State of New South Wales v Brooks (Preliminary)

1. [1]

   HIS HONOUR: By an amended summons filed in Court on 19 July 2023, the State of New South Wales (the plaintiff) commenced proceedings against the defendant, seeking an extended supervision order (ESO) for a period of 2 years, pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). The Act provides that a preliminary application must be heard and that if the Court is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, then the application must be dismissed: s 7(5).

2. [2]

   The preliminary hearing occurred before me on 19 July 2023. I have concluded that the matters alleged would justify an ESO, for the reasons explained below.

Background to the application

1. [3]

   The defendant is aged 32. He is serving the parole period of a sentence of imprisonment imposed for sexual offending, which will expire on 28 July 2023 (the index offending).

2. [4]

   The defendant’s childhood, insofar as it is canvassed in court reports, is to the following effect. His parents separated when he was aged about two. He was raised primarily by his mother and step-father, although he enjoyed a good relationship with other members of his family including his father, who he “idolised”. He has a younger sister and five half-siblings, consequent to post-separation relationships of each parent. He resided with his father for a year when he was about 11 years old.

3. [5]

   The defendant had significant behavioural issues in his adolescence. By the time he was aged 15, he had developed an addiction to pornography. He was constantly in trouble at school for fighting, as a result of being bullied for being overweight. In a risk assessment report that was tendered in support of this application, the author, Dr Richard Parker, wrote:

4. [6]

   The defendant completed his schooling in year 12 and then completed three years of a building cadetship during which he had employment in that industry. He then embarked on a Technical and Further Education (TAFE) apprenticeship as a butcher, during which he was employed as a butcher.

5. [7]

   The defendant’s first criminal offence was an assault with an act of indecency, committed in 2009, a week after his nineteenth birthday. The police facts are to the effect that he approached a woman at night from behind while she was exiting through a ticket gate at Central Railway Station, reached under her dress and tried to touch her genitalia. The attack caused the woman to fall backwards. The defendant ran off and was arrested shortly afterwards. He was heavily intoxicated and unfit to be interviewed. He was convicted and received a bond to be of good behaviour for a period of 12 months (the Central railway station offence).

6. [8]

   The defendant’s second criminal offence was also an assault with an act of indecency, committed in July 2011, when he was aged 20. According to the police facts, he approached a 26 year old woman at night who had alighted from a train at Macarthur and was walking to her car in a nearby car park. He ran after her and grabbed her from behind, wrapping his right arm around her body and pinning her right arm by her side, bent her forward and put his left hand under her skirt and attempted to grab her on her vagina. The victim was wearing pantyhose, so the attempt was unsuccessful. The woman screamed at him to get off her, and he ran off. The defendant was arrested about four weeks later. He initially denied the offence, but after a discussion with his mother and stepfather, admitted the offence to police, but declined to be interviewed (the Macarthur offence).

7. [9]

   A report prepared at the time by Justice Health noted the defendant denied any interest in fetishes, fantasies related to paedophilia or sadism or exhibitionism. The author of the report stated: “[The defendant] said that he was concerned about both his behaviour and thinking regarding sex and wanted to seek professional help to assist him”. The defendant’s parents told the author that they were prepared to help the defendant obtain appropriate assistance. The author concluded:

8. [10]

   A pre-sentence report, prepared by a psychologist with Corrective Services NSW, noted that at the time of the defendant’s first offence he was intoxicated and not aggressive, whereas “the current offence demonstrates some escalation in his offending, in this regard, as he was not intoxicated and he was more aggressive”. The psychologist administered the STATIC-99R assessment tool which yielded a score that placed the defendant in the “medium-high” risk category relative to other male sex offenders of sexual recidivism. The psychologist concluded that he had a moderate risk level of sexual recidivism.

9. [11]

   A pre-sentence report by the Probation and Parole Service noted:

10. [12]

    On 26 October 2011, the defendant was convicted and received a bond to be of good behaviour for a period of 2 years, conditional upon him accepting the supervision and guidance of the Probation and Parole Service and complying with their reasonable directions.

11. [13]

    On 19 November 2011, that is, four months after his second offence and a fortnight after he was sentenced for it, the defendant again committed a like offence against a woman who was attacked after exiting Caringbah railway station, shortly after midnight (the Caringbah offence). As she walked along President Avenue, the victim realised that she was being followed. The agreed facts state as follows:

12. [14]

    The defendant was not identified as the perpetrator of this offence (the Caringbah offence) until 2014, when a DNA match was made with a stain in the crotch area of the victim’s pants.

13. [15]

    In November 2012, the defendant ceased reporting to the Probation and Parole Service or making contact with it, thus breaching the two-year good behaviour bond that was imposed for the Macarthur offence. In a breach report, dated 2 January 2013, the author stated:

14. [16]

    The author concluded that, in view of the defendant’s participation in therapy “for an extended period as directed”, ongoing supervision “would appear superfluous”. Accordingly, she recommended the deletion of the supervision component of the good behaviour bond.

15. [17]

    On 2 June 2013, the defendant committed the offences of driving with a mid-range PCA and taking and driving a conveyance without the consent of the owner. A pre-sentence report, prepared by a Community Corrections officer, noted that the defendant had completed a traffic offender program and appeared to demonstrate insight into the seriousness of his offending. On 11 September 2013, on the first offence, he received a suspended sentence of imprisonment pursuant to (since repealed) s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for 5 months and a 5 month disqualification from driving, and on the second, a suspended sentence pursuant to s 12 of 6 months’ imprisonment, with a good behaviour bond for that period.

16. [18]

    On 28 December 2013, the defendant was arrested and charged with a sexual assault committed on the same date (the index offence). The complainant was a 23 year old woman who was attacked at night while walking along Cleveland Street Surry Hills, near Prince Alfred Park. The defendant was arraigned on a count of recklessly inflicting actual bodily harm with the intention of having sexual intercourse, and, in the alternative, detaining the victim without her consent with the intention of committing a serious indictable offence, namely, indecent assault and at that time, occasioning actual bodily harm. He entered a plea of guilty to the alternative count, which was not accepted by the Crown as a full discharge of the indictment. The trial proceeded in respect to the first count, for which he was convicted.

17. [19]

    Agreed facts on sentence as to the nature of the offence were to the effect that the defendant approached and grabbed the victim from behind, placed a hand over her mouth and pushed her into bushes in the park and onto her back:

18. [20]

    According to the agreed facts, two men and a woman who were walking nearby heard the complainant scream. As they approached, the defendant got off the complainant and ran towards Central railway station. The two men followed him until they saw police stop him. He was taken to a nearby police station. The agreed facts state: “After having a time out due to [the defendant’s] intoxication [the defendant] declined to participate in an ERISP”.

19. [21]

    On 12 March 2014, following his arrest and while awaiting the resolution of those criminal proceedings, the defendant was arrested and charged with the indecent assault that was committed at Caringbah on 19 November 2011, to which he entered a plea of guilty.

20. [22]

    On 5 June 2015, the defendant was sentenced by Huggett DCJ for the index offence and the Caringbah offence, as well as for the breach which that offence occasioned of the bond imposed for the second indecency offence. The two bonds that he received for the driving offences were called up, since they were breached by the commission of the index offence.

21. [23]

    The defendant tendered a forensic psychologist’s report in the sentence proceedings, prepared by Raymond Hudd, dated 28 February 2015. Mr Hudd stated that he had seen the defendant on 13 occasions between 20 August 2012 and 20 May 2013, on which date the defendant terminated the arrangement “by telling me that he felt fine and did not need further counselling”. Mr Hudd’s diagnosis of the defendant’s mental conditions and proposals for treatment were as follows:

22. [24]

    In an addendum to his report, dated 21 May 2015, Mr Hudd stated:

23. [25]

    The defendant was sentenced by Huggett DCJ for the index offence to imprisonment for 8 years and 6 months commencing on 29 January 2015 and concluding on 28 July 2023, with a non-parole period of 5 years, which expired on 28 January 2020.

24. [26]

    For the Caringbah offence, the defendant received a sentence of 3 years and 4 months imprisonment, commencing on 29 July 2014 and concluding on 28 November 2017, with a non-parole period of 2 years, concluding on 28 July 2016. His release was to be subject to supervision, with a detailed recommendation for therapy whilst he was in custody and on his release in the community.

25. [27]

    For the breach of the bond imposed for the defendant’s second indecent assault, Huggett DCJ imposed a sentence of imprisonment for 1 year and 3 months, to commence on 29 January 2014 and conclude on 28 April 2015. The two s 12 bonds for the driving offences were revoked and her Honour imposed sentences of imprisonment of 6 months and 5 months respectively, to be served concurrently from 29 December 2013.

26. [28]

    The overall effective sentence of imprisonment that was imposed by Huggett DCJ was for a period of 9 years and 7 months, commencing on 29 December 2013 and expiring on 28 July 2023, with a non-parole period of 6 years and 1 month, which expired on 28 January 2020.

27. [29]

    Huggett DCJ found that, while in isolation the Macarthur offence, the Caringbah offence and the index offence might appear “impulsive, spontaneous and unplanned”, their context established that they were “deliberate and purposive”. While the jury’s verdict for the index offence established that the defendant intended to engage in sexual intercourse with the victim, it was not possible to conclude what form that was intended to take.

28. [30]

    The defendant did not give evidence in the sentence hearing. In her remarks on sentence, Huggett DCJ reviewed Mr Hudd’s reports and evidence given by the defendant’s sister and mother, which included an elaboration of the difficulties in the defendant’s relationships with his parents, fellow school students and his suicide attempt. The defendant’s mother stated that he changed schools in year 10 in response to the bullying and that he had an excellent work ethic in his post-school years.

29. [31]

    Her Honour concluded that the defendant “has not been rehabilitated to date” and gave little weight to his stated intention to resume counselling with Mr Hudd upon his release, since he had ceased counselling in May 2013, stating he no longer needed that assistance. His prior offending warranted greater emphasis on personal deterrence and retribution.

30. [32]

    Huggett DCJ found that the only evidence of remorse was evidence of his mother and sister that in their communications he had expressed contrition for his offending. Her Honour concluded that he was not genuinely contrite. As to his prospects of rehabilitation, Huggett DCJ stated:

31. [33]

    Huggett DCJ found that the defendant’s youth and immaturity at the time of the offences were facts favourable to his prospects of rehabilitation. Her Honour noted that the defendant had sought protective custody for fear of being assaulted and stated that she took into account that his mental disorders and condition would make the experience of prison more difficult for him. Her Honour found that these factors warranted a finding of special circumstances, so that the statutory ratio of the non-parole period to the total sentence would be varied. Her Honour recommended that, while in custody, the defendant be placed in the care of a psychiatrist and/or a psychologist with Justice Health, that he be included in a program suitable for his offending behaviour and that he participate in alcohol and drug courses. Further, that upon his release on parole, he be subject to:

32. [34]

    The defendant was refused parole by the State Parole Authority (the SPA) on 28 November 2019. In its report dated 17 December 2019, the SPA explained that its decision was due to the defendant’s unsatisfactory progress in the prison system. Although his classification was C2 (minimum security), he had incurred a number of internal misconducts, predominantly drug-related, but also for assaults and failing to comply with the correctional centre routine. He was unwilling to discuss his offending behaviour with Community Corrections. The SPA continued:

33. [35]

    On 3 December 2020, the SPA again refused the defendant parole. In its reasons, dated 15 December 2020, the SPA explained that although the defendant had made some progress, including commencement of the HISOP program in June 2020, he was removed from it due to “association issues” and it was not known when he would be permitted to re-join the program. The SPA stated:

34. [36]

    A report prepared by two psychologists attached to the HISOP program, dated 23 November 2020, provides some background to the suspension. The essence of the circumstances was that an inmate who was to commence treatment in the HISOP residential unit was known to the defendant, who was the subject of an expired non-association alert against the inmate. When made aware of this development, the defendant stated that he would “need to do something” to the inmate if he came into contact with him and indicated that violence would be used. He maintained that intention when reminded that his threats may jeopardise his treatment plans; he said that he had no choice. Consequently, a decision was made to not house the defendant and inmate together and for the defendant to be suspended from the program.

35. [37]

    A behavioural management plan dated 22 February 2021, that was prepared by Community Corrections psychologists, noted that the defendant’s suspension from the program ceased when he notified staff that he now could manage interactions with the other inmate without the risk of harming him. The defendant returned to the residential unit attached to the program on 11 December 2020. He received a warning for speaking to another inmate in an adjacent wing on the day of his return to the unit. During a random search on 15 December 2020, pornographic material was found in his cell, for which he was suspended a second time. He returned to the unit on 3 February 2021 and was found with property that was not on his registered property list, that was removed from him. The document continued:

36. [38]

    In a pre-release report dated 21 June 2021, a senior Community Corrections Officer, Leah Shannon, noted that the defendant had been received back into the HISOP program in February 2021 and was expected to complete it on 9 July 2021. Ms Shannon noted that the defendant’s family, who she described as “pro-social”, were supportive of him and proposed that he would be employed in the family business. They would financially assist him to engage with an independent forensic psychologist in the community. Ms Shannon noted:

37. [39]

    Ms Shannon noted reservations of a similar nature that were held by the HISOP treating psychologist:

38. [40]

    Ms Shannon recommended that the matter be stood over for a period of four weeks, by when the defendant would have completed the program, and that in due course he be released to parole “to enable ongoing treatment with [FPS]”.

39. [41]

    In a supplementary report dated 28 July 2021, Ms Shannon noted that the defendant had completed the HISOP program but with no improvement in his attitude or insight. She noted that he had also completed the EQUIPS program and concluded:

40. [42]

    Following the defendant’s completion of the HISOP program, a treatment report, dated 16 November 2021, was prepared by Andrew Fordyce, a psychologist who worked with the Department of Communities and Justice sex offender programs. He assessed the defendant’s participation in the program:

41. [43]

    The report noted that the defendant’s participation deteriorated towards the end of the program:

42. [44]

    Mr Fordyce appeared dismissive of Mr Hudd’s diagnoses of the defendant made in 2015:

43. [45]

    The report assessed the defendant’s level of risk of sexual re-offending which, taking into account static and dynamic risk factors (the Static-99R and STABLE-2017 assessment tests), was “well above average”. The report noted:

44. [46]

    Following the defendant’s release to parole on 26 August 2021, he obtained employment in his family’s business. His conditions of parole include electronic monitoring of his movements by way of an electronic bracelet.

45. [47]

    A case plan summary dated 29 March 2022 noted continuing resistance by the defendant to supervision and a poor level of engagement in therapy:

46. [48]

    The defendant’s attitude shifted upon being informed of the possibility of an application for an ESO, in July 2022:

The risk assessment report

1. [49]

   A risk assessment report, dated 2 December 2022, was prepared by Dr Richard Parker, a senior psychologist in the risk management program of Corrective Services NSW. Dr Parker interviewed the defendant on 23 November 2022, finding him to be “open and co-operative”.

2. [50]

   Dr Parker reviewed the material held by Corrective Services NSW in respect of the defendant, his criminal history and the material required by s 25 of the Act. Dr Parker noted the defendant’s only relationship, which was non-sexual, when he was aged 15 and questioned him as to whether he desired a relationship. The defendant responded that, so long as he was obliged to wear an electronic bracelet for the purposes of electronic monitoring, he did not consider a relationship worth pursuing.

3. [51]

   Dr Parker noted that there is no evidence that the defendant has used drugs or alcohol since his release to parole. He considered that the defendant was “at least in the average range for intelligence”. Dr Parker interpreted the passage from the HISOP treatment report concerning Mr Hudd’s diagnoses, extracted above at [44], as being a rejection of them:

4. [52]

   Although Dr Parker declined to make his own diagnosis of the defendant, he rejected the diagnosis of borderline personality disorder on the basis that the defendant had exhibited a lack of interest in personal relationships, whereas “people with BPD tend to oscillate between extreme attachment to a person, followed by rejection of that person”. However, Dr Parker considered that the defendant’s relatively distant relationship with his family, despite living in the same house with them, was consistent with his diagnosis of ASD. He continued:

5. [53]

   Dr Parker concluded that although a clear diagnosis was not possible, it was likely that BPD or psychopathy were not good descriptors of the defendant. However, Dr Parker was of the opinion that the criteria for Asperger’s syndrome was apt and determined to approach the defendant’s case formulation through that “lens”.

6. [54]

   Dr Parker noted that the defendant has engaged in maintenance sessions in the community with FPS, “although his engagement is probably best described as guarded”. He noted the improvement in the defendant’s attitude to therapy following him being made aware of the possibility of the application for an ESO.

7. [55]

   As to the defendant’s current level of risk of reoffending, Dr Parker noted that in September 2022 the defendant was assessed with the Level of Service Inventory-Revised (LSI-R) to have a “low/medium” level of general reoffending, meaning that 35 per cent of offenders with that assessment reoffend and are returned to custody within two years. In September 2016, the defendant was assessed with the Static-99R as to his level of risk of sexual reoffending. He came within the highest risk category, meaning that he was “virtually certain” to reoffend. Dr Parker noted: “I have reviewed this and agree with the scoring”. The defendant was assessed for stable dynamic risk factors with the Stable-2007 assessment tool in 2021. Dr Parker said:

8. [56]

   Dr Parker combined the Stable-2007 and Static-99R scores to obtain an overall risk level of “well above average”.

9. [57]

   Dr Parker applied the Violence Risk Appraisal Guide-Revised (VRAG-R) to the defendant in November 2022. It assesses an offender’s risk of sexual and non-sexual violence. It yielded a score that placed him in the eighth of nine “bins” in escalating seriousness of risk. Dr Parker noted that 58 per cent of violent offenders with a similar score reoffended violently within five years, and 78 per cent within 12 years.

10. [58]

    Dr Parker observed:

11. [59]

    Dr Parker reviewed the material that shed some light on the defendant’s level of sexual preoccupation since the offences, and concluded:

12. [60]

    Dr Parker explained the nature of the defendant’s cognitions in the context of an examination of his attitudes and behaviours, concluding that he had “an impaired theory of mind” that could be understood in the context of the defendant having Asperger’s syndrome. The defendant’s indifference to his victims when engaging in what he (the defendant) understood as “thrill-seeking” fitted within this analysis:

13. [61]

    Dr Parker considered likely risk scenarios. So long as the defendant maintained his current stable lifestyle and abstinence from drug and alcohol use, he was unlikely to reoffend. An attempt at a relationship might lead to violence, but falling short of the definition of a “serious offence” in the Act. He considered that a more likely scenario was that if rejected in an attempt to develop a relationship, he could attack either the woman who rebuffed him or a stranger. Such an offence, motivated by anger, could rise to the level of a “serious offence”.

The relevant statutory provisions and principles

1. [62]

   Section 7(4) of the Act provides that if, following the preliminary hearing, the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, it must make orders of the type sought by the plaintiff for the appointment of forensic experts. If the Court is not so satisfied, it must dismiss the application: s 7(5) of the Act.

2. [63]

   Accordingly, although this is a preliminary hearing, it is necessary to evaluate the sufficiency of the supporting material to justify the making of an ESO, pursuant to the relevant statutory test. Section 5B of the Act stipulates four prerequisites for the making of an ESO. Subsections 5B(a), (b) and (c) concern aspects of the defendant’s status as an inmate or supervised offender in the community. Those subsections are not contested and I am independently satisfied that they have been met.

3. [64]

   The key provision for consideration is s 5B(d), namely, whether the Court:

4. [65]

   The term “serious offence” is defined in s 4 of the Act to mean either a serious violence offence or (of particular relevance to this application) a serious sex offence. That term is defined in s 5(1) to include an assault with intent to have sexual intercourse (s 61K of the Crimes Act 1900 (NSW)).

5. [66]

   Pursuant to s 5D, the Court is not required to determine that the risk of an offender committing a serious offence is “more likely than not” in order to determine that there is an “unacceptable risk” of the person committing such an offence.

6. [67]

   Section 9(3) of the Act stipulates the matters that the Court must have regard to in determining whether to make an ESO. The effect of s 7(4) is that on an application for an interim supervision order (ISO), these matters are also relevant, and in the course of this judgment, I have taken them into account.

7. [68]

   Section 9(2) of the Act provides that, in determining whether to make an ESO, “the safety of the community must be the paramount consideration of the Supreme Court”, consistently with the stated primary object of the Act, which is “the safety and protection of the community”: s 3(1). A secondary object of the Act is to encourage offenders who come within the Act to undertake rehabilitation: s 3(2).

8. [69]

   In making its determination at a preliminary hearing, the Court does not weigh the supporting documentation or predict the result at the final hearing: see Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98], in relation to comparable provisions in an earlier version of the Act.

Submissions of the parties

1. [70]

   The parties’ submissions, succinctly stated, are as follows. The plaintiff noted that the defendant has repeatedly disparaged his therapists, including Mr Hudd and those involved in the HISOP. The defendant’s stated preference for privately engaging in therapy with a psychologist of his choosing is therefore of doubtful reliability. In any event, as noted by Mr Hudd, the defendant suspended counselling prior to committing the index offence, stating that he believed he did not need it.

2. [71]

   Although the defendant is presently largely compliant with supervision, he was not compliant in 2012 and 2013 with community supervision and committed multiple disciplinary offences whilst in custody.

3. [72]

   The plaintiff noted the sentencing judge’s finding of an absence of genuine contrition or remorse for the offences for which he was being sentenced and the need for prolonged supervision in the community when released from custody. Although the defendant has not reoffended whilst on parole, it was submitted that the seriousness and pattern of his offending warrants continued supervision pursuant to the Act.

4. [73]

   The defendant noted that Dr Parker’s risk management report did not provide a current profile of the defendant’s level of risk of serious reoffending, since it had been prepared eight months prior to the hearing. In the 23 months since he had returned to the community, he had not committed an offence or engaged in behaviour that suggested he was at risk of doing so; in particular, there was no evidence that he had resumed the use of drugs or alcohol or accessed pornography. He had a stable and supportive lifestyle, residing and working with his family.

5. [74]

   Accordingly, the defendant submitted, the application should be refused, with an order for costs.

Consideration

1. [75]

   At first blush, the defendant’s submissions are persuasive. Prison disciplinary offences aside, the defendant has not reoffended since his commission of the index offence almost ten years ago, a period that includes an unblemished 23-month parole record. I am mindful that the Act’s objective is not to constrain the freedom of an offender who poses any level of threat of reoffending; the test at a preliminary hearing, absent the formal prerequisites, is whether the matters alleged in the supporting documentation would, if proved, establish satisfaction to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence, if not kept under supervision.

2. [76]

   The public nature of the location of the Central Railway station offence is suggestive of the defendant’s offending intention not extending beyond the act of indecency. However, the circumstances of the Caringbah and Macarthur offences leave a degree of uncertainty as to what, if anything, would have transpired if the victims had not screamed, prompting him to run away. Each offence after the first was more physically aggressive than the one before it, culminating in the index offence which established an intention by the defendant to have sexual intercourse with the victim, had the bystanders not intervened. It is also noteworthy that on that occasion he was not deterred by the victim screaming, instead applying pressure to her throat as he prepared to attempt sexual intercourse with her.

3. [77]

   It is particularly concerning that the Caringbah offence was committed a fortnight into the two year good behaviour bond he received for the Macarthur offence, suggesting that there had been no deterrent impact at all by the sentence.

4. [78]

   The defendant has consistently provided a simple explanation of his offending behaviour as “thrill-seeking”, failing to understand the importance of exploring his motivation beyond this rather superficial response by fully engaging in therapy. His pre-HISOP recorded attitudes towards women are disturbing in their apparent acceptance of aggression, particularly when coupled with his limited capacity for empathy.

5. [79]

   Although the defendant’s pro-social living and working situation is conducive to him not seriously reoffending, there is no assurance that those arrangements would continue without the imperative of continued supervision. The supporting material suggests that there remains a need for the defendant to engage fully in therapy to deal with his underlying criminogenic motivations to commit serious sexual offences against women; although he has not offended for almost ten years, that core motivation potentially remains dormant and untreated. In this sense, the results of the individual risk assessments over recent years are, to my mind, more readily understood. Although the defendant’s overall risk has been described as “well above average”, the scores for the individual assessments, as reported by Dr Parker, and the interpretation of those scores in terms of the likelihood of reoffending in the near future, are indicative in my view of a relatively high level of risk of sexual and other forms of reoffending.

6. [80]

   I conclude that the supporting material before this Court, if proved, would justify an ESO.

7. [81]

   I note that at the final hearing the Court will have the benefit of updated risk assessments and, ideally, conclusive diagnoses of the defendant’s present mental and psychiatric condition. There is little before this Court in that regard beyond Mr Hudd’s comprehensive diagnoses in 2015, which have been comprehensively rejected by Mr Fordyce and questioned by Dr Parker.

Conditions of an ISO

1. [82]

   The defendant opposes a condition (proposed condition 4) that would oblige him to not engage in threatening, intimidating or abusive behaviour towards CSNSW staff, submitting that such concerns are adequately met by the provisions of s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). I am inclined to retain that provision, in view of his past resistance to supervision and occasional hostility towards some individuals within CSNSW.

2. [83]

   The defendant opposes scheduling of his movements and electronic monitoring (proposed conditions 5 to 8). So long as his current living and employment situation remains the same, which is likely to be the case for the duration of the ISO (particularly in light of condition 9, that obliges him to reside at a DSO-approved address), it is unnecessary in my view for conditions to these effects to be incorporated in his ISO. Similarly, in my view, proposed condition 17, which obliges the defendant to participate in interventions recommended by the Departmental Supervising Officer (DSO), is an unnecessary inclusion in the ISO except insofar as it mandates his participation in recommended “personal development programs”.

3. [84]

   The defendant opposes a condition (proposed condition 18) that would require him to not commence a position of employment, volunteer work or an educational course without prior approval of his Departmental Supervising Officer (DSO). The plaintiff has proposed an alternative wording, which I find to be appropriate, that would oblige him to provide such notice either beforehand or as soon as practicably possible afterwards.

4. [85]

   I have made certain other changes to the proposed conditions which align with the defendant’s relatively reduced level of risk, so long as his present family-based lifestyle is maintained.

Orders

1. [86]

   I make the following orders: