State of New South Wales v Pearson (Final)

1. [1]

   The State of New South Wales seeks an extended supervision order (ESO) pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the “CHROA”) in respect of the defendant, on the basis that he is a high risk offender, because he has been convicted of serious sex offences. Although he has not been convicted of a serious violence offence, the index offences, and some other offences of a sexual nature, have involved violence, and the experts have given consideration to his risk of committing a serious violence offence.

2. [2]

   While the defendant does not concede that an ESO should be made, the approach he took was that, although he made no submissions against it, the Court needed to be satisfied that an order ought to be made. The principal issues between the parties concerned the conditions which should be imposed in the event that an ESO was ordered.

3. [3]

   On 30 March 2021 I ordered pursuant to s 11 of the Act that the defendant be subject to an interim supervision order (ISO): State of New South Wales v Pearson (Preliminary) [2021] NSWSC 304. I set out in some detail in my earlier judgment the defendant’s background, his past offending, psychiatric evidence that was available concerning the defendant, and the terms of a Risk Assessment Report prepared on 21 August 2020 by Ms Holly Cieplucha, a senior psychologist with the Serious Offenders Assessment Unit. I do not intend to repeat those matters in the present judgment.

4. [4]

   Whilst I accept that the task of the Court, when considering whether to make an ISO, is a different task from that which is involved in considering whether an ESO should be ordered, I have again taken those matters into account when determining whether an ESO should be ordered. I will just mention some significant matters.

5. [5]

   The defendant was sentenced by Judge Ellis in the District Court on 27 August 2010 for three offences committed on 5 April 2009, and for an offence connected with those offences that occurred between 9 April and 6 June 2009. Count 1 was an assault with an act of indecency contrary to s 61L of the Crimes Act 1900 (NSW). Counts 2 and 3 were each sexual intercourse without consent in circumstances of aggravation, namely that the defendant intentionally inflicted actual bodily harm on the victim, contrary to s 61J of the Crimes Act. Count 4 was an offence of doing an act intending to persuade a person to be called as a witness in a judicial proceeding to give false evidence, contrary to s 323 of the Crimes Act.

6. [6]

   The defendant was sentenced in respect of count 4 to a fixed term of 18 months’ imprisonment commencing 6 April 2009 and expiring 5 October 2010. In respect of count 1 he was sentenced to a fixed term of 18 months’ imprisonment commencing 6 October 2009 and expiring 5 April 2011. For count 3 he was sentenced to ten years’ imprisonment commencing 6 April 2010 and expiring 5 April 2020, with a non-parole period of six years and six months expiring 5 October 2016. For count 2 he was sentenced to imprisonment for ten years and six months commencing 6 October 2010 and expiring 5 April 2021, with a non-parole period of seven years expiring 5 October 2017.

7. [7]

   Judge Ellis found that the offences constituting counts 2 and 3 were at the upper end of the mid-range, count one was within the mid-range and count four was in the low to mid-range. His Honour found also that the defendant’s lengthy criminal history was an aggravating factor in a Veen sense, in that it was relevant to the court’s assessment of his prospects of rehabilitation and the need for personal deterrence.

8. [8]

   The offences constituted by counts 2 and 3 are serious sex offences by reason of being offences under Div 10 of Pt 3 of the Crimes Act, where the offence is punishable by imprisonment for seven years or more and the offence is committed in circumstances of aggravation.

9. [9]

   Although the defendant was eligible for parole on 5 October 2017, he was not released to parole until 5 December 2019, principally because he had not completed certain sex offender courses whilst in custody. His overall sentence expired on 5 April 2021.

10. [10]

    The ISO commenced on 31 March 2021. On 8 April 2021 the defendant was arrested and charged with failing to comply with his ISO. The particular breach concerned condition 24 which provided:

11. [11]

    The circumstances of the offence are set out in the police facts sheet. They show that the police stopped a motor vehicle being driven by the defendant for the purposes of a random breath test. That returned a negative result, but additional checks were conducted which resulted in police making enquiries with the Child Abuse and Sex Crimes Squad. The defendant’s brother was sitting in the front passenger seat of the car and two women were sitting in the back. One of them was aged 15 years. The police facts say,

12. [12]

    On 9 April 2021 the applicant appeared before Wyong Local Court and applied for bail. Bail was refused.

13. [13]

    On 20 April 2021 the defendant pleaded not guilty to the charge at Wyong Local Court. An election was not made by the DPP under Table 2 of Schedule 1 to the Criminal Procedure Act 1986 (NSW). Orders were made requiring the brief of evidence to be served by 18 May 2021. The matter was then adjourned to Wyong Local Court on 8 June 2021 for the defendant to reply to the brief. The matter was subsequently adjourned to 20 July 2021 for further reply.

Legislation and legal principles

1. [14]

   The CHROA relevantly provides:

2. [15]

   Section 4 defines a serious sex offence. Section 5 relevantly defines “serious sex offence” as meaning an offence under Division 10 of Part 3 of the Crimes Act where the offence is punishable by imprisonment for seven years or more and, in the case of an offence against an adult, the offence is committed in circumstances of aggravation.

3. [16]

   Section 9 relevantly provides:

4. [17]

   Section 3 provides:

5. [18]

   When discussing the concept of “unacceptable risk”, Hoeben CJ at CL in State of New South Wales v Azar (Preliminary) [2020] NSWSC 1807 said:

Expert reports

1. [19]

   Pursuant to the orders I made in my earlier judgment, the defendant was examined by Dr Marcelo Rodriguez, a psychologist, on 6 May 2021 and by Dr Patrick Sheehan, a forensic psychologist on 13 May 2021.

2. [20]

   In addition to the information set out in my earlier judgment concerning the defendant’s childhood and background, the defendant told Dr Rodriguez that as a result of the violence he witnessed from his stepfather, he (the defendant) “became out of control” around age nine or ten when he started to engage in petty crime such as stealing and shoplifting. He said that he started using cannabis and alcohol at around age 12, and started to use amphetamines at age 14.

3. [21]

   After leaving school at the age of 15 years he first worked as a storeman at a bookstore in Chatswood for two or three years. However he had started using drugs heavily by this stage and became unemployed as a result of his habitual drug use.

4. [22]

   He subsequently worked at a chicken shop in Gosford on a part-time basis for about 12 months. Subsequently he worked as a forklift driver for two and a half years before moving to another company, where he also worked as both a forklift driver and a storeman. His last job was working for a cousin who had a company named “Walkabout Coffee”, where the defendant cleaned vehicles. There were lengthy periods of unemployment, particularly because he was in and out of custody, and he had difficulty finding employment due to having to wear an electronic ankle bracelet.

5. [23]

   He said that he had had three long-term relationships. The first was with a woman named Nicole who was ten years older than the defendant. That relationship lasted ten years and produced a daughter. The defendant denied the presence of domestic violence in that relationship.

6. [24]

   He subsequently had a three-year relationship with a woman called Chloe, with whom he had two sons. He said the relationship was based on the consumption of illicit substances, including amphetamines, heroin, cannabis, “pills” or “anything they could find”. He told Dr Rodriguez that he thought Chloe’s parents now had custody of their sons, and he was unaware of their whereabouts.

7. [25]

   The third relationship was with a woman called Jade, and that relationship is current. This relationship appears to have commenced towards the end of 2020, and other information indicates that the parties have not yet been intimate.

8. [26]

   The defendant told Dr Rodriguez that, having started to use cannabis at about the age of 14, he used it heavily for 15 years, approximately 30-40 cones a day. He reported cannabis induced paranoid ideation. He began to use heroin intravenously at age 17, and said he used it to “come down” from other substances. He denied to Dr Rodriguez ever having used methamphetamine, although that was inconsistent with what he had told Dr Allnut in 2006.

9. [27]

   The defendant was on the methadone program for ten years and only stopped it six months ago. He has been receiving long acting monthly injections of Buprenorphine.

10. [28]

    He was prescribed the antidepressants Citalopram and Quetiapine both in custody and in the community, and was also prescribed Mirtazapine for a number of years.

11. [29]

    Dr Rodriguez said that the defendant did not display psychotic features such as hallucinations, delusions or thought disorder. The defendant appeared to present in the best possible light in the face of the significant and serious nature of his violent and sexual offending. Dr Rodriguez thought that he met the criteria for Substance Use Disorder and for Antisocial Personality Disorder. He said those diagnoses increased the defendant’s risk of committing a further serious offence. He said that the defendant was also at increased risk of committing a further serious offence if he relapsed into substance abuse.

12. [30]

    Dr Rodriguez assessed the defendant using a number of protocols. Using the Historical-Clinical-Risk Management 20 – Version 3 (HCR-20), Dr Rodriguez said that the defendant presented with a number of risk factors that may perpetuate his risk of reoffending including:

13. [31]

    Dr Rodriguez said that the defendant presented with high static risk factors and future risk factors, and said that he fell into the high risk group for violent reoffending.

14. [32]

    Dr Rodriguez evaluated the defendant’s risk of intimate partner violence (IPV) using the Spousal Assault Risk Assessment Guide – Third Edition (SARA-V3). His assessment of the defendant’s risk of IPV was high.

15. [33]

    On the STATIC-99R risk assessment the defendant fell within the average risk category with a score of 5. It should be noted that with the same score, Mr Sheehan placed the defendant in the above average risk category.

16. [34]

    Using the Risk of Sexual Violence Protocol (RSVP), dealing with dynamic risk assessment, Dr Rodriguez said that the defendant fell into a group of offenders who are at high risk for sexual offending within intimate relationships. Although Dr Rodriguez thought that, as the defendant ages, his risk may diminish, there was no guarantee that he would not develop an interest in a new victim or sexually reoffend. Not using substances of addiction, including alcohol, would reduce the distinct issue of disinhibition.

17. [35]

    Dr Rodriguez said he did not believe that the defendant’s risk could be managed in the community without any order, and he thought he could be suitably managed with an ESO in the community, which would include a comprehensive risk management plan with strict supervision and monitoring. Dr Rodriguez considered that the ESO should be in place for a period of at least three years.

18. [36]

    The defendant saw Patrick Sheehan on 13 May 2021. Mr Sheehan thought that the defendant would meet the criteria for Polysubstance Use Disorder (moderate-severe, in sustained remission, on opioid agonist-antagonist therapy), and Antisocial Personality Disorder. In relation to the latter diagnosis, Mr Sheehan said that the outward expression of the disorder is known to attenuate when the individual moves into middle age as processes of maturation occur. He said that, at 43 years, the defendant may be on the cusp of entering a phase of life where his antisocial features might be expected to lessen.

19. [37]

    Mr Sheehan said that the defendant’s history of insecurity, unstable self-image, unstable affectivity, unstable interpersonal relationships, and anger, were all indicators of Borderline Personality Disorder. He said that the defendant did not meet criteria for any diagnosable paraphilic disorder. While his sexual offences against a 15 year old girl were problematic, they did not infer paedophilic disorder. Mr Sheehan noted that the majority of the violence offences, particularly the more serious sexual violence offences, were committed against women in the context of domestic violence.

20. [38]

    Mr Sheehan noted that Mr Pearson had completed The High Intensity Sex Offender Program (HISOP) and, at the conclusion of it, the defendant’s risk of sexual reoffence was considered to be in the well above average range, with his most salient risk areas being intimacy deficits (poor capacity for relationship stability, hostility towards women) and general self-regulation (impulsivity, poor problem solving, feeling mistreated).

21. [39]

    Mr Sheehan assessed the defendant on a number of risk protocols. As mentioned earlier, he assessed the defendant on the STATIC 99-R as being in the above average risk category, with a score of 5.

22. [40]

    In relation to the dynamic risk factors referred to in the RSVP, Mr Sheehan noted that there was some diversity to his sexual offending, with offending both against adult and child victims. He said, however, that the context of the offences had more similarities than differences, being against females, in a relationship, accompanied by violence. There was clear evidence of physical coercion, with psychological coercion present after the offences by the defendant seeking to influence the complainants to withdraw statements.

23. [41]

    Mr Sheehan noted that the defendant had a history of hostile attributions towards women (that they are untrustworthy and treacherous), which has underpinned his aggression by creating a sense of victimisation and grievance. He has also upheld views of women as the property of men. Mr Sheehan said the defendant had chronic problems with self-awareness and self-appraisal which had continued to undermine his decision-making over time.

24. [42]

    Mr Sheehan noted an assessment in 2007 using the Hare Psychopathy Check List: Screening Version where the defendant was found to be in the high range for psychopathy. Mr Sheehan said that taking into account the defendant’s presentation in recent years, he would be seen to be within the low-medium range on that instrument. He said there would appear to be some improvement in responsibility, behaviour control, impulsivity and empathy.

25. [43]

    Overall, the evidence led Mr Sheehan to estimate the defendant’s overall risk of sexual offending to be in the above average or medium-high range of the risk spectrum. The type of sexual offending in respect of which the defendant was at risk would seem to involve aggressive sexual offences against female partners in circumstances of anger and sexual jealousy, possibly aggravated by substance abuse. He saw no evidence of sexual risk to young children, but said there might be a residual risk towards young women who were vulnerable.

26. [44]

    In relation to the risk of violence, Mr Sheehan assessed the defendant on the Violence Risk Scale (VRS). The overall result of the VRS estimated his risk for violence at the upper end of the medium range. Mr Sheehan noted that his lifestyle in the community since his release to parole in December 2019 was not violent, showing observable improvement. Mr Sheehan assessed him as being in the medium risk category for violent behaviour.

27. [45]

    As to the need for an ESO, Mr Sheehan said that he would be unable to state with any confidence that the defendant had demonstrated readiness to self-manage his risk of a serious offence in the absence of external controls and support. He was of the view that the risk could not be managed adequately in the community without an ESO being imposed, and that the risk could be managed adequately in the community under an ESO. He considered three years’ duration would be an appropriate length for such an order.

Victim Statement

1. [46]

   Mr Jake Harris of counsel for the State sought to tender a victim statement from the victim of the index offences. The statement had only been served on the defendant’s solicitors the day before the hearing. The tender was, in the first instance, opposed by Ms Goodhand of counsel for the defendant, partly on the basis of the late service, partly because it introduced new evidence, and partly because the maker of the statement was not available for cross-examination.

2. [47]

   Section 21A of the CHROA provides:

3. [48]

   Ultimately, Ms Goodhand’s submission was that the statement should be given very limited weight. That was for two reasons. First, the maker of the statement did not consent to the disclosure of the statement to the defendant. In those circumstances, subs 21A(7) requires the Court to reduce the weight given to the statement. In addition, the statement contained information inconsistent with contemporaneous statements made by the defendant in the OIMS notes.

4. [49]

   The defendant had said that the victim approached the residence where the defendant was living and made loud statements concerning the defendant. The information in the Victim Statement said that the defendant, whilst on parole, would seek the victim out where she resides. It also said that she is concerned that he is accessing her social media or her children’s social media, because the defendant has posted photographs of the two boys who are the children of the defendant and the victim.

5. [50]

   The Statement said that the victim would feel safer if the defendant was electronically monitored and that there be exclusion zones to protect her, her children and her parents. She also requested that he not be allowed to access social media.

6. [51]

   There was no evidence concerning the timing of the matters referred to in subsections (1), (2), (3) (3A) and (4) of s 21A, except that the Statement had first been served on the day before the hearing.

7. [52]

   There is no doubt that the index offences manifested a very degree of sexual and other violence. It is entirely understandable that the victim still entertains fears for her safety and, to a lesser extent, the safety of hers and the defendant’s children, and other members of her family. I am, therefore, prepared to receive the Statement into evidence.

8. [53]

   However, in the absence of the victim giving consent for the statement to be disclosed to the defendant, at least so that instructions could be obtained from him about factual assertions, and in the absence of the victim being prepared to be available for cross-examination, I cannot place much weight on the factual assertions in the Victim Statement.

Determination

1. [54]

   The requirements of s 5B (a), (b) and (c) of the CHROA are satisfied. The defendant was a supervised offender within the meaning of s 5I.

2. [55]

   The evidence points to an improvement in terms of the risk of the defendant committing further serious offences. The fact that he has abstained from illicit substances for some lengthy period of time is the best indicator of that. However, he has, whilst so abstaining, been in a controlled environment to a greater or lesser extent. Much of the time was spent in custody, with the time from December 2019 being spent on parole.

3. [56]

   It is clear from the evidence of Dr Rodriguez and Mr Sheehan, and also from the report from Ms Cieplucha, that at the present time the defendant remains at risk of committing further serious offences, even if that risk has now reduced a little. The experts remain of the opinion that the defendant needs to be managed in the community by an ESO and that such management needs to extend for a period of three years.

4. [57]

   Whilst I accept that the alleged breach by the defendant of the ISO has not yet been proved to the criminal standard, I must have regard to the fact that within just over a week of being on the ISO he was charged with breaching it. I take into account the police facts with regard to that breach, and even to an account given by the defendant to Dr Elliott, to which I will later refer. On its face, the breach, if proved, is of concern, not only by reason of past offences committed by the defendant, but also as to his motivation for compliance with any order that is imposed. It strengthens my opinion that the defendant’s risk of offending is such that an ESO should be imposed. The alleged breach supports the views of the psychologists that the defendant is not yet ready to self-manage.

5. [58]

   I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence, most probably a serious sex offence, if not kept under the supervision of an ESO. In accordance with the opinion of both experts, I consider that the ESO should be in place for three years.

Conditions

1. [59]

   In my earlier judgment I set out at [66] to [70] the principles to be applied when considering what conditions should be imposed under the ESO. It is not necessary to repeat those principles in this judgment, but what follows takes them into account.

2. [60]

   The parties have reached agreement on a number of the conditions which the State proposed should be imposed. I will now deal with those conditions where issues remain.

3. [61]

   The defendant does not oppose either electronic monitoring or the conditions associated with a schedule of movements. However, the defendant seeks that the Court impose a time beyond which electronic monitoring is not to be required. Reliance was placed on State of New South Wales v Davis (Final) [2021] NSWSC 516 at [75]-[83] and State of New South Wales v Grooms (Final) [2019] NSWSC 353 at [91]. In relation to the schedule of movements, Ms Goodhand agreed with Mr Sheehan that they should remain beyond the time of any electronic monitoring.

4. [62]

   The usual approach to electronic monitoring and scheduling is one involving four stages. Electronic monitoring is imposed for the first three stages but not the fourth. Restrictive scheduling is provided in stage 1, non-restrictive scheduling in stage 2 and no scheduling in stages 3 or 4. Movement from one stage to another is ordinarily at the discretion of the DSO.

5. [63]

   Mr Sheehan’s evidence was that a better approach is for electronic monitoring to be removed whilst scheduling is still in place. Mr Sheehan said that scheduling is a good risk management tool and a good rehabilitation tool. If the electronic monitoring remains in place beyond the time when a schedule of movements is not required, Mr Sheehan said it was difficult to gauge how skilled the person was at independently managing their risk.

6. [64]

   Mr Sheehan said that there should be a time frame specified for the removal of scheduling and electronic monitoring. Neither he nor Dr Rodriguez specified what that time should be. Whilst I accept that the Court could impose a limitation on the time during which electronic monitoring and scheduling is in place (Davis (Final) at [81]-[82), I do not consider that I have sufficient evidence to justify defining any given period, especially when the experts could not identify the limits of such a period.

7. [65]

   However, bearing in mind that the defendant has been subject to electronic monitoring since his release to parole in early December 2019, I make a recommendation to the DSO and those responsible for the defendant’s supervision that consideration should be given to removing the defendant’s electronic monitoring within 12 months of the commencement of the ESO, provided that there has generally been satisfactory compliance with the schedule of movements. I consider also that the schedule of movements should remain in place for a period of time after the removal of the electronic monitoring.

8. [66]

   Condition 7, as proposed by the State, provided:

9. [67]

   Bearing in mind the most likely risk of a further serious offence would involve an intimate partner of the defendant, I do not consider that condition 7 should be as restrictively worded as the State proposes. Condition 7 should read:

10. [68]

    The State proposes that condition 8 should read:

11. [69]

    The defendant proposes the condition should read:

12. [70]

    The substantive difference between the two conditions is the insertion of the word “reasonably” in the defendant’s proposed condition. The evidence is that the defendant has been living at his mother’s residence since prior to the imposition of the ISO. The condition proposed by the State was the condition in the ISO and there is no evidence that there has been any difficulty as a result of it.

13. [71]

    The Court must impose conditions on the assumption that the DSO and those supervising the defendant will act reasonably: State of New South Wales v Strong (by his tutor Ainsworth) (Final) [2018] NSWSC 1438 at [80]. Mr Sheehan had some experience with working with the DSO monitoring team. It was his experience that the ESO team would usually approach the conditions in an order with a case management goal, although he accepted that different DSOs differed in their approach.

14. [72]

    I do not intend to insert a requirement into this condition or others sought by the defendant, that the DSO should act reasonably. The condition put forward by the State should be imposed.

15. [73]

    Condition 10 as proposed by the State provides:

16. [74]

    The Risk Management Report, referred to in my earlier judgment says this:

17. [75]

    Unannounced visits or requirements for random testing (where appropriate) are useful risk management tools. It would be entirely unsatisfactory if the person subject to the ESO knew that for various defined periods they were not subject to unannounced visits. That said, it would be expected that the DSO would act reasonably, and it would be a rare occurrence, if it took place at all, that the defendant would be disturbed in the middle of the night. The State’s condition should be imposed.

18. [76]

    Condition 11 as proposed by the State provided:

19. [77]

    This was one of a number of conditions where the defendant sought to have added a requirement, that if the DSO refused to approve something, reasons in writing must be provided. It is not appropriate that the DSO should be required to provide reasons in writing. Ordinarily, contemporaneous notes are made in the OIMS notes when approval issues arise. Decisions of the DSO are not reviewable in an administrative law sense, such that written reasons are necessary.

20. [78]

    It was suggested by Ms Goodhand that written reasons would be relevant if the defendant was prosecuted for a breach of the conditions. It was ultimately accepted on behalf of the defendant that the OIMS notes would provide a satisfactory record of what transpired in relation to any refusal. Condition 11 as proposed by the State should be inserted.

21. [79]

    Condition 12 as proposed by the State is as follows:

22. [80]

    The defendant proposes the following alternative:

23. [81]

    I have already indicated that I do not intend to impose any requirement on the DSO to provide written reasons. Further, the wording of this condition was contested at the hearing of the ISO, and the condition the State now seeks was the one I imposed following that contest. No reason has been shown for revisiting that decision.

24. [82]

    Conditions 14, 16 and 18 as proposed by the State were as follows:

25. [83]

    The defendant sought an addition to each requiring the DSO to provide reasons in writing for any direction not to go to a particular place or from a failure to approve requests by the defendant. For reasons given already, such a requirement should not be imposed. In response to the defendant’s request for condition 16 the State proposes an alternative condition as follows:

26. [84]

    Such a condition was supported by both of the experts and should be imposed.

27. [85]

    The State proposed condition 19 as follows:

28. [86]

    This was opposed by the defendant on the basis that it was not directed to the defendant’s specific risk factors. However, in circumstances where condition 18 is to be imposed concerning starting a job, it is appropriate that the defendant should notify his DSO of an intention to change his employment.

29. [87]

    The State proposes that condition 29 should relevantly read:

30. [88]

    The State also proposes condition 57 which provides:

31. [89]

    The defence submitted that there should effectively be a carve out in condition 29 so that after the word “person” there should be inserted “(other than health care professionals)”. The basis for the carve out is because of condition 57. I do not agree. The disclosure in condition 57 is limited to health care professionals who are treating the defendant. A situation may arise where it would be necessary for the DSO to disclose the defendant’s criminal history to a person who was a health care professional even if they were not treating the defendant. No basis is shown for the limitation the defendant seeks.

32. [90]

    The State proposes condition 31 as follows:

33. [91]

    The defendant opposes this condition on the basis that it is not directed to the defendant’s specific risk factors and that possessing weapons is already prohibited by the law.

34. [92]

    In my view, the defendant’s specific risk factors include the use of a weapon. In the index offences he hit and threatened the victim with a knife sharpener. The defendant has also been convicted of Use Offensive Weapon to Prevent Lawful Detention when he lunged at police with scissors, and threatened to stab and shoot them.

35. [93]

    Simply because possession of a weapon may constitute an offence under the Firearms Act 1996 (NSW) or the Weapons Prohibition Act 1998 (NSW) is no reason not to include a provision such as condition 31. Conditions are also a reminder to the defendant that the restrictions that are placed upon him include obeying the law generally, but particularly laws pertinent to his offending and risk. Where weapons have been employed by him in past offending, it is entirely appropriate that a condition prohibiting him possessing them should be included.

36. [94]

    The defendant objected to the inclusion of these conditions on the basis that they are not directed at reducing the defendant’s risk of committing a further serious sexual offence. In that regard, the defendant relied on what Mr Sheehan said in his report:

37. [95]

    Mr Sheehan maintained that position in his oral evidence. On the other hand, Dr Rodriguez thought that the conditions were appropriate at the initial stages of his rehabilitation. He thought that the conditions were appropriate because new relationships could be formed through social media and other internet sites. He thought it would be important to be able to monitor the defendant’s communications in that way.

38. [96]

    The use of the internet, whether through social media outlets or otherwise, was not related to the defendant’s past offending. However, because a principal risk is intimate partner violence, it is important for there to be some oversight of the defendant’s use of the internet. The internet conditions generally assist in the operation of conditions 26-30 concerning persons with whom the defendant may and may not associate.

39. [97]

    Although I have indicated that I do not give much weight to what is contained in the Victim Statement for the reasons given, I do have some concern from the assertion by the victim that the defendant may try to access her social media, because she asserts that he has copies of photos she posted of their sons. I am not, for this purpose, accepting that the defendant has accessed her social media or that he would do so, but these conditions provide oversight of his use of the internet.

40. [98]

    However, condition 39 as proposed by the State provides:

41. [99]

    In circumstances where the other conditions give a DSO the complete oversight of the defendant’s use of the internet, I do not consider that condition 39 is necessary. It is unnecessarily restrictive on the defendant, and is not directly related to the defendant’s risk of offending.

42. [100]

    The State proposed condition 43 as follows:

43. [101]

    The defendant proposed the following condition in lieu:

44. [102]

    In his report, Mr Sheehan said of this and the following condition, preventing the defendant from destroying or interfering with any object the subject of a search or seizure:

45. [103]

    Dr Rodriguez did not comment specifically about the search and seizure conditions. However, he said that the conditions set out in the amended summons were appropriate at this time to address the defendant’s risk of violent and sexual reoffending.

46. [104]

    While there can be no doubt that search and seizure is very invasive, a significant matter in the defendant’s rehabilitation is abstention from illicit drugs which have been a serious problem for him in the past. The Risk Management Report made specific reference to the need for search and seizure provisions in relation to illicit drugs.

47. [105]

    The experts agree that the defendant’s abstention from illicit drugs is likely to be the most significant matter which will determine whether he is likely to cease to be above average risk of reoffending. In my view, the search and seizure conditions are reasonable. For reasons earlier given in relation to the DSO acting reasonably or being of a reasonable view, I do not consider that the condition should be amended in the form the defendant seeks.

48. [106]

    Condition 50 as proposed by the State provided:

49. [107]

    The defendant proposed, in lieu, the following condition:

50. [108]

    In my opinion, it is not appropriate for the DSO to be determining whether an offender should undergo psychological or psychiatric assessment, or what therapy or treatment programs he should undergo. There is also force in Mr Sheehan’s view that it is quite unnecessary for the DSO to require the defendant to comply with a Community Treatment Order because the order itself requires compliance. Further, in the absence of the defendant having ever been a mentally ill person under the Mental Health Act 2007 (NSW), the condition does not appear to relate to the risks the defendant presents.

51. [109]

    The condition should read as the defendant proposes in the first paragraph. The second paragraph is not to be included.

52. [110]

    The State proposed the following condition 54:

53. [111]

    The State proposed the following conditions 55 and 56:

54. [112]

    The defendant sought to add to condition 55 the words “if such disclosure is reasonably necessary to reduce the risk of the defendant committing a serious sex offence”. The defendant opposed entirely condition 56. Both psychologists considered the conditions as sought were necessary. The defendant sought to draw a distinction between physical ailments (the example given was a wart on the foot) and matters which might concern his mental health or diagnosed conditions. A similar argument was put at the preliminary hearing regarding the ISO, although it was there directed to the condition requiring the defendant to notify the name and address of any healthcare profession the defendant consulted.

55. [113]

    Dr Rodriguez made the point that there needed to be common sense in relation to providing shared information. This is, of course, related to the expectation that the DSO will act reasonably. In my earlier judgment I said at [90]:

56. [114]

    I adhere to that view. Conditions 55 and 56 as proposed by the State should be included.

Bail

1. [115]

   During the hearing, the defendant applied for bail. I granted bail on the condition that the defendant complied with the terms of his ISO and subsequently any ESO that was made. These are my reasons for so doing.

2. [116]

   The offence of failing to comply with the requirements of an ISO is found in s 12 of the CHROA. The maximum penalty is 500 penalty units and/or imprisonment for five years. As mentioned earlier, the defendant was refused bail at his appearance before Wyong Local Court on 9 April 2021, and the remand was continued at subsequent appearances before that Court. The defendant must show cause why his continued detention is not justified because the offence is an offence listed in s 16B(1)(i) of the Bail Act 2013 (NSW).

3. [117]

   When the matter was before Wyong Local Court on 8 June 2021 it was adjourned until 20 July for a further reply. Even if it is fixed for hearing on that day, it is unlikely to be heard before September 2021 at the earliest. If the defendant is not released to bail he would be in custody for at least five months and maybe more.

4. [118]

   Without minimising the seriousness of the defendant breaching his supervision order only eight or nine days after an ISO was put in place, the facts of the offending suggest that it is a relatively minor breach in all the circumstances, particularly if the 15 year old girl was his brother’s daughter, as the defendant told Dr Elliott on 3 May 2021. If the defendant remains on remand until the hearing, there is a strong chance that he will remain in custody for a period exceeding the likely sentence that would be imposed. In that way, the defendant shows cause why his continued detention is not justified.

5. [119]

   I certainly hold concerns that the defendant will continue to commit further serious offences if released on bail. His criminal record has a number of convictions for breaching apprehended domestic violence orders and for driving while disqualified. They are both offences which tend to show that an offender will not comply with orders of the Court or requirements of conditional liberty.

6. [120]

   However, if the defendant is under an ISO or an ESO, that represents the closest form of supervision that is available. I am satisfied, in those circumstances, that a bail condition that requires the defendant to comply with the conditions of his ISO or an ESO will sufficiently mitigate the bail concern that I have. For those reasons I granted bail to the defendant at the hearing.

Conclusion

1. [121]

   I make the following orders: