State of New South Wales v Currie (Final)

HIS HONOUR: By amended summons filed on 1 March 2021, the State of New South Wales (“the State”) sought an extended supervision order of 5 years under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) in relation to Mr Desmond Currie (“the defendant”). A related order was sought pursuant to s 11 of the Act directing the defendant to comply with the conditions set out in the Schedule accompanying the amended summons.

The amended summons was the subject of preliminary hearing before Davies J on 5 March 2021. On that occasion, his Honour made orders, which included, inter alia, the appointment of one psychiatrist and one psychologist to assess the defendant’s risk of reoffending and furnish their reports to the Court. His Honour published his reasons for decision on 9 March 2021: State of New South Wales v Currie (Preliminary) [2021] NSWSC 175.

Counsel for the defendant, Ms C Goodhand, conceded that the defendant is a person in respect of whom an extended supervision order could be made, subject to otherwise satisfying the applicable test. However, it was contended that an extended supervision order was not required to manage the defendant’s risk as it can be managed by the support he receives through his approved National Disability Insurance Scheme (“NDIS”) support package and, if required, under the Mental Health Act 2007 (NSW) (“MHA”).

The defendant contended that the Court’s assessment as to any unacceptable risk must be assessed taking the existing NDIS support into account. At the hearing, counsel for the State, Mr K Curry, accepted that position and cited the two recent decisions of Rothman J: State of New South Wales v Rigby (Final) [2021] NSWSC 472 (“Rigby”) at [40]-[41]; State of New South Wales v Richardson (Final) [2020] NSWSC 1809 (“Richardson”) at [73]. (I will return to those authorities in a discussion of the relevant principles).

In written submissions, counsel for the defendant conceded that if the defendant were not receiving an appropriate therapeutic dose for his serious mental illness and was not receiving NDIS support, “he would pose an unacceptable risk of committing a further serious sex offence”.

The victim of the offending was a 24-year-old woman from Estonia who was travelling around Australia on a working holiday. The offending consisted of the following:

The following summary of the index offending adopts the summary provided by Johnson J in Currie v R [2013] NSWCCA 267 at [16]-[34].

On 29 August 2008, following a trial at which the defendant pleaded not guilty, the defendant was sentenced to concurrent terms of imprisonment for the s 61J counts comprising of an overall sentence of 13 years 4 months, with a non-parole period of 10 years. On the s 61L count, the defendant was sentenced to a fixed term of imprisonment of 18 months, which sentence was subsumed in the sentences of the s 61J counts.

The Act’s primary object is ensuring the safety and protection of the community in relation to high risk offenders: s 3(1). Another object of the Act is to encourage, inter alia, high risk offenders to undertake rehabilitation. The safety of the community “must be the paramount consideration” when determining an extended supervision order application: s 9(2).

Section 5B of the Act is in the following terms:

I accept the position of the parties that the first three preconditions (s 5B(a)-(c) above) were met in the present matter. In particular, the defendant is a “supervised offender” set out in s 5I(2)(a)(i), because for an offence of aggravated sexual assault contrary to s 61J(1) of the Crimes Act; the offender served a term of imprisonment comprising a non-parole period of 10 years expiring 12 November 2017. The total term of this sentence was 13 years 4 months’ imprisonment and the sentence expired on 12 March 2021.

On 5 March 2021, the matter was listed for preliminary hearing before Davies J. His Honour made orders that the defendant be the subject of an interim supervision order from 12 March 2021 for a period of 28 days pursuant to ss 10A and 10C(1) of the Act; and that, pursuant to s 11 of the Act, for the period of the interim supervision order, the defendant is to comply with the conditions in the Schedule attached to the amended summons. The order was extended twice by Bellew J and once by the Court as presently constituted. It remains operational at the time of the publishing of this judgement and will expire on 12 June 2021.

The defendant has been compliant with the conditions of the interim supervision order.

The unacceptable risk requirement in s 5B(d) essentially replicates the repealed definitions of “high risk violent offender” and “high risk sex offender” as existed prior to the 6 December 2017 amendment: Crimes (High Risk Offenders) Amendment Act 2017 (NSW). The authorities applicable before the amendments continue to be relevant (see State of New South Wales v Thurston [2018] NSWSC 421 at [116]-[117] (per Garling J); and, more generally, State of New South Wales v TT (Preliminary) [2017] NSWSC 1797 at [56]-[60]).

As to those principles, I adopt the statement of principles in State of New South Wales v Dillon (Final) [2018] NSWSC 1626 at [20]-[39] (see also, State of New South Wales v French (Final) [2017] NSWSC 1475 (“French”) (at [43]-[54])). By way of emphasis or elaboration, some further observations may be made.

First, there may be instances when a person is held to pose an unacceptable risk, even if the likelihood of them committing a further serious offence is low, such as when a low risk of recidivism is balanced against the likely “drastic” consequences to a victim if particular offending occurs (see State of New South Wales v Kamm (Final) [2016] NSWSC 1 (“Kamm”) at [41] and [43] (per Harrison J)).

Secondly, I accept the passage of the judgment of Adams J in State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 at [127]-[128], adopting the observations of Harrison J in State of New South Wales v Pacey [2015] NSWSC 1983 (“Pacey”) and Wilson J in State of New South Wales v Simcock (Final) [2016] NSWSC 1805, as follows:

Reference may also be made to the discussion of the test under s 5B(d) in State of New South Wales v Ceissman [2018] NSWSC 508 at [26] as follows:

I also refer to the judgment of Harrison J in Pacey (at [53]):

Finally, the evaluation of unacceptable risk involves consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate. Thus, unacceptable risk involves a consideration of the type and nature of offences that may be committed absent supervision and balancing those factors. That assessment must be absent the existence of “protective measures”: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (“Lynn”) at [126].

In Rigby at [41]-[42], Rothman J dealt with the construction of the phrase “if not kept under supervision under the order” and Basten JA’s construction of the test vis-à-vis unacceptable risk in Lynn at [126]. The relevant passages are extracted below (Rigby at [41]-[42]):

I agree with his Honour’s analysis of the provision in that respect.

The Court received in evidence a substantial amount of documentary material pursuant to s 25 of the Act. This included, inter alia, the following:

Both Dr Furst and Ms Youssef (collectively, “the court appointed experts”) were required for cross-examination. Their evidence was taken, by consent of the parties, concurrently.

In support of the present application, the State relied upon the following evidence:

At the final hearing, the State tendered a redacted version of Ms Graham’s affidavit of 27 May 2021 (the passages were redacted by agreement of the parties).

The defendant relied upon the following evidence:

The material relied upon by the parties was tendered without objection.

The defendant is a 57-year-old Aboriginal man who has a lengthy history of offending and limited exposure to community life. He was released to supervised parole on 11 December 2019 to the Nunyara Community Offender Support Program Centre (“COSP”), after spending approximately 11 years in custody.

The RAR notes that two generations in the defendant’s maternal family suffered early life trauma where they were removed from their homes and placed in institutions. The defendant’s grandmother was one of 16 siblings from the South-West Rocks Aboriginal Reserve, all of whom were removed and placed in institutions. His mother was also taken into care at the Cootamundra Girl’s Home but escaped when she was 11 years old and returned to the north coast. When she was 14 years old, she was sexually assaulted by the defendant’s father and gave birth to the defendant when she was 15 years of age. His parents separated when he was approximately nine months old. He has several stepsiblings from his parent’s other relationships, but he does not have contact with most of them.

The defendant’s childhood was marred by violence and early exposure to dysfunctional behaviour. He moved to Sydney with his mother and grew up believing his father forcibly removed him when he was three years old, resulting in him not having contact with his mother for many years. Recently, however, he has learnt that his mother in fact sent him away to his father in Queensland.

His father was reported to be violent and an uncontrollable alcoholic. He was cared for by members of his father’s extended family until he became a ward of the State when he was eight or nine years old. He was sexually abused repeatedly by workers at a Juvenile Justice Centre during his teenage years. He also reported that he was sexually abused by two priests at BoysTown Children’s Home (“BoysTown”).

The defendant met his wife in 1990 and they married in 1992. She was reported to have been a positive influence on his life. They had four children and he was generally reported to be a loving father, although he was noted to have the propensity to act violently when in a binge drinking pattern. The defendant reported that it was likely his wife feared him and referred to himself as a jealous partner. The defendant’s eldest daughter and son both committed suicide while he was in custody in November 2012 and November 2016.

The defendant reportedly graduated Grade 10 whilst in BoysTown and stated in 2008 that he could read reasonably well but did not write well. At a later stage, the defendant received training at the Australian Music Academy in Brisbane, but this was halted due to his incarceration. Psychometric testing was completed on 29 April 2019 and determined that the defendant did not present with any indications of intellectual disability or low cognitive functioning.

He has not had a significant employment history. He appears to have had an interest in music and supplemented his income from playing the didgeridoo and busking. He has also taught school students Aboriginal culture, gave talks to tourist groups, and has taken part in overseas tourist commercials where he played the didgeridoo. He was reputed to have a sound knowledge of Aboriginal culture, and to be a talented singer, dancer, and musician. The defendant is currently receiving the Disability Support Pension due to his mental health. He was residing in the Nunyara COSP until mid-May 2020 when he moved to a boarding house in Woolooware. On 11 September 2020, he relocated to Port Macquarie to be closer to his family. The defendant also has family who reside in Queensland.

On 31 March 2020, the defendant’s mother stated that she was not comfortable with the defendant residing with her as she did not want to take responsibility for “all of that” and that it was “all too much” as she was 72 years old. She was noted to lack an understanding of the defendant’s current and historical offending and his mental illness. She was described as appearing shocked when advised about his criminal history and stated that she was “completely unaware what he served a term of imprisonment for”. While the defendant has seen his mother since his relocation to Port Macquarie, he has stated he no longer wishes to see her as she got angry with him. The defendant has reported that his mother is suffering from dementia.

The defendant is currently supported through the NDIS. His current funding plan allows for 34.5 hours a week of direct support (increased from 27 hours). The defendant has a support worker, Mr Walsh, who attends five to six hours per weekday and assists him with exercise, cooking, leisure activities, and appointments.

In written submissions, and as earlier mentioned, counsel for the defendant conceded that, if the defendant were not receiving an appropriate therapeutic dose for his serious mental illness and was not receiving NDIS support, “he would pose an unacceptable risk of committing a further serious sex offence”. However, it was submitted that:

That submission was supported with reference to the following recent authorities: State of New South Wales v Love [2020] NSWSC 165 at [133] (per Lonergan J), a case involving an offender with schizophrenia; Richardson at [72]-[105] (per Rothman J). Reference was also made to Attorney General for NSW v Peckham (Final) [2019] NSWSC 1775 at [100] (per Cavanagh J), although in the context of an extension of forensic status application, in that case the existence of an NDIS support package, was permitted to be taken into account in assessing “unacceptable risk”.

The defendant has a history of binge drinking and smoking marijuana. He is reported to have had a heavy dependence on marijuana and to a lesser extent alcohol, which he used to “help him relax and stay calm”. Mrs Currie reported to police that the defendant had assaulted her when he drank and that he could not control himself.

The defendant has previously acknowledged that his abuse of alcohol has led to him becoming more disinhibited and aggressive. However, he maintained that smoking marijuana did not cause him harm as it calmed him down. He had some ambivalence towards ceasing marijuana as he had a lengthy reliance on this drug. He reported that prior to his incarceration he was smoking around nine cones of cannabis daily. He stated that he had been abstinent whilst in custody but that he had never been abstinent whilst in the community.

The RAR noted that the defendant shared cannabis with his victims whilst socialising with them shortly before his offending. In respect of the relationship between his substance abuse, violence and reckless behaviour, the RAR observed that the defendant was intoxicated when he assaulted his wife in 1993 and he was under the influence of alcohol and illicit substances when he caused a traffic incident in 1986 while fleeing from police pursuit, which resulted in the death of another driver. He was also noted to have reported occasions where he used sex to cope and engaged in risky sexual behaviour when he was intoxicated.

The defendant has received counselling to address his substance abuse at various stages over the years. He told Ms Lau that he has been abstinent from drugs and alcohol since being convicted of the index offence and that the severity of his sentence motivated him to make positive changes. The defendant told Dr Elliott he did not believe he would relapse upon release as he no longer craves the drug and perceives it was one of the reasons for his offending.

Since leaving custody, upon being tested, the defendant has consistently returned nil and/or negative results:

The defendant has received the following mental health diagnoses:

I will now turn to a summary of the defendant’s mental health difficulties between 2004 and 2021, save for the opinion of Dr Furst, which I will return to at a separate juncture.

The defendant was diagnosed with Bipolar Disorder in July 2004 and prescribed medication. He had two psychiatric admissions in 2004 and 2005 in the community. His symptoms were described as including an elevated mood, grandiosity, irritability and talking loudly. He was also noted to be psychically overactive, sleeping less, talking fast and had an increased desire for sex.

Prior to the index offending, the defendant was reported to have stopped taking his medication in around August 2005 which appeared to have a noticeable impact on his behaviour and mental state.

Following an involuntary hospital admission in October 2005 he was discharged on a community treatment order (“CTO”). He was also scheduled under the MHA in 2007 because he was refusing treatment and believed his food was poisoned. During his incarceration, he spent time in the Long Bay Prison Hospital and in the Mental Health Screening Unit. He was noted to have a history of non-compliance with his medication both in custody and in the community.

The defendant is not presently subject to a CTO.

Dr Westmore assessed the defendant on 7 August 2008 and prepared a report for the purposes of sentencing following the index offences. He provided a provisional diagnosis of schizoaffective disorder but noted that a bipolar disorder with psychotic symptoms needed to be considered. He also expressed the opinion there was a likelihood that the defendant also suffered from an antisocial personality disorder.

Dr Westmore stated the defendant had a “history of poor insight and poor compliance with medication”. He observed that the marijuana use occurring around the time of the index offences would have aggravated his mental state.

Dr Westmore stated that, while the defendant denied that he had a mental illness, he reported that there were “times when his thoughts got very fast” and that he gets “paranoid against a lot of things, ASIO following me”. The defendant reported hearing male voices which were internal and messages from the television and radio. He also reported an increase in his sex drive during periods when he was non-compliant with his mental health treatment. Dr Westmore stated:

The defendant was assessed by Dr Elliott in August 2018. Dr Elliott stated that the defendant assertively told him that he believed he had a mental illness. He opined that the defendant had an unequivocal diagnosis of a chronic psychotic illness and chronic psychotic symptoms that appeared treatment resistant.

Dr Elliott observed that the defendant gave a convincing history of psychotic symptoms including that, when he is unwell, he received messages from the television that people are trying to kill him. He also stated that he heard voices threatening him or warning him that he is going to be harmed by white people. Dr Elliott noted:

At the final hearing, whilst it was accepted that Dr Elliot had previously considered the defendant’s condition to be “treatment resistant” and the Dr Furst had cited those observations, the defendant’s present diagnosis is not considered treatment resistant.

On 8 October 2019, the defendant’s treating doctor at the Long Bay Correctional Centre stated his mental state was relatively stable. Dr Wade noted that he continued to experience significant difficulties relating to planning, motivation, and organisational skills and this was unlikely to change over the long term. In her opinion, the defendant had a “severe and persistent mental illness that seriously impacts on his day to day functioning. This will be a lifelong illness that requires indefinite treatment”.

The defendant told Ms Lau that he had remained compliant with his psychiatric medication since his release. He did, however, admit that he continued to experience residual symptoms of auditory hallucinations but stated they were manageable whilst he remained on his treatment.

I will return to consider the RAR in further detail under the heading “Risk Assessment Report” (see below).

Since 15 December 2020, the defendant was approved an NDIS package. That package was increased in May 2021. The defendant is receiving up to 37.5 hours per week support and, it was submitted by counsel for the defendant, will continue to receive this support, irrespective of whether an extended supervision order is made. That submission was supported by reference to the affidavits of Ms George affirmed on 17 May 2021 and Ms Freeman affirmed on 23 February 2021.

The defendant’s criminal record has been described by the Court of Criminal Appeal as “extensive”, dating back to 1976 when he was a child.

His offending continued into adulthood, with offences occurring almost every year that he was residing in the community. Despite being in and out of custody, the frequency and repetition of the defendant’s offending behaviour continued. This suggests that he was not responsive to sanctions.

The defendant’s criminal history primarily relates to property and violence offences; however, he has previous convictions for sexual offences prior to the index offending. The defendant’s record includes:

In October 1993, his wife reported an incident that occurred at a music festival where the defendant became violent after seeing her talking to a young male. The defendant’s wife stated that the defendant grabbed her by the hair and dragged her along the ground before kicking her several times in the head and upper chest area and punching her. She stated that he had assaulted her previously, but she had never reported it.

At the time of the index offending, the defendant was subject to conditional liberty, having been sentenced to a suspended term of imprisonment for 12 months on 21 February 2005 for driving whilst disqualified.

After being sentenced for the index offences on 29 August 2008, the defendant was sentenced on 16 October 2008 for two unrelated offences of aggravated break and enter and commit serious indictable offence. He was sentenced for the unrelated offences to an effective non-parole period of 3 years and 3 months commencing on 16 October 2008 and expiring on 15 January 2012, with a balance of term of nine months commencing on 16 January 2012 and expiring on 15 October 2012. These sentences were entirely subsumed by the sentences imposed for the index offences.

The defendant has a prior history of sexual offending which includes, as mentioned above, a conviction in 1994 of aggravated sexual intercourse for which he received a sentence of seven years imprisonment with a minimum term of 4 years (“the 1994 offences”). The State submitted there is a “striking similarity” between the defendant’s sexual offences suggesting a pattern of behaviour.

The following summary of offending incorporates the remarks on sentence of Viney DCJ on 16 March 1994.

On 14 January 1994, when the defendant was 31-years-old, he entered the 19-year-old victim’s flat in the early hours of the morning. He said he was there to meet an acquaintance of the victim. He shared some cannabis with the victim and then offered her money for sex which she declined. The victim told the defendant to leave but he grabbed a kitchen knife and forced her into the bedroom with the knife at her throat and told her not to make any noise. Despite the victim’s pleas to leave her alone, the defendant repeatedly assaulted her sexually by way of penile vaginal and anal intercourse, digital anal penetration, and fellatio. When the defendant fell asleep, the victim fled in a distressed state and made an immediate complaint to a neighbour.

He was charged with eight offences of sexual intercourse without consent. He pleaded not guilty to those charges and was found guilty following a trial in February 1995. The evidence was that the defendant was intoxicated at the time of the offending. His defence at trial was that the intercourse was consensual.

The defendant was sentenced by Viney DCJ on 16 March 1995 to a total effective sentence of 7 years’ imprisonment, comprising a non-parole period of 4 years and an additional term of 3 years. His Honour noted this was a very serious sexual assault upon a girl in her own home. He found that alcohol and the smoking of marijuana were “significant features” of the entire incident. His Honour had regard to a Pre-Sentence Report which stated:

In sentencing the defendant, his Honour stated:

An appeal to the Court of Criminal Appeal against conviction and sentence was dismissed: R v Currie (Unreported, Court of Criminal Appeal, 31 October 1997). Smart J (Hunt CJ at CL and Bruce J agreeing) said:

On 13 January 2000, whilst on parole for the previous offence, the defendant was again charged with an offence of aggravated sexual assault (“the 2000 charge”). The defendant was released on parole on 12 May 1999 and the offence was alleged to have occurred between 20 and 22 December 1999. He was remanded in custody bail refused from 13 January 2000.

The defendant pleaded not guilty to this offence and was acquitted in relation to this charge but found guilty of an offence of sexual intercourse without consent. The circumstances in this case were similar to the earlier offences. The victim was living in Grafton with her three young children. She met the defendant on two separate occasions at her home in November 1999. On the second occasion, the defendant asked the victim to have sex with him, but she declined.

On 20 December, she was asleep with her three children on a mattress in the loungeroom. She was awoken as she was being dragged from the loungeroom into the hallway, with her eyes and mouth being covered by a person’s hand. She bit this person’s hand and he removed it from her mouth. She was then dragged into the bedroom and dropped on the floor. While the victim gave evidence that the offender had a knife, the jury by virtue of their verdict, were not satisfied of that fact beyond reasonable doubt. The victim gave evidence that she recognised the defendant as her attacker. She stated that she was forced to undress, and that penile sexual intercourse took place without her consent.

On 27 April 2001, Twigg DCJ stated the following when sentencing the defendant:

The defendant was sentenced to 5 years’ imprisonment, however, five months into his sentence his conviction was quashed by the Court of Criminal Appeal and a retrial was ordered. Reasons for that decision were published at a later juncture: R v Currie [2002] NSWCCA 126. The appeal was successful on the basis of the way the statutory alternative was left to the jury by the trial judge resulting in unfairness. In his judgment Dowd J stated at [90]:

Following the retrial, the defendant was acquitted.

Whilst the defendant was not ultimately convicted of the 2000 charge, the Court has previously considered for the purposes of applications under the Act matters where the allegations of criminal offending did not result in convictions, subject to the weight to be afforded to it. In State of NSW v Tiggelen [2018] NSWSC 1399 Harrison J stated at [102]:

In State of New South Wales v Sleeman (Preliminary) [2018] NSWSC 562, R A Hulme J stated (at [14]):

In this instance, given the original conviction, and the remarks of Dowd J, the State submitted that the 2000 charge should be considered as part of the Court’s overall assessment of the defendant’s risk. I accept that submission. In my view, the evidence of the 2000 charge is only demonstrative of the risk of reoffending.

As to behaviour in custody, Ms Hodgkinson reported:

Ms Hodgkinson’s noted the defendant’s willingness to undertake the HISOP whilst in custody. I will return to her opinion of the defendant’s participation in that program under the heading “Treatment and Rehabilitation Programs”.

The defendant was first supervised in the community in May 1994 when he was the subject of 12-month recognisances with probation supervision. He committed his first sexual offences whilst he was subject to this supervision.

Following the sexual offences in 1994, the defendant was released to parole on 12 May 1999. His period in the community was brief, however, with a breach report being submitted on 10 November 1999 due to re-offence. Records indicate that the defendant had been reporting satisfactorily and attempts were made for him to participate in a residential rehabilitation program. The defendant’s parole was revoked on 3 February 2000.

The defendant was released from custody on 27 February 2002 when his conviction was quashed. In 2005, he was sentenced to a suspended term of imprisonment for 12 months for a driving offence. It was under conditional liberty that he committed the index offences.

The defendant was first eligible for parole on 12 November 2017. On 3 October 2017, the defendant was refused parole by the State Parole Authority (NSW) on the following basis:

The defendant completed the High Intensity Sex Offender Program (“HISOP”) on 8 May 2019. The defendant was granted parole in relation to the index offences on 26 November 2019 and released on 11 December 2019. On release to parole the defendant resided at the Nunyara COSP until 18 May 2020. Additional parole conditions were imposed that prohibited him from using prohibited drugs or substances, to attend Forensic Phycology Services (FPS), to comply with the directions of the mental health team, to submit a schedule of movements and to electronic monitoring.

In the RMR, as to performance on parole as at September 2020, Ms Hodgkinson reported:

The defendant moved to his current residence in Port Macquarie in 2020 and has been living in his own accommodation since that time.

The defendant’s parole period expired on 12 March 2021.

(I will return to consider both the HISOP Treatment Report and the RMR, in further detail below, when considering the response of CSNSW as to the management of the defendant in the community).

A progress report prepared in March 2020 noted that the defendant had attended all interviews as directed and appropriately engaged in intervention. He was reported to have been a compliant resident at the Nunyara COSP and had maintained compliance with his mental health treatment. He was referred to FPS and initially engaged with the service on 19 December 2019. His weekly attendance was confirmed, and he was noted to provide positive contributions to group discussions and has demonstrated insight into his offending. The defendant currently engages in individual counselling sessions through the Aboriginal Medical Service. He started seeing this counsellor in 2021 monthly.

On 23 March 2020, the defendant’s Alcohol and Other Drugs (“AOD”) counsellor confirmed that the defendant had been attending appointments on a weekly basis. He stated they had engaged in “deep discussions” regarding his drug use. He reported that the defendant had demonstrated insight by identifying cannabis use as his biggest risk. There appears to have been a period between 30 April 2020 and 2 July 2020 where the defendant lapsed in attendance. The defendant stated that he had been attending appointments via phone due to the pandemic, however, this was not confirmed by his counsellor. When the defendant resumed his appointments, his counsellor reported that no concerns were identified.

Ms Lau noted that since his release from custody, the defendant has engaged in some minor rule violations. In her opinion, the frequency and repetition of these behaviours suggests that the defendant continues to struggle with problem solving and impulse control. She observed that ongoing difficulties in these areas may increase his risk of further offending, particularly if his current support network collapses.

In relation to these violations, the defendant’s supervising officer noted that Community Corrections considers that he has been generally compliant with supervision and there were no significant concerns about his risk to the community.

Since the imposition of the interim supervision order the defendant has reported that he was “happy with how things were currently going and that he has no issues complying with the many conditions”.

In support of the defendant’s positive conduct in the community, the defendant relied upon the affidavit material of Mr Walsh, Kerrie George, Reta Latimore, Luke Downing and the letter from his current Community Corrections Officer (Annexure B to the affidavit of Mr Dean Fernandez sworn on 19 May 2021).

Black DCJ noted that, while the index offence involved some planning, it was also an offence of opportunity because it involved the defendant inveigling the victim into his vehicle and driving to a remote area. A significant part of the sentencing exercise was the determination of the extent to which the defendant’s mental illness should be taken into account. The Court had regard to the report of Dr Westmore who considered that the defendant was suffering to some degree from his mental illness at the time of the offending. His Honour found that while this was a relevant consideration, he could not be satisfied it was the trigger or cause of what happened.

The report of Dr Westmore observed:

Dr Westmore further noted:

On 14 October 2013, the Court of Criminal Appeal heard an appeal against the sentence imposed by Black DCJ. On 12 November 2013, the Court refused an application for an extension of time to appeal: Currie v R [2013] NSWCCA 267. Johnson J (with whom Hoeben CJ at CL and Bellew J agreed) noted that the offences were of “considerable objective gravity”. His Honour, relevantly, stated (at [74]-[79]):

Further, his Honour stated that since his incarceration the defendant had not always been compliant with his medication noting specific occasions in 2008, 2011 and September 2013. In this regard his Honour stated (at [88]):

At various times the defendant has articulated conflicting views regarding his sexual offending. He is reported to have remained in denial of his offending for a significant period, claiming that the sexual activities with the victims were consensual.

During his sentence for the 1994 offences, the defendant was noted to initially be hostile towards the victim and was reported to attempt to “demean her”. Whilst his attitude seemed to shift it was noted by the psychologist to be in line with what would “be expected of him for parole presentation”. The report stated:

More recently, whilst receiving treatment in the HISOP, he was reported to have given a vastly different account of his 1994 offending. He stated that he met the victim at a nightclub and then offered the victim a lift home. He said they had both been drinking and went back to her residence to smoke cannabis. He stated they had consensual sex and he believed the victim called her boyfriend claiming to be raped as she did not want him to find out she was cheating.

In relation to the index offence, he reported that he found the victim attractive, but wanted to seek revenge for what happened to his ancestors. He was noted to have impulsively decided to take his anger out on the victim and reported that he told the victim he committed the assault “because that’s what your people did to my people”.

Ms Lau notes that during the interview for the RAR, the defendant expressed “patriarchal beliefs, such as men should be responsible for decision making in a relationship or family” and attributed these beliefs to be part of his cultural values. The RAR noted:

The defendant reported to Ms Youssef that he pleaded not guilty to the sexual offences as he did not want to go to prison. He said that in relation to the first offence, he broke into the house with the intention to steal money but found the woman on her own and decided on the “spur of the moment” to rape her after they smoked marijuana together. In relation to the index offences he said he grabbed a knife and “just” raped her, noting it was another impulsive decision to offend.

The court appointed experts unanimously opined that the defendant remains a risk of committing a further serious sexual offence. Both independent experts assessed the defendant as falling in the “Well Above Average” risk category for sexual reoffending.

Ms Youssef conducted an interview with the defendant on 6 April 2021.

Ms Youssef identified the particularly salient risk factors for the defendant as limited insight into other risk factors beyond mental health, poor general self-regulation, intimacy deficits, difficulties in relationships, deficits in sexual self-regulation and limited insight regarding internal processes. She noted that these risk factors were exacerbated by the defendant’s mental health, particularly when unmanaged and will require ongoing support given his chronic mental illness. In her opinion the defendant’s risk is likely to increase rapidly should he cease his medication. She described the defendant’s awareness of his risk factors as “rudimentary” and “limited only to managing his mental illness”. Ms Youssef opined that if the defendant were to reoffend it was likely to be “relatively opportunistic and impulsive, with the victim being someone be has recently become acquainted with or does not know” is alone or “someone he can isolate”. Further she stated:

Ms Youssef noted that, while it was difficult to ascertain the exact impact of the defendant’s mental health on his offending behaviour, there was a general connection between a deterioration in his mental stability and his risk of reoffending. She stated:

The defendant reported to Ms Youssef that, while the medication reduces the voices, he still hears them usually late at night when his is on his own. In relation to the “highs” he experienced in the past, he stated that these occurred every couple of years and would last approximately a month at a time. He said that, when he experienced these “highs”, he just wants to “break the law against white people, steal, rape white women”. The defendant reported to Ms Youssef that he consciously needs to “tell himself not to entertain these thoughts”.

Ms Youssef undertook the following assessments on the defendant: STATIC 99-R, Risk of Sexual Violence Protocol (“RSVP”), STABLE-2007 and Structured Assessment of Protective Factors for Violence Risk – Sexual Offence Version. As to those assessments, the following results are, relevantly, noted:

Based on that risk assessment, Ms Yousef opined that the defendant does pose a risk of committing a further serious sex offence. She opined that “Mr Currie’s risk can be adequately managed in the community under an ESO and is likely to be best managed within a supportive multidisciplinary, staged approach aiming towards the reduction of restrictions and monitoring over a period of several years”.

Ms Youssef formed the opinion that the defendant met the DSM-V diagnostic criteria for Schizophrenia, Cannabis Use Disorder and Alcohol Use Disorder. She noted that although the defendant reported that he had not used cannabis since his arrest for the index offence, this appeared more a consequence of restricted access rather than of his own volition. Ms Youssef commented in her opinion the same was true in relation to abstinence from alcohol. She stated, “it is imperative that Mr Currie abstain from cannabis and alcohol use, considering their disinhibiting effect on Mr Currie’s behaviour”.

Ultimately Ms Youssef opined:

In relation to specific case management strategies Ms Youssef noted:

Ms Youssef acknowledged that, whilst the defendant would have support via the NDIS package, the role of the NDIS services is to support his mental health, not specifically his offending behaviour, unlike the conditions of an extended supervision order. She also referred to the fact that the gains made in custodial treatment were somewhat limited and any further offence-specific treatment would ideally be delivered individually. She recommended engagement with a forensic psychologist in the community with expertise in working with sex offenders for ongoing psychological and reintegrative support.

Ms Youssef provided an extensive opinion as to a “desirable risk management plan” in the circumstances of the defendant:

Dr Furst assessed the defendant on 9 April 2021. In his opinion, as earlier mentioned, the defendant’s most likely diagnosis is one of “Schizoaffective Disorder”. He stated that the defendant also met criteria for the diagnosis of a substance use disorder in remission based upon his persistent history of cannabis and alcohol abuse.

Dr Furst stated that the relevance of the defendant’s mental illness in relation to risk is that he is “prone to elevated mood, grandiosity, racing thoughts and increased libido…increased sexual drive and promiscuity”. He also noted that it impacts on the capacity for self-control, and that “disinhibition, behavioural disturbance and poor judgement are also typical features of manic episodes”. In his opinion inadequate control of the defendant’s mental illness is associated with his future risk of serious offending.

Dr Furst also noted that the defendant has “a fairly low level of intellectual function…and evidence of cognitive slowing/affective blunting on mental state examination”, which he stated is relevant to the defendant’s capacity to learn from mistakes, make sound decisions/choices and avoid risky scenarios in the future. He observed that a low level of intellectual functioning is associated with higher rates of serious offending and an increased need for external controls and supervision.

Dr Furst commented on the early onset of the defendant’s sexual offending and its opportunistic nature leading to innumerable victim access. In his opinion, the risk of the defendant drinking, and smoking cannabis remains. He recommended that any alcohol and drug counselling should focus on relapse prevention.

Dr Furst assessed the defendant on the STATIC-99R as a 6, placing him in a group of offenders considered to be risk level II, which placed the defendant well above the risk of reoffending seen in the average male sex offender. He also assessed the defendant’s risk or reoffending in a sexual manner in the 5-year period post release as well above 12%. During cross-examination, Dr Furst further opined that recent studies suggest that, when released, people tend to offend in the first year or two, rather than later on.

Ultimately Dr Furst opined the defendant:

Dr Furst recommended the following treatment plan under an extended supervision order:

During cross-examination, Dr Furst opined that “mental health” is only one of a multitude of factors relevant to the assessment of risk. As to the significance of mental health treatment, he opined it would only “marginally help”. Ms Youssef agreed with that opinion.

Additionally, as to the significance of the recent increase in hours on the defendant’s current NDIS support, namely, from 25 to 35 hours, Dr Furst opined that such an increase would not impact upon his assessment of risk. Whilst he accepted that he recommended the program under the proposed treatment plan, he described NDIS support as “indirect management of risk”. Both experts opined that the package will help manage mental health problems and assist with daily living, however, the impact in terms of the defendant’s risk of recidivism is “marginal”.

Dr Elliott assessed the defendant on 15 August 2019. His report summarised the defendant’s mental state and his treatment whilst in custody. Dr Elliott noted that the defendant was likely to be institutionalised and that his release to the community would be a high-risk period for relapse. Dr Elliott recommended that should the defendant’s mental health deteriorate on release from custody he should be considered early for admission to a mental health facility. He noted that he should receive assertive and close follow up by a community mental team. Dr Elliott stated that it was essential that he comply with all prescribed medications, avoid all illicit substances, and submit to regular random urinary drug screening. He further recommended the defendant comply with broader rehabilitation interventions.

A HISOP Treatment Report dated 10 July 2019 was produced by Janelle Holden.

The defendant was assessed using actuarial risk assessment tools during HISOP. His score on the STATIC-99R was 6, placing him in the Well Above Average risk category. His score on the STABLE-2007 was 15, suggesting a High density of criminogenic needs relative to other male sexual offenders.

The following dynamic risk factors were identified by Ms Holden:

When combining the STABLE-2007 with the STATIC-99R to generate a composite assessment of risk/needs, the defendant was in the Well Above Average level of risk. On average, individuals within this category are estimated to have roughly three to four times the rate of recidivism compared to the average individual convicted of a sexually motivated offence.

Ms Lau interviewed the defendant for two hours on 3 July 2020. He was assessed as posing a “Well Above Average” risk for sexual offending, based upon actuarial measures.

On 20 January 2020, the defendant was assessed on the LSI-R, which provides an indication of a level of risk of general and violent recidivism within 12 months post-release. He was assessed as falling in the medium risk category for general and violent offending.

The defendant was assessed on the STATIC-99R on 12 September 2019 and received a score of 6. This placed him as being a well above average risk of sexual recidivism.

The defendant was assessed on the STABLE-2007 on 13 July 2020 as having a high density of criminogenic needs relative to other male sexual offenders. The risk areas of clinical concern most relevant to the defendant were general self-regulation and relationship skills deficit.

Based upon the actuarial assessments, Ms Lau identified the following dynamic risk factors, as potentially relevant when considering the defendant’s risk of reoffending (which were largely consistent with Ms Holden’s assessment):

The defendant has some extended family members who provide various levels of emotional assistance. In addition, the defendant has also established a network of professional supports including Aboriginal Medical Services and a NDIS service provider. These services have assisted him in maintaining abstinence, managing his mental health, and navigating challenges with practical issues.

Ms Lau noted that the defendant did not endorse any deviant, unusual or inappropriate sexual interest. She observed that, while a knife was used in his sexual offending, the primary function of his actions was to force compliance by the victim, and he was noted to move the weapon away from the victim upon the victim’s request once compliance had been demonstrated. Ms Lau stated:

Ms Lau noted that since his release the defendant had demonstrated some ability to achieve identified goals which would likely have involved some ability to plan. However, it was noted that he had assistance from his NDIS worker in this process. She also noted that he reported developing “more pro-social coping strategies such as walking along the beach, seeking support from others and addressing conflict assertively”. Ms Lau noted, however, that as he is currently single, it is difficult to comment on whether he would be able to successfully utilise the same skills to manage personal conflicts in intimate relationships.

Ms Lau expressed the opinion that based upon the defendant’s history of offending, if he were to become sexually preoccupied, either as a result of mental health deterioration or becoming disinhibited from intoxication, and fails to adequately manage his sexual urges, he may be at increased risk of further sexual offending. She posed the following likely risk scenario:

Ms Lau noted that, although the defendant has only been convicted of two series of sexual offences, with the other conviction being quashed, he has had limited time in the community. She expressed the view that his tendency to engage in avoidant coping strategies, become more disinhibited when intoxicated and his unhelpful attitudes about women and gender roles appear to be salient factors relevant to his offending.

If no order for an extended supervision order was made, Ms Lau noted:

A Pre-Release Report prepared in August 2017 noted that the defendant was adamant that he would not reoffend as he is now compliant with his medication and understands the consequences of his offending behaviour.

The HISOP Treatment Report observed that, given the extensive time the defendant had spent in custody, he was likely to struggle with impulse control, identifying problems and solving problems when he moved into a less structured environment. The report noted:

The report also noted that the defendant would benefit from discussing any issues of an interpersonal nature with a psychologist. Specifically, the report stated:

The defendant is currently subject to electronic monitoring and activity schedules. Since his release from custody in December 2019, his response to supervision has been described as satisfactory. While he was noted to have deviated from his schedules on several occasions, the majority of these were brief and the reasons provided for the deviations did not raise concerns about his risk.

As mentioned at the outset, Ms Hodgkinson prepared a RMR dated 2 September 2020. The RMR was prepared on behalf of CSNSW for consideration of an application under the Act.

As to the defendant’s response to supervision in the community, Ms Hodgkinson reported:

The focus of supervision has been “addressing Mr Currie's mental health and drug and alcohol use that appear to be linked to his sexual offending”. His sex offence specific treatment was been maintained by Forensic Psychology Services (“FPS”), with whom he continues to attend weekly intervention appointments. Ms Hodgkinson also confirmed that the defendant was referred to NDIS and allocated a support worker. The support worker “has been assisting Mr Currie reintegrate into the community by providing support in attending appointments and engaging in pro-social activities, such as Aboriginal music and dance”.

The RMR identified the following risk factors:

As to the risk factor of “sexual self-regulation” and “cooperation with supervision”, she reported:

In her opinion, the defendant can be managed appropriately in the community on an extended supervision order.

Counsel for the defendant also relied upon the views expressed by Ms Grabham in her affidavits of affirmed 21 December 2020 and 3 May 2021, which relevantly provide:

Ms Hodgkinson opined that the defendant has “relatively responsive” to case management with only minor breaches of deviations and ceasing to attend counselling. In her opinion the defendant can be “managed appropriately in the Community should he be subject an Extended Supervision Order”.

The defendant did not receive any specific therapy for sex offenders during his sentence for the 1994 offences and it was noted that it was generally not available to him given “limited resources and his risk profile”. Parole was initially not recommended due to the defendant not undertaking any offence targeted programs.

The defendant was assessed as not suitable to complete the EQUIPS Addiction program on 8 May 2017.

The defendant first enquired as to his suitability for a sex offender program in January 2009, however, it was not until March 2011 that a referral package was submitted. On 15 October 2012, he was assessed as suitable for the program. While he remained willing to complete the program, he expressed the view that he did not need to complete such intense intervention and that he wanted to complete a program in the community.

The defendant participated in the HISOP between 18 April 2018 and 8 May 2019. His treatment length was longer than the standard duration due to responsivity issues including remaining awake in treatment and his motivation to engage and participate in groups. The HISOP Treatment Report noted that, although he commenced treatment externally motivated, he struggled to establish strong internal motivation to change. As the program continued, his efforts to address his treatment needs reportedly waned, as demonstrated by his minimal contributions, his increasing difficultly staying awake in groups and his difficulty implementing feedback. His lack of participation and engagement resulted in his treatment progress stalling. The report noted:

In the RMR, Ms Hodgkinson provided the following opinion as to the defendant’s participation in the program:

His behaviour whilst housed in the CUBIT residential wing was noted to be “reflective of non-compliance with rules and guidelines”. During this period, he received seven warnings for general rule breaches and custodial staff suspected he was engaging in drug and tobacco use. As a result of this behaviour, he was placed on a behaviour management plan. When this issue was raised with the defendant, he was noted to “lack insight into how this attitude and behaviour related to his risk of reoffending”. While he was reported to generally present as a placid man, it was observed he had the potential to become hostile toward staff if he was emotionally triggered or if he did not agree with what they were saying to him.

In terms of pathways to offending, the report noted that from an early age the defendant developed beliefs that “men are in control” and that it is “okay to use violence to solve problems”. He also developed strong attitudes that other people were “untrustworthy, racist, and look down at him”.

The defendant identified that at the time of his sexual offending, the following factors resulted in an offence: poor mental health and non-compliance with his medication, drug use, poor problem solving, using sex to cope, impulsivity, as well as hostility toward white people and authority figures. The report noted that his sexual behaviours seemed to be attributable to his lack of understanding around consent, his hostility towards white people, his sexual preoccupation and his tendency to use sex to cope. It was observed that the defendant developed insight throughout treatment regarding how his lack of sexual self-regulation contributed to his sexual offending. He was also reported to have developed an understanding of issues around consent, leading him to acknowledge that his first sexual offence constituted illegal behaviour as prior to this he perceived it was consensual. He was noted to have recognised that avoiding any sexual contact when he is binge drinking will be important for him managing his risk associated with sexual self-regulation.

Several risk factors were identified including hostility towards women, low self-esteem, lack of concern for others, and a tendency to have poor sexual boundaries when intoxicated or emotionally dysregulated. The treatment report noted:

In terms of managing his risk, the defendant was most concerned about being exposed to substance use through old antisocial peers and the need to maintain his compliance with his medication. He was able to identify some appropriate skills to prevent risky situations occurring but was reported to need significant assistance from the group to strengthen his strategies or make them more specific to his circumstances.

Ultimately the report opined:

The report recommended that the defendant be provided with the opportunity to gradually reintegrate, under the support and guidance of community corrections. It was noted that “a significant period of supervision would be beneficial”. It was also recommended that he be directed to link in with a community mental health team and psychiatrist to maintain consistency with his medication and stability with his mental health and that he remains abstinent from all drug use. Regular urinalysis testing was suggested as a tool to assist in motivating the defendant to remain abstinent.

Counsel for the defendant’s primary position, in opposition the grant of final relief, turned on the existing NDIS support available to the defendant. With reliance upon the current NDIS support, the following submissions were advanced:

Turning to the MHA, the defendant submitted:

The evaluation of unacceptable risk involves consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate. Thus, unacceptable risk involves a consideration of the type and nature of offences that may be committed absent supervision and balancing those factors. That assessment must be absent the existence of “protective measures”.

Having regard to the following factors, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an extended supervision order:

The opinions expressed by the court appointed experts and in the RAR were instrumental in reaching that conclusion.

In my view, on the evidence, the State has brought a compelling case for the making of an extended supervision order, in particular, over the mere continuance of the NDIS support package or possible implementation of measures under the MHA, for the following reasons:

In reaching that conclusion, I had regard to the opinions expressed by court appointed experts and Ms Lau. As well as the combination of factors referred to above, with respect to the finding of unacceptable risk. Those factors indicate that there is a risk of further sexual offending and that the gravity of the risk that eventuated is high and substantial.

Both court appointed experts are of the opinion that the defendant will require monitoring for the foreseeable future and that an extended supervision order for a period of 5 years is reasonable. Ms Youssef recommended a duration of 4 years but noted the maximum period of 5 years would not be considered excessive. She stated:

Dr Furst noted that the defendant has multiple identified static and dynamic risk factors, including his risk of future serious offending. He stated the defendant:

As to duration, the State submitted the defendant’s history of unpredictable behaviour whilst mentally unstable, presents a significant risk to the safety of the community in those circumstances and, therefore, a longer period of intensive supervision and staged reintegration would assist in guarding against that risk.

Given the totality of the matters arising on the evidence before the Court, it was submitted, there is a real and unacceptable risk of the defendant committing another serious offence if not kept under supervision. Having regard to the paramount consideration of community safety, and the need to ensure the defendant’s reintegration both for the safety of the community and for his own rehabilitation, therefore, it would be appropriate that an order for 5 years be made under s 10(1A) of the Act.

Counsel for the defendant did not develop submissions as to the appropriate duration for an extended supervision order, if imposed, save for maintaining opposition to the order and placing reliance upon the need for ongoing mental health support vis-à-vis the NDIS support package and, if required, application of provisions under the MHA.

Whilst the defendant has demonstrated some progress in terms of his response to treatment and supervision over the course of his interim supervision order and NDIS support, in light of my findings as to the factors underpinning the risks I have found and the position adopted by both court appointed experts, a longer order should be imposed. Thus, I find that an extended supervision order of 5 years duration is required in order to appropriately address the risks of reoffending as well as encourage the defendant to continue to make positive steps with respect to rehabilitation.

The Court must exercise its discretion in this respect having regard to the objects of the Act (see s 3). On balance, in light of my reasons set out above, I consider the appropriate duration to be 5 years and particularly having regard to, in my view, the sound appraisal by the court appointed experts as to why a longer duration was available for both protective as well as rehabilitative reasons.

The Court of Appeal in Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 (“Wilde”) held that s 11 vests the Court with a “broad” discretion but one which must be exercised having regard to the scope and purpose of the Act and its objects (at [47]). As mentioned, the purpose and statutory objects are those specified in s 3 whilst the scope is that found in ss 9(3) and 11 (being non-exhaustive matters) (at [48]).

Although s 3(2) specifies the encouragement of offenders to undertake rehabilitation as an objective, it is permissible to impose conditions that are directed to “facilitating rehabilitation” even when they do not personally require an offender to “undertake” rehabilitative steps (at [49]).

The Court of Appeal further held at [53]-[54]:

In Lynn, the Court of Appeal found that a balancing exercise is required so that the Court will impose the least intrusive conditions, consistent with its assessment of the risk posed by the defendant and a further assessment as to what conditions are likely to be effective with the interests of the defendant in liberty and privacy being properly treated as relevant considerations in ensuring that unjustifiable conditions are not imposed.

In written submissions, counsel for the defendant advanced the following submissions:

It may be noted, during the course of concurrent evidence, both experts agreed that imprisonment for breach of an extended supervision order may have the consequence of hindering the defendant’s rehabilitation. However, Dr Furst qualified his answer stating that he could not categorically provide an opinion in the absence of knowing the exact condition breached.

The RMR described how the risk the defendant poses can be managed in the community via an extended supervision order with conditions. The State submitted the conditions are appropriate to address the defendant’s identified risk factors and, on this basis, there would be considerable utility to the conditions proposed.

The areas of dispute with respect to conditions were clearly and helpfully delineated in documented titled “Comparative Table of Proposed Conditions”, save as to the position of the parities which was clarified or modified in oral submissions, in particular, with respect to condition 26(a). As to condition 26(a), an alternative was put forward by the defendant in oral submissions, namely, the deletion of words “or under the influence of”. which was agreed between the parties. I accept the appropriateness of that agreed position and the other agreed positions between the parties as to the proposed conditions.

The remaining disputed conditions concerned the following proposed conditions:

As to monitoring and supervision, generally, Ms Youssef opined:

During cross-examination, the experts have the following evidence in this respect:

Dr Furst also opined that in the future there may be scope for reducing supervision, however, that should be reviewed at the completion of any extended supervision order, in light of the then available data.

Counsel for the defendant submitted, in light of the expert evidence, in particular the concurrent evidence, if the Court was satisfied that an extended supervision order was required, “that scheduling continue but electronic monitoring be removed as a condition”. The defendant contended that conditions providing for a schedule of movements, which is agreed to by the defendant, “addresses any similar risk concerns that electronic monitoring would”.

In reply, counsel for the State submitted that electronic monitoring “is a tool that is used to monitor the defendant in order to protect the community and also to the extent protect himself and to promote his rehabilitation by assisting him and deterring him from engaging in risky behaviours, and acting impulsively which has been a factor relevant to his previous offending”. It was further contended that electronic monitoring would assist in monitoring whether or not the defendant is leaving his home in the evening when his support worker is not present with him.

Turning to issues of flexibility within the condition, in light of the evidence of the experts supportive of electronic monitoring being phased out, the State relied upon the words “as directed by a DSO” within condition 4 and the evidence of Ms Grabham, namely, her reference to the “stages of monitoring”. The combined effect of that evidence, it was submitted, is that “if a decision was made that the defendant had been sufficiently progressed through the stages of electronic monitoring, he would simply not be directed to have the electronic monitoring device being worn at that point in time”.

Counsel for the State was questioned as to why the Court should permit the DSO to have that discretion over the course of the duration of an extended supervision order, when the opinion of the experts is that it should not extend beyond 1 year. The following submission was advanced:

Notwithstanding the expert evidence supporting the provision of electronic monitoring for only 1 year, neither party advanced submissions as to the utility of a “sunset” provision. This Court had previous imposed sunset clauses, see example, State of New South Wales v Holloway (No 2) [2017] NSWSC 1517 (R A Hulme J) and State of NSW v Weribone [2016] NSWSC 1474 (Bellew J). This Court has also declined to include such a limitation (see for example, State of New South Wales v Farringdon [2018] NSWSC 874 (Button J); State of New South Wales v Golding (Final) [2018] NSWSC 1437 (R A Hulme J); State of New South Wales v Strudwick [2018] NSWSC 1798 (Button J); and State of New South Wales v TT (Final) [2018] NSWSC 358 (Johnson J).

In my view, in light of the defendant’s prior offending, the requirements that he be subject to electronic monitoring and provide a schedule of movements are warranted in the circumstances. However, having particular regard to the opinion of the court appointed experts, there must be a real question as to whether a sunset provision should be applied.

One approach to a sunset provision would be that under Part A, condition 4 would remain unchanged and a new condition 4A and 4B may be inserted, as follows:

I have not heard the parties as to the appropriateness of a sunset provision and if no such provision were to be imposed ultimately what order should be made. Given the extremely limited time for the disposition of this matter, I shall provide the parties until no later than 10.00am tomorrow to file short written submissions (no longer than 1 page) as to the final disposition of the issue regarding this condition.

As to the suite of conditions appearing at Part I of the proposed schedule of conditions, Dr Furst opined:

During concurrent evidence, Dr Furst affirmed that opinion and was joined by Ms Youssef, that evidence is extracted below:

In light of that expert evidence, counsel for the defendant contended that the conditions proposed in Part I “are not required in this case to manage the defendant's specific risk”. In the alternative, whilst maintaining disagreement with conditions 32-42 proposed, the defendant proposed an amended version of condition 32 (in lieu of the entirety of Part I):

Counsel for the State accepted the evidence of the experts and conceded that the suite of conditions that appear at Part I do not go to prior offending. However, notwithstanding that concession, it was submitted that those conditions provide an additional means of “scrutiny” by which the DSO may monitor the defendant and, thereby, the conditions go to the risk posed. It was contended that the conditions work as a “suite” or “package” which work together to achieve the following:

The State’s submissions, in this respect, incorporated the view expressed by Ms Grabham in her affidavit of 21 December 2021 at paras 79-80. Reliance was also placed upon Ms Grabham’s affidavit of 3 May 2021 at paras 11-12.

During the course of oral submissions, as to the perception that the position of the State was contrary to the expert evidence, counsel for the State submitted that the court appointed experts and Ms Grabham are “looking at it from a completely [different] perspective”. In particular, as to the perspective of Ms Grabham, it was submitted:

In response to why the Court would not readily adopt the alternative condition proposed by the defendant, the State relied upon the effectiveness of Part I conditions (in other cases) working as a package. It was submitted:

Whilst there need not be a demonstrated link to past offending, in my view, it would be inappropriate in the circumstances of the defendant, in particular having regard to the circumstances giving rise to his risk of reoffending, to impose the suite of conditions proposed by the State. As identified by Dr Furst the imposition of the full suite of conditions may “make it worse because having no access to internet might make him go out of the house more and put the community more at risk”. That said, having regard to the evidence of Ms Grabham, in my view, the defendant’s alternative condition 32, provides the DSO with sufficient scope to adequately manage risks that may arise in the course of supervision. The object of the Act, in my view, is more closely pursued with the imposition of a refined condition that is appropriately tailored to the risk and circumstances of the defendant.

Dr Furst opined:

During concurrent evidence, both experts gave evidence as to the importance of conditions allowing for the sharing of information. That evidence is extracted below:

Turning to the conditions under Part M, counsel for the defendant advanced the following submissions:

In reply, the State submitted:

In my view, the conditions as proposed by the State as to these conditions are necessary in all the circumstances to address the risk posed by the defendant. In reaching that view I have had particular regard to the opinion of the court appointed experts, who reached a joint position at the time of concurrent evidence, which included an emphatic stance as to the importance of not limiting the sharing information in order to mitigate and manage the risks posed by the defendant. The balance of Part M was also identified as a necessary part of effective mental health management.

The conditions proposed by the State as to conditions 53 and 55-56 should be imposed.

For the reasons set out in this judgement, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if he is not kept under supervision. The precondition in s 5B(d) of the Act is satisfied.

It is appropriate for the Court to make, in the circumstances and in the exercise of its discretion, an extended supervision order. That order shall operate for a period of 5 years upon the conditions found appropriate by the Court in this judgment, subject to the receipt of further short submissions by the parties as to proposed condition 4.

The parties shall file and serve any further submissions as to condition 4 by 10.00am on Friday, 11 June 2021.

Upon receipt of those submissions, the Court shall provide to the parties the ruling of the Court as to that condition without further reasons for judgment (unless reasons are requested by the parties).

Upon the receipt of that ruling, the State shall bring in short minutes of order reflecting this judgment and the Court’s ruling.

In the event the parties reach an agreement as to the proper approach to condition 4 then that agreement shall be communicated to the Court by 10.00am on Friday, 11 June 2021, together with short minutes of order reflecting this judgment and that agreement. If appropriate, the Court will make orders in the terms proposed.