State of New South Wales v Nixon (Final)

1. [1]

   By its summons filed on 6 September 2022, the State of New South Wales (the plaintiff) sought the following orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act):

   1. (1)

      An order pursuant to ss 5B and 9(1)(a) of the Act that the defendant be subject to an extended supervision order for a period of two years.

   2. (2)

      An order pursuant to s 11 of the Act directing that the defendant, for the period of the extended supervision order, comply with the conditions set out in the Schedule to this summons.

2. [2]

   The defendant did not oppose the making of an order for the term sought. Nonetheless, it remains for me to determine whether an extended supervision order (ESO) should be made, and if so, the term of that order and the conditions to be imposed. With respect to this last matter, the defendant, takes issue with the conditions of any order.

3. [3]

   For the reasons that follow, I am of the view an order should be made but am not minded to impose all of the conditions in the form in which they were sought by the plaintiff.

Background

1. [4]

   On 18 November 2022, McNaughton J made an order pursuant to s 7(4) of the Act, appointing two qualified psychiatrists, psychologists, (or a combination of such persons) to examine the defendant, and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court: State of New South Wales v Nixon (Preliminary) [2022] NSWSC 1561.

2. [5]

   On the same date, McNaughton J imposed an interim supervision order (ISO) pursuant to ss 10A and 10C of the Act commencing on 29 November 2022 for a period of 28 days. While her Honour imposed an ISO, she declined to impose all of the conditions sought by the plaintiff. Her Honour’s order was subsequently extended on two occasions.

3. [6]

   In accordance with the order that the defendant be examined and reports provided, reports were obtained from Dr Sathish Dayalan, a forensic psychiatrist and Dr Michael R Davis a forensic and clinical psychologist.

4. [7]

   A large amount of material was tendered at the hearing. The plaintiff relied on the following evidence:

   1. (1)

      Affidavit of Georgia Rose affirmed 2 September 2022 and Exhibit GR-1;

   2. (2)

      Affidavit of Georgia Rose affirmed 2 November 2022;

   3. (3)

      Affidavit of Kelli Grabham affirmed 2 November 2022;

   4. (4)

      Affidavit of Kelli Grabham affirmed 16 December 2022;

   5. (5)

      Affidavit of Angela Marlis Rybak affirmed 18 February 2023;

   6. (6)

      Affidavit of Georgia Rose affirmed 23 January 2023;

   7. (7)

      Affidavit of Jessica Murty affirmed 6 February 2023;

   8. (8)

      Report of Dr Sathish Dayalan dated 16 February 2023; and

   9. (9)

      Report of Dr Michael Davis dated 16 January 2023.

5. [8]

   The defendant relied on the following:

   1. (1)

      Affidavit of Dominic Gleeson sworn 26 October 2022;

   2. (2)

      Affidavit of Sarah Salman sworn 2 February 2023; and

   3. (3)

      Affidavit of Jan Talbert sworn 3 February 2023.

6. [9]

   No oral evidence was called at the hearing. This was a reflection of the fact that the issues are in very narrow focus. The plaintiff maintained the need for an ESO but did not press all of the conditions sought in the summons. Rather, the plaintiff sought only those conditions imposed by McNaughton J on the ISO, with the exception that the plaintiff sought condition 35, which relates to access to the Internet and which was not imposed by McNaughton J.

7. [10]

   The defendant, while properly noting that it was ultimately a matter for the Court, did not oppose the making of an ESO, and did not contest the appropriateness of the vast majority of the conditions. The parties are to be commended for their demonstrated ability to recognise the issues presented by a difficult case and work together to assist the Court deal with the matter efficiently.

8. [11]

   At the conclusion of the hearing, I reserved my decision.

Factual Background

1. [12]

   The factual background was set out in in the plaintiff’s submissions as follows:

2. [13]

   The defendant pleaded guilty to offences of robbery in company causing wounding, aggravated sexual assault in company and aggravated indecent assault. On 24 August 2010, he was sentenced to a total effective sentence of 13 years and 3 months, with a non-parole period of 9 years.

Post sentence history

1. [14]

   The defendant has served a lengthy period of imprisonment. From 2009, he did not receive visits in custody from family or friends, although he reported that he had maintained telephone contact with an uncle and a friend he had met in custody.

2. [15]

   The defendant incurred eight institutional misconduct charges while in custody. The last of these, however, was in 2015 and his classification ultimately progressed from A2 maximum security to C3 minimum security. The defendant’s non-parole period expired on 31 August 2018. He remained in custody beyond this date, his release to parole occurring on 6 September 2021. It was reported that the defendant initially responded well to supervision. He was maintaining regular contact with his supervising officer, following the directions of the National Disability Insurance Scheme (NDIS) coordinator and was “an active and respectful participant in the case planning and supervision process”.

3. [16]

   From around March 2022, there was, however, a deterioration in the relationship between the defendant and his parole supervisors, including a failure to comply with directions and deviations from the schedule of movements imposed as part of his parole conditions. Based on a report from Community Corrections, the State Parole Authority revoked the defendant’s parole on 18 March 2022 and the defendant returned to custody on 19 March 2022, where he remained until the revocation was rescinded on 29 June 2022. Since that time, he has been in the community under the supervision of a parole order, or the interim supervision order.

Legislative Framework

1. [17]

   The Act is designed to address the “almost intractable problem” of how “the criminal justice system should respond to the case of the prisoner who represents a serious danger to the community upon release”: State of New South Wales v Donovan [2015] NSWSC 1254 at [3].

2. [18]

   Regard must be had to the objects in s 3 of the Act. The primary object of the Act is to ensure the safety and protection of the community by providing for the extended supervision of “high risk violent offenders”: s 3(1). Section 3(2) provides that another object of the Act is to encourage such offenders “to undertake rehabilitation”.

3. [19]

   Section 5B provides the test for the making of an order and is set out in full, with its heading:

4. [20]

   There exists a discretion as to whether to make an order, even if each of s 5B(a)-(d) are satisfied (given the use of the word “may” as opposed to “must”).

5. [21]

   Turning to the preconditions for the making of an order, there is no issue the defendant satisfies s 5B(a). That is, he is an “offender” (as defined in s 4A) and has served a sentence of imprisonment, by way of actual custody, for a “serious offence” (as defined in ss 4 and 5(1)(a)). To explain, the “index offence” (the term used by the parties to describe the offence triggering s 5B(a)) committed by the defendant, is an offence of aggravated sexual assault in company and inflict actual bodily harm contrary to s 61JA(1) of the Crimes Act 1900 (NSW). It falls under the definition of a “serious offence” by virtue of it being a “serious sex offence” (s 4). It is a “serious sex offence” as defined by s 5(1)(a), as it is an offence within Division 10 of Part 3 of the Crimes Act punishable by imprisonment of more than 7 years, and committed in circumstances of aggravation within the meaning of the provision under which the offence arises: s 5(1)(a)(i) and (ii).

6. [22]

   Similarly, there is no issue that the defendant is a “supervised offender” within the meaning of s 5I of the Act (as required by s 5B(b)). That is, he is an offender who, when the application for the order was made, was in custody or under supervision. In this case, the application was made while the defendant was on parole which is taken to be “in custody”: s 5I(3). The application for an order has been made in accordance with s 5I (as required by s 5B(c)).

7. [23]

   Given that ss 5B(a), (b), and (c) are satisfied, the question for resolution is the test in s 5B(d): that is, whether I am satisfied, to a high degree of probability, that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.

Matters to be taken into account

1. [24]

   In determining whether to make an ESO, I am required to have regard to the safety of the community as the “paramount consideration”. Other mandatory considerations, in addition to any other matters I consider relevant, are set out in s 9(3) of the Act. Those matters are as follows.

2. [25]

   As noted above, reports were obtained from Dr Dayalan and Dr Davis. Both conducted interviews with the defendant and comprehensively surveyed the available material. Both formed the opinion that the defendant poses a risk of committing a further serious offence.

3. [26]

   Dr Dayalan diagnosed the defendant as suffering from an antisocial personality disorder within the meaning of the DSM-V based on his repeated offending behaviour, impulsivity and propensity for aggression when distressed. Dr Dayalan reported that his “offending behaviour suggests disregard for the safety of others” and that the defendant “has displayed consistent lack of responsibility and has a tendency to minimise and deny his antisocial behaviour”.

4. [27]

   Dr Dayalan acknowledged the problematic nature of predicting future risk, but nonetheless endorsed the use of various risk assessment instruments as “guides to forming a professional opinion on the individual’s risk management”. Dr Dayalan administered the Static-99R test which placed the defendant in the “well above average risk level”; the Stable 2007 test which pointed to a “high level of stable dynamic risk and needs”; and the Violence Risk Appraisal Guide - Revised (VRAG) on which the defendant was assessed to be in the “high risk category for future violent behaviour”.

5. [28]

   Dr Dayalan said (at [143]):

6. [29]

   Dr Davis, in addition to surveying the available material, conducted an assessment interview with the defendant, administered psychological tests including the Paulhus Deception Scales, the Personality Assessment Inventory and completed the Sexual Sadism Scale. In an assessment I regard as consistent with that of Dr Dayalan, Dr Davis opined that while the defendant does not meet criteria for a major mental illness, he does have a “disordered personality” which Dr Davis reported had been complicated by “poor childhood attachments, abusive experiences, and previously chronic substance misuse”. Dr Davis said (at [143]):

7. [30]

   While Dr Davis immediately acknowledged that such a diagnosis is not particularly discriminative in forensic or correctional settings, he noted that in the defendant’s case there were a high number of behavioural features, as well as some psychopathic personality features, such that it could be said that his antisocial personality disorder does not “simply reflect his lengthy history of criminal and antisocial behaviour”.

8. [31]

   Dr Davis also reported that the defendant and has some prominent borderline personality features, those being unstable relationships, impulsivity, emotional instability and inappropriately intense anger, without meeting formal criteria for a diagnosis of borderline personality disorder. He stated that, overall, the defendant’s personality disorder is “at a severe level of impairment”, although he noted the possibility that the defendant had, in recent years, been experiencing “a degree of personality maturation”.

9. [32]

   Dr Davis also administered various risk assessment tools. The defendant’s results on the Hare Psychopathy Checklist – Revised, indicated “a large number of antisocial behaviour features” and “some, although far from all, of the more personality based features of psychopathy”. On the Level of Service/Risk, Need, Responsivity (LS/RNR) classification scale, the defendant scored in the upper end of the high range of risk and need. On the Static-99/ Static-99R assessment, the defendant fell into the “high risk category”. On the Risk for Sexual Violence Protocol - Version 2 (RSVP–V2), the defendant was found to have experienced a range of difficulties across all five domains against which risk factors are measured. Dr Davis noted improvement between past coding of the various risk factors and present coding of those factors. While he noted this coding improvement may temper the risk presented by the defendant, he also observed the improvement may also be attributable to the restrictions on the defendant as a result of his incarceration and subsequent supervision.

10. [33]

    Ultimately, Dr Davis expressed the opinion that the defendant poses a “moderate-to-high risk for sexual recidivism”, but that the risk of the commission of a serious sex offence within the meaning of the Act is “moderate”.

11. [34]

    I have had regard to the risk assessment report prepared by Samuel Ardasinski, senior psychologist of the Serious Offenders Assessment Unit, of 23 May 2022. Mr Ardasinski assessed the defendant’s risk of sexual reoffending as in the high risk category, relative to other men who have offended sexually. He also found the defendant to pose a high risk of committing further violent offences in the future. Mr Ardasinki’s assessment included the use of empirical actuarial tools factoring in static and dynamic risk factors. Mr Ardasinski accepted that the defendant may have moderated his risk through completion of programs in custody but noted that while he had completed the High Intensity Sex Offender Program (HISOP, previously known as CUBIT) over 13 months from June 2019, the final report indicated that he “did not develop a great deal of insight” into the reasons for his commission of the index offences. The 13-month timeframe was longer than the standard owing to the time required for the defendant to understand and process content and complete assigned tasks. According to Mr Ardasinski, this warrants a greater emphasis on external monitoring and surveillance.

12. [35]

    This matter has been considered in the context of the expert reports.

13. [36]

    The plaintiff relied on a risk management report prepared by Community Corrections dated 22 June 2022. The authors conducted an interview with the defendant and additionally relied on, amongst other reports, the risk assessment report. The report noted the defendant’s limited support network in the community and his recent response to Community Corrections supervision whilst on parole (which had been described as “unsatisfactory” and “superficial”).

14. [37]

    The risk management report sets out a number of strategies for the management of the defendant in the community. These strategies are summarised in the plaintiff’s submissions as follows:

15. [38]

    It is intended that the above measures would be reviewed bi-monthly.

16. [39]

    As noted above in the context of the risk assessment report, between June 2019 and July 2020, the defendant participated in HISOP, however the benefit he received appears to be qualified.

17. [40]

    On 24 April 2012, the defendant completed the Managing Emotions Program. The case notes suggest that his participation was good.

18. [41]

    The defendant also completed the “Getting SMART” addiction program, alongside a number of vocational courses.

19. [42]

    There is no application to keep the defendant in custody. With respect to assistance in the community, the defendant has been approved to receive approximately $13,000 from NDIS to assist with daily living, employment, and support coordination. The plaintiff notes that this may assist the defendant in receiving support which may, in turn, reduce his risk of reoffending. There is, however, little to suggest that this NDIS funding on its own, would significantly ameliorate the risk of the commission of a serious offence.

20. [43]

    While the defendant’s response to parole deteriorated over time, he did, upon his release, demonstrate a capacity to comply with parole conditions. Given this, I am satisfied he is capable of complying with the obligations of an ESO. Indeed, it appears he is presently motivated to do so, with a view to progressing his reintegration into the community.

21. [44]

    The defendant’s criminal history is recounted in the factual background above.

22. [45]

    The remarks of the sentencing judge raised concerns with respect to the defendant’s prospects of rehabilitation based on issues with empathy, hostility and bitterness, together with reports available at the time. That assessment, however, has been largely overtaken by more recent evidence.

23. [46]

    I have had regard to the other materials tendered on this application including the extensive materials contained in Exhibit GR-1 to the affidavit of Georgia Rose of 2 September 2022.

Determination of primary issue: whether to make the order

1. [47]

   In determining the statutory test, I have had regard to the safety of the community as the paramount consideration pursuant to s 9(2) of the Act and make my determination having had regard to the mandatory, (but non-exhaustive matters) listed under s 9(3) of the Act and discussed above.

2. [48]

   The meaning of “an unacceptable risk” in s 5B(d) and the principles which are to be applied were discussed in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [51] (Beazley P), and subsequently applied by Hoeben CJ at CL in State of New South Wales v Holschier (No 2) [2018] NSWSC 1921 at [23]–[24]:

3. [49]

   As noted above, the defendant is presently 37 years of age. His background is one of severe disadvantage. He has spent a substantial period of time in custody. He has not committed a serious sexual offence since 2009. He made progress in custody, ultimately achieving a minimum-security classification and was released on parole. Nonetheless, there are real concerns with respect to the risk posed by the defendant. It is clear that the reasons for his offending have not been addressed. His continued denial of the offending appears to have slowed his progress. While it does not follow that denial of past proven offending will inexorably lead to the commission of a further offence, on the evidence in the present case, it presents as an obstacle to rehabilitation. Further, while significant time has elapsed since the commission of the index offence, the defendant has been either in custody or under close supervision for the entirety of that time.

4. [50]

   Beyond the simple facts recounted above, after comprehensive analysis Dr Dayalan and Dr Davis have each found the defendant to be suffering from an antisocial personality disorder, a condition Dr Dayalan describes as “chronic and enduring”. Dr Dayalan’s unchallenged opinion is that “the risk of [the defendant] committing a serious sex offence cannot be managed in the community without [a] supervision order”. Dr Davis’s opinion is that the defendant poses a moderate risk of committing a serious sex offence and that an ESO may serve to contain that risk by “providing much needed support and addressing some of the more social risk factors identified”. While I would not, without some solid foundation, reject the considered opinions of suitably qualified experts, it remains for me to determine whether I am satisfied to the required high degree of probability that the defendant poses an unacceptable risk of committing a serious offence if not kept under supervision under an order. It is my view of what is “unacceptable” not the view of the experts. With respect to the question of unacceptable risk, I note that an offender may pose an unacceptable risk even if the likelihood of the commission of such an offence is low, where the likely consequences of such an offence are very grave: State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41], [43].

5. [51]

   The defendant’s reintegration into the community remains at an early stage. To the extent that he has been at liberty, he has been subject to stringent conditions. He remains, to a large extent, untested.

6. [52]

   Having regard to all relevant material, I am satisfied to a high degree of probability that the defendant does pose an unacceptable risk of committing another serious offence if not kept under supervision under the order. No submission was made that, should I reach this state of mind, there are matters that would lead me to exercise my discretion not to make an order.

7. [53]

   For the reasons above, I am of the view that an order should be made. I turn now to the determination of the conditions and the duration of the order.

Determination of secondary issue

1. [54]

   Section 11(1) of the Act provides that an ESO “may direct an offender to comply with such conditions as the Supreme Court considers appropriate”. An inclusive list of directions which may be given is then set out at s 11(1)(a) to (n).

2. [55]

   Section 11(2) provides a mandatory condition that the offender must not leave New South Wales except with the approval of the Commissioner of Corrective Services.

3. [56]

   The power to impose conditions is constrained by the scope of the Act: Winters v Attorney General of New South Wales (2008) 182 A Crim R 107; [2008] NSWCA 33 at [19]. Regard must be had to the primary objects in s 3 of the Act. Having noted the above matters, Hoeben CJ at CL in State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813 said (at [44]):

Determination of specific conditions

1. [57]

   There was very little dispute between the parties as to the conditions which should be imposed. As noted above, the plaintiff, with the exception of condition 35, did not press any of the conditions which had been sought in the summons but not imposed by McNaughton J. The defendant did not oppose any of the conditions pressed by the plaintiff, with the exception of condition 19 with respect to which he sought some relaxation to facilitate the defendant obtaining and maintaining employment. He also sought modification to conditions 7 and 10 to bring them into line with the proposed condition 19.

2. [58]

   The final form of the orders will be as set out in the Schedule to this judgment. The form of the conditions originally sought in the summons can be ascertained through the use of strikeouts to indicate matters in the summons which do not form part of the conditions I impose, the use of underline to indicate the matters which were amended in the interim order, and the use of bold to indicate matters which I have added as a result of this final hearing.

3. [59]

   Conditions 1-8, with the exception of condition 4, which was not sought, and condition 7, which is the subject of a proposed modification, were not opposed by the defendant. With the exception of condition 7 in the form sought, these conditions are appropriate. Conditions 1-3 are a necessary foundation for the defendant’s supervision. While scheduling and electronic monitoring, as provided by conditions 5-8 significantly impinge on the defendant’s liberty, they are in my view, at this stage of the defendant’s reintegration, appropriate in order to manage the risk presented by the defendant. It is, of course, hoped that the extent of the monitoring and restrictions on the defendant’s movements will be reduced over time.

4. [60]

   I will deal with the appropriate form of condition 7 in the context of condition 19 and any accommodation to be made to facilitate the defendant’s employment.

5. [61]

   With the exception of condition 10, with respect to which a modification is sought, the defendant does not oppose conditions 9-13. These conditions, subject to a modification of condition 10, are appropriate. Having regard to the defendant’s stage of reintegration, while the conditions are intrusive, it is important that Corrective Services NSW (Corrective Services), through a DSO, maintain the power to approve and monitor the defendant’s arrangements. A condition with respect to visitors to the home and person’s staying overnight as regulated by condition 13 is appropriate.

6. [62]

   These conditions were not opposed by the defendant. Condition 15 is mandatory. Otherwise, it was not suggested that these conditions would significantly impact the defendant. On the other hand, they will allow Corrective Services to restrict the defendant from attending places or locations which raise concerns.

7. [63]

   Condition 21 was not sought. Conditions 18 and 20 were not opposed and are appropriate. In particular, condition 18 will assist in the defendant’s rehabilitation. Condition 20 is not particularly onerous while allowing the DSO to remain involved in the defendant’s employment choices, and potentially provide valuable guidance.

8. [64]

   Condition 19 was the subject of debate at the hearing. In the form sought it reads:

9. [65]

   The defendant opposes this condition on the basis that it restricts his ability to obtain employment. He additionally seeks modifications to conditions 7 and 10 to allow him greater flexibility with respect to his schedule of movements and curfew where necessary in order for him to engage in paid employment. It became apparent during argument that the concern relates only to paid employment. Consequently condition 19 is appropriate in so far as it relates to volunteer work and educational courses.

10. [66]

    The issue is, then, what is an appropriate condition, balancing relevant concerns, in relation to employment. There is no issue between the parties that, as a general proposition, obtaining and maintaining employment will assist the defendant’s reintegration into the community and will consequently both benefit him and enhance community safety. In this regard Dr Dayalan said (at [150]):

11. [67]

    Material tendered by the defendant established that, in November 2022 he was able to obtain employment with Woolworths. It appears that this was arranged with the assistance of the defendant’s NDIS support worker. The defendant was engaged to collect shopping trolleys, although it was envisioned that he may progress to the bakery, an area in which he has some interest. While this, on its face, appeared to be a positive development, the defendant was advised that he was in breach of condition 19 of the ISO as he had not received prior approval to engage in the employment. In subsequent communication between Corrective Services and the defendant’s NDIS support worker, it became apparent that such employment was not viable in the light of the conditions of the defendant’s ISO. In particular the work was on a casual basis. Conditions on the defendant’s ISO requiring him to provide 24 hours notice of scheduling changes meant that he was unlikely to be able to accept shifts when offered, as these tended to be rostered at short notice.

12. [68]

    The defendant’s experience with Woolworths is unlikely to be atypical. That is, given the defendant’s particular circumstances, it is unlikely that he will be able to obtain work other than on a casual basis. Additionally, it is likely that if offered work, it will be on the basis that the defendant commences within a relatively short period of time. If having obtained a casual position, the defendant is regularly unavailable, he is unlikely to be offered shifts, and his employment will dwindle to the point where it is effectively terminated.

13. [69]

    Against the above, from Corrective Services’ perspective, there is a need to confirm the appropriateness of any employment, including persons with whom the defendant may come into contact. The plaintiff also pointed out that other agencies were involved in making the necessary enquiries, making it difficult for Corrective Services to manage the timeframe, and hence the desirability of leaving the condition in its current form, providing no time limit on Corrective Services in determining any approval. While the Corrective Services’ desire to have an unrestricted time in which to pre-approve any employment is understandable, as recent experience has established, this is highly likely to scupper the defendant’s prospects of employment.

14. [70]

    I am of the view that Corrective Services should have some notice of the defendant’s intention to take up employment, but not such as is likely to negatively impact the defendant’s prospects of actually obtaining work. This will allow Corrective Services to veto any obviously unsuitable employment prior to commencement. Corrective Services will, of course, be able to continue enquiries after the defendant has taken up employment. I appreciate that, as pointed out by the plaintiff, it will not be conducive to the defendant’s relationship with his DSO if, having commenced employment, he is prevented from continuing in that employment. However, it is also the case that it will be frustrating to the defendant if he is prevented from commencing employment for no obvious reason. It is hoped that, in the event that employment is commenced but found to be unsuitable, the reasons can be explained to the defendant, and he will not be overly discouraged from seeking alternative employment. This to me seems preferable to a situation where he is denied, without reason (other than an insufficient time for the making of enquires), the opportunity to take up employment at all. The following conditions are framed with a view to achieving this objective:

15. [71]

    The consequential changes to be made to conditions 7 and 10 are as follows:

16. [72]

    I note I have provided in condition 7, a period of one hour, which is somewhat shorter than the figure I postulated in the course of the oral hearing. On reflection, given that the employment will have already been notified to the DSO pursuant to condition 19A, I regard one hour as sufficient for the purposes of rescheduling, given that the defendant will not be at large, but rather attending a place of employment.

17. [73]

    These conditions were not opposed. While there is little of recent concern with respect to the defendant’s abuse of drugs and alcohol, his past use of cannabis in particular, and its connection with offending behaviour, are such that these conditions are appropriate.

18. [74]

    These conditions were not opposed. The maintenance of prosocial connections, and limits on negative influences will be critical in assisting the defendant’s reintegration into the community. I regard the conditions as appropriate.

19. [75]

    Condition 33 was modified from that originally sought as a result of discussions between the parties. It allows, with appropriate protections, the defendant to carry a knife for the purposes of fishing, an activity of importance to the defendant. The conditions, including the modified condition 33, are appropriate given the prior offending.

20. [76]

    These conditions were not imposed by McNaughton J on the ISO. With the exception of condition 35, they are not pressed by the plaintiff. While condition 35 is not opposed by the defendant, it remains necessary for me to determine whether it is appropriate.

21. [77]

    While conditions 36 to 45 were not pressed, they could potentially be engaged through the implementation of condition 35, subject to the additional requirement of reasonableness in condition 35. In relation to these conditions McNaughton J said, (at [129] – [130]):

22. [78]

    The plaintiff points to evidence that the defendant has spent long periods during the night playing games on his phone. It is submitted that this provides a means by which the defendant might contact antisocial influences or potential victims, together with a need to regulate the content of the games played by the defendant, insofar as they may be inappropriately violent or pornographic.

23. [79]

    The defendant does not oppose the condition. As I understand, this is on the basis that it is not expected to have any real impact upon him. That the condition is not anticipated to be particularly intrusive, favours its inclusion. But, even so, it is a condition restricting the liberty of an individual who has served his sentence and it must still be appropriate. The condition is in broad terms and, despite the defendant’s attitude, having regard to the part played by the Internet in modern life, is intrusive. Against this, the plaintiff’s concerns are somewhat speculative. There is nothing in the evidence to support any concern the defendant will use the Internet in this way. To an extent, the fact that the defendant regards the proposed condition as unlikely to impact on him underscores its tenuous relevance. Given these matters and having regard to the other conditions which will be in place, I do not propose to impose condition 35.

24. [80]

    These conditions were not opposed and are appropriate in order to effectively monitor the defendant.

25. [81]

    This condition was not opposed. While I have some reservations as to its foundation, on balance, and in the absence of any issue, I regard the condition as appropriate.

26. [82]

    These conditions were not opposed and are appropriate in order to effectively monitor the defendant.

27. [83]

    I have some concern that conditions interfering with the confidentiality of the defendant’s relationship with treatment providers may be counterproductive. This was a concern voiced by Dr Davis. The defendant, despite being appraised of Dr Davis’ opinion does not oppose these conditions. In these circumstances, I regard the conditions as appropriate.

Conclusion as to the appropriate conditions

1. [84]

   The conditions I regard as appropriate in all the circumstances of this case, based on the above reasons, are those set out in the Schedule to this judgment. I accept there is a large number of conditions. It will be necessary for the defendant to be carefully taken through these conditions and the practical operation of them explained.

The term of the order

1. [85]

   The plaintiff sought that the order be in place for two years. This was not opposed. When regard is had to the period of the ISO, the total supervision period under the Act will be some months over two years. While I am mindful of the intrusion into the defendant’s autonomy and privacy resulting from the conditions imposed, having regard to the concerns raised, I regard two years as an appropriate period. It is, of course, hoped the strictures placed on the defendant will be eased over the period of the order.

Orders

1. [86]

   I make the following orders:

   1. (1)

      Pursuant to s 13(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), the interim supervision order made by McNaughton J on 18 November 2022, is revoked.

   2. (2)

      Pursuant to ss 5B and 9(1)(a) of Crimes (High Risk Offenders) Act 2006 (NSW), the defendant be subject to an extended supervision order for a period of two years from today's date.

   3. (3)

      Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant, for the period of the extended supervision order, must comply with the conditions set out in the Schedule to this judgment.

   4. (4)

      Access to the court file in respect of any document in this proceeding shall not be granted to a non-party without the leave of a judge of the Court. 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.