Wilde v State of New South Wales

[2015] NSWCA 28

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Wilde v State of New South Wales [2015] NSWCA 28

Hearing dates:

3 February 2015

Date of orders:

26 February 2015

Decision date:

26 February 2015

Before:

Beazley P;
McColl JA;
Ward JA

Decision:

Appeal dismissed with costs

Catchwords:

CRIMINAL LAW – where appellant has served sentence – where appellant has extensive criminal history for serious sexual assault offences – where appellant is a “high risk sex offender” for the purposes of the Crimes (High Risk Offenders) Act 2006 (NSW), s 5B

HIGH RISK SEX OFFENDER – application for extended supervision order pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) s 9(1)(a) – appeal – no error in the exercise of discretion

HIGH RISK SEX OFFENDER – conditions of supervision order imposed pursuant to Crimes (High Risk Offenders) Act 2006 (NSW), s 11 – correct test for imposition of conditions – link between condition and risk of future offending

HIGH RISK SEX OFFENDER – conditions of supervision order imposed pursuant to Crimes (High Risk Offenders) Act 2006 (NSW), s 11 – correct test for imposition of conditions – role of onerous or punitive nature of condition

HIGH RISK SEX OFFENDER – application for extended supervision order – imposition of conditions related to consumption of alcohol and illicit drugs

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (High Risk Offenders) Amendment Act 2014 (NSW)

Cases Cited:

Attorney General for New South Wales v Tillman [2008] NSWSC 1293
Attorney-General for New South Wales v Tillman [2007] NSWCA 119
House v The King [1936] HCA 40; 55 CLR 499
State of New South Wales v Ali [2010] NSWSC 1045
State of New South Wales v Boatswain [2014] NSWSC 1446
State of New South Wales v Burns [2014] NSWSC 1014
State of New South Wales v Fisk [2013] NSWSC 364
State of New South Wales v Green (Final) [2013] NSWSC 1003
State of New South Wales v Hill [2014] NSWSC 1803
State of New South Wales v Stevenson [2013] NSWSC 1070
Winters v Attorney-General for NSW [2008] NSWCA 33

Category:

Principal judgment

Parties:

John Alan Wilde (Appellant)
State of New South Wales (Respondent)

Representation:

Counsel:
S Pararajasingham (Appellant)
G F Mahony (Respondent)

Solicitors:
Nyman Gibson Miralis (Appellant)
Crown Solicitor (Respondent)

File Number(s):

CA 2014/124018

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

State of New South Wales v John Alan Wilde [2014] NSWSC 305

Date of Decision:

01 April 2014

Before:

Hall J

File Number(s):

2013/375430

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant served periods of imprisonment for three sexual offences involving violence towards a female victim. Since the expiration of the term of the third sentence, the appellant has been the subject of a number of supervision and detention orders made pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act).

On 1 April 2014, Hall J made a further extended supervision order pursuant to the Act in respect of the appellant. The order had a term of 3 years and required that the appellant comply with 65 conditions. On appeal, the appellant did not dispute the making of the order for the three-year period, but contended that Hall J was in error in imposing certain of the conditions.

The disputed conditions related to: association with Outlaw Motorcycle Gangs and other organisations declared under the Crimes (Criminal Organisations Control) Act 2012 (NSW); the possession or viewing of material classified as X18+ or Refused Classification; the possession or consumption of alcohol or illicit drugs; and searches of the appellant’s computer devices.

The appellant contended that, in the exercise of his discretion to impose the conditions, Hall J erred in two respects. Firstly, he failed to apply the correct test under s 11 of the Act, which, the appellant contended, required that each proposed condition address an identified risk of sexual reoffending. Second, the appellant contended that Hall J applied a different and broader test, relating to the punitive or onerous nature of the condition, when imposing the condition relating to searches of computer devices.

Per the Court

(1)   Section 11 of the Act does not require that the proposed condition must have a specific demonstrated link to past offending. Rather, s 11 requires that the court be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future re-offending of the kind that formed the basis of the extended supervision order. [53]

(2)   It may be appropriate to impose particular conditions under s 11, having regard to the scope, purpose, and objects of the Act, notwithstanding that the past offences did not involve conduct of the type constrained by such conditions. [54]

(3)   In the circumstances of the case, the imposition of conditions restricting the appellant’s access to alcohol were an appropriate means of controlling a possible risk factor for reoffending. [62]-[68]

State of New South Wales v Stevenson [2013] NSWSC 1070; State of New South Wales v Boatswain [2014] NSWSC 1446; State of New South Wales v Hill [2014] NSWSC 1803.

(4)   In the circumstances of the case, the imposition of conditions restricting the appellant from associating with Outlaw Motorcycle Gangs was appropriate, having regard to the Act's rehabilitative purpose and the link between reintegration into the community and reduced rates of recidivism. [69]-[70]

(5)   His Honour’s reasoning process in imposing the condition relating to supervision of the appellant’s computer devices was not in error, as it incorporated reasoning that related to the condition that prohibited the appellant from viewing material which is Refused Classification or X18+. [71]-[75]

(6)   The imposition of the condition prohibiting the appellant from viewing material which is Refused Classification or X18+ was appropriate for the reasons explained by his Honour. [72], [76]

Judgment

1. THE COURT: On 1 April 2014, Hall J made an extended supervision order in respect of the appellant pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act), s 9(1)(a). The order commenced on 2 April 2014 for a term of three years. His Honour further ordered, pursuant to s 11 of that Act, that the appellant comply with the conditions set out in Schedule A to his Honour’s judgment. Schedule A contained 65 conditions. (To avoid confusion, this judgment will refer to the conditions by Part and number as set out in Schedule A.)

2. The appellant appeals against the imposition of certain of the conditions imposed (the disputed conditions). The appellant does not dispute the making of the extended supervision order for the three-year period specified by his Honour. However, he contends that his Honour erred in imposing certain of the conditions. The appellant recognised that the imposition of conditions involved the exercise of a discretion so that, to succeed on his appeal, it was necessary to establish that there had been an error in the exercise of that discretion, including an error of law: see House v The King [1936] HCA 40; 55 CLR 499.

3. The appellant contended that his Honour erred in the following two respects in imposing the disputed conditions:

1. In failing to have regard to and to apply the correct test under s 11, which, on the appellant’s contention, required that each proposed condition address an identified risk of sexual reoffending;

2. In applying a different and broader test when imposing Condition K(49).

4. The disputed conditions were as follows:

“Part C. Place and travel restrictions

…

(19) [The appellant] must not attend any premises that he knows to be frequented by any person who he knows to be a member and/or associate of any Outlaw Motorcycle Gang, Organised Criminal Network, or Criminal Organisation (as declared under the Crimes (Criminal Organisations Control) Act 2012).

…

Part E. Non associations

…

(30) [The appellant] must not associate with any person he knows to be a member and/or associate with any Outlaw Motorcycle Gang, Organised Criminal Network, or Criminal Organisation (as declared under the Crimes (Criminal Organisations Control) Act 2012), without the prior approval of the Departmental supervising officer.

…

Part G. Access to Pornographic, Violent and Classified Material

(40)   [The appellant] must not purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification and X18+, or any other material as directed by the Departmental Supervising Officer.

…

Part I. Alcohol and drugs

(42)   [The appellant] must not possess or consume any illicit drugs.

(43)   [The appellant] must not possess or consume any alcohol (including any alcohol-based products such as methylated spirits), without prior approval of the Departmental supervising officer.

(44)   [The appellant] must submit to drug and alcohol testing as directed by the Departmental supervising officer or any officer of Corrective Services NSW who from time to time supervises [the appellant].

Part K. Search and Seizure

…

Search of computer

(49)   If and as directed by the Departmental Supervising Officer, [the appellant] must:

(a)   permit the Departmental Supervising Officer or any other person, to access, inspect and remove any computer or other device (including mobile phone or tablet computer) used by or owned by [the appellant], including the temporary removal of the computer or other device from [the appellant’s] place of residence or his or her person for the purpose of inspection or the imaging of the contents of the computer;

(b)   take all available steps to permit the Departmental Supervising Officer or any other person to have access to and inspect any computer or other device (including mobile phone or tablet computer) used by or owned by [the appellant];

(c)   provide the Departmental Supervising Officer or any other person with any requested assistance to enable either or both of them to access and inspect any computer or other device (including mobile phone or tablet computer) used by or owned by [the appellant] including providing them with any required passwords;

(d)   permit the Departmental Supervising Officer or any other person to make copies of any files or materials on any computer or other device (including mobile phone or tablet computer) used by or owned by [the appellant] that the Departmental Supervising Officer reasonably believes may be relevant to the management of [the appellant’s] risk of re-offending …”

Factual background

(a) Personal circumstances

5. The appellant is 53 years of age (52 at the time of the hearing before the primary judge). He has been in full-time custody since the age of 19, save for a period of approximately three years. At the expiration of the term of his last sentence, the appellant was detained pursuant to continuing detention orders made under the Act. The last of those orders expired on 12 December 2008. Upon his release, the appellant became subject to a number of interim and final extended supervision orders. Subsequently, due to breaches of those orders, the appellant has spent a total of two further years in custody.

6. The appellant has lived continuously in the community since 15 July 2012 and currently resides in private rental accommodation. Since his release he has been subject to extended supervision orders, including the current order. The appellant has not sexually reoffended since his sentence expired in September 2008 and there have been no breaches of the extended supervision orders in place since his last release from custody in 2012.

(b) The serious sexual offences

7. The appellant has three convictions for sexual offences, each involving violence towards a female victim. In particular, each case involved the victim being forced to submit to sexual intercourse at knifepoint.

8. The first offence was committed in 1981, when the appellant was 19 years of age. He pleaded guilty and was sentenced to imprisonment for a term of five years with a non-parole period of two years. In his remarks on sentence, the sentencing judge, Nagle CJ at CL, noted that the appellant had given, as an explanation for his offending conduct, that he had consumed “a deal of alcohol”.

9. The appellant was found guilty of a second sexual offence, together with a charge of motor vehicle theft, in 1983. He was sentenced to a period of imprisonment of 10 years with a non-parole period of six years. The sentencing judge, Mathews DCJ, in her sentencing remarks, described the appellant’s treatment of the victim to be “with the greatest degree of degradation and depravity”.

10. The third offence of which the appellant was convicted occurred in 1991. The appellant was sentenced to a period of 16 years imprisonment, with a non-parole period of 12 years. In respect of that offence, the sentencing judge, Ducker DCJ, described the appellant as having inflicted upon his victim, a woman alone in her own home, “the most degrading, humiliating, physically painful and distressing non-consensual sexual acts”. His Honour further remarked upon the appellant’s violence, observing that he “[exuded] a sense of latent, only barely concealed violence, which does not bode well for his future, nor that of the community when he is released”. His Honour also commented that the appellant had “resorted to [the] same modus operandi” as he had in respect of his past offences including “the use of knives to intimidate; the apparent need to degrade and humiliate the victims; [and] the choice as victims of lone women in their own homes”. His Honour also commented upon the appellant’s “dangerous propensities”.

Documentation before the primary judge

11. In support of its application for an extended supervision order, and in accordance with ss 6 and 7 of the Act, the State filed a number of reports and other evidence. These included psychiatric reports of Professor Greenburg and Dr Samuels, a risk assessment report prepared by Patrick Sheehan, senior forensic psychologist with Corrective Services, psychological counselling notes of Ms Howell and progress notes prepared by officers of Corrective Services in relation to the appellant’s supervision.

12. The following relevant matters emerge from that material.

13. Professor Greenburg, in his report dated 2 March 2014, assessed the appellant as having significant static and dynamic risk factors that heightened his risk of sexually reoffending. Professor Greenburg stated that based on an actuarial and clinically guided risk assessment approach, the appellant’s risk of sexually reoffending would be in the ‘high risk’ category range over the long term.

14. Included in the dynamic risk factors considered by Professor Greenburg were “social influences”. Professor Greenburg noted that the appellant had “previously claimed that he had strong affiliations with bikers and pagans”, but that more recently he had established relationships with a Christian motorcycle group known as the ‘God Squad’. The appellant, however, informed Professor Greenburg that he “was not a Christian but was into witchcraft”. He also reported his “social influences” to be “boring”. Professor Greenburg questioned the appellant about “the negative influences with other offenders or pro-criminal groups”. Professor Greenburg reported that the appellant was “dismissive of this discussion”, questioning “who was saying” that he had “negative social influences” and that the persons asking were “pieces of shit”.

15. The appellant denied to Professor Greenburg that he had any history of alcohol or drug abuse but disclosed that he had tried “most drugs” between the ages of 8 and 18 and claimed that he could legally smoke cannabis as it was “part of his witchcraft religion”.

16. Professor Greenburg also commented upon “distorted attitudes”, one of the dynamic risk factors relevant to re-offending. Professor Greenburg commented that the appellant had his own “moral system” that he claimed was superior to that of the community. Professor Greenburg, when considering this risk factor again observed that the appellant claimed to have “strong ties with the pagan and bikie community”. During the course of his consultation with the appellant, Professor Greenburg questioned him as to reports of his being intimidating and of making threats of violence. The appellant’s response was noted as follows:

“I don’t make threats. I can’t help how others feel. That’s their problem. I want to be left to live my life free. If they can’t handle it, that’s their problem.”

17. Professor Greenburg was asked to comment upon the conditions the State sought to have imposed upon the appellant. He proffered the opinion that the conditions on the making of an extended supervision order that were proposed at that stage were “more likely than not to assist a non-recidivistic reintegration into the community”. It should be noted that the conditions upon which Professor Greenburg was asked to comment did not include any prohibition on association with any Outlaw Motorcycle Gang as defined in the Crimes (Criminal Organisations Control) Act 2012 (NSW).

18. Dr Samuels was also appointed to assess the appellant for the purpose of providing a report to the court pursuant to s 7 of the Act. The appellant refused to participate in the assessment. Accordingly, Dr Samuels’ report dated 21 February 2014 was based upon the material provided to him, including the extensive notes of Corrective Services relating to the management of the appellant. One particular matter to which Dr Samuels referred and to which reference should be made was that the appellant had used aliases to set up computer accounts. Dr Samuels concluded that the conditions sought by the State were appropriate. However, as was the case with Professor Greenburg, the conditions of which Dr Samuels was advised did not include any prohibition on association with Outlaw Motorcycle Gangs.

19. In his risk assessment report dated 14 November 2013, Mr Sheehan observed that although the appellant denied substance abuse or problems with alcohol, he had admitted to cannabis use. Mr Sheehan also referred to the observations of Nagle CJ at CL that alcohol had been a factor in the commission of the first offence and that there were “prior institutional misconducts for possession of drug paraphernalia, consuming alcohol and refusing urinalysis”. Mr Sheehan noted that the appellant had not been known to consume alcohol or other drugs during his current supervision order, nor had he returned a positive breath analysis or urinalysis.

20. Mr Sheehan commented upon social influences, noting that an offender’s social network is one of the most well established predictors of criminal behaviour.

21. Mr Sheehan, as part of his consideration of “established Dynamic Risk Factors”, reported that the appellant had previously described, in 2008, a “strong affiliation” with “bikers” “pagans” and “environmentalist[s]”. Mr Sheehan also commented upon various references to violence by the appellant. The most recent of these was in 2013 when he had asked his case worker about the possibility of assisting a friend to retrieve her possessions from her former landlord by attending the residence in bikie clothes to intimidate the landlord and using a sledgehammer to get in the door.

22. In the context of the appellant’s “self-regulation”, Mr Sheehan commented that the appellant had:

“… a stereotypical response to coping with a adversity with violent rumination and threat. These are at times grandiose and fantastical, however [the appellant’s] history of sexual violence against women suggests that there are occasions when the threat is real.”

23. Mr Sheehan recommended that the successful management of the appellant:

“… would involve containment of those behaviours associated with risk … whilst simultaneously encouraging the development and maintenance of a stable and sustainable lifestyle …”

In this respect, Mr Sheehan referred, inter alia, to “building positive social relationships”.

24. There are other references in the documentation to association with motorbike gangs in addition to those referred to above. For example in a file note of 23 April 2010 of Ms Howell, psychological counsellor, reference is made to a complaint by the appellant that “CCG never helped his reintegration since release from custody will not allow him to join motorcycle club, been told whether legal or outlaw all criminals”.

Legislation

25. The Act provides, relevantly, for the supervision and detention of high risk sex offenders. The primary object of the Act, as provided for in s 3(1), is to provide for the extended supervision and detention of such offenders “so as to ensure the safety and protection of the community”. Subsection (2) provides that another object of the Act “is to encourage high risk sex offenders to undertake rehabilitation”. (The Act also relates to high risk violent offenders. However, the present case is concerned only with the Act insofar as it relates to a high risk sex offender.)

26. A “sex offender” is defined in s 4 to mean “a person over the age of 18 years who has at any time been sentenced to imprisonment following his or her conviction of a serious sex offence”. A “serious sex offence” for the purposes of the Act is defined in s 5 to mean:

“(1)   For the purposes of this Act, a serious sex offence means any of the following offences:

(a) an offence under Division 10 of Part 3 of the Crimes Act 1900, where:

(i)   in the case of an offence against an adult or a child, the offence is punishable by imprisonment for 7 years or more, and

(ii)   in the case of an offence against an adult, the offence is committed in circumstances of aggravation (within the meaning of the provision under which the offence arises),

(a1) an offence under section 61K or 66EA of the Crimes Act 1900,

(b) an offence under section 38, 86 (1) (a1), 111, 112, 113 or 114 (1) (a), (c) or (d) of the Crimes Act 1900 that has been committed with intent to commit an offence under Division 10 of Part 3 of the Crimes Act 1900, where the offence intended to be committed is punishable by imprisonment for 7 years or more,

and includes:

(c)   an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be a serious sex offence for the purposes of this Act, and

(c1)   an offence by a person that, at the time it was committed, was not a serious sex offence for the purposes of this Act but which was committed in circumstances that would make the offence a serious sex offence if it were committed at the time an application for an order against the person is made under this Act, and

(d)   any other offence that, at the time it was committed, was a serious sex offence for the purposes of this Act.”

27. A “high risk sex offender” is defined in s 5B to mean a person who is a “sex offender” and in respect of whom:

“… the Supreme Court is satisfied to a high degree of probability that [the person] poses an unacceptable risk of committing a serious sex offence if … not kept under supervision.”

28. Pursuant to s 5B, in determining whether a person “poses an unacceptable risk of committing a serious sex offence” the Supreme Court “is not required to determine that the risk of the person committing a serious sex offence is more likely than not”.

29. There is no dispute that the appellant is a high risk sex offender within the meaning of the Act.

30. The application for and the making of an extended supervision order is governed by Pt 2. Section 5H provides that the State may apply to the Supreme Court for an extended supervision order against an offender. Such an application may only be made in respect of a “supervised sex offender”: s 5I(1). A “supervised sex offender” is a sex offender who, when the application for the order is made is, relevantly, under supervision pursuant to “an existing extended supervision order or continuing detention order”: s 5I(2)(b). The application must be supported by the documentation prescribed by s 6(3) as follows:

“(3)   An application must be supported by documentation:

(a)   that addresses each of the matters referred to in section 9 (3), and

(b)   that includes a report (prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner) that assesses the likelihood of the offender committing:

(i)   a further serious sex offence (in the case of an application for a high risk sex offender extended supervision order), or

(ii)   a further serious violence offence (in the case of an application for a high risk violent offender extended supervision order).”

31. Section 7 provides for pre-trial procedures in relation to an application for an extended supervision order, including conducting a preliminary hearing: s 7(3). If the Court is satisfied that the matters alleged in the supporting documentation presented at the preliminary hearing would, if proved, justify the making of an order, then it must make orders appointing psychiatrists and/or psychologists to provide reports in respect of the offender.

32. Pursuant to s 9(1)(a), the Supreme Court may make an extended supervision order. Section 9(3) provides a non-exhaustive list of the matters to which the Court must have regard in determining an application under s 9(1):

“(3)   In determining whether or not to make an extended supervision order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant:

(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).”

33. Section 11 provides that an extended supervision order may direct an offender to comply with such conditions as the Supreme Court considers appropriate, including but not limited to conditions of the type specified in paras (a)-(n). The conditions specified in s 11 (in its form as at the date of hearing) were the following:

“(a)   to permit any corrective services officer to visit the offender at the offender’s residential address at any time and, for that purpose, to enter the premises at that address, or

(a1)   to permit any corrective services officer to access any computer or related equipment that is at the offender’s residential address or in the possession of the offender, or

(b)   to make periodic reports to a corrective services officer, or

(c)   to notify a corrective services officer of any change in his or her address, or

(d)   to participate in treatment and rehabilitation programs, or

(e)   to wear electronic monitoring equipment, or

(ea)   to reside at an address approved by the Commissioner of Corrective Services, or

(f)   not to reside in or resort to specified locations or classes of locations, or

(g)   not to associate or make contact with specified persons or classes of persons, or

(h)   not to engage in specified conduct or classes of conduct, or

(i)   not to engage in specified employment or classes of employment, or

(j)   not to change his or her name.”

34. Pursuant to the amendments made by the Crimes (High Risk Offenders) Amendment Act 2014 (NSW), s 11 now includes the following additional conditions:

“(k)   to report to police and provide information to police about the conditions imposed on the extended supervision order or interim supervision order and the offender’s residential address, or

(l) to comply with any obligation that could be imposed on the offender under Part 3 of the Child Protection (Offenders Registration) Act 2000 if the offender were a registrable person within the meaning of that Act and were not the subject of an interim supervision order or an extended supervision order, or

(m)   to comply with specified requirements in connection with the offender’s access to and use of the internet, or

(n)   to provide any corrective services officer with requested information in relation to any employment or any financial affairs of the offender.”

35. Section 12 provides that a person who fails to comply with the requirements of an extended supervision order is guilty of an offence. The maximum penalty for an offence under s 12 is 500 penalty units (being a maximum fine of $55,000 or imprisonment for five years or both).

36. Proceedings under the Act are civil proceedings: s 21. An appeal lies to the Court, relevantly, from any determination of the Supreme Court to make an extended supervision order. An appeal may be on a question of law, a question of fact, or a question of mixed law and fact: s 22(2).

Legal principles

37. The test to be satisfied for the imposition of any condition attaching to an extended supervision order has been considered by the Supreme Court on numerous occasions and has also been the subject of consideration in this Court in Attorney-General for New South Wales v Tillman [2007] NSWCA 119 and Winters v Attorney-General for NSW [2008] NSWCA 33. In Tillman, the Court (Mason P, Santow and Tobias JJA) observed, at [5], that the stated objects of the Act “reveal that the legislation is protective rather than punitive in its intent”. Their Honours also observed, at [45]:

“… the statutory objects in this extraordinary legislation are directed at ‘ensuring’ the safety and protection of the community and ‘facilitating’ rehabilitation of serious sex offenders.”

38. The Court further noted, at [10], that pursuant to s 11, the court was permitted to impose such conditions as it “considers appropriate”, including those specified in the section. The conditions considered appropriate may impose constraints as well as positive obligations. Their Honours noted that most of the conditions specified in s 11 appeared to be directed to the capacity for the person subject of the orders to be supervised, but could extend to ordering mandatory participation in, for example, rehabilitation programs.

39. In Attorney General for New South Wales v Tillman [2008] NSWSC 1293 Johnson J, in dealing with the power of the court to impose conditions as the court “considers appropriate”, noted, at [68], that that phrase:

“… indicates the striking of a balance between relevant considerations so as to provide an outcome which is fit and proper … The Court’s power to impose particular conditions depends in turn upon the scope of the Act, s.11 in particular: Winters … at 19 (per Mason P).”

40. The scope of the Act, as his Honour had earlier noted, at [14], includes the matters to which the court must have regard in determining whether to make an extended supervision order specified in s 9(3).

41. Johnson J again dealt with the question of the imposition of conditions in State of New South Wales v Ali [2010] NSWSC 1045, where his Honour stated, at [88]:

“In approaching the question of conditions, I bear in mind what was said in State of New South Wales v Tillman [2008] NSWSC 1293 at [68], that the imposition of conditions which are considered appropriate involves the striking of a balance between relevant considerations, so as to provide an outcome which is fit and proper. I bear in mind, as well, that the imposition of conditions under this Act creates a statutory offence if conditions are breached. The consequence of the ordering of a condition emphasises the need for a proper basis to be demonstrated for the condition to be made in the first place.”

42. This test was accepted as correct in State of New South Wales v Fisk [2013] NSWSC 364 per Beech-Jones J at [96]. His Honour added, at [99], in respect of a serious sex offender:

“The imposition of ‘appropriate’ conditions under s 11 is governed by the overriding purpose of mitigating the identified risk of the high-risk sex offender committing either serious sex offences, or at least offences of a sexual nature.”

43. In State of New South Wales v Burns [2014] NSWSC 1014 Beech-Jones J, at [59], again applied this test as correct, and added that:

“Usually it will be necessary for such a condition to be related to the mitigation of the unacceptable risk that led to the formation of the conclusion of the relevant offender as a high risk sex offender.”

44. In Burns, those considerations had included not only the history of the sexual offences, but also a history of the offender’s alcohol problems and evidence of his intellectual deficits.

45. In State of New South Wales v Green (Final) [2013] NSWSC 1003 R A Hulme J accepted, at [36]-[38], that any condition attaching to an extended supervision order in respect of a serious sex offender must specifically address issues relevant to currently identified risk factors in relation to future offending and be limited to addressing conduct regarding the risk of future serious sex offences and not criminal offending generally. His Honour further stated that the conditions imposed are not to be unjustifiably onerous or simply punitive.

46. There are cases that deal with the imposition of a condition relating to the consumption of alcohol. As the appellant challenges the imposition of a condition constraining his use of alcohol and drugs, it will be appropriate to deal with those cases when that particular challenge is being dealt with.

Consideration

First ground of appeal: failure to apply the correct test in determining whether to impose the disputed conditions

47. Section 11 provides that the court may impose such conditions as it considers appropriate. The discretion is broad, but must be exercised having regard to the scope and purpose of the Act and its objects.

48. The purpose and statutory objects of the Act are referred to above at [25]. The scope of the Act, so far as it is relevant to the making of an extended supervision order, is to be found in those provisions which govern the making and determination of an order, namely, s 9(3) and s 11. The matters specified in those sections are not exhaustive of the matters to which the court is to have to have regard or to which any condition imposed by the court must relate. Rather, as s 9(3) provides, the court must have regard to matters specified in the subsection “in addition to any other matter it considers relevant”. Likewise, the conditions that may be imposed are not restricted to those that fall within the paragraphs of s 11.

49. The statutory objects listed in s 3 are twofold: the safety and protection of the community and encouraging high risk offenders to undertake rehabilitation. However, it is apparent from the language of s 3 that the listed objects do not exhaustively delineate the scope and purposes of the Act. This is apparent, in particular, from the language of subs (2), which refers to encouraging rehabilitation as being “another object of this Act”. Thus, whilst s 3(2) specifies that an object of the Act is to encourage offenders to undertake rehabilitation, the scope and purpose of the Act is such that it would be permissible for the court, if it considered it appropriate, to impose a condition directed to facilitating rehabilitation, even if that did not require the offender personally to “undertake” rehabilitative steps as is envisioned in the statutory object in s 3(2). It may be appropriate in a particular case to impose conditions that may reduce risk factors relevant to the particular type of offending to which the order made under s 11 relates.

50. In the present case, the primary judge accepted, at [11], that although the discretion conferred by s 11 was a broad one, it had to be exercised in conformity with the legislative purpose. At [12], his Honour referred, it would appear with approval, to the propositions stated in Green set out above.

51. His Honour also quoted the statements of Beech-Jones J in Fisk at [96] and [99], referred to above. At [14], his Honour accepted the appellant’s submission that:

“… the Court must be satisfied as to the appropriateness of any given condition in the context of mitigating the defendant's demonstrated risk of committing future serious sex offences, as opposed to simply being punitive.”

The correct test

52. The State submitted that this statement is wrong in law and does not reflect the statutory test in s 11. Strictly, this matter should have been raised by a notice of contention. Nonetheless, it was fairly raised in the State’s written submissions and it is necessary to deal with it.

53. Care always needs to be taken with use of language which is different from the statutory text. Section 11 does not require that there must be a specific demonstrated link to the past offending which is the basis of the order made under the Act. Rather, the court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order.

54. As the cases to which we have referred correctly state, it is not appropriate for the court under s 11 to impose conditions on a person directed to general future criminal conduct. But the condition does not have to have a ‘demonstrated’ link to the past offending in the sense submitted by the appellant. Conditions C(19) and E(30) provide a good example of conditions that may be appropriate notwithstanding that the past sex offences did not involve conduct of the type constrained by such conditions. Here, the appellant’s serious sex offences had no connection with any association with an Outlaw Motorcycle Gang. Nonetheless, for the reasons we explain below, at [69]-[70], there was no error in his Honour imposing conditions prohibiting the appellant’s association with such groups.

Did his Honour err in imposing the disputed conditions?

55. It is necessary, therefore, to consider whether his Honour erred in the imposition of the disputed conditions to which this ground of appeal is directed, having regard to the correct principles or test that governs the exercise of discretion conferred by under s 11. In proceeding to do so, we reject the State’s submission that the appellant had not argued this issue below but had focused upon whether the disputed conditions were onerous. A reading of the transcript of oral argument dispels the State’s contention that this question was not argued in the court below.

55. The appellant argued this ground of appeal on the basis that there had been a failure of judicial method, and that as a result of this failure, the primary judge had incorrectly applied the principles that governed the exercise of the discretion under s 11. It was suggested that the correct approach to the determination of whether a particular condition ought to be imposed required his Honour, in effect, to restate the test in respect of each condition or group of conditions as part of the process of determining whether the particular condition satisfied the test required by s 11.

56. The appellant submitted that the consequence of his Honour’s failure to do this was that he failed to determine whether, in respect of each of the disputed conditions, he was satisfied of the required link between the condition and the demonstrated risk of the appellant committing future serious sexual offences. Particular complaint was directed to the primary judge’s consideration of Conditions I(42)-(44) in respect of drugs and alcohol and Conditions C(19) and E(30) in respect of the prohibition on any association with an Outlaw Motorcycle Gang. The purport of the submission was that these conditions did not satisfy the test to be applied for the imposition of a condition or conditions pursuant to s 11.

57. By way of illustration of the appropriate judicial method it was contended that his Honour should have applied, the appellant referred to various passages in Green and Fisk where the test under s 11 was considered in conjunction with the particular condition under consideration. To understand the submission, it is sufficient to refer to the argument advanced in respect of the approach of the Court in Fisk.

58. Fisk had been convicted of many sexual offences against boys under the age of 16 years. Under the Crimes Act 1900 (NSW), s 73(1) there was a further offence whereby sexual intercourse with a person above the age of 16 and under the age of 17 years who was under a person’s “special care”. The appellant had not been convicted of such an offence. Beech-Jones J, in determining whether it was appropriate to impose conditions relating to contact with a child or young person 17 years or under, stated that before the appellant could be at risk of contravening that provision, he would have to be in a position of “special care” vis-à-vis a victim. His Honour noted, at [104], that although the conduct that led to his original convictions might have met the definition of “special care”, “his current circumstances and the other conditions to be imposed on him make it very unlikely he would ever satisfy that definition”.

59. Nonetheless, there was psychiatric evidence that should Mr Fisk pursue relationships with males aged 17, but not in his “special care” so as to offend against s 73(1), he could potentially expose himself to males under the age of 16 and thus put himself in a position to re-offend. In that case Mr Sheehan, psychologist, had provided an affidavit in which he referred to Mr Fisk’s practice of approaching people whose age was ambiguous. Mr Sheehan expressed the opinion that such conduct maximised the risk of contact, either directly or incidentally, with males under the age of 16 years. His Honour concluded, therefore, at [110], that the legislation permitted and the case required that to avoid the risk of Mr Fisk committing offences against males under 16, a line be drawn preventing him associating with males under 18 years.

60. The point the appellant sought to make by reference to this decision was that in Fisk the disputed condition was imposed in circumstances where his Honour had expressly examined whether the proposed condition addressed Mr Fisk’s risk of further sexual offending. By contrast, in the case of conditions I(42)-(43) in this case, being the restrictions on the use of illicit drugs and alcohol, whilst his Honour recognised that there was no evidence that the appellant’s prior offences were committed under the influence of those substances, he merely stated that a restriction on the use of those substances might properly be imposed “as a means of controlling possible risk factors to sexual re-offending behaviour”.

61. There have been a number of cases where the imposition of conditions relating to alcohol have been in issue. In State of New South Wales v Stevenson [2013] NSWSC 1070, a case in which, although alcohol had not been a factor in the defendant’s sexual offending, he had a long-standing problem with the consumption of excessive alcohol, Price J, at [51], considered that it was appropriate to impose such conditions, as the defendant’s alcohol dependence “may lead to sexual disinhibition and further serious sex offending”. In his Honour’s view, the conditions promoted the primary object of the Act.

62. In State of New South Wales v Boatswain [2014] NSWSC 1446, the defendant, as is the case with the appellant here, had no history of alcohol abuse. Nor was alcohol a factor in his sexual offending. Nonetheless, Davies J, at [71], accepted an expert opinion that:

“… it would be prudent that [the defendant] remain abstinent from alcohol use in the long term in order to better manage his Sexual Sadism and his risk of relapse of his other substance use disorders.”

64. By way of contrast, a proposed condition relating to non-consumption of alcohol was refused by Wilson J in State of New South Wales v Hill [2014] NSWSC 1803. The defendant had been convicted of paedophilic and child pornography offences. The State’s reason for seeking the imposition of such a condition in that case was based upon the general contention that alcohol had a differential inhibiting effect and could thus heighten the risk to the community posed by the defendant. The defendant resisted the imposition of such a condition, as well as a condition that he should be prohibited from attending licensed venues, on the basis that there was no evidence that alcohol was a risk factor in his sexual offending.

65. In rejecting the State’s application in respect of such a condition, Wilson J observed, at [47]:

“The risk identified by the State is generic and not specific, and is not indicated in the applicant's case on the evidence. Licensed premises, by the very nature of such venues, ought not to be attended by children, and thus the prospect of the applicant encountering children at such places must be limited. It is not desirable to isolate the respondent from places where he can socialise with adults. Accordingly, I declined to impose upon the respondent the condition sought by the State restricting the respondent’s access to alcohol and places where alcohol is consumed.”

66. As these cases indicate, there are judicial statements which support the imposition of a condition relating to alcohol because of its disinhibiting effect. To the extent that Wilson J rejected such a condition in Hill because of the generic nature of the risk relied upon by the State, it must be remembered that each case turns on its own facts and is subject to the exercise of the discretion of the judicial officer in the particular case. Further, in Hill, there was the additional factor that the offending conduct was in relation to persons under the age of 16, who, as her Honour observed, were not likely to be found in hotels and other places where alcohol was likely to be served, the frequenting of such places being part of the restrictions sought by the State in that case.

67. In the present case, the primary judge observed, at [143], that there was no evidence suggesting that the appellant’s sexual offences were committed under the influence of alcohol. That does not accord with the sentencing remarks of Nagle CJ at CL to which reference has already been made. However, subject to that matter, there is no other reference to alcohol in the documentation before the primary judge. Nor was there any suggestion of substance abuse. There was, as mentioned above, reference to the use of marijuana and jail offences relating to alcohol and drugs. However, that material did not rise higher than the appellant having consumed both alcohol and drugs.

68. Nonetheless, his Honour, at [144], considered that such a condition could be imposed “as a means of controlling possible risk factors to sexual re-offending behaviour”. Contrary to the appellant’s submission, this observation indicates that his Honour did have regard to the appropriateness of the particular condition. In our opinion, it was within the scope of his discretion to do so. Further, the appropriateness of the condition was supported in general terms by the opinions of Professor Greenberg and Dr Samuels that the conditions (which included the condition related to non-consumption of alcohol) sought by the State were appropriate.

69. The other conditions about which the appellant made specific submissions under this grant of appeal were Conditions C(19) and E(30) restricting the appellant’s association with any Outlaw Motorcycle Gang.

70. The primary judge, at [137], stated that the condition addressed relevant risk factors associated with anti-social behaviours that limit the prospect for rehabilitation and re-integration into the community. In the documentation before his Honour, there was reference to the link between social connections and offending behaviour: see above at [20]. It follows, and indeed must be considered trite, that association with unlawful groups in the community would not be an inducement to a person’s rehabilitation or re-integration into society. Having regard to the scope, purpose and objects of the Act, those considerations were relevant to a determination whether the condition was appropriate. There was no error in his Honour’s determination that the condition be imposed.

Second ground of appeal

71. The appellant contended that, in determining whether to impose proposed Condition K(49), his Honour, at [147], erroneously posed as the threshold test whether the condition was unjustifiably onerous or punitive. The appellant did not deny that that was a relevant matter to which to have regard: see Green, discussed above. However, the appellant contended that that was not the threshold test posed by s 11 and therefore, according to the submission, his Honour had completely failed to determine whether this condition satisfied that test.

72. This challenge to his Honour’s reasoning process can be dealt with briefly. His Honour, at [139]-[140], dealt with proposed Condition G(40), which prohibits the appellant from viewing material which is Refused Classification or is X18+. His Honour stated, at [140]:

“Having regard to the serious violent sexual offences that have been previously committed by [the appellant], I am satisfied this proposed condition directly addresses the future risk of violent sexual re-offending materialising from viewing classified material that has violent content, and accordingly, is not unjustifiably onerous or punitive.” (emphasis added)

73. The bolded portion of this passage is a statement of the test that the appellant recognises as being the primary test to be applied under s 11.

74. When dealing with proposed Condition K(49), which relates to supervision of the appellant’s computer devices, his Honour stated, at [147]:

“Having regard to the supervisory nature of the order and for the reasons I have stated in respect of proposed condition [G(40)], and having regard to [the appellant’s] prior breach of conditions in contacting a person over Facebook, I do not consider that the condition is unjustifiably onerous or punitive.” (emphasis added)

75. The judgment of course must be read as a whole. His Honour expressly incorporated the test and reasoning he had stated in respect of Condition G(40), at [140], into his reasoning in respect of Condition K(49), at [147]. Accordingly, contrary to the appellant’s submission, his Honour considered and applied the correct test under s 11. His Honour’s reference to the condition not being “unjustifiably onerous or punitive” was an additional and relevant consideration.

76. It should be noted that the appellant did not pursue any separate argument in respect of Condition G(40). However, as we have indicated, his Honour, at [140], explained why the condition was appropriate. There was no error in his Honour’s determination.

Conclusion

77. It follows from what we have said that the appeal should be dismissed with costs.

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Amendments

03 March 2015 - Typo corrected in para [1]

26 February 2015 - Typo corrected in para [1]

Decision last updated: 03 March 2015