendant described the area in western Sydney where he grew up as “rough”, and described the environment in Broken Hill where his spent some time as a youth as “deeply dysfunctional”, and characterised by daily use of drugs, alcohol and solvents, excessive daily violence and a general atmosphere of lawlessness and hopelessness. In paragraph 16 of his report Mr Sheehan stated:

[16] Mr Weribone described immersion in a fundamentally antisocial milieu from as early as he can remember. Violence, substance abuse, criminality and hopelessness were normalised in this social environment. Mr Weribone's family is also part of this group. A number of his supervision failures as well as episodes of violence have been whilst associating with this group.

29. Mr Sheehan arrived at the following diagnoses (commencing at para. 35):

[35] Mr Weribone’s polysubstance use history would meet the criteria for substance use disorder, having contributed substantially to his poor adjustment since middle childhood. He would meet the diagnostic criteria for Cannabis Use Disorder (Severe, in extended remission in a controlled environment), Alcohol Use Disorder (moderate, in extended remission in a controlled environment), and Semisynthetic Opioid Use Disorder (ongoing).

[36] In my opinion, there is clear evidence to suggest the presence of a disorder of personality. Personality disorders are defined as an enduring pattern of inner experience and behaviour that deviates markedly from the norm and are manifested cognitively, affectively, interpersonally and behaviourally across contexts, and leading to significant distress and impairment across life domains (social, family, health, employment). The circumstances of Mr Weribone's childhood are consistent with the interruption to the formation of stable personality. Mr Weribone has all of the hallmarks of Antisocial Personality Disorder, defined as a pervasive pattern of disregard for and violation of the rights of others, occurring since the age of 15 years. He has a history of severe conduct disorder in childhood, failure to conform to social norms with respect to lawful behaviours, impulsivity, irritability and aggressiveness, reckless disregard for the safety of self and others, and consistent irresponsibility. The disorder generally runs a chronic course, but outward acts of antisociality tend to remit as the individual moves into middle age. Destructive personality features can be targeted for change in psychotherapy but the process is often arduous and requires the appropriate external environment, as well as a high level of motivation and recognition that change is necessary and desirable.

30. Mr Sheehan also reported that on a screening assessment for personality functioning and psychological adjustment, the defendant’s profile revealed a constellation of features which were consistent with diagnoses of antisocial personality and substance abuse.

31. In terms of his assessment of the defendant’s overall risk, Mr Sheehan said (at 78):

The overall totality of evidence suggests that Mr Weribone remains in thehigh risk category of violent offending relative to other adult male offenders.The apparent correlates of his violent offending remain seemingly unchanged.His repertoire of coping responses remains limited, his level of treatmentexposure has been inadequate to meet his needs, his substance use disorderremains unresolved, he maintains permissive beliefs about violence in certainsituations and his post supervision plans remain comparable to previousepisodes of release. It is clear that in the absence of intensive supervision MrWeribone would be a high risk of returning to a lifestyle where acts of violencewould seem almost inevitable. What is less clear is to what extent that theviolence would approach the threshold of a "serious violent offence" asdefined in the Crimes (High Risk Offenders) Act 2006. In these cases, theextent of injury in an assault can be influenced by variables beyond that of theact of violence itself (for instance the same punch thrown twice may have very different results), which reduces certainty as to the prediction of whether Mr Weribone's future violence would meet the criteria for a serious violence offence. However, the recklessness of Mr Weribone's previous violence (such behaviours as stomping and kicking people in the head) would seem to add to the likelihood of a serious violence offence.

32. Mr Sheehan expressed the view that the majority of the conditions sought by the plaintiff were necessary to address the defendant’s risk of a serious violence offence. He went on to say (at para. 80):

“…The conditions are adequate to manage the risk of a serious violence offence in so far as they will contribute to substantially lowering the risk relative to the absence of supervision. Given the spontaneous and impulsive nature of Mr Weribone's historical violence, the ESO conditions, however intensive, cannot hope to extinguish the risk of a serious violence offence.”

33. Mr Sheehan’s conclusions and recommendations were expressed in the following terms (commencing at para 93 of his report):

[93] Mr Weribone is a 23-year old man whose risk of committing a serious violence offence is estimated to be in the high risk category relative to other men who have offended violently. His background is one of extreme disadvantage where he was not afforded the opportunity for normal socialisation, stable personality development or the development of behavioural controls. Sadly, he has internalised the chaotic and violent environment of his childhood as his idea of normality, and has repeatedly fallen back into an unstable, unstructured lifestyle of substance abuse and aggressive confrontation in the company of antisocial peers, which has often spilled into reckless violence. He has engaged in some preliminary treatment intervention but has much to learn about his own cycle of violence, what internal processes drive his violence, and to create a solid, multifaceted plan for how to live in the community in a way that minimises his propensity to find himself in high risk situations.

[94] Without the influence and containment of supervision, there may be few impediments to Mr Weribone returning to the same milieu and lifestyle associated with his previous acts of violence. In those circumstances I would find it likely that he would engage in interpersonal violence within a relatively brief period (a matter of months). Whether that violence would be a serious violence offence is less certain, but the recklessness used in Mr Weribone's violence does increase the risk of serious injury.

[95] I cannot comment as to whether this is "unacceptable" in the context of the Crimes (High Risk Offenders) Act 2006 because that is beyond my expertise as a forensic psychologist. I can opine that Mr Weribone's best chance of achieving any form of positive adjustment in the community in the short term is to be subject to a period of intensive supervision, where processes of restriction and support can work towards creating an external environment (location and associates) and cognitive/behavioural practices (structured activity, hope for the future, improved problem-solving, enhanced consequential thinking, insight into high risk situations) that are inconsistent with violent behaviour. The lifestyle required for Mr Weribone to succeed on an ESO is radically different to his previous way of living in the community. This will be a very difficult task for Mr Weribone and is likely to prompt strong feelings of frustration. There is every likelihood that he will breach the conditions of his order on a number of occasions before he exhibits any enduring behaviour change. If administered affectively, the ESO should still be impactful in reducing risk of a serious violence offence by interrupting the preceding factors (such as substance use and association with antisocial groups) at an earlier stage.

[94] (sic) Mr Weribone should be given a clear and transparent understanding of what he would need to achieve so that further orders would not be sought. This could give him a clear framework to work towards and assist his professional support team to form achievable goals with him. Given the entrenched nature of Mr Weribone's difficulties, I would anticipate that a supervision order of five years duration would be more realistic to achieve stabilisation of Mr Weribone into community life, with the proviso that the ESO could relax or tighten over time in response to Mr Weribone's ability to independently manage his own risk.

34. Dr O’Dea interviewed the defendant on 8 August 2016 and provided a report of 5 September 2016 following that consultation. In general terms the history he obtained from the defendant was consistent with that which had been obtained by Mr Sheehan. Dr O’Dea’s opinion was as follows (commencing at para. 63):

“63. I did not diagnose Mr Weribone as suffering from a major psychiatric illness.

64. However, I note his longstanding and extensive history, from relatively early childhood, of Substance Use Disorder, including at least Alcohol Use Disorder, and Cannabis Use Disorder.

65. I also note his history of a relatively disorganised childhood, with a history of untreated ADHD; with a history problems with conduct, both at school and in the community, with repeated offending from the age of 11 years; with a history of an apparently relatively unstructured community lifestyle; and with a history of repeated problems with anger, aggression and violence, both in the community and in custody; with a history of limited compliance to date with programs aimed at managing his anger, aggression and violence, and addressing his substance abuse. Whilst his general and violent offending behaviour may be understood in the context of his Substance Use Disorder and under controlled aggression, the above cluster of problems, and his associated limited remorse and contrition, would point to Mr Weribone having an evolving Personality Disorder, with antisocial and psychopathic traits.

66. On the basis of Mr Weribone's reported history of repeated violent offending, in the context of an extensive history of Substance Use Disorder, his limited insight and remorse, his apparent personality, his limited engagement to date in addressing these problems, and his young age, it would seem reasonable to assume that he has a significant risk of engaging in further violent offending behaviours in the community in the long term, including of committing a further serious violence offence, as defined in the New South Wales Crimes (High Risk Offenders) Act 2006, particularly if he were to continue to use alcohol and/or cannabis, with this risk the appropriate focus of specific and structured risk management in the community in the long term.

67. As such, it would appear reasonable to assume that Mr Weribone will require to remain totally abstinent from alcohol, cannabis, and other illicit drug use, in the community in the long term, in order to manage and minimise his risk of engaging in further violent offending behaviours in the community in the long term, including of committing a further serious violence offence, as defined in the New South Wales Crimes (High Risk Offenders) Act 2006.

68. This crucial goal of abstinence from alcohol, cannabis, and other illicit drug use in the community would best be achieved by Mr Weribone continuing to successfully engage in ongoing structured and supervised alcohol and other drug counselling and rehabilitation in the community in the long term.”

35. Generally speaking, the opinions of Mr Sheehan and Dr O’Dea expressly support the making of an ESO, as well as the conditions which are sought by the plaintiff. To the extent that there are issues raised concerning those conditions, they are limited and I have discussed them further below.

The results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner – (s. 9(3)(c))

36. On 16 March 2016 Richard Parker, a senior psychologist at the Serious Offender’s Assessment Unit, prepared a Risk Assessment Report in respect of the defendant. For the purposes of that report, Mr Parker interviewed the defendant for approximately 1 hour on 16 February 2016. The executive summary of that report is in the following terms:

Mr Weribone is a 23 year old Aboriginal man who has amassed twelve convictions for violence in the last eleven years, despite only being at liberty for about is months of that time, He also has had numerous court appearances for other matters.

He was raised in a dysfunctional family, characterised by alcohol abuse, domestic violence and extremely poor supervision. Consequently, he has internalised an antisocial set of beliefs which fuel his offending. When in the community, he Is generally surrounded by other antisocial people who facilitate his substance abuse and offending.

While Mr Weribone used solvents when young, he has mainly abused alcohol and marijuana. His use tends to be chronic and heavy, with short breaks to recover, before he resumes binging.

His compliance with community supervision has been abysmal and, since his first entry into custody at twelve years of age, he has never lasted more than seven months in the community, often being returned within a few weeks.

Due to his poor compliance with supervision, he has never undertaken any significant rehabilitation in the community. In custody, he initially refused a referral to the VOTP, before accepting a later offer. However, after less than four months in the program, he was suspended for violence and moved to another prison. He was subsequently offered another place In VOTP, but refused. He has instead enrolled in the much less Intensive EQUIPS Aggression program. This program would appear to lack the intensity to deal with someone with the level of entrenched attitudes and problems that Mr Weribone has.

If he is subject to an Extended Supervision Order, Intensive community supervision could assist him to adopt a pro-social lifestyle. Such an order would also make it more difficult for him to return to his previous pattern of substance abuse. However, given his extremely poor compliance with past supervision, there are doubts about whether such supervision may be able to contain him.

In the event that Mr Weribone is subject to a Continuing Detention Order, he would be able to enter and complete the VOTP. After doing so he could undertake custody based maintenance with VOTP staff or access community-based maintenance through the use of day leave from custody. Whether he would agree to enter this program is a separate matter, A Continuing Detention Order would be an effective means of protecting the public, if the Court deems an Extended Supervision Order cannot provide the requisite

level of community protection.

37. The risk assessment which was carried out by Mr Parker:

1. classified the defendant as a high risk compared to other serious violent offenders (Mr Parker noting that 76% of violent offenders with a similar score reoffended violently within 5 years, and 87% within 12 years);

2. classified the defendant as similar to offenders who had a rate of recidivism of 44.5%, after 4.4 years at risk;

3. demonstrated a high rating in respective of (inter alia) criminal attitudes and emotional control.

38. Mr Parker concluded (commencing at para. 47):

47. Mr Weribone is a 23 year old man who is estimated to be at high risk of further violent offending. This assessment is anchored by static, unchangeable factors and backed up by the identification of a number of criminogenic needs. As Hopkins (2012) noted, this is likely a result of many years of modelling in his family, where he has internalised ways of thinking that make violence almost inevitable, While he has recently commenced the EQUIPS Aggression program, it is considered unlikely this will be sufficient to address his ingrained patterns of thinking,

48. In the event that Mr Weribone is subject to an Extended Supervision Order, it is likely that he will benefit from intensive supervision and case management by CSNSW. This may include electronic monitoring, the obligation to provide weekly schedules of movement; unannounced visits by supervising staff; assistance finding suitable accommodation; scrutiny of social contacts, employment and leisure activities; and attending programs to address his criminogenic needs, However, should Mr Weribone absent himself from supervision as he has in the past, such an order may be ineffective,

…

50. In the event that no order is imposed, Mr Weribone’s sentence will expire on 27/11/2016. If this happens, it is considered likely that he would gravitate to old acquaintances in Western Sydney and resume his previous lifestyle.

39. The opinion of Mr Parker, particularly insofar as it refers to the likelihood of the defendant resuming his previous lifestyle, supports the making of an ESO.

The results of any statistical or other assessments – s. 9(3)(d)

40. The level of service inventory (revised) (“LSI-R”) is a tool used for the purposes of risk assessment of general offending. In his affidavit of 15 July 2016 (at para. 10) Mr Parker identified that the LSI-R is also regarded as a predictor of violent offending.

41. An assessment was undertaken of the defendant on 20 October 2014, at which time he was assessed as being a medium-high risk. In his Risk Assessment Report (at para. 30) Mr Parker noted that according to data, 67% of offenders who were assessed at that level re-offended, and were returned to custody within two years.

42. A further assessment using the LSI-R was administered on 4 April 2016. This assessment yielded a score which placed the defendant at an even higher risk level.

43. The violence risk scale (“VRS”), which uses both static and dynamic factors to assess the risk of violence for particular persons, was also part of Mr Parker’s assessment of the defendant. The defendant was found to be within the high risk range.

44. The violence risk appraisal guide-revisited (“VRAG-R”) was also utilised by Mr Parker in his assessment. The defendant’s score classified him as a high risk compared to other serious violent offenders. Mr Parker noted that 76% of violent offenders with a similar score reoffended violently within 5 years, and 87% within 12 years (at para. 32).

45. The results of Mr Parker’s assessment support the making of an ESO.

Risk management report – s 9(3)(d1)

46. A Risk Management Report in respect of the Defendant was prepared by Joyleen Nowrot, a Community Corrections Officer, on 13 April 2016. That report set out (inter alia) management strategies which, in the event that the defendant was released into the community, were proposed to be implemented. Those strategies included:

1. regular interviews with the defendant;

2. visits to the defendant, both scheduled and unannounced;

3. managing the defendant’s third party contacts;

4. scheduling and monitoring the defendant’s movements, and any imposed curfews;

5. referral of the defendant to psychological and/or psychiatric services, as well as to alcohol and drug rehabilitation services;

6. periodic alcohol and drug testing; and

7. restrictions being placed on the defendant in respect of his association with other persons, and his attendance of specific locations.

47. In light of the defendant’s criminal history, and in light of the expert reports which are before the court, the strategies identified by Ms Nowrot would seem entirely appropriate. They generally support the conditions sought by the plaintiff.

Treatment or rehabilitation programs – s 9(3)(e)

48. Two particular rehabilitation programs are identified in the material before the court. The first is the violent offender therapeutic program (“VOTP”).

49. The defendant was referred to the VOTP in 2014 but initially declined treatment. He consented to participate on 24 March 2015 but having attended the first group session on 15 April, he failed to attend three subsequent sessions, without reason. Because of a disciplinary breach which occurred whilst he was in custody in May 2015, the defendant was removed from minimum to maximum security, as a consequence of which he was unable to attend any VOTP session until 1 July 2015, following his return to minimum security. He was ultimately discharged from the VOTP following an allegation of assault against another inmate which saw him moved into segregated custody and reclassified.

50. To the extent that the defendant has participated in the VOTP, his behaviour has apparently been regarded as appropriate. A report prepared at the time of his discharge from the program recorded that whilst he showed some insight into relevant factors, he was not able to translate this into an understanding of his behaviour.

51. In December 2015 the defendant accepted a further offer for inclusion in the VOTP. However having done so, he withdrew on the basis that he had Court commitments. Subsequent investigations revealed that he had no such commitments, the defendant later stating that he felt “pressured” into undertaking the VOTP.

52. The defendant was again accepted into the VOTP in April 2016 and commenced it on 27 June 2016. He was discharged from the program due to his release on 3 August 2016 and although he did not complete the entirety of the various modules, there is evidence that he was actively engaged in the program.

53. The second identified rehabilitation program is the EQUIPS aggression program. The defendant commenced participation in that program in February 2016, at which time his participation was noted to be generally positive. However in April 2016 he was removed from the program due to a failure to meet the requirements for participation. Mr Parker and Ms Matsuo are both of the view that the program may not be sufficient to address the defendant’s needs and problems. However, the defendant is eligible to complete it in the community if he is made the subject of an ESO.

54. Following his release, the defendant was referred to the Langton Clinic for assessment although he is yet to attend.

Compliance with obligations on parole or on supervision order – s 9(3)(f)

55. As an adult, the defendant has been released to parole on numerous occasions. The written submissions of the plaintiff helpfully set out what occurred on each of those occasions.

4 January 2011

56. The defendant was released on 4 January 2011 at the expiry of the non-parole period imposed for the offence of aggravated break and enter with intent to commit a serious indictable offence. He was required to reside at a hostel in Leichhardt. He spent only one night there before moving back to the western suburbs, reportedly staying with a cousin. Although efforts were made to arrange alternative accommodation, the defendant failed to attend a relevant appointment and subsequently failed to make contact with his supervising officer.

57. The defendant was arrested on 5 March 2011 and charged with further offences as well as a breach of his parole. It later transpired that his parole had not been properly granted.

7 July 2011

58. The defendant was again released on 7 July 2011, with his parole due to expire on 4 October 2012. On 14 July 2011, shortly after his release, he entered into a residential rehabilitation program. On 27 July 2011 he was granted permission to travel from Moree to Sydney to attend a family funeral and was directed to return to the rehabilitation centre by 31 July 2011. He failed to do so. On 21 August he was charged with offences committed on the previous day, including recklessly inflicting grievous bodily harm in company. He was also charged with an offence of break and enter which was committed on 16 August 2011.

59. On 9 September 2011 his parole was revoked.

23 September 2013

60. The defendant was released on 23 September 2013 in respect of the sentence which had been imposed for the offence of recklessly inflicting grievous bodily harm in company. His parole period was to expire on 20 March 2015. He was scheduled to commence drug and alcohol counselling and to attend an Aboriginal men’s group, but did neither. He also failed to attend scheduled supervision.

61. His parole was revoked on 15 November 2013.

5 March 2014

62. The defendant was again released on 5 March 2014. On 3 April he was arrested and charged with a number of offences which had occurred on that day. He was later charged with offences which had occurred on 29 and 30 March. His parole was revoked on 24 April 2014.

Release on interim supervision order on 3 August 2016

63. The defendant was released on the ISO order on 3 August 2016. That order remains in force. He had been approved to attend a film with his cousin on 3 September and was scheduled to return by 9.00pm that evening. During that evening he breached three separate conditions of the ISO:

1. failing to follow his approved schedule of movements;

2. being in possession of alcohol; and

3. consuming alcohol.

64. The defendant was arrested on 4 September 2016 and charged with three offences of breaching his supervision order. Following an appearance at the Waverley Local Court on 5 September 2016 where he entered pleas of guilty to all three charges. He was not sentenced to a period of immediate custody.

65. The defendant’s history of breaching the terms of his parole, and breaching the terms of the ISO, are obviously matters of concern. Generally speaking, those factors support the making of an ESO.

Criminal history and any pattern of offending behaviour disclosed by that history – s 9(3)(h)

66. The defendant’s criminal history has been previously outlined. It speaks for itself.

Any other information that is available as to the likelihood that the defendant will in future commit serious violent offences – s 9(3)(i)

67. Before the court are a number of psychological assessments which have been prepared in respect of the defendant. Those reports refer to the defendant’s history being suggestive of the presence of a serious conduct disorder. While there is some evidence of the defendant having engaged in therapy, the evidence tends to support the conclusion that ongoing therapy is required.

The duration of any ESO

68. Counsel for the plaintiff submitted that the appropriate duration of any ESO was 5 years. In support of that submission, he relied upon the opinions of Mr Sheehan and Dr O’Dea, and pointed out that neither had been cross-examined on any aspect of their respective reports. Counsel submitted that on any view of the evidence, the defendant needed a “very lengthy period” in which to effect overall change. In advancing that submission, counsel accepted that a period of 3 years could conceivably be regarded in this context, as a “very long period”.

69. Senior counsel for the defendant submitted that there were a number of positive signs in terms of the defendant’s rehabilitation which supported the imposition of an order for a shorter period. He pointed out, in particular, that the defendant was now employed. He submitted that a period of 3 years was appropriate, and emphasised the fact that in the event that the defendant’s progress was ultimately not as positive as presently anticipated, it was open to the plaintiff to make an application to vary the length of the term pursuant to s. 13 of the Act. Finally, counsel submitted that in light of the defendant’s relative youth, a period of 3 years would provide an incentive for him to actively pursue his rehabilitation and associated treatment.

70. In State of New South Wales v Thorne [2016] NSWSC 233 Hidden J referred to various authorities which addressed the issue of the length of an ESO. Although both Mr Sheehan and Dr O’Dea support the imposition of an order for a period of 5 years, the determination of the duration of any order remains a legal (as opposed to a clinical) one: State of NSW v Conway [2011] NSWSC 925 at [28]. On any view, 3 years is not a short period. The defendant will be monitored in the community and will be subject to a number of other stringent conditions. Moreover, it remains open to the plaintiff to apply to amend the order so as to lengthen it.

71. In all of these circumstances I am satisfied that the appropriate duration of any ESO is 3 years.

The conditions

72. Some of the initial objections raised by senior counsel for the defendant to the conditions sought by the plaintiff were resolved by agreement. However, the following remained in issue.

Electronic monitoring and the provision of a schedule of movements

73. The conditions sought by the plaintiff in respect of these matters are in the following terms:

Electronic Monitoring

5. The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him, and must not tamper with or remove such equipment.

6. Upon the commencement of electronically monitoring under the ESO, if the defendant is not found guilty of any offence breaching ESO, or with any other criminal offence, for a period of 18 continuous months while in the community, the defendant is no longer required to wear electronic monitoring equipment and condition 5 will cease to apply.

7. If, upon electronic monitoring being removed, the defendant is found is guilty of any offence of breaching the ESO, or with any other criminal offence, the DSO or any other person supervising the defendant is at liberty to reapply condition 5.

Schedule of movements

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

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

10. The defendant must follow his approved schedule of movements except in an emergency.

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

74. Counsel for the plaintiff submitted that compliance with a condition requiring electronic monitoring was not onerous. He also submitted that the conditions governing both electronic monitoring and the provision of a schedule of movements were not fixed, and were subject to ongoing review. If appropriate, they can be relaxed over time. He submitted that the requirement for the submission of a schedule of movements is generally removed prior to electronic monitoring in any event.

75. Senior counsel for the defendant submitted that the requirement that the defendant be subject to electronic monitoring would pose a difficulty with the defendant’s employment. In the event that the court was minded to continue electronic monitoring, senior counsel submitted that it should be for a time period consistent with proposed condition 6, namely a period of 18 months. In advancing these submissions, senior counsel acknowledged that all of these conditions had some utility in terms of the defendant’s supervision and monitoring.

76. In my view, in light of the defendant’s history, particularly insofar as that history evidences breaches of parole and other conditions, the requirements that he be subject to electronic monitoring and provide a schedule of movements are warranted in the circumstances.

Licensed premises

77. Condition 25 is in the following terms:

The defendant must not enter any licensed premises without the prior approval of his DSO.

78. Senior counsel for the defendant submitted that this condition should be amended so as to exclude cafes, coffee shops and cinemas, on the basis that such amendment was necessary to avoid an inadvertent breach of the condition. He pointed out that there were establishments other than bars or hotels which were able to serve alcohol, in circumstances where they did not advertise the fact that they did so. Senior counsel also submitted that there were a series of other conditions directed towards a prohibition upon the defendant drinking, and allowing (inter alia) for the defendant to be breath tested. Those conditions, he submitted, appropriately dealt with this issue.

79. There is no doubt that there are, as senior counsel for the defendant pointed out, establishments which do sell alcohol without advertising that fact. Such establishments extend to those which have been nominated. That said, at least some aspects of the defendant’s history of offending are alcohol related. It will be incumbent upon the defendant to be vigilant in ensuring that he does not enter any licensed premises without the approval of his DSO. In these circumstances I am of the view that condition 25 should remain in its present form.

Non-association

80. In its original form, condition 29 was in the following terms:

If the defendant starts a relationship with someone, he has to tell his DSO. The DSO may require the defendant to disclosure his criminal history and if the defendant refuses to do so, the DSO is permitted to disclose the defendant’s criminal history to that person.

81. In the course of argument I pointed out that the term “starts a relationship” seemed to be inherently vague. Senior counsel for the defendant also pointed to the fact that the final part of the condition did not impose any obligation upon the defendant, but rather gave permission to the DSO to take certain action. After being given an opportunity to consider these matters, counsel for the plaintiff proffered a condition in the following terms:

“If the defendant commences to live with someone:

(i)   he has to tell his DSO before commencing to live with the person; and

(ii)   if required by his DSO, he must either:

a)   tell the person of his criminal history; or

b)   give consent for the DSO to tell the person of his criminal history”.

82. No substantive objection was raised by counsel for the defendant to a condition in these terms.

ORDERS:

83. For the foregoing reasons I make the following orders:

1. Pursuant to s. 17(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) the defendant is to be subject to a High Risk Offender Extended Supervision Order (ESO) for a period of 3 years from 19 October 2016;

2. I direct, pursuant to s. 11 of the Crimes (High Risk Offenders) Act 2006 (NSW) that for the period of the ESO in (1) above, the defendant comply with the following conditions:

Monitoring and Reporting

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

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

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

4. The defendant must attend Maroubra police station within 3 days of the date of this order and provide a copy of this order.

Electronic Monitoring

5. The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him, and must not tamper with or remove such equipment.

6. Upon the commencement of electronic monitoring under the ESO, if the defendant is not found guilty of any offence of breaching the ESO, or of any other criminal offence, for a period of 18 continuous months while in the community, the defendant is no longer required to wear the electronic monitoring equipment and condition 5 will cease to apply.

7. If, upon electronic monitoring being removed, the defendant is found guilty of any offence of breaching the ESO, or of any other criminal offence, the DSO or any other person supervising the defendant is at liberty to reapply condition 5.

Schedule of Movements

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

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

10. The defendant must follow his approved schedule of movements except in an emergency.

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

Part B: Accommodation

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

13. The defendant must be at his approved address between 7pm and 6am unless other arrangements are approved by his DSO.

14. 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.

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

Part C: Place and travel restrictions

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

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

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

Part D: Employment, finance and education

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

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

Part E: Drugs and alcohol

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

22. Unless the DSO gives approval in advance, the defendant must not possess or use alcohol. The defendant is to comply with any conditions on the approval imposed by the DSO.

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

24. The defendant must not enter any licensed premises without the prior approval of his DSO.

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

Part F: Non-association

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

27. The defendant must not associate with any people who he knows are consuming or under the influence of illegal drugs or alcohol without the prior approval of his DSO.

28. If the defendant commences to live with someone:

a. he has to tell his DSO before commencing to live with the person; and

b. if required by his DSO, he must either:

(i) tell the person of his criminal history; or

(ii) give consent for the DSO to tell the person of his criminal history.

Part G: Weapons

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

30. The defendant must not carry on his person, at any time after he has left his residence, any knife or other cutting instrument unless the defendant is at his place of employment and the knife or cutting instrument is required in the course of his employment.

Part H: Search and seizure

31. If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to f 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.

32. 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.

33. During a search carried out pursuant to condition 31 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;

d. or which the DSO reasonably suspects relates to behaviour; or

e. conduct associated with an increased risk of the defendant committing a serious offence.

34. 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 31 to 33 above.

Part H: Personal details and appearance

35. The defendant must not change his name from “Archie Weribone” or use any other name without the approval of his DSO.

36. The defendant must not change his appearance without the approval of his DSO.

37. The defendant must let CSNSW photograph him.

38. 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 I: Medical intervention and treatment

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

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

41. Subject to condition 42, the defendant must take all medications that are prescribed to him by his healthcare practitioners.

42. 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.

43. 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.

44. The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW.

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Decision last updated: 19 October 2016