State of New South Wales v Hyde (Preliminary)

1. [1]

   The State seeks a 3-year extended supervision and other orders under the Crimes (High Risk Offenders) Act 2006 (NSW) in respect of Mr Hyde, who it is claimed poses an unacceptable risk of committing another serious offence if he is not kept under supervision in the community. He is a 35-year-old man of indigenous background who was granted parole on 14 December 2021 in respect of a sentence imposed upon him by Buscombe DCJ in 2017 for his most recent six offences, one of them a serious sex offence under s 4 of the High Risk Offenders Act, which he committed in 2015. His sentence is due to expire on 19 May 2022.

2. [2]

   This judgment is concerned with the application for interim orders under s 10A of the High Risk Offenders Act, which were opposed. An order under s 7(4) of the Act for Mr Hyde’s assessment by two qualified psychiatrists and/or psychologists is also sought. But if not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the application must be dismissed without making such orders: s 7(5).

3. [3]

   The interim orders can only be made after a preliminary hearing if it appears both that Mr Hyde’s current custody or supervision will expire before the proceedings are determined and that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order: s 10A.

4. [4]

   Mr Hyde is presently on parole under supervision in the community and is thus a “supervised offender”: ss 5B(b) and 5I. Even after his parole ends he will be bound by child protection orders made in January 2022 by the Local Court under s 5 of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW). They regulate his contact with children under 18 years of age both in person and online. Breach of those orders, which have a term of 5 years, involves a criminal offence attracting penalties of a fine of $11,000 and/or two years imprisonment.

5. [5]

   Mr Hyde has never committed a “serious violence offence”, as defined in s 5A of the High Risk Offenders Act and only one “serious sexual offence”, which is defined in s 5 of the Act to include offences against specified provisions of the Criminal Code Act (Cth). They include s 474.26, using a carriage service to procure a person under the age of 16 for sexual activity. Mr Hyde’s 2015 s 474.26 offence, to which he pleaded guilty, involved a 15-year-old child.

6. [6]

   Mr Hyde also still has outstanding charges for offences it is alleged he committed while in custody, of stalk/intimidate contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) and carry out sexual act without consent contrary to s 61KE(a) of the Crimes Act 1900 (NSW). They are due to be heard on 16 May, but if established will not fall within the definition of serious sex offending.

Issues

1. [7]

   There is no issue that:

   1. (1)

      The preliminary jurisdictional requirements imposed by s 5B and the time limit arising under s 6 of the High Risk Offenders Act have been met.

   2. (2)

      The standard of proof which the State must meet on this application is greater than that applicable to civil matters, but less than that required in proof of a criminal offence: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21].

   3. (3)

      What arises for determination has to be approached on the assumption that what the State relies on is accepted, the Court at this stage not being involved in weighing that documentation, predicting the ultimate result of the application, or considering what evidence Mr Hyde might call: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98].

   4. (4)

      “Unacceptability of risk involves considerations of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate”, as Wilson J explained in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71].

   5. (5)

      In making this determination “the safety of the community must be the paramount consideration”: s 9(2) High Risk Offenders Act.

   6. (6)

      The Court must also have regard to the matters specified in s 9(3), as well as other relevant matters.

2. [8]

   In issue is whether the Court can be satisfied on the material on which the Crown relies, to the necessary high degree of probability, that Mr Hyde poses an unacceptable risk of committing another serious offence if not kept under the supervision sought: s 5B(d).

3. [9]

   The nature of the statutory test is also in issue, as are the conditions to be imposed, if the Court is satisfied that extended supervision orders should be made.

4. [10]

   The State seeks orders in similar terms to those which would be made on final hearing, while on Mr Hyde’s case, the conditions should replicate his current conditions of parole, for similar reasons to those given by Lonergan J in State of New South Wales v CD (Preliminary) [2021] NSWSC 1396 at [6].

5. [11]

   In that case the need for interim orders was conceded, in the context of CD’s repeated offences of sexual intercourse with a 15 year-old victim. CD was an offender younger than Mr Hyde and closer in age to his victim. He had also, however, had a childhood marred by significant educational disruption, instability in caregivers, trauma, domestic violence, neglect, and abuse, as well as ongoing mental health problems.

6. [12]

   The need for interim orders was not here conceded, however. Mr Hyde has committed only one serious sexual offence and, on his case, despite the materials relied on it could not be concluded that he posed an unacceptable risk of committing further serious offences. But if that conclusion was reached, standard conditions of the kind which the State sought would not be imposed at this interim stage. Instead, his conditions of parole, which were providing adequately for his supervision in the community would be continued until the application for final orders is determined.

Conclusion

1. [13]

   For reasons which follow I am satisfied that the State has met the onus which falls upon it and that interim orders must be made, albeit not in terms which entirely reflect those for which either the State or Mr Hyde contended.

The nature of the statutory test

1. [14]

   On the State’s approach, determining whether Mr Hyde poses an unacceptable risk is not a “stringent test” at this preliminary stage: State of NSW v Lynn [2013] NSWSC 1147 at [18]. Further, at this stage it is appropriate to give weight to risk avoidance: Attorney General for the State of New South Wales v Winters [2007] NSWSC 611. And, as it was put orally, at this stage “the legislation is slanted heavily in favour of” the State’s application.

2. [15]

   That is disputed by Mr Hyde, who contends that the test to be applied at both the preliminary and final stages is the same, albeit at the preliminary stage it must be undertaken on assumed facts: State of New South Wales v Thurston [2017] NSWSC 1760 at [19]-[20]. It also does not involve a finding that a prima facie case has been established: State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041 at [17]; State of New South Wales v DK [2018] NSWSC 1947 at [11].

3. [16]

   I am satisfied that Mr Hyde’s submission must be accepted.

4. [17]

   It has often been observed that putting an unwarranted gloss on a statutory test should be avoided: Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [70]; Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 at 209; and Hughes v National Trustees Executors and Agency Co of Asia Ltd (1979) 143 CLR 134; [1979] HCA 2 at 158.

5. [18]

   What is required on this application is a decision made under s 10A of the High Risk Offenders Act about whether “the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order”. That is not a predictive exercise and does not turn on a determination that “the risk of an offender committing a serious offence is more likely than not”: s 5D. It turns only on whether the matters relied on at this stage satisfy the Court “to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order”: s 5B(d).

6. [19]

   The term “unacceptable risk” is not defined, but a finding of the existence of such a risk is the gateway to the power to make an order, “which applies to an assessment of likelihood (‘unacceptable risk’) in the absence of any supervision”: State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280 at [24]. That evaluation is directed to the assessment of risk in the context of making the community secure from harm, as opposed to guaranteeing its safety and protection, because not every risk which an offender poses is an unacceptable one: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [61].

7. [20]

   In considering whether the State has met its onus, that Mr Hyde has only ever committed one serious sexual offence is thus a relevant consideration, as it was in Simcock, where there had only ever been one serious violence offence committed. But that does not preclude the conclusion that on all of the matters which arise to be considered, the State has met its onus and the statutory test has been satisfied.

Should interim orders be made?

1. [21]

   Under s 9(3) of the High Risk Offenders Act whether the orders should be made depends on consideration of matters the Court considers relevant, as well as of:

2. [22]

   That Mr Hyde might intend to leave New South Wales permanently or temporarily is not, however, to be considered in determining whether or not to make an extended supervision order: s 9(4).

3. [23]

   For Mr Hyde it was contended to be relevant that the serious sexual offence which he had committed carried a maximum penalty of 14 years imprisonment, that falling at the lower end of penalties for such offending. I do not accept that this is a relevant consideration.

4. [24]

   The Parliament has specified in s 5 of the High Risk Offenders Act the offences which fall within the definition of a serious sex offence. It has not provided for any distinction to be drawn between the specified offences, irrespective of the maximum penalty which they each attract. They include, in any event, specified offences under the Crimes Act which are punishable by imprisonment for 7 years or more: s 5(1)(a). That includes offences under s 61I of the Crimes Act.

5. [25]

   It appears that Mr Hyde’s 2015 s 61I offence was not a serious sex offence because his victim was an adult, and he did not commit that offence in circumstances of aggravation: s 5(1)(a)(ii) High Risk Offenders Act. Nevertheless, that offence remains a necessary consideration on this application, together with the rest of his criminal record, in determining whether the State has met the onus which falls upon it: s 9(h).

6. [26]

   Mr Hyde was released on parole in December 2021, well after he became eligible for parole. His sentence for his 2015 offences, to all of which he entered pleas of guilty, are due to expire in May 2022. They were:

7. [27]

   The three State offences involved separate victims and the Commonwealth offences the one 15-year-old girl. At the time of this offending, Mr Hyde was aged 29 and already had an extensive criminal record, which had commenced when he was aged 18. He had spent the majority of the intervening years in custody.

8. [28]

   In his unreported sentencing decision of 5 July 2017, Buscombe DCJ noted that the sentence for Mr Hyde’s most recent prior offence had expired only some four months before the 2015 offences for which he was being sentenced. While his prior offending did not involve offences of a sexual nature, the agreed facts revealed that he had threatened to kill the victim of his sexual intercourse offence, JC, if she did not beg for her life.

9. [29]

   That offence involved Mr Hyde grabbing JC from behind at about 2.05 am on 21 September, while she was walking home across a football ground, talking on her phone to her boyfriend. He grabbed her in a bear hug and threw her to the ground, saying “turn off your phone or I’ll stab you” and then inserted two fingers inside her anus, before rolling her onto her back. She pleaded with him to let her go and finally managed to run away and contact her boyfriend and police, even though Mr Hyde initially rode after her on his bike. He was arrested the following day.

10. [30]

    On 19 September at about 11pm Mr Hyde had ridden past the victim EW on his bike, stopped and put his hands under her skirt between her legs and ran his hand hard up her body up to her belly button, over her vagina. This assault was reported that night to police. At 2.05 am the same night, on 20 September, Mr Hyde had slapped the victim KC on the buttocks, as she was walking to her motel, causing her to stumble. He then turned and rode his bike towards her, and they recognised each other. He then apologised to her, but she later made a complaint.

11. [31]

    Buscombe DCJ explained Mr Hyde’s history and referred to a psychiatric report from Dr Reutens on which he had relied. Dr Reutens noted that at the time of Mr Hyde’s offending he thought that he would be best contained in prison and that he was institutionalised. She considered that he was significantly disaffected and at risk of reoffending, given his sense of injustice and resentment.

12. [32]

    While some limited evidence of remorse was found, Buscombe DCJ considered Mr Hyde’s prospects of rehabilitation to be guarded, observing that he had previously had chances to rehabilitate himself, which he had not taken. His Honour also considered that on release he would require considerable supervision in the community, if he was to have any hope of remaining offence free.

13. [33]

    His Honour also noted that Mr Hyde’s risk category relative to other offenders at risk of sexual offending recidivism had been assessed to be high.

14. [34]

    The sentences imposed on Mr Hyde for the Commonwealth offences were fully concurrent, dating from the date of his arrest, the sentence imposed for the serious sex offence being 3 years and 2 months, the transmit indecent communications offence 2 years and the solicit child pornography offence also 3 years and 2 months. An aggregate sentence of 5 years and 8 months with a non-parole period of 3 years and 6 months commencing on 20 September 2016 was imposed for the State offences, the result a total sentence of 6 years and 8 months with a non-parole period of 4 years and 6 months.

15. [35]

    Mr Hyde was not released on parole when he became eligible in March 2020, because of various problems to which I will return. After release on parole revocation was considered, because of problems in relation to accommodation, but not found to be necessary. He thus presently remains in the community subject to conditions:

16. [36]

    It is relevant that Mr Hyde continues successfully to pursue drug treatment and has not offended further since his release on parole.

17. [37]

    Mr Hyde has a considerable prior criminal record of other offending, as well as a traumatic personal history. It is not in issue that if he continues to pursue his past pattern of behaviour, it is likely that he will be involved in further criminal offending. That concession was properly made.

18. [38]

    It is not only Mr Hyde’s prior serious sex offence which must be considered, but also his prior criminal history and his pattern of offending: s 9(3)(h) High Risk Offenders Act.

19. [39]

    On the case advanced for Mr Hyde, he has been brutalised by his life experiences. That may well be accepted on his repeatedly reported history. Various documents suggest that Mr Hyde was failed very badly by the adults in his life while he was a child, as well as by society, which should have ensured that he received the care and education which all children deserve, but which he was denied.

20. [40]

    Mr Hyde:

    1. (1)

       is the eldest of 12, children including step-siblings. He suffered a very difficult upbringing near Tamworth, especially after his parents separated when he was aged 7. He essentially became homeless at age 12. He also suffered considerable violence at the hands of his stepfather; was sexually assaulted by an older family member; witnessed domestic violence; came across his father immediately following a suicide attempt; and himself pursued self-mutilation and attempted suicides;

    2. (2)

       lived on the streets at times as well as at some times with his grandmother. The result was that his schooling was very disrupted until he left in year 10. He has had limited employment as an adult;

    3. (3)

       has a history of substance abuse from age 12 when he first used marijuana and became involved in intravenous drug use. He commenced drinking alcohol heavily in his teenage years, as well as using drugs such as amphetamines, methamphetamine, morphine, OxyContin and fentanyl;

    4. (4)

       reports consuming thirty cans of Jim Beam or two cartons of beer and half a bottle of spirits each day and in custody at times even consuming methadone that other prisoners had vomited up;

    5. (5)

       was involved in a significant relationship which came to an end in 2006 after the still birth of his second child. His former partner later took out an apprehended violence order against him and a court order still prevents him seeing his son, a victim of some of his offending;

    6. (6)

       has been diagnosed as meeting diagnostic criteria of borderline personality disorder, antisocial personality disorder and polysubstance abuse disorder. A diagnosis of post-traumatic stress disorder has also been advanced;

    7. (7)

       has for the last 15 years spent all but two in total in custody, on average returning to custody every 102 days. He is essentially institutionalised; and

    8. (8)

       is currently in a relationship and until recently was living at the Integrated Support Centre, accommodation only available to him for a limited time. He is subject to electronic monitoring and had unsuccessfully sought rental accommodation, even though he receives Centrelink benefits, because there were problems resulting from his record. He is engaging with the Forensic Psychology Services and receiving treatment for his drug problems and presently living in a motel with his partner.

21. [41]

    Mr Hyde’s record began with offences committed in October 2004 for goods in custody and possessing ammunition without a licence, for which he was placed on a 2-year bond. There was further offending which involved breaches of the bond, as well as breach of bail orders, which resulted in his imprisonment. Further offending attracted custodial sentences in 2006, which were confirmed on appeal.

22. [42]

    By 2007 his offences included:

    1. (1)

       a conviction for assault occasioning actual bodily harm after his 2-year-old son was found suffering superficial burns from a lighter, as well as bruising to his head, grazes to his temple and chin, swollen lips and mouth, contusions, and a displaced tooth; and

    2. (2)

       a conviction for intimidate police officer; stalk/intimidate with intent to cause fear; common assault; contravene ADVO after he threatened to kill his former partner and their son if his partner left him; after she obtained an ADVO, threatening to use a gun and later residing in a place which breached the ADVO; and then making threats against police officers who later searched him.

23. [43]

    Mr Hyde’s offending worsened over time. His record includes offences of goods in custody, domestic and other violence, driving, firearms, knife, breach of AVO orders, influencing witnesses, using carriage services to menace, stalk/intimidate, as well as drug and sexual offences.

24. [44]

    While in custody before his release on parole in 2021, Mr Hyde also had 19 institutional misconduct charges for intimidation, violence and drug taking and he was also charged with the two outstanding offences involving female corrections officers.

25. [45]

    The 2015 serious sex offence and the other two Criminal Code Act offences came to light after Mr Hyde’s arrest on the State charges, when his mobile phone was examined.

26. [46]

    That disclosed over 300 communications with his 15-year-old victim, who he had met on a phone dating site, some sexually explicit. He had sent her pornographic material and also asked her to send him explicit photographs, with the result that the victim sent him several images of her underwear and vagina and others in which she was naked or partly naked. There was also a video of Mr Hyde masturbating.

27. [47]

    Mr Hyde also asked her to send him photos of her 8-year-old sister when in the bath or showering or getting dressed, which she refused to do.

28. [48]

    Reflective of his long record there are many reports in evidence, including psychiatric reports from 2007, 2010 and 2012, as well as many reports about past revocations of bail, breaches of bail conditions, as well as reports about incidents in custody and misconduct reports. They evidence Mr Hyde’s continuing disregard for conditions which should have helped him avoid further offending.

29. [49]

    It is not necessary to explain all of them, but reports concerning Mr Hyde’s state at the time of his 2015 offending and explanations which he later gave about his circumstances and his attitude to his sexual offending, must be referred to, relevant as they are to the assessment of the risk which he poses.

30. [50]

    In his 2017 pre-sentence report prepared at a time when Mr Hyde was unemployed and on remand, it was noted that:

31. [51]

    Despite the pleas entered for his 2015 offences, in this report it was noted that Mr Hyde then did not take responsibility for his offending, claiming not to have been aware of his 15 year-old victim’s age, she having told him she was over the age of 18 and attributing his other offending to the effects of his drug abuse. He also claimed that this offending was out of character and that he preferred to serve his whole sentence, rather than engaging in any programs in custody.

32. [52]

    Mr Hyde’s history of making inappropriate comments towards female correctional staff and deteriorating behaviour towards them was noted, as well as his then 17 institutional misconduct charges and ongoing refusal to participate in employment, educational programs, or offence related programs.

33. [53]

    It was noted that accommodation with family members in Tamworth was not available to Mr Hyde, with the result his stated preference to remain in custody for the remainder of his sentence and an unwillingness to accept any referral for other housing. Despite this in January 2020 he had signed the terms and conditions for the Nunyara COSP centre in Sydney.

34. [54]

    Mr Hyde was assessed as posing a high risk of committing a further sex offence and his resulting proposed supervision plan was outlined, as well as proposed conditions of parole.

35. [55]

    But he was not released when he became eligible.

36. [56]

    Disturbingly, this report noted that Mr Hyde had stated on further interview that in 2015 he had anticipated committing his sexual intercourse without consent offence, killing his victim and then suiciding, as an act of retribution towards the State Parole Authority, after a disagreement with his Community Corrections Officer, who he believed had disclosed his intravenous use of illicit substances to his mother, resulting in ongoing negative perceptions.

37. [57]

    Mr Hyde also then believed that this would bring about change in parole supervision processes, which he later recognised was an irrational attempt to justify the motive for his offending and involved reckless, self-destructive, careless and dangerous behaviour. At that time, he still did not anticipate ceasing his use of illicit drugs, but later accepted monthly Buvidal treatment and had since spoken of remaining substance free in the long term.

38. [58]

    It was noted that Mr Hyde’s assessment remained that he posed a high risk of further sexual offending, he still not having undertaken the appropriate sex offenders’ program. Further, that despite his past treatment for anxiety and depression and assessment of both borderline personality and anti-social personality disorder and a polysubstance abuse disorder, he was not receiving any treatment from Justice Health and did not perceive that he required further assistance.

39. [59]

    It was observed that Mr Hyde then struggled to verbalise empathy with his victims but appeared distressed when discussing details of his offending and stated that he had to live and think about his actions and that he was not that kind of person. But he accepted that he had made comments that he would have killed his victim if she had not begged for her life.

40. [60]

    While Mr Hyde remained opposed to participating in custodial based programs, he had participated in referral for post release participation in such programs, as well as drug treatment. It was noted that on assessment for participation in a sex offenders’ program in 2017 and 2020 he had not achieved the required C minimum security classification and his unwillingness to participate had also made his participation in custody before release unlikely. He had also been assessed as suitable for drug programs in which he was unable to participate because of his housing placement. He had that year also refused to participate in a health program.

41. [61]

    Because Mr Hyde then remained a B medium security classification inmate, he was also not eligible for pre-release leave. All options canvassed for his post release accommodation in the Tamworth area had not produced positive outcomes, because of the nature of his offences, staff safety concerns and his refusal to consent to referrals. Residence with family members was also not available. His staunch attitude was then noted to be a preference to remaining in custody, rather than being released to accommodation outside Tamworth, where he believed he had prospects of employment.

42. [62]

    Mr Hyde’s proposed supervision plan in the community was explained, as well as his proposed conditions of parole, given that his sex offending remained unaddressed and where his victims lived.

43. [63]

    This report noted that Mr Hyde remained a B medium security inmate; that he was still participating in the Buvidal injection program and that he disagreed with his identification as a prospective candidate for an extended supervision order, about which he had by then been advised. He was still not interested in participating in the High Intensity Sex Offenders program.

44. [64]

    Family members remained unwilling to offer Mr Hyde accommodation after release and placement elsewhere had not been identified. He was then assessed to pose a medium-high risk of reoffending and plans for his supervision, if released, were again outlined.

45. [65]

    This report noted that Mr Hyde still remained a B medium security inmate, but that an incident with a female corrections officer was being considered and threats to kill officers made after he was placed into segregation were noted.

46. [66]

    Problems with Mr Hyde participating in the High Intensity Sex Offenders and other programs were explained, as were plans for his release from custody. The assessment that he was at medium-high risk of reoffending remained.

47. [67]

    This report noted that Mr Hyde had regressed in custodial classification, then being classified as an A-2 maximum security inmate, which had impeded his entry into various programs. There were also pending charges in relation to alleged offences committed while in custody, but recent improvement in his behaviour was noted.

48. [68]

    The charges and his risk of reoffending had also adversely affected his placement in accommodation in the community. Plans for his release were, however, outlined, including electronic monitoring, curfews and drug and alcohol abstention.

49. [69]

    This report was prepared after the psychologist Mr Parker had spoken to Mr Hyde by phone. Despite considering that he had received unfair treatment in custody, he was found to be cooperative on interview, with stable mood, no suggestion of psychosis, mood disorder, substance abuse or intellectual disability.

50. [70]

    The report noted that since first admission in custody at age 20, Mr Hyde had spent a total of 13 years in custody and only two in the community, with his longest single period being 261 days and on average, 102 days out of custody. His compliance was then considered to have been satisfactory and he reported being content with his ongoing treatment, which he considered the most important factor in his current sobriety.

51. [71]

    Mr Hyde then reported a good stable state, there was no suggestion of intellectual disability, and his psychiatric diagnoses were noted, as was his criminal record.

52. [72]

    While in custody Mr Hyde had still not received various treatment or participated in programs because of his security classification, which remained too high, and his ongoing poor behaviour. He had, however, been free of illegal drugs for 3 years and was still receiving monthly Buprenorphine treatment, which he planned to continue, this being the longest period he had been without using illicit drugs. Still Mr Parker considered that this masked, rather than treated his drug problems.

53. [73]

    Mr Hyde then considered that living in Sydney would be a major obstacle to a life without crime and still hoped to move to the upper Hunter, where he considered his supports were.

54. [74]

    The pre-release report which indicated that Mr Hyde continued to claim that his victim had lied about being over the age of 18 was noted, with the conclusion that he then continued to fail to take responsibility for this offending, committed at a time when he was under the influence of methamphetamines.

55. [75]

    The later report where he did not shy away from his offending, about which he was distressed and said that he had to think and live with his actions, which included comments that he would have killed his victim if she had not begged for her life, was also noted. He did not then attribute the offending to substance abuse but referred to his then difficult circumstances, coupled with a desire to commit suicide.

56. [76]

    The limitations of risk assessment were explained, it not being scientifically possible to accurately predict whether or not an individual offender will or will not reoffend. Mr Hyde was assessed to pose a medium/high risk of reoffending under the LSI-R score, applied to all offenders sentenced in NSW to more than 6 months custody, 67% of those assessed at that level returning to custody within 2 years.

57. [77]

    The Static-99R assessment tool, which has moderate predictive accuracy, resulted in a recidivism assessment falling well above average risk, with 98.5% of other male sex offenders in the normative sample scoring lower than Mr Hyde and only 0.3% higher. Recidivism rates of individuals with his score are expected to be 7.3 times higher than a “typical” sex offender.

58. [78]

    The Stable-2007 tool placed Mr Hyde in the high risk category relative to other male sexual offenders, he scoring highly in relation to hostility towards women, general social rejection, lack of concern for others, negative emotionality and sexual drive/preoccupation.

59. [79]

    The overall risk posed from combination of the Static-99 and Stable-2007 tools resulted in an assessment that placed him with other violent offenders, 76% of whom had reoffended violently within 5 years and 87% within 12.

60. [80]

    Mr Hyde’s relevant crimogenic needs were identified to be antisocial attitudes and associated sexual preoccupation, problem solving and substance abuse, which were explained. His pattern of offending was examined and concluded to reflect an escalation of offending against random women and a 15 year-old girl, reflective of weakening connections with conventional society as the result of his ongoing incarceration and unsuccessful forays into the community.

61. [81]

    His offending with the 15 year old was considered to have been likely motivated by a desire for connection, while avoiding the potential for rejection and they and his attacks on random women, committed during a period of substantial drug abuse. The most likely scenario for his future offending was identified to be when he was emotionally distressed, a common event, when he resorted to drug abuse which heightened his risk of further offending.

62. [82]

    This report noted that since release Mr Hyde appeared to be responding well to supervision, although there had been but little time to assess his adjustment to normal community life. He was compliant with electronic monitoring and schedule provisions, as well as abstinence from drugs and undertaking Buvidal treatments.

63. [83]

    His high risk assessment resulted in weekly contact with his supervisor as well as monthly home visits, with a focus on having him engage with a treating psychologist and counselling and monitoring his compliance with conditions with third parties such as treatment providers, his partner and police. Recommended conditions were also explained.

64. [84]

    There is no question that Mr Hyde poses a real risk of further offending, but whether he poses an unacceptable risk of committing further serious offending, is more difficult to determine. On balance I have been persuaded that the material relied on establishes, to the necessary degree, that he does.

65. [85]

    In Lynn (2016) it was observed at [126] that this assessment must have regard to past conduct, the seriousness of possible future conduct and the period over which the risk may come to fruition, based on an absence of protective measures and to the extent that the evidence permits, of the background level of risk.

66. [86]

    The evidence I have discussed shed considerable light on all of these matters.

67. [87]

    Unacceptable risk was not established in Simcock, also a case involving only one serious offence, in that case of violence. There it was the unusual nature of the circumstances that surrounded the commission of the index offence which led to the conclusion that there could be a repeat of them was highly unlikely. That, together with evidence that pointed to some positive change in the defendant's attitude, as well as having completed the EQIP program, led to the conclusion that the statutory test had not been satisfied: at [76]-[78].

68. [88]

    In this case, it must be accepted, a very different picture is presented by Mr Hyde, other than in relation to his adherence to the conditions of his parole, albeit for a limited period, to this point.

69. [89]

    Mr Hyde’s serious sex offence also has to be considered in the context in which it was committed, together with two other offences involving the same 15 year-old victim, as well as in the context of his sex offences involving three other victims. They were seemingly committed in order to ensure his return to custody, on one account Mr Hyde later gave. But most disturbingly, on another later account, he committed the most serious of those offences with a priorly formed intention of killing that victim and then himself, in order to make a point about the terms of his then parole. It was only the victim begging for her life, which on his account deflected him from carrying out that intention.

70. [90]

    That is an account which it is simply impossible to overlook in arriving at a conclusion about what here lies in issue.

71. [91]

    It is that evidence, together with Mr Hyde’s lengthy prior criminal record, which includes offences of violence and repeated threats to kill others, as well as his ongoing record of misconduct while in custody, including pertinently towards female corrections officers, where his ability to commit further sexual offences was obviously curtailed by his custodial setting, which have finally persuaded me that Mr Hyde does pose an unacceptable risk of committing a further serious offence.

72. [92]

    As I have explained, Mr Hyde’s pattern has been one of considerably worsening offending over time. After his parole ends, if unsupervised he will be without the support, assistance, and supervision which he is presently receiving, which clearly are helping him remain offence free in the community, at least to this point. Not having either the accommodation and support of others that Mr Hyde would clearly prefer to have, or the support, which is presently available to him while on parole, that he is likely to commit further offences in order to ensure his return to custody, as he has in the past, is a very real risk.

73. [93]

    Further, all the evidence I have discussed establishes, I am also regrettably satisfied, that it is more probable than not that Mr Hyde’s likely future criminality will include further serious offending if he does not have the support which he would also be provided if interim orders are made.

74. [94]

    No one can, of course, predict the future and so there remains a possibility that with continuation of the drug treatment he is receiving, that Mr Hyde will not offend further, even without ongoing supervision. But the conditions of his parole are clearly also supportive of his adherence to that treatment, which is a very important aspect of what has helped prevent a lapse, to this point, into further offending.

75. [95]

    In arriving at a conclusion about the State’s application, the safety of the public must be the paramount consideration. That can only result in the conclusion that the risk which Mr Hyde poses of further serious offending if not kept under supervision is an unacceptable one.

76. [96]

    It is also important not to overlook the other object specified in s 3 of the High Risk Offenders Act, encouraging high risk offenders to undertake rehabilitation. That is clearly important in Mr Hyde’s case.

77. [97]

    As I explained, the evidence establishes that not only the adults in his life, but society failed Mr Hyde while he was a child. As an adult he has pursued a worsening criminal path. But it seems that it is one which he is capable of ceasing, by continuing to address his drug taking and the other factors involved in his offending.

78. [98]

    Mr Hyde is now old enough and has the intelligence to be able to understand that not having taken advantage of programs available in custody which could have assisted him in his rehabilitation, that there is still other help which will be available to him while he is subject to the interim orders which will be made, in addition to ongoing drug treatment, which will also assist him to remain offence free and eventually, able to live normally in the community without ongoing supervision.

79. [99]

    That will not be achieved by a reversion to Mr Hyde’s previous pattern of increasingly serious criminal behaviour, including further serious offending, which is the likely result if supervision ceases at this point.

80. [100]

    As was submitted for Mr Hyde, the legislative scheme does not provide for a pseudo system of parole. Nevertheless, under the interim supervision I am satisfied that the evidence establishes he requires, given the unacceptable risk of further serious offending which he otherwise poses, he will be helped to ensure that he does not commit further offences and is not returned to custody before any final hearing.

81. [101]

    It is for him to make best use of that assistance.

82. [102]

    But I am well satisfied that the State has established to the requisite degree, on the assumptions which must be made at this interim stage, that the risk that Mr Hyde will commit further serious offences if not supervised as the orders will require, is an unacceptable one.

What conditions should be imposed?

1. [103]

   It emerged at the hearing that there were problems with the orders for which both parties contended, which resulted in them giving further consideration to what they each proposed. For example, in the State’s case conditions were proposed which gave rise to the possibility of a conflict with the Local Court’s child protection orders and in Mr Hyde’s case, adoption of a parole condition requiring him to “adapt to normal lawful community life.” Neither could sensibly be imposed as a condition of an interim order, breach of which would involve criminal offending.

2. [104]

   Despite this further consideration appropriate conditions were not agreed, although some common ground was found.

3. [105]

   What the State finally proposed was:

4. [106]

   What Mr Hyde finally proposed was:

5. [107]

   The parties made further detailed written submissions about the differences remaining between them. This included, in the State’s case:

   1. (1)

      an acceptance that there was no material difference between what it and Mr Hyde proposed in relation to some conditions and that it was content for the wording he proposed to be adopted in some cases, while still contending that was “unnecessary”;

   2. (2)

      in some cases it being urged that some conditions were “best included” in sections of the document which it, rather than Mr Hyde suggested;

   3. (3)

      in some cases that what Mr Hyde proposed was more onerous than what it proposed and so more likely to be breached and thus should not be imposed; and

   4. (4)

      that some conditions proposed by Mr Hyde were not sought to be imposed upon him.

6. [108]

   The case Mr Hyde advanced included that:

   1. (1)

      it was relevant that the conditions he proposed were simpler in language and number and did not enliven any additional risk to the community;

   2. (2)

      it was relevant that he had a good understanding of and compliance with his parole conditions, which the conditions he urged reflected;

   3. (3)

      change in those conditions increased the likelihood of his inadvertent breach of the interim order;

   4. (4)

      given his good compliance a stricter regime of supervision was not necessary in order to achieve the statutory objectives and given his past compliance problems, the Court should encourage his positive progress; and

   5. (5)

      the conditions also had to be understood in the context of the child protection orders which also bound him.

7. [109]

   What remains in issue must be resolved in light of the requirements of s 11 of the High Risk Offenders Act, which empowers the Court to make both interim and final supervision orders on conditions that the Court considers appropriate, including as to the matters there specified in s 11(1):

8. [110]

   The need to determine what is appropriate does not permit simple adoption of conditions proposed, either on a particular application or of standardised conditions, without consideration of a defendant’s peculiar circumstances, even on an application for interim orders.

9. [111]

   Further, the exercise of this discretion must be governed by the objects specified in s 3 of the High Risk Offenders Act, ensuring the safety and protection of the community and encouraging high risk offenders to undertake rehabilitation, two sides of one coin, as the State submitted. Conditions which support rehabilitation will, after all, reduce the risk of further offending and thus can only reduce the risk which an offender poses to the community.

10. [112]

    The Act also does not permit the Court to defer giving consideration of conditions appropriate to the particular case, until experts are appointed by orders made under s 7 of the High Risk Offenders Act, who could advise on an appropriate form of orders, the final form of orders being the most important question for the Court, as was submitted for the State.

11. [113]

    After all, in Lynn it was observed that arriving at conditions “will involve a ‘balancing’ exercise, in the sense that the court will seek to impose the least intrusive conditions consistent with its assessment of the risk and a further assessment as to what kind of conditions are likely to be effective.”: at [129].

12. [114]

    That exercise must be undertaken both when interim and final orders are made, when the circumstances which arise for consideration may be relevantly different. At the interim stage, of necessity, consideration will have to be given to whether conditions of parole are being adhered to, if the offender is then in the community.

13. [115]

    It was the State’s case that the evidence suggested that in Mr Hyde’s case the parole conditions were not working, there having been a breach of parole report, even though his parole was not revoked as a result. That was in issue. Further, that on the evidence the Court could not be satisfied that even until final orders were made, continuing the parole conditions would achieve either protection of members of the community, or rehabilitating Mr Hyde.

14. [116]

    Mr Hyde contended that the problem he had experienced with accommodation should be understood as involving an initial teething problem with the conditions of his parole, not involving any breach.

15. [117]

    The evidence is that since released on parole in December 2021 Mr Hyde has not committed any offences. That he breached his accommodation condition has not been clearly established.

16. [118]

    Mr Hyde may have been compliant with that condition, given that he was obliged only to comply with reasonable directions given about his accommodation. The accommodation he was offered in a motel in Wollongong did not permit him to live with his partner, as he was able to do in Campbelltown, where he was also then successfully continuing his drug treatment.

17. [119]

    That may help explain why the Parole Board did not consider that his behaviour in refusing to move to the Wollongong motel and instead moving into a motel at Campbelltown, where he continues to reside without any suggested ongoing parole breach, warranted the revocation of his parole. But the reasons for that decision are not known. In the circumstances, however, that his refusal to move to the Wollongong motel was in all of the circumstances unreasonable and thus a breach of his parole, is not readily apparent.

18. [120]

    Mr Hyde relied on Lonergan J’s conclusion in CD that the conditions there ordered should correlate to the parole conditions to which he was currently subject, the orders being made on 1 November 2021, and he having been subject to them since his release to parole on 14 October 2021. There her Honour explained:

19. [121]

    In this case I have concluded that there is also merit in the continuation of conditions akin to those by which Mr Hyde has been bound by his parole since December 2021, which unlike his previous pattern, it appears that he has adhered to, while continuing his drug treatment and without further offending. They do thus appear to have been effective to this point in protecting the community and potentially assisting him in rehabilitation.

20. [122]

    I also accept that it is relevant that they are ones which Mr Hyde himself seeks to have continued at this interim stage, rather than having new conditions imposed which may again have to be altered if final orders are made.

21. [123]

    But it may also not be overlooked that interim orders are directed to the risk of further serious offending which the evidence has established a defendant poses and that breach of the resulting conditions imposed will have a different impact than breach of conditions of parole. Namely, that under s 12 of the High Risk Offenders Act the consequence of a failure to comply with the requirements of an interim order expose the defendant to a maximum penalty of 5 years imprisonment.

22. [124]

    Having considered the evidence and the competing cases advanced, I am thus satisfied that it would not be an appropriate exercise of the discretion to impose a condition on Mr Hyde the meaning of which is uncertain, or which poses unnecessary difficulty for compliance. The argument that compliance would be reasonably monitored, so that breaches of conditions would not unnecessarily be pursued, no doubt reflects the proper exercise of a prosecutorial discretion.

23. [125]

    But in my view the starting point must still be the imposition of conditions which are not only likely to be readily understood by both Mr Hyde and those who must enforce them, but which do not give rise to real risks of inadvertent non-compliance and are ones which he is motivated to adhere to, that being consistent with both objects of the High Risk Offenders Act.

24. [126]

    In the result I have concluded that the conditions must be modelled on those proposed by Mr Hyde, but adjusted to remove conditions appropriate for bail, but not an interim supervision order and to add conditions which the State urged, which I accept are necessary at this interim stage, albeit in some cases amended as Mr Hyde contended. They include provisions in relation to Mr Hyde’s appearance and identity and medical treatment.

25. [127]

    I note that while in submissions directed to condition 18 proposed by the State reference was made to observations in State of New South Wales v Mills (No 2) [2017] NSWSC 1442 at [75], condition 2(c), which deals with employment, is that which Mr Hyde himself proposed.

26. [128]

    While Mr Hyde proposed a condition in the same terms as the State proposed in relation to association with children, condition 27, it was also submitted that such a condition would not be imposed, given the terms of the Child Protection Prohibition order by which he is already bound. I agree and so have not included that condition.

27. [129]

    I have not included a condition in relation to not associating with anyone consuming alcohol or entering licensed premises. There are no such conditions imposed by the terms of Mr Hyde’s parole, which rather requires him to adapt to normal community life. Sensibly that must include being in the presence of others who are consuming alcohol, which he is prohibited from doing both by the conditions of his parole and by the interim order, unless authorised.

28. [130]

    I have also accepted amendments proposed by Mr Hyde to some conditions, to give him rights to a certain degree of privacy and to have regard to observations by in State of New South Wales v Paton [2020] NSWSC 1707 at [49], State of New South Wales v Single [2019] NSWSC 176 at [51] and State of New South Wales v Grooms (Final) [2019] NSWSC 353 at [106].

29. [131]

    I have redrafted the weapons condition to ensure that Mr Hyde is permitted to use a knife when eating, which common sense requires that he be able to do. But given the nature of his serious sex offending, I accept that the conditions must regulate his access to and use of electronic devices and services.

30. [132]

    I have not, however, imposed a condition in relation to violent and pornographic material. There were accepted difficulties with what the State originally proposed and, it seems to me, different problems with precluding Mr Hyde watching anything which could be described to be “violent”, let alone material which may be described to be “pornographic”, as the State urged. That reflects what is lawfully available in the community to be viewed, even on television.

31. [133]

    The conditions I am satisfied should be imposed are:

    1. (1)

       The defendant must report to a DSO at the times and places directed by the officer;

    2. (2)

       The defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions, which may be given electronically, about:

    3. (3)

       The defendant must truthfully answer a DSO’s questions, or those of any other person supervising him, about where he is, where he is going, who he is with, what he is doing and the nature of his associations.

    4. (4)

       The defendant must allow a DSO to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.

    5. (5)

       The defendant must notify a DSO if he changes address, contact details or employment, if practicable before the change occurs and if not, immediately afterwards.

    6. (6)

       The defendant must not leave New South Wales without the approval of the Commissioner of CSNSW.

    7. (7)

       The defendant must:

    8. (8)

       The defendant must not possess or consume alcohol without the prior approval of a DSO.

    9. (9)

       The defendant must not possess or use prohibited drugs or drugs unlawfully obtained or associate with any people he knows are consuming or under the influence of illegal drugs.

    10. (10)

        The defendant must, if directed by a DSO, undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these), including any therapy sessions, support and treatment programs the subject of the direction, including for the purposes of a Mental Health Care Plan or Community Treatment Order.

    11. (11)

        The defendant must agree to a DSO disclosing his criminal history to another person, if the disclosure is reasonably necessary to address a risk of the commission of a serious violence or sexual offence. Before any disclosure is made, the defendant must first be informed and given the opportunity to make the disclosure himself.

    12. (12)

        The defendant must not possess or use:

    13. (13)

        The defendant must:

    14. (14)

        If the DSO reasonably suspects that a search of the defendant’s person or residence, or any vehicle in which he is travelling or which is under his effective control, or any computer, electronic and communication device, or any storage facility, garage, locker, or commercial facility under his control, is necessary to confirm his continuing compliance with this order, the DSO must inform the defendant of the basis of that suspicion. The defendant must then submit to that search or those searches that may be carried out by a DSO or on behalf of a DSO.

    15. (15)

        The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure carried out under this Order.

    16. (16)

        The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, that is relevant to his risk of reoffending or his rehabilitation, including reports on his progress and attendance, and information he has told them, with each other and with a DSO.

    17. (17)

        The defendant must agree to any information, that is relevant to his risk of reoffending or his rehabilitation, being shared between those persons and agencies that are involved in his supervision including, but not limited to, a DSO, NSWPF and CSNSW.

    18. (18)

        The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him, if relevant to his risk of re- offending or his rehabilitation.

    19. (19)

        The defendant must:

    20. (20)

        The defendant must;

Orders

1. [134]

   For the reasons given I now order that the State file and serve short minutes of orders reflecting these conclusions by 4pm tomorrow, 6 May 2022, so that they can be entered.