State of New South Wales v Hackett (Final)

1. [1]

   The State of New South Wales seeks an extended supervision order (ESO) against the defendant for a period of three years pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the CHRO Act). On 8 April 2022, N Adams J ordered that the defendant was to be subject to an interim supervision order (ISO) for a period of 28 days commencing on the expiry of the defendant’s then current ESO: State of New South Wales v Hackett (Preliminary) [2022] NSWSC 417.

2. [2]

   The previous ESO had been ordered by Cavanagh J on 10 October 2019 for a period of two years commencing 10 October 2019: State of New South Wales v Matthews (AKA Hackett) (Final) [2019] NSWSC 1360. This followed the making of an ISO by Fagan J on 21 June 2019: State of New South Wales v Matthews AKA Hackett (preliminary) [2019] NSWSC 770. The ESO was suspended for a short time due to the defendant being imprisoned for breaches of that ESO. The result was that the ESO expired on 11 April 2022 and the ISO ordered by N Adams J commenced on that date. Extensions have been made which will expire on 10 July 2022.

3. [3]

   The background and the details of the offending are set out in the three judgments previously mentioned. In particular, the judgment of N Adams J is comprehensive in relation to the background and material available up to the time of that judgment. I gratefully adopt her Honour’s summary of the material in that regard, particularly because of the shortness of the time available by which an ESO must be made, if it is to be made.

4. [4]

   It is sufficient to note that the defendant was born in 1973 and is currently 48 years of age. The index offences occurred in August 2004. The defendant was convicted of aggravated sexual assault in company, and detain in company without consent to obtain advantage (which occasioned actual bodily harm). A count of robbery in company was taken into account on a Form 1. For these offences the defendant was sentenced to eight years imprisonment with a non-parole period of six years. He was released on parole on 7 June 2011.

5. [5]

   The circumstances of the offending, and of subsequent sexual offending in 2014, 2016 and 2017 are detailed in the judgment of N Adams J. The principal offence in August 2004 was a serious sex offence by reason of falling within s 5(1)(a)(ii) of the CHRO Act. The defendant concedes that he is a serious sex offender by virtue of ss 5 and 5B, and that he is a supervised offender for the purposes of s 5I. I am satisfied that the requirements in ss 5B(a), (b) and (c) have been met.

6. [6]

   For the reasons given in his judgment, Cavanagh J was satisfied to a high degree of probability that on 10 October 2019 the defendant posed an unacceptable risk of committing another serious sex offence if not kept under supervision under the ESO his Honour imposed. I respectfully agree with his Honour’s determination, for the reasons his Honour gave, and based on my assessment of the evidence before his Honour.

7. [7]

   Despite that agreement, the present application is a fresh one, and it is necessary for the Court to reach a conclusion at the present time whether the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO. No question of issue estoppel and the capacity to relitigate matters arises, except in relation to s 5B(a) and (b) of the CHRO Act, and those matters are not contested: cf the discussion concerning the Terrorism (High Risk Offenders) Act 2017 (NSW) in State of New South Wales v Hardy (Final) [2021] NSWSC 900 at [210] ff.

8. [8]

   Nevertheless, the focus of the present judgment is on the events that have occurred since that date to determine if the Court should be so satisfied now. That focus does not mean that the professional opinions given prior to October 2019 are not relevant for present purposes, but the present enquiry is more concerned with the defendant’s behaviour whilst on the ESO imposed by Cavanagh J to ascertain if there has been an alteration in the risk referred to in s 5B(d) of the Act: see s 9(3)(f) of the Act. I have, however, had regard to various reports and matters that fall within s 9(3)(c), (d), (e) and (g) of the Act and which pre-date Cavanagh J’s judgment.

The prior ESO

1. [9]

   The defendant did not oppose the making of the ESO by Cavanagh J. The issue on that application concerned some of the conditions sought to be imposed. I will return to that matter later in the judgment.

2. [10]

   Despite the acceptance by the defendant that an ESO should be imposed, it was necessary for Cavanagh J to consider the evidence before him to reach a view about whether he was satisfied to a high degree of probability that the defendant posed an unacceptable risk of committing another serious offence if not kept under supervision under the order. His Honour so found, having considered a number of reports including those from the psychiatrists as directed by Fagan J when his Honour ordered an ISO.

3. [11]

   In relation to the evidence of those psychiatrists, Dr Kerri Eagle and Dr Emma Collins, Cavanagh J said this:

4. [12]

   Justice Cavanagh also considered the Risk Assessment Report (RAR) prepared by Mr Samuel Ardasinski, a forensic psychologist, on 9 April 2019. His Honour said:

5. [13]

   The defendant breached his former ESO. On 1 May 2020, he was charged with one count of enter enclosed land, and was convicted on 27 July 2020. He was dealt with under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

6. [14]

   On 3 May 2020, the defendant disclosed the use of methamphetamine to his DSO. He was referred for mental health assessment under s 33(1)(b) of the then Mental Health (Forensic Provisions) Act 1990 (NSW) and was admitted as an in-patient to a secure ward at Concord Hospital between 5 and 26 May 2020.

7. [15]

   In August 2020 it was ascertained that the defendant had been using an interactive chat function on his mobile telephone, and that he had also not disclosed intimate relationships in which he had previously been engaged.

8. [16]

   In relation to those breaches, the defendant was sentenced on 10 September 2020 to an aggregate term of imprisonment of 12 months with a non-parole period of six months. He was released on parole on 19 February 2021.

9. [17]

   On 24 August 2021 an Extended Supervision Order - Completion Report was prepared for the Clinical Sub-Committee of the High Risk Offenders Assessment Committee by Senior Psychologists Ms Holly Cieplucha and Dr Richard Parker. The authors of the report said that it should be read in conjunction with the RAR of Mr Ardasinski of 9 April 2019 (referred to above at [12]).

10. [18]

    The Executive Summary of the Completion Report relevantly said:

11. [19]

    In addition, the report said that in personal communication with the defendant’s DSO, it was noted that there had been a lack of meaningful engagement, and that the defendant had only a superficial ability to comprehend his risk and to understand why certain situations and behaviours (eg casual sex and sex clubs) placed him at increased risk of offending. The defendant’s mental health had fluctuated significantly, and his DSO observed that deterioration in his mental health generally appeared to correlate with times when he feared he had been caught doing something wrong. The report noted that at the interview with the defendant by the authors of the report, the defendant, with prompting, conceded that his level of sexual preoccupation had previously been problematic, but he denied it to be a concern at the time of the interview. The authors of the report said that the defendant demonstrated limited insight into issues relating to sexual self-regulation apart from acknowledging heightened risk when using illicit substances.

12. [20]

    The report noted that apart from staff at the ESO team, Forensic Psychology Services (FPS), Community Mental Health, the Aids Council of New South Wales (ACON), and New Horizons, the defendant’s personal support network was limited to his mother and one long-term friend. The defendant continued to demonstrate significant difficulty in establishing intimate and non-intimate relationships. He had constantly sought out impersonal connections and had used sex as a way to develop and maintain friendships rather than seeking to establish genuine emotional connections.

13. [21]

    The report reviewed risk assessments using various protocols that had been employed on the defendant from 2019 to 2021. The assessment on these protocols was said to be in either the Well Above Average Risk category or the High Risk category. The one exception was when the STABLE-2007 was combined with STATIC-99R where the defendant’s risk was said to be above average.

14. [22]

    The report assessed that the following dynamic factors were relevant or potentially relevant when considering the defendant’s risk of sexual offending:

15. [23]

    In its conclusions, the report noted that although the defendant had reoffended since his release to the community (on 19 February 2021), there had been no evidence of sexual offending, and none of his behaviour had approached the definition of serious offending under the Act. The report concluded that the combination of the defendant’s personality structure, mental illness, cognitive deficits and self-regulation issues continued to place him at risk of committing further sexual offences.

16. [24]

    A RAR prepared by Ms Cieplucha and Dr Parker on 26 November 2021 reached similar conclusions to what was contained in the Completion Report concerning the defendant’s criminogenic needs. The report noted that the defendant had had at least 12 admissions to mental health wards over the course of the previous ESO, and had been supported by Campbelltown, Croydon and Liverpool community mental health teams. The report said that, while many of his presentations had occurred in response to reported symptoms of psychosis, depression or suicidal ideation, they also appear to have been triggered by situational stressors, eg following phone searches conducted by ESO investigations team, stress related to accommodation, claims by bullying by his DSO, and following disclosure of substance abuse. There were suspicions amongst some doctors and hospital staff that the defendant might have been trying to present in a particular way for secondary gain, including obtaining a favourable outcome for future court attendances.

17. [25]

    The report noted that the defendant was still prescribed depot antipsychotic medication, and that he was compliant with his treatment.

18. [26]

    Between 19 February 2021 and 10 March 2021 the defendant was admitted to Cumberland Hospital for mental health concerns. Whilst there he tested positive to methamphetamines. He denied use of any illicit substances, and a follow up test returned a negative result. In October 2021 he returned a positive urinalysis for opiates and Benzodiazepine, for which he was issued a formal warning. He strenuously denied substance use, claiming that the test results were another “false positive”. When interviewed, he claimed to have been abstinent since August 2020. He had previously admitted to using methamphetamine in May 2020 but had said nothing about consuming illicit drugs after that time. When he was subject to parole supervision in 2019, he was found to be in breach of his conditions on six occasions for drug-related offences including returning positive drug tests for methamphetamines and Benzodiazepines.

19. [27]

    The authors of the report set out portions of the RAR prepared by Mr Ardasinski on 9 April 2019 as follows:

20. [28]

    The report concluded that the overall totality of evidence suggested that the defendant fell in the Well Above Average risk category for sexual offending relative to other adult male sexual offenders. The report said:

The Court-ordered expert reports

1. [29]

   As a result of the judgment of N Adams J, the defendant was examined by Dr Sathish Dayalan, a forensic psychiatrist, on 16 May 2022, and by Dr Chelsey Dewson, a forensic psychologist, on 20 May 2022.

2. [30]

   In relation to a diagnosis of the defendant’s condition, Dr Dayalan said that the defendant had a complex psychiatric presentation, and noted that mental health professionals had varied in their opinions on his psychiatric diagnosis. Dr Dayalan detailed these various diagnoses in his report.

3. [31]

   Dr Dayalan said that the defendant had personality traits that would be supportive of a diagnosis of borderline personality disorder. He noted that acute psychotic symptoms suffered by the defendant such as delusions, auditory hallucinations and thought disorder were often preceded by use of crystal methamphetamine. However, the defendant had continued to report psychotic symptoms when abstinent from substances. Dr Dayalan said that it was quite probable that the defendant suffered from schizophrenia, but that he appeared to be utilising that psychiatric diagnosis to absolve his responsibility for offending behaviour and to avert stressful circumstances.

4. [32]

   Dr Dayalan thought that the defendant’s history was indicative of him suffering from Stimulant Use Disorder that appeared to be in remission, presumably due to being on an ESO. Dr Dayalan noted assessments of the defendant’s intellectual ability, where he had been assessed in 2007 of a mild intellectual disability but more recently where his intelligence quotient was said to be in the borderline to low average range.

5. [33]

   Dr Dayalan assessed the defendant on the STATIC-99R and the STABLE-2007 protocols. His overall score on the STATIC-99R was 8 placing him in the Well Above Average Risk level. That was consistent with his previous assessments on that protocol.

6. [34]

   On the STABLE-2007, Dr Dayalan said that the dynamic risk factors relevant to the defendant’s risk formulation were capacity for relationship stability, general social rejection/loneliness, impulsivity, poor cognitive problem solving, negative emotionality, sex preoccupation, sex as coping, deviant sexual interests, and cooperation with supervision. Dr Dayalan said that some of those risk factors such as relationship stability, impulsivity, negative emotionality and general social rejection/loneliness could be attributed to the defendant’s psychiatric conditions, specifically the borderline personality disorder, and the propensity for him to interpret events in a persecutory manner. Dr Dayalan said that the dynamic factors were unlikely to change drastically in the near future.

7. [35]

   Dr Dayalan noted that the defendant’s engagement in psychological treatment had been said to be superficial. He noted that in the past significant social influences had been identified as a dynamic risk factor, but the defendant’s association with antisocial peers did not appear to feature in the recent clinical records. Dr Dayalan thought that this could well be attributed to the conditions of the ESO. He noted that the defendant had a close relationship with his mother and a female friend, both of whom were identified as a prosocial influence upon him.

8. [36]

   Overall, Dr Dayalan assessed the defendant as having a high level of stable dynamic risks and needs.

9. [37]

   Dr Dayalan did not regard the defendant as a reliable historian.

10. [38]

    Dr Dayalan said that borderline personality disorder was usually chronic in nature. With ageing there was sometimes a reduction in overt impulsivity and suicidal behaviour, but emotional dysregulation and disturbed interpersonal relationships tended to persist. Dr Dayalan said that similarly, schizophrenia was a chronic condition, and tended to follow a relapsing and remitting course in most individuals. In the defendant’s case, the reported ongoing psychotic symptoms despite compliance with treatment and use of substances, suggested that the schizophrenia was of a treatment refractory nature. Dr Dayalan said that schizophrenia was also commonly associated with progressive decline in cognition, and it is likely that his cognitive functioning would gradually deteriorate over the years.

11. [39]

    Dr Dayalan noted that the defendant’s Substance Use Disorder appeared to be in remission, but given the history of Substance Use Disorder, poor impulse control, psychiatric conditions and limited insight into the condition, the defendant would be regarded as at risk of relapse into substance use unless there were external restrictions in place.

12. [40]

    Dr Dayalan considered that the defendant posed a risk of committing a serious sex offence as defined in the Act. He said the level risk could not be reliably predicted, and the level of the risk would vary depending upon the defendant’s circumstances and the level of monitoring and support received.

13. [41]

    Dr Dayalan said that the most likely scenario for the defendant to commit a serious sex offence would be in the context of using substances and in the company of another person who instigates him to engage in the offending behaviour. Deterioration in mental state due to non-compliance and/or psychosocial stressors with associated increase in impulsivity and impairment in judgment, would further contribute to the risk.

14. [42]

    Dr Dayalan noted that although the defendant had breached his previous ESO, he had not committed a serious sex offence. He said there had not been an escalation of dynamic risk factors since the first ESO was ordered. He considered that the risk of committing a further serious sex offence could be managed in the community under an ESO.

15. [43]

    During the course of relating matters told to her by the defendant, Dr Dewson referred to the defendant as lacking insight about matters such as the challenges he encountered in relation to supervision compliance and into the risks that particular sexual behaviours posed.

16. [44]

    Dr Dewson assessed the defendant on the STATIC-2002R protocol where he received a total score of 8. That placed him in the Well Above Average risk category for being charged or convicted of another sexual offence.

17. [45]

    Dr Dewson also assessed the defendant on the Risk for Sexual Violence Protocol – Version 2 to assess his dynamic risk. The dynamic risk factors relevant to the defendant were his sexual violence history, psychological adjustment, mental disorder, social adjustment and manageability.

18. [46]

    Dr Dewson said that, overall, the defendant presented as a high risk of general and sexual recidivistic behaviour. She said that although he had engaged in intensive sex offender treatment, he had since reoffended, and his engagement with FPS in recent times appeared to have been superficial. The defendant continued to maintain unhealthy attitudes towards sex, his mental health had been unstable, and he presented with hypersexuality. Dr Dewson said that it appeared the defendant had learned few internalised strategies to manage his risk, and for the most part had been reliant on external controls to moderate his behaviour. However, there appeared to have been some positive progress around his medication compliance and his motivation to abstain from prohibited substances.

19. [47]

    Dr Dewson said it was difficult to determine what the most likely scenario of offending would involve, but it would most certainly be against a male. It was likely that any future offending would occur in the context of substance abuse and/or psychotic symptoms, where the defendant would likely target a stranger in a public space for masturbatory content. It was possible that this might involve him attempting to coerce a victim into a physical, sexual act, which would particularly concerning if that individual was in some way vulnerable.

20. [48]

    Dr Dewson said that the defendant fell into the High Risk range for sexual reoffending. The primary factors relating to his risk of recidivism included substance abuse, unmanaged mental health, hypersexuality, unhealthy attitudes towards sex, intimacy deficits, and poor coping, including using sex to cope.

21. [49]

    Dr Dewson was of the opinion that a period of community-based supervision would provide the defendant with additional structure and support, whilst also providing a degree of community safety through external management. Dr Dewson considered that, in the absence of an ESO, the defendant would have considerable difficulty adapting to community life, refraining from substance abuse and maintaining treatment compliance. Dr Dewson considered that the defendant’s failure on his first ESO suggested dysregulation and supervision compliance difficulties. She said that, whilst he reoffended, the offences were not of a sexual nature, suggesting that the ESO went some way to managing risks associated with sexual violence. His breaches suggested difficulty regulating himself and, in the absence of a further order, this might result in an act of sexual violence.

Submissions

1. [50]

   Ms O’Reilly of counsel for the defendant submitted that the defendant had only committed one serious sex offence. That was in 2004 when the defendant was 31 years old. Although the defendant had subsequently offended, none of the offending constituted serious offences under the CHRO Act. Ms O’Reilly accepted that the defendant had breached his ESO on a number of occasions, but submitted that these breaches did not display a trajectory towards more serious offending. Rather they displayed entrenched personality and cognitive traits which would not resolve with a further order being made.

2. [51]

   Ms O’Reilly pointed to what was said in the Completion Report, that the defendant had not engaged in further sexual offending, and that none of his behaviours had approached the definition of serious sexual offending. Ms O’Reilly also drew attention to what was said in the RAR of 26 November 2021, that the pattern of the defendant’s offending had de-escalated over time.

3. [52]

   Ms O’Reilly submitted that regard should also be had to the support the defendant is now receiving from the NDIS, to the fact that the defendant has been stable in accommodation for about 18 months and to the fact that he has established some pro-social contacts including at a church. She submitted that the defendant was compliant with his medication, that he can recognise when his mental health declines by his own self-referrals to hospitals, and that he had been abstinent from drugs from May 2020.

Does the defendant pose an unacceptable risk?

1. [53]

   It is apparent from a consideration of the reports which predate the making of the previous ESO, the Completion Report, the RAR prepared for the present application, and the reports of Dr Dayalan and Dr Dewson, that not a lot has changed in terms of the defendant’s position and the assessment of the risk that he might commit another serious sex offence.

2. [54]

   The factors identified by Mr Ardisinski in 2019 were these:

3. [55]

   The defendant’s criminogenic needs identified in the RAR of November 2021 were these:

4. [56]

   Dr Dayalan identified the following factors:

5. [57]

   Although some of the factors were differently expressed, most of the matters have persisted throughout the period from 2019 to 2022. Further, they largely mirror a number of the matters identified in earlier reports of Professor David Greenburg of 2 November 2005, Dr Stephen Allnutt of 1 November 2005, the psychologist Mae Mahmoud of 16 June 2008, Dr Alexey Sidorov of 22 March 2017, Dr Gordon Elliott of 14 November 2018, Dr Claire Keating of 11 June 2019, Dr Emma Collins of 28 August 2019 and Dr Kerri Eagle of 28 August 2019.

6. [58]

   There are some matters which tend to show some degree of reduction of the risk. The first is that the defendant has not committed another sex offence of any sort since 2017. That cannot be entirely attributed to the imposition of the first ESO because that did not commence until 2019. Nevertheless, since 2017 the defendant has been under one form of supervision or another, including the period of the first ESO.

7. [59]

   The second matter is what was identified by Dr Dayalan as a change in one of the dynamic risk factors. That concerns the fact that in the past, the defendant had associated with anti-social peers. Dr Dayalan noted that that factor did not appear to feature in the recent clinical records. Dr Dayalan noted that the defendant has a close relationship with his mother and a female friend who have been identified as a pro-social influence upon him. I accept that the defendant also has some contact with a gay church (presumably the Metropolitan Community Church) which appears to be providing him with some support. Dr Dayalan noted, however, that the movement away from anti-social peers “could well be attributed to the conditions of ESO”.

8. [60]

   Thirdly, in relation to the support from the NDIS, both Dr Dewson and Dr Dayalan accepted that such support was beneficial because it helped to bring a degree of regulation into the defendant’s life. That in itself was likely to diminish to some extent the problems that flow from the Borderline Personality Disorder. Such a condition can be ameliorated when a sufferer has more regulation in their life. I accept that the defendant’s more stable accommodation and the support he receives from the NDIS have helped to inject some degree of regulation into the defendant’s life.

9. [61]

   Finally, the defendant appears to have been abstinent from drugs since either May or August 2020.

10. [62]

    When having regard to those improvements, it cannot be overlooked that both Dr Dayalan and Dr Dewson considered that many of the improvements in the defendant’s behaviour had come about because the ESO was in place: see pars [32], [35], [39], [46], [49] and [59] above.

11. [63]

    Despite those improvements, the defendant’s risk level still remains at well above average, and he has a high level of stable and dynamic risks and needs on all the protocols and instruments on which he has been assessed. Ms O’Reilly correctly points out that the various protocols do not assess the risk of committing a serious sex offence as defined in the CHRO Act; rather they assess the risk of general sexual offending. That is certainly the case, but the courts have accepted for the past 15 years that they are the best instruments available for assessing risk of serious sexual offending when interpreted by forensic psychiatrists and psychologists.

12. [64]

    The more concerning matter in terms of risk is that, as I have said, most of the dynamic risk factors and criminogenic needs of the defendant that were present from before the time of the first ESO still remain.

13. [65]

    The defendant’s preoccupation with sex does not appear to be under any control, and the experts say that he lacks insight into the risks that come from that preoccupation. There was, for example, evidence from Detective Senior Constable Bell who was attached to the Extended Supervision Order Investigation Unit. Detective Senior Constable Bell was involved in making observations of the defendant during the term of his first ESO. His affidavit discloses that on four separate days in September 2021 the defendant was observed at a toilet block in a park in Moorebank, some ten kilometres from his home. The defendant was observed to be waiting outside the toilet and following other people into the toilet when they arrived. On some days this happened up to three times over a short period. Detective Senior Constable Bell was cross-examined to suggest that he had not established that the defendant was doing anything in breach of the ESO, and the suggestion was made that the defendant was simply there to attend to toilet needs.

14. [66]

    The only reasonable inference that can be drawn from the account of the events is that the defendant was attempting to make sexual contact with other men at the toilet block. The relevance of that to the risk with which the Court is concerned relates to the offences committed by the defendant in 2014. Those offences are described in the judgment of N Adams J as follows:

15. [67]

    Subsequently, as noted earlier, the defendant was charged with further sexual offences arising from two alleged incidents of public masturbation at Central Railway Station and Newtown Railway Station in 2016 and 2017 respectively.

16. [68]

    What the events described by Detective Senior Constable Bell show is that the dynamic risk factors identified in relation to the defendant are resulting in the same sort of behaviour as gave rise to the sexual offences subsequent to the index offence.

17. [69]

    There is the further factor that the defendant’s various mental health issues are obviously not under control. The number of times he has presented to hospitals complaining of mental health issues (assuming that they were genuine issues and the reporting was not being done for secondary gain) gives weight to Dr Dayalan’s view that the defendant’s schizophrenia is somewhat refractory to treatment. Further, any stability and regulation that has developed in the defendant’s life is of reasonably short duration, and its long-term effect cannot be known at this stage. As noted, the experts regarded the improvements which have been demonstrated to have likely come from the imposition of the ESO itself.

18. [70]

    The persistence of almost all of the dynamic factors that inform the defendant’s risk level points strongly to the conclusion that the position remains that the defendant poses an unacceptable risk of committing another serious sex offence if not kept under supervision under an order. I am satisfied of that to a high degree of probability.

Length of the ESO

1. [71]

   The plaintiff seeks an ESO for a period of three years. The defendant submitted that no basis has been shown for seeking a longer period than had been sought before Cavanagh J.

2. [72]

   I agree that the length of the order should be for two years. No basis has been demonstrated by the plaintiff for a three-year order. The plaintiff sought only a two-year order from Cavanagh J and, in the meantime, there has been some small improvement in terms of the risk of the commission of a further serious sex offence. It is also not without significance that no actual sexual offending has occurred since 2014, with the offences in 2016 and 2017 constituting little more than street offences which did not involve any other person. In describing them in that way, I am not diminishing the fact that they are strong evidence of the defendant’s preoccupation with sex, which is an undoubted risk factor.

3. [73]

   I note that Dr Dayalan recommends that the order is made for two to three years to allow for ongoing interventions to minimise the defendant’s risk of relapse into substances, improve emotional and behavioural regulation, and to help him to develop more appropriate approaches to identify sexual partners.

Conditions

1. [74]

   The plaintiff has proposed a set of conditions which include electronic monitoring and the provision of a schedule of movements by the defendant. The defendant challenged the necessity for these two aspects of the conditions.

2. [75]

   In State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813 Hoeben CJ at CL said:

3. [76]

   The plaintiff sought electronic monitoring and a schedule of movements when it applied for the earlier ESO. Both Fagan J at the preliminary stage and Cavanagh J at the final stage refused to impose such conditions. In that regard, Fagan J said:

4. [77]

   Similarly, Cavanagh J said:

5. [78]

   I agree with those remarks of both Fagan J and Cavanagh J. There is no evidence to justify a conclusion that the imposition of electronic monitoring or the provision of a schedule of movements would assist in addressing issues relevant to the defendant’s identified risk factors in relation to future commission of serious sexual offences: see in that regard State of New South Wales v Green (Final) [2013] NSWSC 1003 at [36]-[38] and Wilde v State of New South Wales [2015] NSWCA 28 at [45] and [54]. At best, those conditions would address only general criminal conduct.

6. [79]

   Dr Dayalan’s evidence was that the conditions proposed appeared to be very restrictive, and they were more likely to result in more breaches of the order than assist the defendant’s long-term rehabilitation. Dr Dayalan also said that in his opinion, having a huge number of restrictions probably increases the defendant’s anxiety about breaching the ESO. Dr Dayalan thought the defendant’s risk of breaching the ESO was attributable to the impulsivity which was related to his psychiatric condition, but his cognitive impairment might play a role as well. In that way, Dr Dayalan said that having a huge set of conditions would probably increase the defendant’s stress, which could increase a deterioration in his mental state, and that mental state has been identified as a risk factor.

7. [80]

   I also have a serious concern that the imposition of these particular conditions would be likely to set the defendant up to fail because of his mental illness. I have regard to the fact that the breaches by the defendant during the first ESO did not involve sexual offences. The likelihood is that if these conditions were imposed, there would be breaches of the ESO by the defendant not relevantly related to the purpose of the ESO, which is to meet the risk of the commission of a serious sex offence. Whilst a schedule of movements and electronic monitoring would make it easier for the ESO team to keep track of the defendant both in real time and in retrospect, that is not the purpose of the imposition of the ESO: State of New South Wales v Bugmy [2017] NSWSC 855 at [89] and [96]. Further, an object of the Act is to encourage high risk sex offenders to undertake rehabilitation, and the likely breaches which would result if these conditions were imposed would be inimical to that rehabilitation. So much is clear from the defendant’s, probably paranoid, fear of the police.

8. [81]

   Electronic monitoring will not be a condition of the ESO, and a schedule of movements to be provided will mirror that which was imposed by Cavanagh J in conditions 4 to 7 of the earlier ESO; these have been described as dry scheduling.

9. [82]

   Condition 24 provides that the defendant must not associate with any person or persons specified by a DSO. The plaintiff then seeks the following condition:

10. [83]

    No particular reason is identified for the inclusion of condition 25(a). Although the defendant has had issues with alcohol in the past, the far more significant concern has been his use of illicit drugs, and methamphetamine in particular. No condition similar to condition 25(a) was included in the previous ESO and Mr Tim Hammond of counsel for the plaintiff submitted that the condition was directed towards ensuring that the defendant did not commit offences against vulnerable people, but he also accepted that there was no new evidence about any such matter since the first ESO was ordered.

11. [84]

    Nothing in the defendant’s history suggests that he might offend by taking advantage of somebody who was inebriated. The condition does not relate to any risk.

12. [85]

    In relation to condition 25(c) Mr Hammond informed me that the reason for the inclusion of this condition was that the defendant had written a letter to a prisoner with sexually explicit material. In fact, the incident appears to be that reported in the report of Dr Dewson at par 34, where Dr Dewson relates a misconduct report when the defendant was a prisoner in November 2008.

13. [86]

    Given that the event occurred when the defendant was in custody and occurred in 2008, there is no justification for the inclusion of such a term in the present conditions.

14. [87]

    Condition 26 provides:

15. [88]

    The corresponding condition in the prior ESO was condition 23 which provided:

16. [89]

    Condition 27 provides:

17. [90]

    Mr Hammond accepted that this was a new condition, and said it was primarily aimed at allowing the DSO to make an assessment whether or not there were likely to be vulnerable people at risk in any club or association.

18. [91]

    Nothing is said in the Risk Management Report about this matter. Further, the only club or organisation with which the defendant appears to have had any connection is the church at Petersham which he seems to attend via Zoom. There is no evidence or suggestion that he has associated with this church for purposes which would place any person at risk.

19. [92]

    Part H of the Conditions contains two search and seizure conditions as follows:

20. [93]

    By contrast, the search and seizure conditions in the prior ESO provide as follows:

21. [94]

    Mr Hammond submitted that conditions 42 and 43 appeared simpler and were probably easier for the defendant to understand than those contained in the prior ESO. Mr Hammond also said that he suspected the reason for the change was that conditions 42 and 43 were standard conditions.

22. [95]

    Whilst it is certainly true that conditions 42 and 43 are expressed more simply, they impose a more stringent regime than was thought necessary in the past. They do not require the DSO to form any reasonable opinion or to have any reason at all for carrying out such a search. In my opinion, the safeguards in par 29(a)-(c) are appropriate to limit the power to search and inspect. Conditions in terms of conditions 29 to33 in the prior ESO should be substituted for conditions 42 and 43.

Conclusion

1. [96]

   Accordingly, I make the following orders:

   1. (1)

      Pursuant to sections 5B and 9(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), order that the defendant be subject to an Extended Supervision Order for a period of two years commencing 8 July 2022.

   2. (2)

      Pursuant to s 11 of the Act, during the period of the Extended Supervision Order, the defendant is to comply with the conditions in the Schedule to these reasons.