The State of New South Wales v Winters

[2008] NSWSC 1474

CITATION:	The State of New South Wales v Winters [2008] NSWSC 1474
HEARING DATE(S):	6 November 2008
JURISDICTION:	Civil
JUDGMENT OF:	McClellan CJatCL
EX TEMPORE JUDGMENT DATE:	6 November 2008
DECISION:	1. Pursuant to s 9(1)(a) of the Crimes (Serious Sex Offenders) Act 2006 I make an extended supervision order in respect of the defendant for a period of five years to commence at 4.00 pm today, 6 November 2008, and pursuant to s 11 of the Act, I direct the defendant to comply with the conditions set out in the schedule which will be attached to my reasons for judgment and which, when the order is taken out, should be attached to the order. 2. I will further order that the interim order which I made on 7 October will terminate at 4.00 pm today when the order which I have made today will take effect.
CATCHWORDS:	CRIMINAL LAW - extension of supervision order - order made
LEGISLATION CITED:	Crimes (Serious Sex Offenders) Act 2006
PARTIES:	The State of NSW (Pltf) Christopher Paul Winters (Def)
FILE NUMBER(S):	SC 14521/08
COUNSEL:	D Kell (Pltf) D Dalton SC (Def)
SOLICITORS:	NSW Crown Solicitor's Office (Pltf) Legal Aid Commission of NSW (Def)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCLELLAN CJ at CL

THURSDAY 6 NOVEMBER 2008

14521/08 THE STATE OF NEW SOUTH WALES v WINTER

JUDGMENT

1 HIS HONOUR: The plaintiff filed a summons on 29 August 2008 seeking an order that the defendant, Christopher Paul Winters, be subject to an extended supervision order pursuant to s 9(1)(a) of the Crimes (Serious Sex Offenders) Act 2006 for a period of five years.

2 I have previously considered applications by the plaintiff in relation to Mr Winters. The first of those applications sought a continuing detention order which I made last year for a period of 12 months. The 12 month period has now expired and, as I understand it, by reason of Mr Winters’ progress in effective treatment programs, the plaintiff no longer seeks his continued detention.

3 The continuing detention order has now expired and on 9 September 2008 I made an order for his release under supervision on an interim basis pursuant to s 8(1) of the Act. I renewed that order on 7 October 2008.

4 There is agreement between the parties that it is now appropriate for me to make an extended supervision order pursuant to s 9(1)(a) of the Act. To this end, the parties have also agreed to the conditions which should be imposed by the court on that order which have been effectively included in a document headed “Risk Management Plan Applicable to Christopher Paul Winters”. The terms of that plan have been settled in court this morning and the document which carries amendment in my handwriting is the document which now reflects the agreement between the parties.

5 The plaintiff’s application is supported by a considerable volume of affidavit material including evidence from Darelle Williams, Professor David Greenberg, Viviane Fahs, Naomi Malhotra and Adam Simon. The State has also tendered and relies upon reports from Dr Jeremy O’Dea dated 15 October 2008 and Dr Stephen Allnutt dated 9 October 2008, who are psychiatrists appointed by the court under the Act to consult the defendant and provide assistance to the court.

6 The affidavit of Ms Malhotra affirmed on 6 November 2008 also annexes a report from Dr Andrew Ellis of Justice Health dated 4 November 2008 relating to the defendant’s anti-libidinal dosage.

7 The scheme of the legislation has been discussed in many judgments, including my first judgment in relation to the present defendant. The defendant is a serious sex offender within the meaning of the Act and was, at the time the application was made, in custody pursuant to a continuing detention order.

8 The court’s power to make an extended supervision order is provided, as I have indicated, by s 9(1)(a) of the Act. The test which the Act prescribes is in s 9(2) and is in the following terms:

“An extended supervision order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision.”

9 As I have already indicated, the defendant does not oppose the making of an extended supervision order. This, of course, does not foreclose the court’s consideration of the matter. However, having regard to the evidence, in particular, from the psychologists and psychiatrists who have considered the defendant’s situation, I am satisfied that the statutory test is fulfilled and it is appropriate for me to make the order. In particular, the evidence of Prof David Greenberg and Dr Jeremy O’Dea satisfies me that the test is made out in this case.

10 Professor Greenberg said, inter alia:

“I am of the view that Mr Winters is at high risk to commit further serious sexual offences if he is not provided with adequate ongoing maintenance, support, supervision and treatment including adequate dosages of anti-libidinal medication and ongoing psychological treatment.”

11 Dr O’Dea has provided the following opinion:

“It would appear that Mr Winters’ psychiatric status, and clinical and actuarial risk assessment and risk management issues, have not changed significantly from my assessment detailed in my report dated 9 July 2000 … Mr Winters would still fall in the category of sex offenders with a significantly high risk of engaging in further sex offending behaviours in the community in the long term.”

12 I am also mindful of the evidence of Dr Allnutt in reaching the conclusion which I have.

13 The parties are agreed that the court should make the order for a five year period and I propose to do this. Section 10(1) provides that maximum term for any order is a period of five years, although s 10(3) allows for further orders to be made upon the application of the plaintiff.

14 I should also indicate that the parties have given careful and extensive consideration to the appropriate conditions incorporated into the management plan. I am satisfied that those conditions are appropriate.

15 Accordingly, I make the following order:

1. Pursuant to s 9(1)(a) of the Crimes (Serious Sex Offenders) Act 2006 I make an extended supervision order in respect of the defendant for a period of five years to commence at 4.00 pm today, 6 November 2008, and pursuant to s 11 of the Act, I direct the defendant to comply with the conditions set out in the schedule which will be attached to my reasons for judgment and which, when the order is taken out, should be attached to the order.

2. I will further order that the interim order which I made on 7 October will terminate at 4.00 pm today when the order which I have made today will take effect.

Schedule
EXTENDED SUPERVISION ORDER - conditions of Risk Management Plan applicable to Christopher Paul Winters

Note that oversight of these conditions is to be administered by an appointed representative ("the Departmental Supervising Officer") within the Department of Corrective Services (the Department), which includes the Community Compliance Group ("CCG").

Reporting and monitoring obligations

1. The defendant must accept the supervision and guidance of the Probation and Parole Service (which includes the Community Compliance Group) for as long as necessary, as determined by the Department.

2. The defendant must report personally once a week to the responsible Departmental supervising officer or otherwise as directed by that officer.

3. The defendant must comply with any reasonable direction given by the Departmental supervising officer or any other departmental officer (including from the CCG) who may from time to time be involved in supervision of the defendant.

4. The defendant must be of good behaviour and must not, for the period of the supervision order, commit any offence.

5. The defendant must inform the Departmental supervising officer of his movements in advance on a weekly basis (or as otherwise Departmental supervising officer) and must notify the Departmental supervising officer of any proposed change at least 24 hours in advance unless otherwise approved.

6. The defendant must accept visits at his approved accommodation, including visits without prior notice, by the Departmental supervising officer or any other Departmental officer.

7. The defendant must not undertake employment which has not been approved by the Departmental supervising officer.

8. The defendant must not leave the State of New South Wales without the written permission of the Commissioner.

9. (a) The defendant must not possess or consume any alcohol or illicit

drugs;

(b) The defendant must not abuse prescription medication or other forms of medication;

(c) The defendant must submit to drug and alcohol testing as directed by the Departmental supervising officer.

10. The defendant must not go to any licensed premises, including but not limited to hotels, bars, licensed clubs and racecourses without the prior approval of the Departmental supervising officer.

11. The defendant must wear electronic monitoring equipment if and as directed by the Departmental supervising officer and comply with all instructions given by a Corrective Services Officer in relation to the operation of such equipment, and must not tamper with or remove such equipment.

12. The defendant must not associate with any persons specified by the Departmental supervising officer.

13. The defendant must not attend public places regularly frequented by children and in which children are present at the time including but not limited to, schools, pre-schools, amusement parlours, Police Citizen Youth Clubs (PCYCs), day care centres, youth centres and such places as the Departmental supervising officer may direct, unless accompanied by a responsible adult (being a person previously approved by the Departmental supervising officer, as being a responsible adult for the purpose of this condition and the other conditions below which make reference to an "appropriate adult").

14. The defendant must not attend any such other public places as the Departmental supervising officer may reasonably direct unless accompanied by a responsible adult.

15. The defendant must comply with any direction made by the Departmental supervising officer regarding access to or use of the world-wide web and the Internet by the defendant and, without limitation, if and as directed by the Departmental supervising officer must accept and use on any computer (which includes any mobile phone) owned by the defendant any parental lock or other device or software that may restrict access to, or permit access only to, certain web sites.

16. The defendant must not attempt to or access the internet or the world wide web by the use of computers available in any internet cafe, internet kiosk or other public area without the prior approval of the Departmental supervising officer.

17. If and as directed by the Departmental supervising officer, the defendant must:

(a) permit the Departmental supervising officer and any computer technician employed or engaged by or on behalf of the Department to assist or advise the Departmental supervising officer ("the computer technician"), to access and inspect any computer owned by the defendant (including the temporary removal of the computer from the. defendant's place of residence for the purpose of inspection);

(b) take all available steps to permit the Departmental supervising officer and the computer technician to access and inspect any computer used by, but not owned by, the defendant;

(c) provide the Departmental supervising officer and the computer technician with any requested assistance to enable them to access and inspect any computer owned or used by the defendant, including providing them with any required passwords;

(d) permit the Departmental supervising officer and the computer technician to make copies of any files or materials on any computer owned by the defendant that the Departmental supervising officer reasonably believes may be relevant to the management of the defendant's risk of re-offending.

18. The defendant must not associate or make contact with children under the age of 16 years without the prior permission of the Departmental supervising officer (who may require that any such association or contact take place only in the presence of an appropriate adult).

19. If the defendant enters into an ongoing personal relationship with another person which may bring the defendant into contact with one or more children under the age of 16 years, the defendant must notify the Departmental supervising officer at the earliest opportunity. The Departmental supervising officer may require the defendant to disclose the defendant's offence history to such other person.

20. The defendant must not change his name from Christopher Paul Winters, or use any other name, without the prior approval of the Departmental supervising officer.

21. The defendant must not, without the approval of the Departmental supervising officer, change either his facial appearance (including facial hair) or the colour of his hair to the extent that he cannot be easily recognised, and must not alter the length of his hair to the extent that he cannot be easily recognised.

22. If the defendant's proposed change of appearance is approved, he must allow himself to be photographed by or on behalf of the Departmental supervising officer.

Accommodation

23. For the duration of the order the defendant must reside at accommodation approved in advance by the Departmental supervising officer.

24. If directed by the Departmental supervising officer the defendant must be at his approved address between 9pm and 6am (or such other time period as may be specified by the Departmental supervising officer), unless his presence at another place during those hours has been approved in advance by his Departmental supervising officer.

Treatment obligations

25. The defendant must accept such psychological intervention by psychologists employed by the Department as may be offered to him from time to time, including attendance at and engagement in community maintenance programs for sex offenders.

26. The defendant must accept a comprehensive assessment (and further assessments from time to time) including medical examination, pathological investigations, psychometric testing and radiological imaging to be conducted by CFMHS or the AMHS, to determine what is required for treatment, including control, of the defendant's psychiatric condition, potential for alcohol and/or drug abuse and potential for sex offending.

27. The defendant must accept psychological and psychiatric treatment as may be provided by an Area Health Service, in consultation with (or by) the CFMHA, including counselling, psychological therapy and any medication as indicated.

28. Without limiting paragraph 27 above, the defendant must accept sex drive reduction medical treatment, if prescribed by a medical practitioner, as may be provided by an Area Health Service, in consultation with (or by) CFMHS such as anti-libidinal treatment.

29. The defendant must attend regular medical consultations, physical examinations, pathology testing, and medical imaging as directed by the Area Health Service in consultation with CFMHS.

30. The defendant must attend consultations with the Area Health Service or CFMHS, at such a frequency, venue and time as directed by his treating clinicians.

31. The defendant must engage a general practitioner, he must notify the Departmental supervising officer of the identity and address of the general practitioner and provide consent to the disclosure of confidential medical information as between the general practitioner and any treating psychologist and/or psychiatrist and the Departmental supervising officer.

32. The defendant must disclose to his Departmental supervising officer the identity of any other medical or mental health practitioner that he consults.

33. Without limiting the preceding conditions, the defendant must participate in treatment and rehabilitation as directed by the Departmental supervising officer.

Disclosure of information

34. The defendant must waive his right to the confidentiality of all information disclosed by him during treatment to his treating doctors (including any specialist) and any psychologist.

35. The defendant consents to the Departmental supervising officer and officers from the CCG case management team accessing all relevant information regarding his progress, which may include confidential medical information disclosed in the course of his treatment.

36. The defendant agrees to the sharing of all information between the Departmental supervising officer, the CCG case management team, CFMHS, any treating AMHS, the defendant's general practitioner and any treating psychologist or psychiatrist.

37. The defendant agrees that if the Departmental supervising officer considers it appropriate to do so, the Departmental supervising officer may provide to any prospective or actual employer of the defendant information relating to the defendant's criminal history and may notify such prospective or actual employer that the defendant is subject to an extended supervision order and the terms of that order.

Review obligation

38. The defendant must attend a six-monthly meeting with all agencies/parties

in attendance if required by the Departmental supervising officer at which

point the Management Plan may be reviewed.

NOTE:

It is intended that:

(i) The appointed Departmental supervising officer may take steps, as he or she considers appropriate, to ensure that all agencies/parties involved in the defendant's supervision order, communicate to him or her (and to each other) any significant concerns regarding risk.
(ii) The appointed psychologist and psychiatrist will be requested to report to the appointed supervising representative of the Department from time to time as they consider appropriate and be available for case management issues when required.
(iii) The CCG will supervise the defendant for a minimum period of two years after which supervision may be transferred to the Probation and Parole Service.

BY THE COURT

CHIEF CLERK