The State of New South Wales v Lee

1. [1]

   By application made on 6 December 2017, the State seeks an extended supervision order under ss 5C and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), for five years against Mr Lee. The application was only then made, following amendments to that Act which took effect on 6 December 2017, which amongst other things extended the time limit before which proceedings must be commenced from six to nine months and permits the Court to make an extended supervision order, if satisfied that an offender poses an unacceptable risk of committing either a serious sex offence or a serious violence offence: Crimes (High Risk Offenders) Amendment Act 2017 (NSW). It is common ground that these new provisions apply to this application.

2. [2]

   Interim supervision orders are also sought. This judgment deals with that application. There is no issue between the parties that an interim order must be made, but the conditions to be imposed on Mr Lee are in issue.

3. [3]

   Mr Lee, now aged 53, has a relatively short, but very serious criminal record, including as it does a conviction for a murder which he committed in 1990, in circumstances where he had sexually assaulted a female friend, before killing her by stabbing her 23 times.

4. [4]

   Mr Lee is presently on supervised parole, living at the Nunyara Community Offender Support Program, for an offence contrary to s 61I of the Crimes Act 1900 (NSW) and two counts of assault with an act of indecency, contrary to s 61L, which do not fall within the statutory definition. These offences were committed in 2007, while he was on parole for the murder. Mr Lee was convicted of those offences in 2008.

5. [5]

   Mr Lee was sentenced by Armitage J to a term of imprisonment of 10 years, commencing 2 January 2008 and expiring 1 January 2018: Regina v Christopher Roy Lee (District Court (NSW), Armitage DCJ, 7 August 2008, unrep). His appeal from that conviction failed: Lee v R [2009] NSWCA 259. His non-parole period for that offending expired on 1 January 2015, but he was released to parole only in July 2017.

6. [6]

   The application was supported by an affidavit sworn by Mr McLachlan, a solicitor employed in the Crown Solicitor’s Office, to which were attached numerous documents, including those which relate to the offence on which this application is based; those which relate to his murder conviction; police statements which he made in January 1988 in relation to another sexual assault charge, which did not go to trial; as well as his custodial, parole and criminal records.

7. [7]

   In evidence are also a risk assessment report prepared by the senior psychologist, Mr Ardasinski, in August 2017 and the risk management report prepared by Ms Flately, a Senior Community Corrections Officer, in September 2017.

8. [8]

   Notice of the potential application was given to Mr Lee in June 2017 and on 6 December, he was notified that instructions to commence these proceedings had been received. He is legally represented and in written submissions, amongst other things, it was indicated that Mr Lee does not resist a finding, for the purpose of these preliminary proceedings only, that the Court would be satisfied that he poses an unacceptable risk of committing another serious offence, if not kept under supervision under the terms of the proposed order.

The statutory scheme

1. [9]

   In Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [2004] HCA 46, the history of legislative schemes for preventive detention of offenders who are regarded as a danger to the community was discussed. Gleeson CJ observed at [12] that “the way in which the criminal justice system should respond to the case of the prisoner who represents a serious danger to the community upon release is an almost intractable problem. No doubt, predictions of future danger may be unreliable, but, as the case of Veen shows, they may also be right.”

2. [10]

   In this State those problems are dealt with by the High Risk Offenders Act, whose objects are specified in s 3 to be:

3. [11]

   Section 9(2) now specifies that “in determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration”.

4. [12]

   In the result Mr Lee made a number of concessions, both as to the application of the legislative scheme to these proceedings and to the making of an interim supervision order to take effect at the conclusion of his parole.

5. [13]

   The Court’s jurisdiction to make orders under the Act arises under s 5B, which provides:

6. [14]

   There was no issue between the parties that Mr Lee has served a sentence of imprisonment for a "serious offence”, defined in s 4 to include a “serious sex offence”, that being a term defined in s 5(1). Mr Lee’s 2008 conviction of an offence against s 61I of the Crimes Act, for which he is presently on parole, falls within that definition and also within the definition of “an offence of a sexual nature” in s 5(2). That also brings Mr Lee within the definition of “a supervised offender” in s 5I, in respect of whom the State may make an application for an extended supervision order.

7. [15]

   It was also conceded that Mr Lee fell within s 5B, because he had served a sentence of imprisonment for the offence of murder, that falling within the definition of “serious violence offence” in s 5A(1)(a).

8. [16]

   It was further conceded for Mr Lee that on the evidence, the Court would be satisfied “to a high degree of probability”, that he poses an unacceptable risk of committing another serious offence, if not kept under supervision, and that accordingly, the Court would make an interim supervision order: s 5B(d).

9. [17]

   The term “an unacceptable risk” is not defined in the High Risk Offenders Act. As discussed in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [50] - [51] and [55]:

10. [18]

    Nor is the term “a high degree of probability” defined in the High Risk Offenders Act. In Lynn it was observed at [58] that the term should be given its everyday meaning, in the context of the provision in which it appears and having regard to the objects of the legislative scheme. In Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21], its meaning in predecessor legislation was held to be:

11. [19]

    It is s 7(4) which requires the Court to make specified orders at a preliminary hearing which must be conducted within 28 days after the application is filed, if “it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order”. While that requires consideration to be given to s 9, which governs how applications for extended supervision orders are to be determined, it does not, however, require the Court to predict the ultimate result of the application: see Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98], also in relation to predecessor legislation.

12. [20]

    It is s 10A which provides for the making of interim orders, it providing:

13. [21]

    Section 11 specifies the conditions which may be imposed when supervision orders are made, as the Court considers to be appropriate. Mr Lee’s case was, however, that the Court’s orders would be limited to those that reflect his current conditions of supervised parole, consistently with authority that conditions imposed must seek to address the identified risk factors: relying on for example, State of New South Wales v Bugmy [2017] NSWSC 855 at [89].

14. [22]

    It was the State’s case that this approach did not accord with the requirements of the statutory scheme, given the objects of the Act and the requirements of s 9(2).

15. [23]

    It is s 9(3) which provides:

16. [24]

    The proceedings were only commenced on 6 December and the application for interim orders heard on 12 December 2017. Rule 10.2 of the Uniform Civil Procedure Rules 2005 (NSW) provides:

17. [25]

    There was, however, no issue raised by Mr Lee as to whether the late application and service of the supporting affidavit satisfied these requirements. It is, accordingly, unnecessary to consider this Rule further.

The evidence establishes that Mr Lee poses an unacceptable risk

1. [26]

   Like the parties, I too, am satisfied that the evidence establishes to a high degree of probability, that Mr Lee poses an unacceptable risk of committing another serious offence and that the safety of the community demands that the interim orders sought be made.

2. [27]

   This conclusion rests on the evidence which includes not only Mr Lee’s criminal record and the remarks of those judicial officers who have sentenced him for his past serious violent and sexual offending, but also evidence of the results of risk assessments which have now been undertaken.

3. [28]

   At the time of his murder charge, the Crown did not pursue Mr Lee for his sexual assault of the victim. Nevertheless, the sentencing judge, McInerney J, was satisfied beyond reasonable doubt that he had attempted to rape his victim before he killed her in such a brutal attack, in the presence of her child, that the broken blade of the large carving knife which he had used to stab her many times, was left stuck in her back: Regina v Christopher Roy Lee (Supreme Court (NSW), McInerney J, 16 February 1990, unrep).

4. [29]

   His Honour described this offence as a horrifying one, for which there was no evidence of contrition. He considered that at trial Mr Lee had advanced what was a manufactured account of having been the victim of an assault, to explain why he had arrived home shirtless, his shirt having probably become blood stained during his attack with the knife. That was an account which the jury also rejected. His victim was allegedly one of Mr Lee’s close friends. He killed her while affected by alcohol.

5. [30]

   While Mr Lee was originally sentenced to life imprisonment, that sentence was re-determined by Levine J in July 1999: see Regina v Lee [1999] NSWSC 773.

6. [31]

   Mr Lee was also affected by alcohol at the time of his serious sexual offence, committed while on parole for his murder, at his own home, against his young victim, his son’s girlfriend. She was suffering from schizophrenia and depression and was then dependent on him, for her accommodation.

7. [32]

   Before his release on parole on the murder charge, pre-release reports had indicated that Mr Lee had a satisfactory custodial record and had also successfully completed numerous courses in custody, including education programs and programs in relation to anger management, alcohol and other drugs, conflict resolution and relapse prevention. There were, however, various concerns expressed, including as to the risks associated with his alcohol consumption, which proved to be well founded. Mr Lee, however, also denied that he committed these offences.

8. [33]

   In custody Mr Lee completed a six month treatment program for offenders who persist in such denials. Even now, however, Mr Lee continues to deny having committed these serious offences.

9. [34]

   Concerns are currently held that his family and social relationships have failed to act as a protective factor, as they often do and instead, family members have colluded in, or supported his denials of wrongdoing, in relation to both these offences.

10. [35]

    An October 2015 treatment report also reveals that Mr Lee has not participated in any further substance use programs, despite his earlier breach of the non-consumption of alcohol condition of his parole.

11. [36]

    Mr Ardasinski interviewed Mr Lee in August 2017. In his report Mr Ardasinski assessed Mr Lee as falling within the low risk category for offences involving non-sexual violence and in the moderate risk category for offences of sexual violence.

12. [37]

    Mr Ardasinski referred to Armitage DCJ’s 2008 sentencing remarks, which reveal that Mr Lee was convicted by a jury of two counts of sexual assault, the more serious assault involving forced penile/oral intercourse, despite having denied any sexual contact between him and his victim. Mr Lee then claimed that he had been affected by alcohol and was incapable of getting/maintaining an erection. On examination, however, his DNA was extracted from semen found on the victim’s clothing.

13. [38]

    Mr Ardasinski also referred to McInerney J’s sentencing remarks, which reveal that Mr Lee was convicted by a jury of the murder of a woman in the presence of her baby, by 23 stab wounds inflicted in what was described to have been a frenzied attack. Mr Lee initially confessed to police to having begun a consensual sexual encounter with his victim, during which she informed him that she proposed to call police to complain that he had raped her and that he had then stabbed her in a panic, not only to the chest, but when she fell to the ground, also to her back. At trial, Mr Lee’s defence was, however, that he was an innocent bystander who had confessed to the murder, after being threatened by the victim’s former de-factor partner, who was in truth the murderer.

14. [39]

    In his report Mr Ardasinski noted that Mr Lee maintained this version of events on interview, although he then provided contradictory details, as he had earlier, in accounts which he gave while serving his sentence for that offence,

15. [40]

    Mr Ardasinski also noted that prior to his murder conviction, Mr Lee had also been charged with other sexual assault offences which were discharged in July 1989, after the alleged victim relocated to Western Australia and was not available to give evidence. This alleged offending involved non-consensual felatio and penile/vaginal intercourse with a young female acquaintance, who it was alleged Mr Lee had threatened to kill, along with her child, if she told anyone.

16. [41]

    Mr Ardasinski noted that Mr Lee has no history of diagnosed mental illness or cognitive impairment, but had experienced anxiety and depression in the past, as well as anxiety about inadvertent breaches of the conditions of his parole. On interview, no form of diagnosable mental health impairment was identified by Mr Ardasinski.

17. [42]

    In the 2008 sentencing remarks Armitage DCJ referred to the opinion of Dr Martin, that Mr Lee likely suffered an alcohol dependence disorder and in the past may have fulfilled the criteria for anti-social personality disorder, given his criminal record which dated back to when he was a teenager. But he was not then diagnosed to be suffering any major mental illness.

18. [43]

    In 1990 Mr Taylor, who assessed Mr Lee at the time of the murder sentence, identified that Mr Lee had problems with accepting responsibility for his behaviour; that he had poor insight; he did not have stable relationships; he felt misunderstood, unfairly blamed and punished; he had indications of a high level of projected hostility, which was not reality based; and that when bored, he would act immaturely and unpredictably.

19. [44]

    In custody Mr Lee had a limited record and was described in case notes in ways that Mr Ardasinski suggested that he had been a model inmate, apart from five minor incidents. He had also been compliant with directions and had mostly kept to himself. He had also engaged in employment in recent years.

20. [45]

    Mr Ardasinski also noted that when on parole for the murder charge, Mr Lee was found to have breached his residence and abstinence conditions. He was affected by alcohol at the time of his sexual offending.

21. [46]

    The residential Deniers Program which Mr Lee undertook in custody in 2015, resulted in him identifying future goals and strategies to work towards, in relation to ruminating, coping, abstinence and relationships.

22. [47]

    Mr Ardasinski noted that since his release on parole this year, concerns had arisen that Mr Lee proposes to reside with his long term de-facto partner and her 23 year old daughter, which exposes him to a risky situation. Such residence has not been approved. This proposal was contrary to a strategy Mr Lee had identified in the Deniers program, that he does not allow women to whom he is not related, stay at his home. In the interview Mr Lee denied that it was he who had devised this strategy.

23. [48]

    In his report Mr Ardasinski explained the risk assessment process he had pursued, using both static and dynamic assessment tools, as well as their limitations. Mr Ardasinski also referred to remarks about Mr Lee by Levine J in 1999, who considered him not to be an inherently evil person; Armitage DCJ, who considered in 2008 that he had some, albeit limited prospects of rehabilitation; and the psychologist Mr Young, in his May 2017 assessment, that Mr Lee required very careful monitoring, to ensure community safety.

24. [49]

    Mr Ardasinski noted that the static and dynamic LSI-R actuarial risk assessment tool was last used in 2016 to provide an indication of Mr Lee’s risk of general and violent recidivism within 12 months post release and his criminogenic needs, which can be targeted in treatment programs. Mr Ardasinski noted, however, that this tool omits numerous risk factors in relation to sexual violence. In 2008, after his arrest, he fell into the medium to high risk for general and violent offending. In 2010, Mr Lee was assessed as falling into the medium risk category and his assessed risk has since fallen further, consistent with his involvement in custodial work and programs aimed at moderating risk.

25. [50]

    Using the Static-99R tool, for positioning offenders according to their relative degree of risk for sexual recidivism, based on commonly available demographic and criminal history information, which has been found to correlate with sexual recidivism in adult male sex offenders, and has moderate predictive accuracy, Mr Ardasinski assessed Mr Lee as posing an above average risk. He falls into the lower of the two level IV risk categories, level IVa, with level IVb, being the highest. The rate of recidivism of such offenders is estimated to be about two times higher than the “typical” sex offender.

26. [51]

    Mr Ardasinski explained that the Static-99R tool does not measure all relevant risks and is based on sexual misbehaviours, which do not all fall within the statutory definition of ‘serious sex offences’. Thus Mr Lee’s actual risk could be lower, or higher, than it has been assessed to be. It also does not measure changes in circumstances, which may also increase, or decrease risks.

27. [52]

    Using the dynamic STABLE-2007 tool which consists of 13 items related to psychological, interpersonal and sexual function, which are persistent characteristics, but which are amenable to change though effortful intervention, such as treatment and supervision, Mr Lee scored 11, which suggested that he had a moderate density of criminogenic needs. The areas of identified concern were significant social influences, impulsive acts and poor cognitive problem solving skills.

28. [53]

    Combining the Static-99R and STABLE-2007 tools to generate a composite assessment of Mr Lee’s risks/needs, resulted in the conclusion that he required a medium to high level of intervention and/or supervision.

29. [54]

    Using the STATIC-2002 actuarial risk assessment tool which has 14 items grouped into five main subscales, age at release, persistence of sexual offences, sexual deviance, relationship to victims and general criminality, resulted in an assessment that Mr Lee falls within the low to moderate risk range. This tool also has moderate predictive accuracy for risks of re-offending. The rate of recidivism for offenders with Mr Lee’s score, is about one and a half times higher than “typical” offenders.

30. [55]

    Using the RSVP protocol, which considers 22 dynamic risk factors resulted in an assessment that Mr Lee fell into the moderate/elevated risk category. Mr Ardasinski identified the relevant factors to include Mr Lee’s categorical denial of his past offending; his problems with alcohol and violence; his sexual offending against females who trusted him when alone with them in a domestic situation; his dysfunctional personal relationships; and his problems with self-awareness, planning and supervision

31. [56]

    Using the VRS actual risk assessment of Mr Lee’s violence risk, led Mr Ardasinski to the conclusion that he fell within the low risk range, albeit very close to the medium risk range for violence. The dynamic factors identified as relevant to Mr Lee’s assessment were substance abuse; insight into violence; violence cycle; interpersonal aggression; release to high risk situations; work ethic; impulsivity; cognitive distortions; and compliance with supervision.

32. [57]

    Mr Ardasinski observed that Mr Lee did not participate in any programs during his recently served sentence, to deal with his alcohol use and on his last release to parole, committed further offences when affected by alcohol, in breach of his parole. Further, he continues today to deny that offending and now proposes to live with his stepdaughter, despite his past sexual offending involving a pattern of alcohol abuse, access to a vulnerable female and threats of harm, if they report his offending.

33. [58]

    Mr Ardasinski considered that Mr Lee has a capacity for significant violence, especially when affected by alcohol, as well as a history of impulsive offending and breach of parole supervision.

34. [59]

    Protective factors Mr Ardasinski identified included the support of Mr Lee’s long term de-facto partner, his family support and reported willingness to engage in further interventions, although he not commenced any as yet. But his continuing denial posed problems for those who had to manage his supervision, community monitoring being unable to monitor his behaviour in a family home.

35. [60]

    In the result, Mr Ardasinski was unable to discount that Mr Lee had the potential to commit both further serious sexual and serious violence offences. Mr Ardasinski described the aims of Mr Lee’s proposed strict monitoring, intensive supervision and case management, to be to contain behaviours associated with the risks which he posed, including drinking to excess and impulsively trapping an unsuspecting victim at home. Mr Ardasinski considered that such supervision could minimise risks, but not guarantee community safety completely.

36. [61]

    Mr Ardasinski also observed that if no order was made, for the first time since 1988, Mr Lee will be at liberty in the community, without any supervision or support and without any limitation on conduct which had resulted in his prior serious violent and sexual offending - other than registration on the Child Protection Register. That would mean that police would know where he lived, but there would be no power to monitor his alcohol consumption, or who he lived with, in circumstances where he desires to reside with his de-facto partner and her stepdaughter and has expressed an intention to relocate to Queensland.

37. [62]

    Ms Flately also interviewed Mr Lee. In her report she observed that prior to his release in July 2017, apart from some 42 days, he had been in custody for close to 29 years. Ms Flately also noted in her report that Mr Lee’s supervision while on parole for the murder charge had proven to be unsatisfactory, given his failure in 2006 to reside at an approved location and his breach of the alcohol consumption condition.

38. [63]

    Ms Flately described Mr Lee’s current conditions of supervision on parole. He has been residing in the COSP centre, but is focussed on returning to live with his de-facto partner and her daughter, despite having been refused permission to do so while on parole, after various risk assessments and having himself identified in the Deniers program, that this would involve a potentially high risk scenario for him.

39. [64]

    Mr Lee is currently engaged in weekly individualised sessions with a Forensic Psychological Services therapist, targeting risk management and reintegration. Medical investigations into Mr Lee’s symptoms of depression and anxiety are also being pursued.

40. [65]

    Ms Flately also explained that Mr Lee has yet to demonstrate sustained alcohol abstinence, despite attendance at Alcoholics Anonymous, alcohol consumption also posing an unmanageable risk for him.

41. [66]

    Ms Flately noted that assessment under the Level of Service Inventory - Revised (LSI-R) tool had found that Mr Lee fell within the medium/high risk level for general re-offending and that on Mr Ardasinski’s assessment, he fell into the moderate risk category of sexual offending. Ms Flately explained the risk factors which had been identified, which formed the basis of Mr Lee’s proposed risk management plan, the details of which Ms Flately also explained.

42. [67]

    That plan involves weekly interviews with Mr Lee, to discuss risks to be managed and monitored, including substance abuse; insight into violence; his violence cycle; interpersonal aggression; release to high risk situations; work ethic; impulsivity; cognitive distortions; and compliance with supervision. Community reintegration would also be promoted and closely monitored and Mr Lee encouraged to manage his identified risks; to challenge negative attitudes; and to maintain meaningful engagement with supervision and interventions, including alcohol and psychological counselling. There would also be contact with family members, in order to monitor the nature of his relationship with his de-facto partner and her daughter.

43. [68]

    The limitations of the strategy were identified by Ms Flately to be Mr Lee's poor history of supervision compliance; his willingness to engage meaningfully in his supervision; and his failed history of engaging in alcohol treatment.

44. [69]

    Ms Flately also outlined the details of the proposed management strategy, including by scheduled and unannounced home visits; field surveillance; referral to CSNSW and external psychological services, as well as alcohol and drug services; non-association; and place restrictions.

45. [70]

    The home visits are proposed in order to ensure Mr Lee’s participation in pro- social activities and to ascertain whether he is frequenting high risk venues, given his history of past offending. Ms Flately also described how third party contacts, including with family members, would be managed, as well as the limitations of the proposed management strategies. Contact is also to be maintained with his therapist, to confirm his attendance; discuss progress and development of insight; and to identify concerns regarding his behavioural risks. Entry to licensed premises is also to be prohibited and monitored by submission of weekly schedules, electronic monitoring and observation.

The conditions

1. [71]

   The conditions which the State sought appear at annexure A.

2. [72]

   What lies in issue between the parties must be resolved in light of the evidence which I have discussed, as well as the statutory requirements which I have earlier explained.

3. [73]

   As the parties both acknowledged, what the Court must take into account includes the matters specified in s 9(3) earlier quoted, as well as the objects of the High Risk Offender’s Act and the requirements now imposed by s 9(2). In s 9(3)(f) the level of the Mr Lee’s compliance with any obligations to which he is or has been subject while on released on parole, must thus be taken into account. That includes his breaches of the parole which he was granted in respect of his murder conviction, during which he not only breached his residence and alcohol conditions while living in the community, but also committed the sexual offences in respect of which he is currently on parole.

4. [74]

   There was no issue between the parties as to those conditions which reflect Mr Lee’s current conditions of parole, namely conditions 1, 2, 3, 5, 10, 12, 15, 17, 18, 21, 22, 24, 25, 45 and 46. Accordingly, I am satisfied that those conditions should be imposed.

5. [75]

   In issue were other conditions which Mr Lee considered involved both “an increase” in the conditions of his parole, which have been in place since July 2017, without any breach on his part and were also impermissibly punitive.

6. [76]

   The proposed date of imposition of such conditions, 1 January 2018, when Mr Lee’s parole expires, was also argued to be arbitrary and supported his contention, that the disputed conditions were unnecessarily harsh.

7. [77]

   On the State’s case, that date had been selected because it was considered to be inappropriate to have Mr Lee subject to both conditions of parole and conditions imposed by the order made in these proceedings, at the same time. It appears that both sets of conditions are likely to be supervised by the same officers.

8. [78]

   The State also relied on Wilde v New South Wales [2015] NSWCA 28, where complaints of unjustifiably onerous or punitive conditions were also advanced, as well as a failure to apply the statutory test specified in s 11. There it was held at [53] – [54] that:

9. [79]

   Given these observations and the statutory provisions earlier discussed, I am satisfied that the fact that a proposed condition might reasonably be described as involving “an increase’ upon the conditions of an offender’s parole, is not a proper basis for concluding either that the Court has no power to impose the condition, or that the Court’s discretion should not be exercised.

10. [80]

    As was common ground between the parties, the statutory scheme under which conditions of parole are imposed has different purposes and requirements to those of the High Risk Offenders Act. While, for example, s 9(3)(f) requires that consideration be given to “the level of the offender’s compliance with any obligations to which he or she is or has been subject while on release on parole”, the Court by s 11 is empowered to “direct an offender to comply with such conditions as the Supreme Court considers appropriate”, including as to:

11. [81]

    In determining whether a particular condition should be imposed, even on an application such as this for an interim order, the Court must bear in mind the “paramount consideration” specified in s 9(2), namely, “the safety of the community”.

12. [82]

    It follows that on such an application, even if a particular condition involves “an increase” upon the conditions of an offender’s conditions of parole, if the Court concludes, on the evidence, that the condition is appropriate, it may be imposed.

13. [83]

    In the case of some of the disputed conditions, the case advanced for Mr Lee was that they were unnecessary, because they were conditions which could, in any event, be imposed by direction given by Mr Lee’s supervisor, under proposed condition 3. That condition requires him to follow all reasonable directions which his supervisors may give. On the State’s case, many of those conditions could also now be imposed on Mr Lee under condition 4 of his conditions of parole and were appropriate, dealing as they did with specific matters.

14. [84]

    In my view, that a specific condition could be imposed by direction given either under condition 3, or an offender’s current conditions of parole, does not determine whether or not it is appropriate to impose a specific condition.

15. [85]

    The purpose of the conditions imposed by the Court’s interim order is to address the risks of future offending of the type which forms the basis of the order, an order to which Mr Lee did not object.

16. [86]

    In my view, specific conditions as to particular matters can be a useful way by which different aspects of the risks which an offender poses can be addressed. Not only do they make clear to the offender what conditions are imposed upon him by the order, they also make clear to those supervising him, both the extent and limits of the broad discretion which condition three would otherwise give them, as to those matters. They also make clear to any other reader of the Court’s order, a police officer for example, the conditions which have been imposed as to identified matters.

17. [87]

    During the course of the hearing, the conditions sought in standard terms were examined in light of Mr Lee’s objections and the evidence as to the risks which he poses.

18. [88]

    In the annexure to Ms Flately’s report is an explanation of how the supervision of those who, like Mr Lee, are made subject to the Court’s orders, would be conducted by Community Corrections. There it is explained, for example, that individual case plans are managed, so that “as an offender approaches completion of the ESO, the focus of the case plan shifts to prepare the offender for life after expiry of the order by gradually reducing restrictions and increasing independence”.

19. [89]

    The desirability of such an approach is obvious, given what the Court’s orders are intended to achieve, the management of the risks which an offender poses, in circumstances where it is intended that the order will come to an end and the person who is its subject, will then be free to live in the community without further supervision.

20. [90]

    Even so, under this statutory scheme, relaxation of supervision, by gradually reducing the restrictions imposed by the conditions of the Court’s order, is only possible if those conditions give the supervisors the necessary discretion to permit such relaxation. In the case of some of the conditions proposed, no such discretion was given, even where it was clearly desirable and appeared from the State’s submissions as to the ‘practical’ implementation of the conditions imposed by the Court, to have been intended.

21. [91]

    It thus became apparent that the standard conditions and their interaction, could usefully be reconsidered by the State.

22. [92]

    It also became apparent at the hearing that necessary consideration had not been given to whether all of the conditions sought in their standard form, were appropriate in Mr Lee’s case. Such consideration must be given because it is, after all, only conditions appropriate in the particular case, which the Court may impose.

23. [93]

    After the hearing various concessions were thus made by the State, in a written submission provided on 14 December 2017.

24. [94]

    One of the problems thereby raised was the explanation that “as a practical matter, those responsible for enforcing interim supervision orders and extended supervision orders often relax/dispense with ESO condition that are considered too restrictive or no longer necessary”.

25. [95]

    Relaxing or dispensing entirely with conditions which the Court has imposed, where the Court has not given supervisors the discretion to do so and where no application under s 13 for variation of the order has been made or granted, is not envisaged by the High Risk Offenders Act.

26. [96]

    The further conditions then proposed by the State were:

27. [97]

    Mr Lee did not advance any submissions as to proposed amended conditions.

28. [98]

    Having considered the cases which the parties each advanced, I have concluded the following as to the disputed conditions.

29. [99]

    Condition 4, which requires Mr Lee to provide the police station nearest to his approved accommodation with a copy of the order, is one which I am satisfied is appropriate to impose, notwithstanding that the team involved in his supervision is intended to include a police officer.

30. [100]

    That conclusion rests on the risks which it has been identified that Mr Lee poses; the times and places where his past offending has occurred, at his home or that of a friend; the nature of his relationships with his victims; and the nature of his opportunistic offending, while affected by alcohol.

31. [101]

    Conditions 6-9 contemplate that Mr Lee, if directed, must provide a weekly schedule of movements which his supervisor must approve. They also indicate how that schedule must then be adhered to and that Mr Lee must truthfully answer questions asked about his whereabouts.

32. [102]

    For similar reasons, I am also satisfied that these conditions are appropriate to impose, notwithstanding that since his release from custody, he has been living at Nunyara Community Offender Support Program, without breach of his parole conditions.

33. [103]

    Mr Lee has spent some 29 years in custody. He murdered one victim and committed a serious sexual offence when on parole for the murder, while living in the community, with his de-facto partner and sons. It is currently proposed that he will return again to reside in the community. This schedule, if required, will no doubt provide the practical basis upon which condition 5, which requires Mr Lee to wear electronic monitoring equipment if directed, is implemented, in order to ensure the safety of the community.

34. [104]

    Condition 11 deals with curfew. At the hearing the State’s position was “that proposed condition 11 sets a default rule that the defendant is expected to be in his approved accommodation between the hours of 9 and 6. The schedule is to identify what his movements will be in the non-curfew period.” It was also accepted that “the more natural reading” of condition 11 was that it did not “within itself provide for relaxation”. That was because other conditions, condition 6, for example as to the schedule of movements, specify that it need only be provided if the supervisor directs. This is what prompted the three alternative clauses 11, 11A and 48 to be advanced.

35. [105]

    I am satisfied, for similar reasons to those given in relation to conditions 6 to 9, that it is appropriate for there to be a curfew condition. Given the way these conditions have been redrafted, it should take the form of the redrafted clause 11.

36. [106]

    There should also be a condition in terms of proposed condition 48, given how it is intended that the conditions imposed by the Court be relaxed over time, particular as the order comes towards its end, if Mr lee complies with the conditions. As I observed at the hearing, on an application such as this the Court strives to achieve a practical regime, which does not require further applications, or contests over them.

37. [107]

    Condition 13 precludes Mr Lee from spending the night away from his approved address without prior approval. For similar reasons to those earlier given in relation to the other disputed conditions, I am also satisfied that this condition is appropriate, given Mr Lee’s record of offending and the risk he poses.

38. [108]

    Condition 14 has been amended to reflect Mr Lee’s personal circumstances and the risks which he poses. I am also satisfied that this condition is appropriate. As was accepted at the hearing, a specific condition in these terms is to Mr Lee’s benefit, limiting as it does what would otherwise be left to a supervisor’s discretion under condition 3.

39. [109]

    Condition 16 requires Mr Lee to surrender any passport. He does not presently have one, it seems, but in this case, there is a parole condition that he is not able to leave New South Wales and not able to leave Australia. Given what Mr Lee desires to do, live in the community with his de-facto partner and her daughter and move to Queensland, when considered in light of the risks which he poses, I am also satisfied that it is appropriate to impose this condition.

40. [110]

    Condition 19 requires prior approval of employment to be obtained. Again, given the circumstances of Mr Lee’s past offending and his relationship with his victims, approval of circumstances which might result in him forming new relationships with females and the risks which he poses to them, make this condition also appropriate to impose.

41. [111]

    Condition 20 has been amended to confine financial information required to be provided to expenditure, so that expenditure on alcohol may be monitored. Given Mr Lee’s record of offending while affected by alcohol, that he committed his sexual offending while on parole and in breach of the alcohol condition and while in custody since then, he has not undertaken any courses relating to alcohol abuse, I am also satisfied that this condition is appropriate.

42. [112]

    Condition 23 requires that Mr Lee not enter licensed premises without the approval of his supervisor. Given the matters I have discussed in relation to Condition 20, I am also satisfied that this condition is appropriate, notwithstanding that it might be a licensed café which Mr Lee wishes to frequent for a coffee, or a restaurant for a meal.

43. [113]

    Condition 26 has been amended in terms which I am also satisfied are appropriate, given the objection advanced for Mr Lee, which has been adopted in the amended words and the risks which he poses, even though his past problems have been with alcohol, rather than drugs. Any future substance abuse would undoubtedly magnify the risks which he poses.

44. [114]

    Condition 27 requires Mr Lee to inform his supervisor if he starts a relationship with someone. It is expressed in terms wide enough to capture not only a personal relationship, but also a business relationship, or an employment relationship. The concern was explained to be to that the State be able to monitor any relationships which might give Mr Lee access to females with whom he is not related. The submission advanced for Mr Lee, that the real concern was intimate relationships cannot be accepted, given the nature of his relationships with his victims.

45. [115]

    Given his history of offending and the risks he is identified to pose, I have been persuaded that it is also appropriate to impose this condition,

46. [116]

    Condition 28 requires prior approval before Mr Lee joins any club or organisation. For the same reasons discussed in relation to condition 27, I am also satisfied that it is also appropriate to impose this condition.

47. [117]

    Condition 29 requires that Mr Lee not carry a knife or cutting instrument when he leaves his residence. Given the risks which he poses and the way in which he murdered his victim, I am well satisfied that this condition is appropriate.

48. [118]

    Conditions 30 to 33 deal with Mr Lee's access to and use of the internet. Mr Lee's objection to these conditions went to the risks which he posed, which were argued not to be concerned with his use of the internet or electronic devices, which had not been involved in any of his offending and which made these conditions inappropriate to impose upon him.

49. [119]

    Thirty years ago, of course, the possibility of pursuing relationships with females by such means did not exist. They now do and in the community, Mr Lee will have access to them. Given the nature of Mr Lee’s offending and the risks which he poses, I am satisfied that these conditions are also appropriate to impose.

50. [120]

    Condition 34 to 36 deal with search and seizure from Mr Lee's residence, vehicles, person and devices. Given the weapon involved in the murder and the risks which Mr Lee has been identified to pose, I am well satisfied that these condition are appropriate, notwithstanding that such a condition was not imposed during parole.

51. [121]

    Conditions 39 to 43 deal with name change, aliases and change in appearance, said by the State to be ancillary to the other conditions. Condition 41 has been amended in response to matters raised at the hearing. I am satisfied that such conditions are also appropriate, given the risks which Mr Lee poses.

52. [122]

    Condition 44 requires Mr Lee to notify the identity and address of any healthcare practitioner he consults. Again on the State's case it is ancillary. Given Mr Lee's past problems with alcohol and the risks which he poses, I am also satisfied that this condition, too, is appropriate.

53. [123]

    Condition 47 deals with information sharing and has been amended to address the complaint that it was framed in terms which were too broad. I am satisfied that the amended condition is appropriate to impose.

Orders

1. [124]

   For the reasons given I order that:

   1. (1)

      Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"):

   2. (2)

      (a) under s 10A of the Act, the defendant be subject to an interim supervision order from 1 January 2018 ("the interim supervision order");

   3. (3)

      The plaintiff have leave to file, under a covering letter, any additional evidence updating the case notes from the Offender Integrated Management System used by Corrective Services IMSW ("OIMS notes") referred to in the affidavit of Jamie McLachlan affirmed 6 December 2017 filed in these proceedings.

   4. (4)

      Any reports prepared for the purposes of Order 1 are to be provided to Corrective Services New South Wales, any agency involved in the defendant's supervision, and the defendant's treating clinician(s) or health care practitioner(s).

   5. (5)

      Access to the Court's file in this proceeding is restricted. A non-party may only access the file with the leave of a judge of the Court and with prior notice to the parties, in order to allow them an opportunity to be heard in respect of such an application.