State of New South Wales v Bruce Leslie Brown

1. [1]

   HIS HONOUR: The State of New South Wales (hereinafter “the State”), by Summons filed 20 September 2024, sought a further Extended Supervision Order (hereinafter “ESO”) pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (hereinafter “the Act”). The defendant was previously under an ESO imposed on 26 February 2021, which expired on 20 January 2025.

2. [2]

   On 20 December 2024, the Court, as presently constituted, issued orders, effective from 15 January 2025, binding the defendant to an Interim Supervision Order (hereinafter “ISO”) for 28 days. The ISO was extended by Yehia J on 11 February 2025 and 10 March 2025 and again by me on 11 April 2025.

3. [3]

   As is well known, the Act requires certain procedural pre-conditions to the making of an ESO. Those technical or procedural conditions are uncontested. In the course of the reasons for judgment granting the ISO, [1] the Court was required to be satisfied of its own jurisdiction, including the procedural requirements necessary for the issuing of an ESO, before an ISO could issue.

4. [4]

   The procedural requirements require that the application for an ESO must be filed within the last nine months of the defendant’s supervision or custody, must be supported by documents that address certain prescribed matters, and must include a report by a psychiatrist or psychologist assessing the likelihood of the commission of a further serious offence. [2]

5. [5]

   There are further requirements for the service of the application and the like. Each of those issues has been satisfied and was the subject of a finding at the making of the ISO. I reiterate those findings.

6. [6]

   The original ESO was issued by Cavanagh J on 26 February 2021. At that time, the Court was required to be satisfied that at the time of the application for the ESO, the defendant was serving a sentence of imprisonment described in s 5(2)(a) of the Act.

7. [7]

   At this time, it is only necessary for the Court to be satisfied that the defendant is under an existing ISO or an ESO at the time of the application. [3] Such a circumstance renders the defendant a “supervised offender” as defined in the Act.

8. [8]

   The Court is also required to be satisfied that the defendant has served a sentence of imprisonment for a serious offence (whether in full time custody or in supervision in the community) and, otherwise, that there is a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order that is proposed. [4]

9. [9]

   A serious sex offence is defined in the Act and includes a range of offences including an offence against an adult or child that carries a maximum penalty of seven years or more or, in the case of an offence against an adult, is committed in circumstances of aggravation or otherwise is an offence against a number of prescribed sections of the Crimes Act 1900 (NSW), the Crimes Act 1914 (Cth), the Criminal Code Act 1995 (Cth) or an offence committed outside of New South Wales but which, if committed in New South Wales, would be a serious sex offence. [5]

10. [10]

    The application for the first ESO, which was filed on 11 November 2020, occurred at a time when the defendant was imprisoned for the offence of inflicting actual bodily harm with intent to have sexual intercourse. This is an offence under s 61K(a) of the Crimes Act. He was also imprisoned for failing to comply with reporting obligations contrary to the Child Protection (Offenders Registration) Act 2000 (NSW). The offence under s 61K of the Crimes Act is a prescribed offence for the purpose of the definition of serious sex offences in the Act. [6]

11. [11]

    Offences governed by the Act are serious sex offences and serious violence offences. A serious sex offence is a “serious offence”. [7] As a consequence, I have dealt, with one exception, with the provisions of s 5B(a), (b) and (c) and each has been satisfied. The exception is the requirement, prescribed by s 6 of the Act, that an application must include at least one report prepared by a qualified psychiatrist or psychologist assessing the likelihood of the offender committing a serious offence.

12. [12]

    Such a report was prepared for the purposes of the ISO and, therefore, the application for the ISO satisfied the terms of s 6 of the Act. Since the ISO and the making of ancillary orders, further reports have been filed with the Court, being expert reports of Dr Jeremy O’Dea, forensic psychiatrist, and Dr Sally McSwiggan, consultant neuropsychologist.

13. [13]

    Thus, the only remaining matters with which the Court is required to deal are whether the defendant poses an unacceptable risk of committing another serious offence and whether the Court is satisfied of the unacceptable risk to a high degree of probability.

14. [14]

    To be satisfied of the unacceptability of the risk of committing another serious offence to a high degree of probability does not require the Court to determine that the risk of the defendant committing another serious offence is more likely than not to manifest. The assessment of the unacceptability of the risk posed by the defendant requires the evaluation of the risk, bearing in mind on the one hand, the existence of a real possibility or a likelihood that a serious offence would be committed in the absence of an ESO and, on the other hand, the effect of the commission of such an offence if the risk of offending were to manifest.

15. [15]

    An obvious and extreme example would be if there were a likelihood, which was not ephemeral or unreal, of a person operating an explosive device to murder all or most of the persons at a sporting venue. Even if the Court determined that the risk of such an offence being carried out was not more probable than not, the consequences of the offence would be such that any real possibility or likelihood of the offence being committed would render the defendant an unacceptable risk. The manifestation of that risk of offending, however slight but still real, is such that the overall risk posed by the defendant would be unacceptable.

Unacceptable risk

1. [16]

   The defendant’s conduct and criminal history is relevant to the existence of a real possibility or likelihood that a serious offence will be committed if the defendant is not subject to an ESO.

2. [17]

   As previously stated, the Court has been provided with the expert reports of Dr McSwiggan and Dr O’Dea. The Court has also been provided with Risk Assessment Reports conducted in 2020 and 2024, a Risk Management Report dated 16 April 2024, and Expert Reports of Dr Furst and Dr Lennings, both dated 22 January 2021.

3. [18]

   The State relies on the Affidavit of Elisabeth Krstanovski of the Crown Solicitor’s Office, which annexes Selected Offender Integrated Management (OIMS) case notes, which recite the circumstances of certain conduct on 16, 20 and 21 January 2025. There is also an Affidavit of Erica Mulligan, an employee of Corrective Services NSW and the manager of the Metropolitan Extended Supervision Order Team. All of the material provided to the Court has been read and considered.

4. [19]

   The defendant has a significant history of sexual offending against women and children, including the following offences:

5. [20]

   The index offence upon which the State relied for the initial ISO and in this application was the infliction of actual bodily harm with intent to have sexual intercourse contrary to s 61K(a) of the Crimes Act. A further offence was noted on a Form 1, being a failure to comply with the reporting obligations under s 17 of the Child Protection (Offenders Registration) Act 2000 (NSW).

6. [21]

   The victim was a 53-year-old woman whom the defendant had met on the internet, and for whom the defendant impulsively moved to Bega to pursue a relationship. Before committing the index offence, the defendant had attempted to kiss the victim and had requested sex on a number of occasions. The victim expressed a lack of interest in any relationship.

7. [22]

   The index offence occurred in the early hours of the morning of 14 November 2015. The defendant left a hotel and saw the victim. He attempted to kiss her she said, “this has got to stop, I’m going home”. As she commenced walking home, the defendant knocked her over and pinned her to the ground with the intent of having sexual intercourse with her. She screamed, “get off me”, and the defendant said, “I know you want it, I know you want it”.

8. [23]

   The victim screamed for help and the defendant yelled at her to “shut up”. The defendant punched her in the eye. The defendant was able to remove the victim’s singlet partially and broke the shoulder strap of her bra to expose her right breast. The defendant began to suck her nipple. The victim attempted to push him off and screamed for help. The defendant was able to pull the victim’s shorts down and touched her vagina with the intention of engaging in digital penetration. The completion of the offence was interrupted when two witnesses intervened. The defendant admitted an intention to have sexual intercourse with the victim. But for the intervention, the offence would have been more serious.

9. [24]

   On 9 May 2016, the defendant was sentenced to an aggregate sentence of five years imprisonment, with a non-parole period of three years and nine months. This sentence expired on 16 January 2021 and the defendant was released to parole on 16 October 2020.

10. [25]

    The current ESO commenced on 26 February 2021. An ISO existed before that date.

11. [26]

    Since the commencement of the ESO, the defendant has been convicted of breaches of the ESO in addition to an offence related to tampering with his electronic monitoring equipment, which of itself, was a breach of the then existing ESO. The offences relating to his current ESO include the following:

12. [27]

    The 2024 Risk Assessment Report prepared by Ms Wright assessed the defendant’s risk as in the Well Above Average category for sexual offending, relative to other adult male sexual offenders, with a number of plausible risk scenarios for potential sexual re-offending. [8] This is, unsurprisingly, a similar assessment as was contained in the 2020 Risk Assessment Report and to which the reports of Dr Furst and Dr Lennings refer. [9] The 2024 report extracts the Treatment Report from 2020 which states:

13. [28]

    The above assessment recites that the defendant is likely to access pornography, including child pornography, in the circumstances described and may attempt to develop relationships with children, who are likely to be female, and with whom he can spend time alone. Alternatively, the report notes that he could become fixated on adult females in his life and would sexualise interactions and relationships. If the defendant were to perceive that he does not have the capacity to “access victims through pre-existing relationships he may offend against random females”.

14. [29]

    On 11 March 2025, Dr O’Dea prepared the report which is now before the Court. After reciting and describing the offences to which reference has been made already, Dr O’Dea referred to some other offending which is not highly relevant together with the 2024 Risk Assessment Report and risk assessments performed whilst in custody. The risk assessments that were performed in custody (and some that were performed in the community) included static assessments. There are well-known imperfections in static assessments because they relate to past conduct and past offending. Nevertheless, Dr O’Dea refers to the defendant’s assessment as being “Well Above Average”. The category of “Well Above Average” is the highest category available.

15. [30]

    There was also reference to dynamic risk factors and Dr O’Dea noted the assessment by Ms Wright that combining static and dynamic risk factors placed the defendant in the Well Above Average risk level. Dr O’Dea also noted that the testing under RSVP-V2 (Risk for Sexual Violence Protocol-Version 2, 2022) resulted in the defendant falling in the “Elevated Risk Category” for repeated sexual violence.

16. [31]

    The main risk factors identified were the nature of the sexual violence (chronicity, diversity, physical coercion, psychological coercion and escalation), problems with self-awareness, problems with stress or coping, problems resulting from child abuse, sexual deviance, major mental disorder (intellectual disability), problems with intimate and non-intimate relationships, and problems with supervision. Dr O’Dea also noted the programs that were conducted in custody and the progress or otherwise on the defendant’s ESO from October 2020.

17. [32]

    The report noted that the defendant, at interview, conveyed limited insight in relation to his sexual offending behaviours and conveyed “limited remorse, contrition, empathy and/or insight regarding his offending behaviour”. [10]

18. [33]

    Dr O’Dea did not diagnose the defendant as suffering from a major psychiatric illness. Nevertheless, he noted his history and presentation with a lifelong mild intellectual disability and his history of Alcohol Use Disorder, currently in remission.

19. [34]

    Dr O’Dea diagnosed the defendant as suffering from a Paraphilic Disorder. This was based upon Dr O’Dea’s clinical experience and the defendant’s history of frequent masturbation; internet pornography use, including internet child pornography use; and his criminal history of repeated sex offending against post-pubescent female children and adult females; and ongoing focus on sexual activity.

20. [35]

    At [91], and following, of his report, Dr O’Dea states:

21. [36]

    Relying upon his experience as a forensic psychiatrist, Dr O’Dea remarked that even though the defendant had engaged in psychological interventions for his sex offending and general paraphilic behaviours, such interventions alone have not been shown to be effective in reducing recidivism in individuals with Paraphilic Disorders, in particular in individuals with additional Intellectual Disability.

22. [37]

    Dr O’Dea recommended testosterone lowering or anti-libidinal medication which is considered the most appropriate and effective therapeutic intervention in treating paraphilic disorders. However, the Court notes that no medical practitioner will prescribe anti-libidinal medication in the absence of consent to that prescription by the patient.

23. [38]

    Dr O’Dea dealt with risk issues and said:

24. [39]

    The report of Dr McSwiggan is to similar effect. Asked the specific question as to whether the defendant met the diagnostic criteria for a psychiatric or psychological condition, Dr McSwiggan answered affirmatively and said that the diagnostic condition or criteria that were met was for paedophilia (non-exclusive type), based on previous sexual offending involving strangers and known female minors.

25. [40]

    Dr McSwiggan also agreed with the initial diagnosis of Dr Furst, on a much earlier occasion, that the defendant met the criteria for Frotteuristic Disorder. Dr McSwiggan expressed agreement with the opinion expressed by Dr Furst that paraphilias tend to persist when driven by a sexual deviance towards a group (minors) and/or body part (breasts).

26. [41]

    Dr McSwiggan expressed the view that the defendant’s 20-year history of sexual offences had been:

27. [42]

    Asked whether the defendant still posed a risk of committing a further serious sexual offence, Dr McSwiggan answered in the affirmative and said:

28. [43]

    When asked to identify and explain the level of risk by factors specific to the defendant and how they fluctuate over time, Dr McSwiggan gave a response which should be extracted:

29. [44]

    The report of Dr McSwiggan identifies dynamic factors relevant to the defendant’s risk formulation. These included the history of deviant sexual preference, a history of impulsivity, minimal capacity for intimate and non-intimate relationship stability, sexual preoccupation, sex as coping, and lack of concern for others. While Dr McSwiggan did not herself conduct all of the assessments upon which she relied, these expert assessments rated the defendant as having a Moderate to High level of dynamic risk management needs. Dr McSwiggan expressed the opinion that the ESO provides a level of oversight consistent with his risk management needs at this time.

30. [45]

    The expert material that has been presented to the Court and the history of offending satisfies the Court that there is a real likelihood of further serious sexual offending by the defendant. As noted in the reports, the paraphilic disorders relevant to the defendant are persistent and not easily resolved. While the cross-examination of the experts was effective and covered all issues in contention, ultimately the expert opinions expressed views, leaving aside the issues associated with reference to judgments of the Court without explanation, which the experts were entitled to express and involved their clinical experience.

31. [46]

    I am satisfied on the material, as stated, that there is a real risk of the commission of a further serious sexual offence and I am satisfied that the commission of such an offence would endanger members of the community and individuals, most likely children or women of any age. While I accept, as was pointed out during cross-examination, that sexual hyperactivity is a relative term, it is an opinion expressed on the basis of the defendant’s overall conduct and profile, not just one factor. The analysis of these factors one by one does not pay sufficient regard to the cumulative effect and does not give sufficient weight to the expertise of the witnesses.

32. [47]

    On the material before the Court, the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk to members of the community and to the safety of the community in the absence of an order under the Act.

33. [48]

    I note and accept that the NDIS program to which the defendant is eligible and under which he obtains services, programming and some supervision, is an ameliorating factor in the assessment of risk. However, I also accept the view expressed by the experts, and independently I am of the view, that the degree of rigour and the availability of policing in relation to NDIS is insufficient to control the risk and to ameliorate it to a level that is not unacceptable.

34. [49]

    I shall deal with the issue of conditions last and, otherwise, need only deal with the duration of the order. While the experts have expressed a view as to the duration of the order, there seems little basis for the opinions expressed.

35. [50]

    The Court accepts that there would have to be at least twelve months of socially acceptable behaviour and non-offending before a re-assessment could be made. The Court also knows from its experience with the issuing of an ESO that it takes approximately six months to finalise the assessment.

36. [51]

    The State seeks a duration of three years for which there is some support. However, I bear in mind that the defendant’s situation seems to be improving and that the State has the capacity to reapply for an ESO, if that improvement does not continue or the assessment reveals the continuation of the kind of risk that would warrant an ESO. As a consequence, the appropriate duration for the order is two years and I will so order. Such a term allows for the 12 months of acceptable behaviour and the 6 months to re-assess and apply to the Court, if appropriate, while allowing a cushion of another 6 months for organisational and legal issues to be finalised.

37. [52]

    The Court’s conclusion as to unacceptable risk takes into account that the abuse of alcohol is a risk factor and the defendant is, on all accounts, currently not drinking alcohol. Nevertheless, I accept that alcohol remains a risk factor, in part as a result of the defendant’s lack of insight into his difficulties and the risk factors associated with it.

38. [53]

    I also accept and have considered that the defendant now has stable accommodation which obviates that circumstance as a risk factor that would otherwise be problematic. Even considering that reduction, the Court assesses the defendant as posing an unacceptable risk of committing another serious sex offence and is satisfied of that circumstance to a high degree of probability.

Conditions

1. [54]

   Much was made in the course of submissions and in evidence as to the Intellectual Disability which was described most fully by Dr McSwiggan. Dr McSwiggan expressed the view that the defendant would most closely meet the criteria for Social (Pragmatic) Communication Disorder, which is a lifelong developmental disability, closely aligned with Autism Spectrum Disorder, but without the repetitive/fixed/restricted interests or behaviours.

2. [55]

   In any event, Dr McSwiggan, who tested the defendant, described his level of disability as mild, in terms of his capacity to understand. Nevertheless, Dr McSwiggan accepted that the greater the complexity of grammar, the less likely the defendant would be able to understand a sentence.

3. [56]

   Much of the submissions on behalf of the defendant as to conditions relied upon his inability to understand. Dr McSwiggan reported that the defendant was able to understand the conditions that had been imposed upon him.

4. [57]

   However, I agree that, particularly with a person who has an intellectual disability, however mild, avoidance of difficult language is important. The State referred to the fact that it produced an Easy Reading Guide, to which the affidavit evidence attests, but if the Easy Reading Guide encompasses all the conditions, one may rhetorically ask why the conditions are not reflective of the Guide.

5. [58]

   Many defendants upon whom an ESO is imposed have cognitive or intellectual impairment or disabilities. There is a Court User Group which involves officers of the Court and the Group should be encouraged to craft a set of conditions that is more easily understood. In that respect I lean towards the submission of the defendant as to a more easily understood set of conditions.

6. [59]

   However, I bear in mind that a breach of the conditions is a criminal offence, and the Court needs to ensure, not only that the conditions are understood, but that they are expressed in a manner which does not lead to ambiguity. Unless otherwise expressed, the wording of the conditions proposed by the defendant is to be the wording of the condition. The foregoing comment applies to Conditions 1, 7, 8, 11, 12, 13, 14, 16, the chapeau to condition 17, 18, 20, 22, 25, 26, 31, 32, 42, 46, 47, 48 and 49.

7. [60]

   Some of these and other conditions proposed by the defendant are accepted with minor, but important amendments.

8. [61]

   In relation to Condition 3, I accept that the term “the nature of your associations” is unnecessarily complicated and, at least to some extent, ambiguous. The defendant submits that it has no other meaning not otherwise covered by (d) of the same Condition.

9. [62]

   Apart from what seems to be an incorrect reference to (c), it does not deal with the kinds of people or individuals with whom the defendant is associating. Thus, if the defendant were unaware of the names of members of a bikie gang, but met with the bikie gang, it would not be covered by Condition 3(c).

10. [63]

    Of course, the hypothetical “bikie gang” may be a perfectly innocent association, but that is true of all of the information required to be provided in Condition 3(c). It seems to me that sub condition (e) should read “where you are unaware of the names of people you have met, some other feature that would identify the kind of person you meet”.

11. [64]

    In relation to Condition 4, the proposed Condition by the defendant is overly simplistic. The defendant is not illiterate. Nor is his cognitive ability so limited that it is necessary to require him to “say ‘yes’”. Moreover, requirement to “say yes” may not be an agreement to provide the information.

12. [65]

    The words “say yes” will be deleted and, in lieu thereof, the word “agree” will be inserted. Further, without seeking to be pedantic, the word “offenses” will be spelt “offences”.

13. [66]

    In relation to Condition 7(3), the Court takes the view that the words “did not” should be used instead of the shortened form of the term. In Condition 8, the words “stick to” should be deleted and the word “follow” inserted in lieu of it.

14. [67]

    In Condition 9, the defendant’s proposed term will be adopted, other than the last word of the first sentence which will be deleted.

15. [68]

    In relation to Condition 10, there is a difference between “visiting” and “entering”. One may visit premises by attending on the front door. The Condition will read:

16. [69]

    In relation to Condition 17, I accept the defendant’s issue with the use of the word “activities”. However, Condition 17(h) is intended to have an effect. A new Condition (h) will be inserted instead of the current proposal, and it will be in the following terms:

17. [70]

    Paragraph (j), as is agreed, will consist only of the two words “internet cafes”.

18. [71]

    In relation to Condition 19, the Court does not accept that the effect of what is proposed and the appropriate conditions relevant to the defendant’s risk is met by a condition that the defendant must “try your best” to undertake certain activities. Otherwise, the condition proposed by the defendant is accepted.

19. [72]

    The last activity, “doing activities to help yourself grow”, will be a dot point following the dot points in the condition and the introductory words to the condition will now read: “you must join”.

20. [73]

    While I have great sympathy for the proposed wording of the defendant in relation to Condition 21, the last dot point alters the impact of the condition and the determinant of that which is reasonable. Arguably, at least, the defendant’s proposal, by including the last dot point, leaves to the defendant the determination of whether the requirement of the DSO is “reasonable”.

21. [74]

    Rather, whether the DSO is requesting something that is “on a reasonable basis suspected” is an objective assessment that, in certain circumstances, may mean that a breach of the condition would not be a criminal offence. It is not intended to allow the defendant to determine definitively and finally whether the request is reasonable. The last passage of the defendant’s proposal in relation to Condition 21 will now read:

22. [75]

    Condition 23 will be amended from that which is currently the condition and the condition imposed by the Court as presently constituted on 20 December 2024. It will be amended by adding to the end of the sentence the words “that are done in private and do not require needles”.

23. [76]

    The spelling of the word “license” in Condition 24 will be corrected and, in the last sentence after the word “serves”, the words “or sells” will be added. This is intended to cover a liquor sales point, which may sell but not serve alcohol.

24. [77]

    In relation to Condition 27, the defendant’s proposal will be accepted but the words “meet or” will be added before the word “spend” in the proposed condition.

25. [78]

    The submission of the defendant in relation to Condition 28 misreads the Condition. The words “without prior approval of a DSO” apply to all three subparagraphs (a), (b) and (c), the last of which ends at the word “custody”. Nevertheless, the reading of it will depend upon how it is set out in any particular document.

26. [79]

    In the schedule provided by the plaintiff, it would read in accordance with the submission of the defendant. The better manner of dealing with the issue is to amend the chapeau so that it would now read:

27. [80]

    Further, it is unclear what the word “(ever)” adds. If the person is not currently affected by illegal drugs, the fact that the person may at some time in the past have consumed illegal drugs, but is now drug free, does not seem to be particularly relevant to the risk associated with the defendant. Moreover, the use of term “(ever)” would, in those situations that would relevantly be appropriate, be covered by the term “has used”. Somewhat pedantically, the word “is” will be added before the word “affected”. The words “unless your DSO gives permission first” will be deleted from the first and third dot points.

28. [81]

    As to Condition 30, I agree that the condition is inappropriately broad. I do not agree that the proposed condition is appropriate as sought by the State “in terms identical to the Conditions in the ISO”, nor in the terms proposed by the defendant.

29. [82]

    The requirement on the DSO believing on reasonable grounds of the necessity to warn a person who is to be told of the criminal history of the defendant is, as relevant to an earlier Condition, an objective assessment as to whether the grounds upon which the DSO thinks it is appropriate, reasonable or necessary to warn the person are reasonable. Such is not a matter that needs the assessment of the defendant.

30. [83]

    Consequently, the words “if your DSO thinks on reasonable grounds that it is necessary to warn that person about the risk of a serious offence” will be deleted. Instead, a qualification will be made to the Condition:

31. [84]

    The word “They” will be replaced with “The DSO” in the first and second dot points.

32. [85]

    In relation to Condition 31, the term “become part of any group” will be a dot point following the other dot points.

33. [86]

    In relation to Condition 33, the Court accepts the substance of the submission of the defendant. Paragraph (i) will be amended to read “all passwords and log-in details to any of the above”.

34. [87]

    In relation to Condition 36, there is merit in both the submission of the State and in the submission of the defendant. The better means of achieving that which is sought by the State and not depriving the defendant of his rights to ordinary life is to split the approval process from the disclosure process. Condition 36 will now read:

35. [88]

    Condition 37 as proposed by the defendant suffers some of the problems already discussed. The words “say yes” may suffice if there is remote access because, as presently informed, there will be a button on the screen that requires the defendant to press “yes”.

36. [89]

    However, that is only one aspect of the issue. The chapeau to Condition 37 will read:

37. [90]

    The last sentence of Condition 37 will read:

38. [91]

    Further in relation to Condition 37, the last paragraph suggested by the defendant is unnecessary. While the condition is plainly appropriate for policing the requirements of the conditions otherwise imposed, that purpose does not inform the condition or request sought to be imposed and is unnecessary.

39. [92]

    As to the terms of Condition 38, I accept the thrust of the defendant’s submission. However, the chapeau to Condition 38 will read:

40. [93]

    The submission in relation to Condition 40 on vehicles in which the defendant is travelling misses the point. The DSO may ask the defendant to submit to a search of any vehicle in which he is travelling. If the vehicle does not belong to the defendant or is not in his control, the person who owns or controls the vehicle may object. But that does not impact upon the consent of the defendant. On the other hand, the person who owns or controls the vehicle may consent, in which case the consent of the defendant will be effective to allow the DSO or other authorised person to conduct the search.

41. [94]

    Further, the circumstance that the items seized or that may be seized may “seem” to the defendant to be related to his risk of serious sex offence does not deal with the issue in question. While the Court is otherwise content with the “plain English” proposed by the defendant, it requires two alterations. First, there should be inserted an additional dot point after the third dot point in the following terms:

42. [95]

    In relation to Condition 41, in line with the “plain English” conditions otherwise accepted, the Condition will now read:

43. [96]

    The defendant’s proposed Condition 42 misses one significant aspect. There should be inserted a third dot point after the word “own” in the following terms:

44. [97]

    Condition 46 has already been approved and needs no alteration.

45. [98]

    Conditions 47, 48 and 49 will be as proposed by the defendant. Having made that point, I see no actual difference between that which is proposed by the defendant and that which was proposed by the State in relation to Condition 48.

46. [99]

    Next, there is the State request in relation to anti-libidinal medication (Condition 50). The evidence before the Court is that medical ethics prevents doctors from prescribing such medication, except when the patient consents to the treatment.

47. [100]

    While there is no formal evidence from the defendant, the Court has been informed from records that the defendant does not consent to such treatment. However, such an attitude may not always be maintained.

48. [101]

    Further, the Court accepts the opinion extracted in these reasons that such medication is the most effective (and probably the only effective) treatment for paraphilia. It must be accompanied by other measures.

49. [102]

    Given that acceptance, and the medical ethics issue, the Court is minded to include a Condition dealing with this. The Court will impose the Condition worded by the defendant. The Court will add words to the introduction in the following terms:

50. [103]

    Proposed Condition 51 in the defendant’s proposal is acceptable save for one aspect which is omitted. The words “or ability” need to be inserted after the words “sexual desire” wherever appearing in the defendant’s proposal.

51. [104]

    Previous comments made in relation to other Conditions apply to Condition 52. The words “say yes to letting” should be deleted and, instead the words “permit” should be inserted and the word “to” inserted before the words “share information”. The changes to the defendant’s proposal in relation to Condition 53 are the same as those to be ordered in relation to Condition 52, and “police” should be capitalised.

52. [105]

    Lastly, in relation to Condition 54, the terms of Condition 30 are intended to be to a different effect than the terms of Condition 54. First, Condition 30 relates to all persons, and particularly those with whom the defendant may have a relationship, whether intimate or otherwise.

53. [106]

    Condition 54 applies only to healthcare professionals and does not require the DSO to give the defendant an opportunity of disclosing his criminal history prior to the DSO disclosing it. Partly, this is as a result of the fact that healthcare professionals may be in a particularly vulnerable position and may require, in more detail than someone who may befriend the defendant, the criminal history and difficulties. Condition 54 will be imposed, but it will be imposed in terms that reflect that which is proposed as an alternative by the defendant. The chapeau to Condition 54 will be in the following terms:

Conclusion

1. [107]

   The orders that the Court proposes should, on the basis of the foregoing, be clear. The Court accepts that the defendant poses an unacceptable risk of the commission of a serious offence and the Court is satisfied to a high degree of probability of that circumstance. Otherwise, the conditions for the making of an ESO have been satisfied by the State and an ESO will now issue. It will apply for a further two (2) years.

2. [108]

   The Court makes the following orders:

   1. (1)

      Pursuant to ss 5B and 9(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), the Court issues an Extended Supervision Order (the ESO) binding on the defendant.

   2. (2)

      The defendant shall be under supervision in the community under the ESO for a period of two years commencing 17 April 2025.

   3. (3)

      Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), during the period of supervision under the ESO, the defendant is to comply with the Conditions in the annexure to this judgment.

   4. (4)

      By consent, the Court orders that access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

   5. (5)

      Leave is granted to each party within 14 days to apply to vary the ESO Conditions, if the Annexure hereto does not reflect adequately the requirements otherwise expressed in the reasons for judgment.