State of New South Wales v HT (Preliminary)

1. [1]

   By an Amended Summons filed in this Court on 21 February 2023, the State of NSW (“the State”) sought an order pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (“the Act”) that HT (“the defendant”) be the subject of an extended supervision order (“ESO”) for a period of three years and orders pursuant to s 11 of the Act directing the defendant for the period of the ESO to comply with conditions set out in a Schedule accompanying the Amended Summons.

2. [2]

   The State also sought interim and interlocutory relief which are the subject of this judgment. The State sought an order pursuant to s 7(4) of the Act appointing two qualified psychiatrists or psychologists (or any combination of such persons) to conduct separate examinations of the defendant and to provide reports to this Court on the results of those examinations by a date to be fixed by the Court and directing the defendant to attend those examinations. The State also sought, pursuant to ss 10A and 10C of the Act, that the defendant be the subject of an interim supervision order (“ISO”) for a period of 28 days from the expiration of his parole with accompanying orders that the defendant comply with the conditions set out in the schedule to the Amended Summons.

3. [3]

   The application for interim and interlocutory relief was the subject of a preliminary hearing on 21 February 2023. The Court made the interim and interlocutory orders sought by the State on 9 March 2023. These are the reasons for that decision.

4. [4]

   The defendant is a 42-year-old First Nations man of the Dunghutti and Kamilaroi people. The defendant’s early life involved removal from his parents at three years of age due to concerns about neglect and exposure to abuse, drugs and alcohol use. He lived with an aunt until age 13, moved in briefly with another aunt, and then reunited with his father and brother at age 15 for a short period before leaving and living in whatever circumstances he could arrange. He completed year 10. His first criminal offending occurred between 1995-1996. Since 1999, his longest period in the community has been for 9 months from October 2003 to July 2004. He has two children to a former relationship and has had very little employment history. The Risk Assessment Report (“RAR”) stated that the defendant reported having 6 daughters.

5. [5]

   The defendant has been assessed as suffering from schizophrenia and this in part led to him only partly completing Custody-Based Intensive Treatment (“CUBIT”) Program in 2013/14. He was estimated to be of borderline intelligence in 2012. In 2015, the defendant was formally assessed as having below average intellectual functioning. I agree with the submission of the State that a transcript of his evidence on sentence on 4 March 2010, together with an affidavit tendered in a sentencing proceedings (for the below mentioned offence contrary to s 112(2) of the Crimes Act 1900 (NSW) which involved aggravated break and enter and commit robbery in company in 2016 in an office and living area of a motel), was capable of suggesting reasonable verbal fluency and expression of concepts.

6. [6]

   The defendant is presently serving a sentence of five years imprisonment for aggravated break and enter (in company) and commit armed robbery, which commenced on 13 March 2018 and expired on 12 March 2023, with a non-parole period of three years (“the s 112(2) offence”). The defendant was released to parole on 23 September 2022. The sentence was imposed partly concurrently and partly cumulatively with other break and enter sentences, the total term commencing 13 September 2016.

7. [7]

   Whilst in custody, the defendant was charged with sexual offences which were resolved by a plea of guilty to one charge of indecent assault of a child under 16 (the repealed s 61M(2) of the Crimes Act). That offence was committed on 2 August 2016 (“the serious sex offence”). The defendant was sentenced on 3 April 2020 to a fixed term of six months imprisonment, backdated to commence on 2 September 2019 (“the serious sex offence sentence”). As such, the total term had already expired when it was imposed. That offence is a “serious sex offence” for the purposes of ss 5(1)(a)(i) and 5(1)(d) of the Act, carrying a maximum penalty of 10 years imprisonment.

8. [8]

   The serious sex offence involved the defendant approaching a 15-year-old in the street and saying he would pay him $80,000 to do things to him as he had not “gotten any arse” since his release from custody. The defendant then hugged the child and pushed him down by his shoulders and told him to get on his knees and “suck my dick”. The victim managed to push the defendant and run away. It is alleged that two hours earlier, the defendant had also approached a 14-year-old boy, offering him a way to make money.

9. [9]

   The defendant’s record includes a series of Form 1 offences for obscene exposure to females and one aggravated act of indecency from February 2000 and 2009, as well as offensive conduct (masturbating in the presence of a female). More seriously, he has a conviction for a house-breaking offence in 1999 where he is alleged to have approached a female in her bedroom, unzipped his pants, said “you know what I want” and pushed her down and lain on top of her, before fleeing when her husband returned. The precise facts of this allegation were in issue at sentence and were not ultimately decided by the Sentencing Court. There was a contest in these proceedings as to the weight the Court may place upon these alleged, unresolved circumstances.

10. [10]

    In the early hours of the morning in 2009, the defendant entered the house of a woman he had previously approached, after saying he wanted to spend time with her and that he would be “really gentle” with her. After entering her house uninvited, he pushed her against her kitchen bench and touched her breasts and chest under her robe before fleeing when she screamed and yelled to her neighbour.

11. [11]

    Separately, the defendant has convictions for assault occasioning actual bodily harm, robbery of an acquaintance using a knife, and burglary offences. He has a lengthy history of burglary offences. Whilst in custody, the defendant has had a number of reports of inappropriate conduct towards females and unwelcome sexual interactions with males. He has spent most of the past 13 years in custody, reoffending relatively quickly upon release.

12. [12]

    It was not suggested by the State that any of aspects of the criminal history other than the serious sex offence itself would constitute a serious sex offence, however they were relied upon to support the State’s arguments concerning the existence of an unacceptable risk of further serious offending that it was submitted the Court would find is established, on the whole of the material before the Court in the preliminary hearing.

The Positions of the Parties

1. [13]

   The State submitted that the statutory preconditions in s 5B of the Act had been met in the present case. In particular, it was submitted that:

   1. (1)

      The defendant may be regarded as an “offender” for the purposes of s 4A of the Act and relying on the extended definition of serious sex offence in ss 5(1)(a)(ii) and (d) of the Act, for his 2020 indecent assault conviction.

   2. (2)

      That the Court would be satisfied of the high degree of probability that the offender posed an unacceptable risk of committing another serious offence if not kept under supervision under the order pursuant to s 5B(d).

2. [14]

   It was submitted that the Court should, therefore, make the s 7(4) orders, exercise its discretion to make an ISO and make the conditions attached to the operation of the ISO in accordance with the State’s position laid out in a Schedule produced by the parties on 24 February 2023, stipulating agreed and disputed conditions (“the agreed Schedule”).

3. [15]

   For the purposes of the preliminary hearing, the defendant made the following submissions:

   1. (1)

      The Court could be satisfied that the statutory preconditions in s 5B(a)-(c) are met, including, specifically, that the defendant was a supervised offender within the meaning s 5I.

   2. (2)

      The defendant did not accept that the statutory precondition in s 5B(d) was met.

   3. (3)

      In the event that the Court exercises its discretion to make an ISO, the defendant opposed the conditions sought by the State in the Amended Summons and submitted that the conditions ought to reflect his present parole conditions. Further, if the Court was minded to make conditions of the kind found in the Schedule to the Amended Summons, the defendant made particular submissions as to the disputed conditions in the agreed Schedule.

Statutory preconditions: s 5B(a)-(c)

1. [16]

   There was no dispute that the Court may find that these conditions are satisfied for the purposes of this preliminary hearing, but some further short observations should be made in this respect, commencing with an analysis of the defendant’s status as a supervised offender. The State’s submissions in this respect have been broadly accepted and form the foundation for my analysis which follows below.

2. [17]

   The State may only apply for an ESO where at the time of filing the application the offender is a “supervised offender” (s 5I(1) of the Act). There are four categories of supervised offender provided for under the Act in s 5I(2), each of them providing for an offender who is serving a sentence of imprisonment. The categories of supervised offender serving a sentence of imprisonment are, respectively, (i) for a serious offence: (ii) for an offence of a sexual nature; (iii) for an offence under s 12 of the Act; or (iv) for another offence (whether under a law of this State or another Australian jurisdiction) that is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraphs (i), (ii) or (iii).

3. [18]

   In the defendant’s case, the sentence for the serious sex offence commenced during the currency of his existing, unexpired, sentence the s 112(2) offence. The sentence for the serious sex offence commenced on 2 September 2019 and the sentence for the s 112(2) offence commenced on 13 March 2018. The serious sex offence sentence also expired during the currency of his existing sentence, on 1 March 2020. Accordingly, the present s 112(2) offence sentence should be regarded as being served partly concurrently and partly consecutively with the serious sex offence sentence, thus complying with s 5I(2)(a)(iv).

4. [19]

   Whilst the defendant’s circumstances differ from those of the appellant in the State of NSW v Kaiser [2022] NSWCA 86 (“Kaiser”), the decision of the Court of Appeal in that case nonetheless provides support for the interpretation contended for by the State in this case. In Kaiser, Simpson AJA, with whom Bell CJ and Beech-Jones CJ at CL agreed, determined that s 5I(2)(a)(iv) embraced a situation where the relevant serious offence sentence (manslaughter) was still unexpired (but the offender was out on parole) when further non-serious offences were committed and when the defendant was returned to gaol and sentenced for those new offences. The non-serious offences resulted in three sentences being imposed, the first of which was concurrent with the unexpired portion of the manslaughter sentence and the second of which was partly concurrent and partly consecutive with the manslaughter sentence. The third sentence imposed commenced after the expiry of the manslaughter sentence.

5. [20]

   The State in Kaiser had filed its initial summons during the currency of the manslaughter sentence. It then filed an Amended Summons during the currency of the second non-serious sentence. Her Honour determined (at [33]) that the Amended Summons was filed in accordance with s 5I(2)(a)(iv). Her Honour further observed that the third non-serious sentence would not be caught by s 5I(2)(a)(iv), as it was neither partly concurrent nor partly cumulative with the manslaughter sentence (commencing, as it did, after the expiry of the manslaughter sentence).

6. [21]

   Her Honour’s finding is sufficient support for the State’s contention that, in the defendant’s case, an application filed within 9 months of the expiry of the current s 112(2) offence sentence falls within s 5I(2)(a)(iv). It is a sentence which “is being served” at the time of the filing of the application. Further, in Kaiser, the subsequently imposed sentences were imposed in separate proceedings from the manslaughter offence, as is the case with the defendant’s sentences (as between the s 112(2) offence sentence on the one hand and the serious sex offence sentence on the other). Whilst in the defendant’s case the serious sex offence sentence was imposed after the other sentences (whereas in Kaiser it was the other way around), this does not, in my view, make any practical difference, when interpreting the language used in s 5I(2)(a)(iv). Further, a finding that the provision applies is consistent with the objects of the Act, whereas a finding that it does not is apt to produce an anomalous result, inconsistent with that purposive construction.

7. [22]

   An “offender” means a person over 18 years who has at any time been sentenced to imprisonment following his conviction for a “serious offence”: s 4A of the Act. A “serious offence” (s 4) for this defendant relevantly means a serious sex offence via s 5(1)(a)(i) where, in the case of an offence against an adult or a child, the offence is punishable by imprisonment for 7 years or more. The indecent assault offence under s 61M(2) carried a maximum penalty of ten year imprisonment. Notwithstanding the repeal of s 61M(2) of the Crimes Act, the offence is still caught by the terms of s 5(1) of the Act, as it is also an offence which can be regarded as “any other offence that, at the time it was committed, was a serious sex offence for the purposes of this Act.”

S 5B(d): Relevant Principles

1. [23]

   There is no dispute as to the relevant principles of the unacceptable risk test in s 5B(d) proffered by the State. The State’s submissions as to relevant principles represent a convenient statement of principles for present purposes, and I propose to adopt them in what follows:

   1. (1)

      Guidance as to how the Court might approach its task under s 5B can be found in the decision of Beech-Jones J (as his Honour then was) in State of New South Wales v Fisk [2013] NSWSC 364 at [84], where his Honour observed (as to the wording of the Act when it only referred to serious sex offenders) that:

   2. (2)

      That approach was followed by Hall J in State of New South Wales v Wilde [2014] NSWSC 305, at [111] and by Harrison J in State of New South Wales v Kamm (Final) [2016] NSWSC 1, at [48].

   3. (3)

      In Lynn v State of New South Wales [2016] NSWCA 57, the Court of Appeal considered the unacceptable risk test. Justice Beazley P gave further guidance on what risk meant in terms of protection of the community. Her Honour observed at [59]-[61]:

   4. (4)

      It should be noted that in State of New South Wales v Kamm (Final) [2016] NSWSC 1, Harrison J at [41] repeated a submission made by the State in his Honour’s judgment which has relevance, namely:

   5. (5)

      This jurisprudential approach has been followed in a number of subsequent decisions and in broad terms has been applied by the NSW Court of Appeal in a decision under the similar provisions of the Terrorism (High Risk Offenders) Act 2017. (See New South Wales v Naaman (No 2) (2018) 365 ALR 179; [2018] NSWCA 328 at [29].)

   6. (6)

      Having regard to the wording of s 5D, it is possible for the Court to legitimately find that an offender poses an unacceptable risk, even if the likelihood of them committing a further serious offence is determined to be something less than high.

2. [24]

   To that summary of principles may be added my observations in State of NSW v McGorm (Final) [2019] NSWSC 484 at [189]-[204]:

3. [25]

   Counsel for the defendant placed significant reliance on the fact that the defendant had only been convicted of a single serious sex offence. While this is a relevant consideration, it does not preclude the Court from concluding that the State has met its onus and that the statutory test for imposition of an ISO has been satisfied when all of the relevant matters are considered, including the defendant’s criminal history and other factors under ss 9(2) and (3) of the Act (see State of New South Wales v Hyde (Preliminary) [2022] NSWSC 540 (“Hyde”), per Schmidt AJ, at [20], [21] and [25]) and also the authorities bearing upon that issue above.

Preliminary Hearing Principles

1. [26]

   As to the principles for a preliminary hearing, I refer to the judgment in State of NSW v PS (Preliminary) [2022] NSWSC 1740 where the following principles were stated:

2. [27]

   I note that the State also referred to various aspects of the judgment of Garling J in State of New South Wales v Sturgeon [2019] NSWSC 559 at [5]-[6] which was in the following terms:

3. [28]

   Further, the State referred to the judgment of Fullerton J in State of New South Wales v Heness (Preliminary) [2019] NSWSC 1710 at [28]-[29] as follows:

CONSIDERATION OF FACTORS UNDER S 9(3)

1. [29]

   For the purposes of the preliminary hearing, the State’s summary of the defendant’s criminal history was broadly accepted by counsel for the defendant. However, the defendant disputed the State’s characterisation of the defendant’s pattern of offending and the inferences concerning the risk of serious offending which the State sought to draw from aspects of the defendant’s criminal history. In those circumstances, I shall adopt below the State’s description of the criminal history before addressing the defendant’s five arguments concerning how that history should be interpreted with respect to the assessment of risk of serious offending.

2. [30]

   The defendant’s first criminal activity occurred in February 1995 and involved possession of house breaking implements, break and enter with intent, steal motor vehicle and attempt steal. Further offences of breaking with intent and break enter and steal (8 counts) were committed in January 1996 and then a further break enter and steal offence in April 1996. Probation orders and then control orders were imposed.

3. [31]

   Further offences of steal motor vehicle and attempt to steal vehicle, break enter and steal, driving unlicensed and receiving stolen goods were committed in 1996. In 1998, the defendant was convicted of several counts of break and enter, and common assault and wield knife in a public place (convicted, warrant to issue). The police facts for the assault and knife offence describe an altercation with others where the defendant had gone home and come back with kitchen knives, one of which he threw at the group being assaulted. In 1999, he was dealt with for resist officer in execution of duty and two further counts of break and enter with intent to steal. His first gaol sentence was imposed in August 1999 and involved a break and enter where he turned the power off to a home occupied by a female known to him, opened a locked security door with a knife and searched bedrooms where occupants were sleeping.

4. [32]

   In 2000, the defendant was sentenced for an offence (committed on 15 December 1999) of breaking and entering a house and stealing and a second offence of entering a house with intent to commit assault occasioning actual bodily harm. The two offences were committed at the same house. The facts for the offences reveal that the defendant entered the house in the early hours of the morning after the parents and their three children had moved in the previous day. The female adult woke at 4:45 AM to see a man standing at the foot of her bed holding something sharp in his right hand, and, when she challenged him, he ran from the room. The female’s partner chased after the man and got into his car to try and find him. The female victim then heard noises again in the house and saw the same man back in her bedroom and asked him “what do you want?” and the defendant said: “you know what I want” and undid his fly.

5. [33]

   The female alleged that when she went to go to the door, the man grabbed her shoulders and threw her onto the floor and lay on top of her, at which point her partner returned in the car and the man got off her and ran out of the bedroom. In remarks on sentence for this offence, Christie QC D CJ said that the version of what occurred is not entirely on all fours with the version put forward by the defendant (who denied unzipping his fly or uttering those words) and that the female victim formed the very definite view that the intentions of the defendant towards her were at least partially of a sexual nature. His Honour went on to say that the defendant had pleaded guilty to a break and enter with intent to commit an assault occasioning actual bodily harm offence, so that he was to be sentenced on that basis, with the intent of assaulting the female victim. His Honour added that it is not to say that he did not accept the victim's belief that she was in immediate peril by reason of an attack of a sexual nature.

6. [34]

   I note here the submission by counsel for the defendant that the Court could not place weight on an unproven fact, namely the defendant’s intention to commit a serious sexual offence in circumstances of offending where no serious sexual offence occurred, or to commit a serious sexual offence of greater severity than that which eventuated. I will return to this submission later.

7. [35]

   At sentence for the break and enter offences, the defendant was dealt with for four counts of wilful and obscene exposure, one count of aggravated act of indecency, goods in custody, and two counts of offensive conduct, on a Form One schedule. The facts for those matters were as follows. For the aggravated act of indecency, on 6 February 2000 the defendant jogged past the female victim in a laneway leading to a park and jumped on her and grabbed her on the groin area with both his hands and squeezed and said: “I want you baby”. The victim took evasive action but fell to the ground with the defendant on top of her, and she kicked him and screamed “help, help, somebody help me”, at which point the defendant got up and ran. She suffered minor bruising and soreness to her hip and shoulder.

8. [36]

   On the same day, the defendant jogged past another female victim and shouted “hey” and the victim turned around and saw the defendant expose his penis. The same day, the defendant jogged up to a third female victim and said “hello” and then pulled his penis out of his shorts and exposed it and said: “do you want this babe?”.

9. [37]

   On 22 February 2000, a 13-year-old female victim was delivering the local paper and was approached by the defendant who said: “I'm Beau, give me the paper”. The victim turned away and the defendant said: “give me a kiss goodbye”. He then exposed his penis and commenced to wave it at the victim. On 25 February 2000, the defendant was standing in the laneway near an adult female victim’s house and, after hearing a smashing sound, she saw him looking at her. She put her children in her vehicle and drove out of the driveway, at which point she saw him exposing his penis with both hands on it. The ages of the female adult victims were 44, 54 and 35.

10. [38]

    On 21 February 2000, the defendant went to a Video Ezy store and stood in the adult video section and put both his hands down the front of his pants and started to play with his penis while looking at the female shop assistant. On 27 February 2000, the defendant went to the same store and the same adult section and chose an adult video and then put his hands down the front of his pants and started to play with his penis while looking at a different female shop assistant.

11. [39]

    The State noted that the aggravated act of indecency (the repealed s 61O Crimes Act 1900) and indecent assault would arguably be offences “of a sexual nature” pursuant to s 5(2)(a) of the Act, but the obscene exposure and offensive conduct offences would not be. However, it was submitted that they are relevant to an assessment of risk as demonstrating significant sexual preoccupation and a preparedness to demonstrate that to strangers in public.

12. [40]

    The defendant was sentenced to 4 years and 6 months imprisonment on 20 October 2000 and 18 months concurrent for the break and enter offences. On 24 March 2002 the defendant escaped custody at the Glen Innes Correctional Centre, having some five months of his sentence for the property offences remaining.

13. [41]

    On 14 December 2002, the defendant assaulted a stranger in a service station in the early hours of the morning, after demanding that the victim buy him a packet of cigarettes. The defendant punched the victim in the face, breaking his nose and cheek bone. He was convicted of assault occasioning actual bodily harm and received a total sentence of 12 months imprisonment commencing 17 December 2002.

14. [42]

    On 6 May 2005, the defendant was sentenced in Armidale District Court for one count of robbery whilst maliciously inflicting actual bodily harm and, on a Form One schedule, two offences of aggravated break enter and steal, and one offence of break enter and steal were taken into account. The robbery occurred on 17 April 2004 when the defendant and a friend were drinking alcohol with the victim and two other friends of the victim in the victim’s flat. The defendant became verbally aggressive and walked into the kitchen, picked up a knife, waved it round and made threats about stabbing the victim and his friends. The defendant then punched the victim in the mouth and then headbutted him in the face. The defendant also punched the victim's friend in the face and demanded money from the victim and held a knife to his neck, and subsequently stole some alcohol, swords and a small amount of cash. The victim received sutures to a laceration on his wrist. The defendant received a total sentence of 6 years 5 months with a non-parole period of 3 years 6 months.

15. [43]

    On 4 March 2010, the defendant was before Toner SC DCJ for an offence of break and enter dwelling house and commit indecent assault. At the time the defendant committed this offence he was on parole, having been released from the robbery offence summarised immediately above. His parole was revoked as a consequence of the fresh offence.

16. [44]

    The facts of that offending are as follows. On 21 April 2009 the victim was at her home in Armidale when she heard a knock at the door and answered it to the defendant, who asked if someone called Mark lived there. The defendant said: “I just got out of gaol, I've been out of touch for a while and need somewhere to stay”. The defendant asked to use her phone to call a friend and she was handed an ad from a newspaper, for a sex worker. She dialled the number and he said: “there's no answer” and left.

17. [45]

    At around 2:00 AM on 26 April 2009, the victim woke to what she thought was a knocking sound on the door and saw the defendant at the door who said: “can you help me?” and said he needed somewhere to stay. He was told he couldn't stay there. He said: “I'm sorry I want to spend time with you. I promise I'll be really gentle with you”. She shut the door and told him to go away. The defendant then came to the lounge room window and asked to be let in and was again told to go away, and then she found him in the kitchen. She dialled 000. The defendant pushed her against the kitchen bench and then put his hands under her robe and touched her breasts and chest, while she was saying no and screaming and yelling and calling out for a neighbour. When she screamed the defendant ran out of the door and the victim went and sought assistance from neighbours.

18. [46]

    The following further matters were dealt with at sentence on a Form One schedule. At around 8:30 AM on 23 April 2009 the defendant approached a female walking her dog in Armidale and ask for directions to the cemetery. The victim then walked on and heard the defendant from behind her calling out “miss, miss”. The victim turned around and saw the offender with his pants down and his penis exposed, playing with it. He apologised and said he had turned his life to Christianity.

19. [47]

    The defendant was charged for an offence on 30 April 2009 at around 8:45 AM when another female victim was walking in Armidale. As she passed him, he stood up and said: “hi miss could I talk to you for a bit?”. He said he had just been released from gaol and was having a panic attack. He asked if he could go to where she lived and she said no, but he followed her home and asked to come in, to which she said no. The victim then walked to a friend’s house and called the police. The defendant was charged with commit act of indecency for the first Form One offence and stalking for the second offence. On sentence, the defendant received a total sentence of 5 years 7 months and 24 days, to commence on 1 April 2010, to be followed by the balance of his term for the robbery (as a result of the parole revocation). On appeal, the sentence was reduced to a non-parole period of 3 years 10 months with an additional term of 2 years 6 months. The defendant was in fact released from custody on 5 February 2016.

The Index s 112(2) Offence

1. [48]

   On 5 April 2017, the defendant was sentenced in relation to three offences. The first was an offence of breaking and entering with intent to steal, committed on 19 August 2016 at a gymnasium. The second was an offence of aggravated break and enter and commit robbery in company, committed on 8 September 2016 at the office and living area of a motel and involving the operators of the motel as the victims. The third offence on 4 September 2016 involved aggravated breaking and entering and stealing in company at a laundry service.

2. [49]

   In the s 112(2) offence, the defendant was armed with a large knife and a pole, while a second offender had two knives. Cash was stolen during the robbery. The defendant struck the male victim on the face at one point, causing a split lip.

3. [50]

   The defendant was sentenced for the s 112(2) offence to a total term of 5 years imprisonment with a non-parole period of 3 years, commencing on 13 March 2018. For the break and enter with intent to commit a serious indictable offence, a fixed term of 15 months imprisonment commencing on 13 September 2016 and expiring 12 December 2017 was imposed, and for the offence of aggravated breaking and entering and committing a serious indictable a fixed term of 18 months imprisonment was imposed, commencing 13 March 2017 and expiring 12 September 2018.

The Serious Sex Offence

1. [51]

   I shall expand upon the brief summary of the facts of this offending given at the beginning of the judgment (with some repetition in order to maintain the integrity of the narration).

2. [52]

   The offence occurred on 2 August 2016, some 23 days after the defendant had been released from prison. The 15-year-old male victim was walking in a public street when the defendant approached and asked him if he knew where he could “get on it” and then asked him if he wanted to make some money. The victim agreed to go with the defendant to somewhere a bit private. The defendant took him to the basketball court in the local high school grounds, where he told him he had been released from gaol for murder and “I haven’t gotten any arse since then, so I was thinking I could pay you $80,000 and I could do some things to you.” The victim declined this offer, which the defendant raised to $120,000 and then offered $80,000 if the victim gave him a blow job, which the victim also declined.

3. [53]

   The defendant suggested they walk to a brick wall, where he put both hands beside the victim’s head and leant in and said: “If I had a million dollars, I’d have my way with you”. The victim feared he would be killed, while the defendant told him he was a good looking and handsome boy. The victim then tried to walk away but the defendant grabbed his shoulder and pulled him in close, saying “give me a hug” and put both arms around him. The defendant then pushed the victim down by the shoulders and said “Well you’ve got no choice now. You’re going to get on your fucking knees and suck my dick”. The victim pushed the defendant in the stomach and ran away, but dropped his phone. The defendant called out to him that he’d dropped it, and the victim managed to persuade him to return it through a hole in a gate adjacent to them, with the defendant then saying: “Can I get a blow job before you go?”.

4. [54]

   In an interview with arresting police, the defendant claimed that some “tribal stuff” was going on (people who had died) and that he had been born bad but had read the Bible and was now cleansed so he did not have any dirty thoughts or sexual thoughts anymore and that rock spiders were telling him to do things.

5. [55]

   The agreed facts disclosed that the defendant was identified having approached a 14-year-old boy in the same area and striking up a very similar conversation some two hours prior. The defendant was also identified as the person who had approached another young man fifteen days later in another town, striking up an almost identical conversation, including sexually propositioning the young man for the same amount of money.

6. [56]

   On sentence, Priestley SC DCJ found that the indecent assault was constituted by the words used and the fact of seeking to force the victim into a position to perform fellatio.

The Defendant’s Submissions Concerning Criminal History and Pattern Of Offending

1. [57]

   In response to the defendant’s criminal history and pattern of offending presented above, counsel for the defendant submitted that, when properly understood, the history should not result in the Court being “satisfied to a high degree of probability” that the defendant “poses an unacceptable risk of committing another serious offence if not kept under supervision” under an order for the following six reasons. I have derived these reasons from the defendant’s written and oral submissions, and I will return to them later in my judgment:

   1. (1)

      Even though the Court may be satisfied that the defendant will commit another offence, the defendant’s criminal history does not support the Court being satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence.

   2. (2)

      The defendant has only been convicted of one “serious offence” as defined under the Act, namely the “serious sex offence”. I have earlier discussed how such a submission should be approached as a matter of principle.

   3. (3)

      When considering the range of offences which meet the statutory definition of a “serious sex offence”, the offence committed by the defendant is at the lower end of that range as regards its maximum penalty. It is an offence which carries a maximum penalty of 10 years’ imprisonment when dealt with on indictment and can also be dealt with summarily with a maximum penalty of two years’ imprisonment. Other offences which meet the statutory definition of a “serious sex offence” carry the maximum penalty of imprisonment for life (presumably this refers to offences such as aggravated sexual assault in company, persistent sexual abuse of a child and sexual intercourse – child under 10).

   4. (4)

      The “serious sex offence” committed by the defendant was assessed by the sentencing judge as being in the low range of objective seriousness for offences of its type. This was one factor which contributed to the defendant being sentenced to a fixed term of six months’ imprisonment for the offence served wholly concurrently.

   5. (5)

      The State mischaracterised the defendant’s pattern of offending by inferring that the defendant poses a significant risk of sex offending of greater seriousness than the offences which he committed. The Court should not draw the inferences which the State sought to draw about the possible consequences of the defendant's conduct (i.e.. serious sex offending of greater severity) from the defendant’s expressed state of mind and actions.

   6. (6)

      Each of the examples relied upon by the State to characterise the defendant as possessing an intention to commit a more serious offence involved the defendant voluntarily ceasing the offending following an interruption. These were not situations where the intervention of a third party was required to prevent the offence from continuing; rather, the defendant made an active decision to cease the offending in response to the victim’s reaction.

2. [58]

   I will now address each of these aspects. On the material before the Court, I do not consider that the defendant’s submissions may be accepted as having the effect of significantly diminishing the defendant’s risk of re-offending for serious sex offences in the manner proposed by the defendant, for the following reasons:

   1. (1)

      Counsel for the defendant conceded that, if the defendant’s previous patterns of offending continue, there is a strong likelihood that he will have future involvement with the criminal justice system, (that is, that he will commit another offence). However, that criminal history does not indicate, it was contended, a sufficient likelihood that the defendant will commit another serious offence in future. As I foreshadowed in my discussion of the relevant principles at [23] above, I have taken into account that only a single serious sex offence has been committed by the defendant, but this must be weighed against the other factors I am required and permitted to take into account under ss 9(2) and (3) of the Act which indicate there is a sufficient risk that the defendant will commit another serious offence. I will address the following factors in more detail later in my judgment, but I note here four particular factors (enumerated (i)-(vii)) that support a finding of a risk of committing a serious offence, notwithstanding the defendant’s commission of only one serious sex offence:

3. [59]

   With regards to the significance of the serious sex offence committed by the defendant being “at the lower end of that range [of serious sex offences] as regards its maximum penalty”, I accept the State’s submission, following Schmidt AJ in Hyde at [23]-[24], that the definition of a serious sex offence in s 5 of the Act does not provide for any distinction to be drawn between the specified offences such that the maximum penalty for an offence is not in itself a significant consideration under the Act.

4. [60]

   With regards to the assessment by the sentencing judge that the serious sex offence was at the lower range of objective seriousness, this Court has before it additional or new material which was not before the sentencing judge. Notably, during oral submissions the State submitted that the defendant had disclosed to a community corrections officer after the serious sex offence that his intentions were more serious with respect to the 15-year-old victim than the outcome that eventuated. I note that on 30/11/2022 the case note report of Ms Kirrin Farrant, Kempsey Community Corrections, records the defendant as stating:

5. [61]

   When this intention to commit a more serious offence is taken into account alongside the defendant’s history of auditory command hallucinations, there is a risk that the defendant’s mind may in the future “wan[t] him to do” actions constituting a serious sex offence, and that the defendant will actually engage in such behaviour.

6. [62]

   Counsel for the defendant contended that it would not be appropriate for the Court to draw inferences from such evidence concerning the defendant’s state of mind to conclude that the defendant’s previous offences might have been of greater severity. Counsel for the defendant submitted that the Court is to take the past offences on their facts. However, evidence concerning the defendant’s state of mind during previous offending which reveals that his mind desired, or he experienced auditory command hallucinations or some other form of compulsion, to carry out sexual offending of greater severity is relevant to the risk of commission of future serious offences at this stage of the Court’s assessment of the States application.

7. [63]

   With regards to the argument that speculative inferences from the defendant’s expressed or purported state of mind and his actions should not be drawn concerning the defendant’s risk of committing further and more serious sex offences, it is my view that for the purposes of this preliminary hearing there is sufficient factual material before the Court to substantiate a finding that there exists significant indicia of the defendant’s potential substantial risk of committing a further serious offence. By making this finding, I am not engaging in speculation, but interpreting the evidence presented to me, including the medical evidence, the RAR and the submissions based upon the material before the Court in this preliminary hearing, and drawing conclusions which are warranted by the multiple risk factors which are operative in the defendant’s current context, having regard to the principles discussed earlier in the judgment.

8. [64]

   With regards to the argument that during the serious sex offence and previous offences the defendant voluntarily ceased his offending behaviour based on the response of the victim, I accept the State’s submission that there is no evidence that this motivated the cessation of offending behaviour rather than the fear of being caught or the realisation that he would not be able to achieve the outcome that he sought.

Section 9(3)(c) - Assessments by Qualified Psychiatrist and Psychologist

1. [65]

   The State summarised the contents of nine reports by seven psychologists and psychiatrists ranging in date from 6 October 2000 to 14 January 2022. The State’s compendious summary of these reports was uncontentious and, in my view, conformed with the material filed for the purpose of the preliminary hearing. I deem the most recent three psychiatric assessments by Dr Gordon Elliott to be the most relevant to the risk of further serious offending by the defendant. The summary of these assessments is extracted below, without commentary:

2. [66]

   I will now extract one passage of Dr Elliott’s psychiatric report dated 10 February 2020 which is particularly relevant in supporting the causal link between the defendant’s auditory hallucinations and his serious offence, and hence supporting the risk that the defendant may commit a future serious offence given that the defendant’s auditory hallucinations have been ongoing. I note, as mentioned in the summary above, the context that Dr Elliott prepared this report for the purpose of proceedings concerning the serious sex offence. Dr Elliott’s report indeed notes that “[HT] has been charged with indecent assault of a person under 16 years of age.” This statement is significant because Dr Elliott’s conclusion in the passage below, concerning the defendant’s “genuine psychotic symptoms associated with and motivating his offending behaviour” can be read in the context where the most salient example of “offending behaviour” at the time of Dr Elliott’s report is the defendant’s serious sex offence. Thus, Dr Elliott’s report firmly links the defendant’s “psychotic symptoms” with the serious sex offence. The relevant passage is the following, and I have italicised for emphasis the causal link between auditory hallucinations and the serious offending:

3. [67]

   Dr Elliott’s psychiatric report of 29 March 2021 provides further evidence which supports my determination that the defendant’s four recent occasions of drug use, his auditory hallucinations, and the interrelation between his drug use and the risk of psychoses, are indicia which increase his risk of committing a serious sexual offence. Dr Elliott’s conclusion to this report stated:

4. [68]

   I extract further relevant statements by Dr Elliott below:

5. [69]

   Dr Elliott’s most recent psychiatric report dated 14 January 2022 records the defendant as stating that “he now considers his voices as part of his life and he has no power over them.” As noted in the State’s summary excerpted above, the defendant claimed that there had been a change since “his previous report of hearing voices urging him towards sexual behaviour”:

6. [70]

   In my view, this change which the defendant reported during his interview on 4 January 2022 does not safeguard against the substantial risk that his auditory hallucinations may in the future, as they did in the past, command or encourage him to commit a serious sexual offence, and that the defendant will consequently commit such an offence.

7. [71]

   Counsel for the defendant submitted that it is incorrect for the Court to rely on evidence about the defendant’s ongoing delusions and auditory hallucinations to find that the defendant presents an unacceptable risk. It was submitted that the defendant’s behaviour notwithstanding his auditory hallucinations indicates against finding unacceptable risk. Two incidents were pointed to where the defendant was willing to accept support during an escalation of his mental illness from his NDIS support workers. When the totality of the material before the Court is considered, including evidence as to the defendant’s expressed desires to cease or relocate away from all such supervisory support services, in my view, the defendant requires mandatory supervision in order to safeguard against the commission of a future serious offence which is made more likely by his ongoing auditory hallucinations.

Section 9(3)(d) – Statistical Assessments As To Likelihood Of Persons With Histories And Characteristics Similar To The Offender Committing A Further Serious Offence

1. [72]

   For the purposes of this preliminary hearing, the State’s summary of the most recent statistical assessments was not disputed by the defendant, and is excerpted below:

Section 9(3)(d1) - Reports by Corrective Services NSW

1. [73]

   I have had regard to reports prepared by Corrective Services NSW concerning the extent to which the defendant can reasonably and practicably be managed in the community. Two of these reports which are particularly relevant to the defendant’s risk of committing another serious offence, as highlighted in the State’s submissions, are the defendant’s Pre-release Report dated 15 December 2020 and Supplementary Pre-release Report dated 7 January 2021.

2. [74]

   The Pre-release Report notes that the defendant “stated he thought it would be safer for everyone if he was to remain in custody. He went on to say in the community he would “want drugs” and maybe “kill or hurt someone””. The Report also provides substantiation for the defendant’s risk factors of drug use and auditory hallucinations, noting that:

3. [75]

   The Supplementary Pre-release Report notes that “Records indicate he [the defendant] has been experiencing auditory hallucinations and homicidal thoughts”. The defendant, during a period of mental health deterioration, “Expressed his intention to murder this person [a particular person in the community] upon his release”.

4. [76]

   The State’s summary of the defendant’s most recent Risk Management Report is excerpted below:

Section 9(3)(e) - The Defendant’s Participation in Treatment and Rehabilitation Programs

1. [77]

   The State’s summary of the defendant’s participation in various rehabilitation and treatment programs was broadly accepted by the defendant with the caveat that it be read in the light of the defendant’s cognitive limitations, mental illnesses, and traumatic background (including childhood sexual abuse). It is excerpted below:

Section 9(3)(F) Compliance With Obligations While On Parole

1. [78]

   The defendant submitted that his response to community supervision since 23 September 2022 has been largely positive. He relied on Mr Clark’s report and case note concerning positive engagement after searching for “teen porn”. (Pages 10 – 12).

2. [79]

   In this respect, the State contended as follows:

3. [80]

   I consider that, based on this analysis, it may be accepted that the defendant’s response to community supervision to have been historically very poor. However, the defendant submitted that his response since 23 September 2022 has been largely positive. So too was the defendant’s positive engagement after searching for “teen porn.” I accept this recent history is showing positive signs but at this stage, the overall pattern would suggest the Court would be careful in making findings as to prospects of longer-term adjustments in this respect.

Section 9(3)(g) Compliance with Obligations under the Child Protection (Offenders Registration) Act 2000 NSW

1. [81]

   Similarly, the defendant has been placed on the Child Protection Register. However, as the defendant has only recently been released to parole, and given his history of parole breaches, it is too early to predict if there will be compliance in the future.

Section 9(3)(H1) Views Of The Sentencing Court

1. [82]

   As previously mentioned, the defendant focused on positive remarks by sentencing judge concerning low objective seriousness, (that it was not likely that the fellatio would be carried out), the defendant’s remorse and that the treatment options the judge had regard to have largely been implemented (pages 6-8). I have earlier discussed the sentencing remarks in my consideration of the serious sex offending.

2. [83]

   The remarks on sentence of Priestley SC DCJ for the serious sex offence include the following observations:

   1. (1)

      His Honour found that there was no planning, and that the victim was a random stranger. The offence was described as unsophisticated and as evidence of an unbalanced mental state.

   2. (2)

      His Honour assessed the offence as being in the low range of objective seriousness. He did however find that “the evidence suggests a meaning [sic] of the high likelihood of reoffending”.

   3. (3)

      His Honour found that the defendant was institutionalised and noted that the defendant expressed concern of not being able to resist the command hallucinations if they direct him to harm others. His Honour noted the psychologist Ms Dombrowski’s view that the defendant would require long term treatment and management over several years for treatment to be effective and to address his experience of trauma to achieve lasting gains, including his sexual abuse.

   4. (4)

      His Honour observed that any sentence to be imposed needed to be structured with the dates of the existing sentences already being served in mind.

3. [84]

   In sentencing the defendant for the break enter and commit indecent assault offence from April 2009, Toner SC DCJ said that the defendant's history was disturbing, as was the nature of his offending behaviour over time. Toner SC DCJ added “this man is not in control of his sexual urges.” He observed that the fact that the defendant had become a Christian did not appear to have done much to change his attitude to crime. He found that the matter did not go much further because the defendant “shot through” when the victim screamed.

4. [85]

   In sentencing the defendant for the s 112(2) offence, Graham ADCJ referred to the defendant’s substance abuse issues and observed that he had shown no great interest in seeking to do anything about it. His Honour noted that there appeared to be little evidence of remorse.

Section 9(3)(I) Any Other Information Available As To The Likelihood That The Offender Will Commit A Further Serious Offence

1. [86]

   I note that the State provided an extensive summary of the defendant’s misconduct and alleged misconduct in custody which counsel for the defendant contended was not relevant to the risk of commission of a further serious offence. I excerpt the State’s submissions concerning s 9(3)(i) below:

2. [87]

   The defendant also relied on Mr Clark’s report that defendant does not crave drugs and that is not a current clinical issue. Reliance was also placed upon compliance with Buvidal injection. For the purposes of this preliminary hearing, I do not propose to attach significant weight to his adverse conduct in custody but that should not be taken as an indication that the record of such behaviour is not relevant. I have taken into account his approach to drug taking in custody.

Section 5B(d): Conclusion in Preliminary Hearing

1. [88]

   I am satisfied that for the purposes of this preliminary hearing there is an unacceptable risk that the defendant will commit another serious offence if not kept under supervision under an ESO. I come to this conclusion for the following reasons:

   1. (1)

      Counsel for the defendant sought to characterise the defendant’s criminal history as one where his commission of a single serious sexual offence which the sentencing judge found to be of a low level of objective seriousness was the exception to a norm of offences which did not constitute serious sexual offences. It was submitted that the Court should therefore infer that the defendant likely posed a risk of future offending but not a risk of committing another serious sexual offence. It was submitted that it would not be appropriate for the Court to draw inferences about any worse consequences that might have eventuated in previous offences, and that those offences were to be taken on their facts, which involved disputed facts concerning the defendant’s intentions to commit sexual offences.

   2. (2)

      I note that when assessing the risk of future serious offending I am required to consider the totality of the defendant’s criminal history and not just his offences which constitute proven serious sex offences. I have taken into consideration both the pattern of sexual offences, ranging from wilful and obscene exposure and aggravated indecency to indecent assault of a child under 16, which the defendant has committed in public settings and the sexual elements of the offences alleged to have been committed in private homes in 1999 and 2009. I have noted the defendant’s concerns about the probative value of facts concerning the alleged sexual offence during the 1999 offences of break and enter a house and steal, and enter a house with intent to commit assault occasioning actual bodily harm. I have taken into account this limitation on the probative value of these facts in the weight I have placed upon this particular instance in the criminal history.

   3. (3)

      The defendant’s submission that there was no unacceptable risk of future serious sexual offending could not be accepted because of a number of currently operative risk factors addressed earlier in my judgment which indicate that the defendant does pose an unacceptable risk of future serious sexual offending. These risk factors include the defendant’s ongoing psychotic symptoms including auditory hallucinations and ongoing drug use, both of which have been evaluated by the psychiatric reports and RAR as being causally linked to his risk of serious sexual offending. Evidence was presented which, for the purpose of the preliminary hearing, indicated that, at the time of the serious sexual offence, the defendant possessed intentions to commit a worse offence. Furthermore, significant evidence was presented concerning the defendant’s intention to cease, or relocate away from, his current supports including NDIS accommodation and supervision by support workers and psychiatric and psychological treatment.

   4. (4)

      I did accept that, while taking into account that the defendant has only committed one serious sexual offence and has never been charged with intercourse, his broader criminal history reveals persistent harmful offending of a sexual nature. The RAR concludes that “Due to the severity of [HT's] previous sexual offending, it is possible that future sexual violence could approach the threshold of a “serious sexual offence””. At least three of the defendant’s previous offences were interrupted in their course, for example by the victim screaming for help or assistance arriving at the scene. When the defendant’s criminal history is taken together with his currently operative risk factors, substantial risk is sufficiently established for the purposes of a preliminary hearing.

   5. (5)

      This is the case notwithstanding the evidence indicating that the defendant has currently made some progress in adjusting to life outside prison, for example, by not re-offending and by engaging with support workers, psychologists, and community corrections officers.

   6. (6)

      As required by s 9(3)(d) of the Act I have taken into account the results of the statistical risk assessments carried out upon the defendant. The most recent assessment dated 9 September 2022 finds that the defendant belongs to the “well above average risk category for other adult male sexual offenders” and that “due to the severity of [his] previous offending, it is possible that future sexual violence could approach the threshold of a “serious sexual offence””. I have also taken into account the defendant’s submissions concerning limitations of actuarial assessments and expert reports for predicting an individual’s future offending behaviour. I find, however, that the detailed analysis of the defendant’s history in the most recent RAR and its conclusions as to risk accord with my own finding of unacceptable risk based on the materials before this Court.

   7. (7)

      As required by s 9(3)(e) of the Act, I have taken into account the defendant’s participation in various drug and alcohol treatment programs, employment and educational courses. I note his limited engagement with sex offenders therapy programs which he reported difficulty engaging with for various reasons including being a victim of childhood sexual abuse, and in which his participation was complicated by his mental illness.

   8. (8)

      In considering the options available that might reduce the likelihood of the defendant offending over time if he is kept in the community (s 9(3)(e1)) I have noted the defendant’s listing of mechanisms currently in place (inclusion on the Child Protection Register, an NDIS funding package including psychological and psychiatric treatment and a Buvidal injection for opioid dependence). I also note the defendant’s contention that imposition of a Child Protection Prohibition Order and/ or a Community Treatment Order can be sought to avoid imposing an ESO.

   9. (9)

      However, the defendant’s reliance upon these factors faces two difficulties. First, whilst no doubt the existing mechanisms have protective and rehabilitative attributes, they do not specifically address the relevant risk as I have found it. I note the following passage from the State’s written submissions which indicates the measures that may help address the defendant’s risk of further serious offending:

   10. (10)

       Secondly, the Court should not decide the present application upon protective measures to manage the risks which are presently undefined in their content and scope. The State should not as a matter of discretion have the present application addressed based upon such speculation; particularly when the ISO is designed to address identified risk and the Court must give weight to risk avoidance at this stage.

   11. (11)

       As per s 9(3)(f), I have considered the defendant’s historical compliance with obligations while on release on parole, which both parties agreed has been “very poor”. I note the defendant’s history of re-offending, using drugs, and not complying with conditions or directions. I have considered the defendant’s submissions concerning the positive progress the defendant has made since being released to parole from custody on 23 September 2022. I find that the defendant still poses an unacceptable risk despite this positive progress, however his most recent progress informs the conditions I have seen fit to impose under an ISO.

   12. (12)

       I have taken into account the views of the sentencing Court at the time the sentence of imprisonment was imposed on the defendant (s 9(3)(h)). The defendant drew attention to the statements by the judge who sentenced the serious sex offence concerning the finding of low objective seriousness, the low level of criminality in that offence, the lack of malice and doubts as to the likelihood of the fellatio happening, the defendant’s expressed remorse, and the fact that Dr Elliott’s recommendations concerning long term treatment, accommodation and case management, which his Honour had regard to, have been largely implemented.

   13. (13)

       However, in addition to my earlier observation regarding this issue, I consider there is substance in the submissions of the State in reply in this respect. The State drew attention to the sentencing judges’ statements concerning the defendant’s high likelihood of reoffending, the defendant’s concern he would not be able to resist command hallucinations directing him to harm others, the defendant’s need for long term treatment over several years, the defendant’s inability to control his sexual urges, the defendant’s substance abuse issues and little evidence of his remorse for the s 112(2) offence.

2. [89]

   Additionally, I have taken into account all the s 9(3) factors which I am required to have regard to, in addition to any other matter I consider relevant, in coming to my conclusion. In my view, the totality of the defendant’s criminal history, psychiatric and psychological reports, RAR and Corrective Services NSW reports and the bulk of other material before the Court, support the finding that the defendant poses an ongoing unacceptable risk of committing a further serious offence, to the requisite degree of satisfaction within the context of the receipt of materials in this preliminary hearing.

3. [90]

   In coming to this conclusion, I have weighed the severity of the risk of the defendant’s future serious sex offending, including the risk that he offends again against a child, against the likelihood of his future serious sex offending.

Discretion to make an ISO

1. [91]

   Having satisfied the threshold requirements in s 5B(a)-(d) of the Act, I consider it is appropriate to exercise the Court’s discretion to make an ISO. I am satisfied that this is appropriate because the nature of the unacceptable risk and the potential consequences of further serious sexual offending by the defendant are such that even with his existing level of supports an ISO is necessary to manage risk.

2. [92]

   Specifically, this decision is supported by my reasoning above as to s 5B(d). Moreover, given the nature of the risk, it is not appropriate for no supervision order to be applied to the defendant once his parole expires, notwithstanding the existence of the present protective measures which after parole would consist of the NDIS supports (should the defendant remain willing to accept them) and the Child Protection Register. I do not consider either of these are sufficient to manage or mitigate the defendant’s risk of further serious offending.

3. [93]

   The Child Protection Register is not a significant protection measure because the defendant is not subject to a Child Prohibition Order. Notwithstanding the defendant’s recent willingness to engage with NDIS supports, there would be no compulsion on the defendant to continue to accept the supervised accommodation and support workers. As discussed earlier in my judgment, the defendant has demonstrated real volatility concerning his ongoing engagement with services, expressing the intention to either discontinue or relocate away from all the services which supervise and treat him. On the material presently available, it cannot be assumed that the defendant would, if free of parole, necessarily maintain his engagement with psychological and psychiatric treatment or NDIS supports.

4. [94]

   The defendant tried to meet this risk by contending that the defendant could be made the subject of a Community Treatment Order or Child Prohibition Order which the State had the opportunity to apply for and did not. For two reasons this contention cannot weigh against my decision to impose an ISO. First, in assessing whether an unacceptable risk exists under s 5B(d) the Court is assessing the defendant’s risk “if not kept under supervision under the order”. There is presently no extant Community Treatment Order or Child Prohibition Order for the Court to consider, let alone any terms of such an order which could speak to the assessment of risk.

5. [95]

   Second, there is no evidence before the Court as to whether a Community Treatment Order or Child Prohibition Order by its nature and by its terms might arrest the relevant risks posed by the applicant to the extent that the applicant would not pose an unacceptable risk if not supervised under a supervision order.

CONDITIONS

1. [96]

   The position of the parties as to conditions was two-tiered. The first tier involved a debate as to whether any conditions ordered by the Court would be confined to those already operating with respect to parole and whether those parole conditions would continue until the final determination of the matter. The defendant was in favour of this position, if the Court determined to make an ISO, which was opposed by the State.

2. [97]

   The second tier, involving the conditions themselves, was engaged if the Court was not minded to make an order of that kind as sought by the defendant. The parties proceeded to refine the areas of dispute about conditions in oral submissions as well as in the agreed schedule. (This was also reflected in the Amended Summons filed by the State after the hearing).

Relevant Principles

1. [98]

   Both parties referred the decision of Wilde v State of New South Wales [2015] NSWCA 28 as to how the Court will assess the appropriateness of a disputed condition urged by the State in the context of the scope, purpose and objects of the Act, (see State of NSW v Wilkinson (Preliminary) [2020] NSWSC 1813 (“Wilkinson”) at [44] (iv) and State of New South Wales v Boney (Final Hearing) [2020] NSWSC 1375 (“Boney”) at [119])) and the more recent cases dealing with the appropriateness or otherwise of various standard conditions including search and seizure, employment, association and disclosure of criminal record.

2. [99]

   In considering the imposition of conditions, the defendant noted the following principles from Wilkinson set out by Hoeben CJ and CL (as his Honour then was) at [44]:

3. [100]

   Despite it being a final hearing, I adopt the approach set out in my decision in Boney at [119]-[127] in approaching the principles for the imposition of conditions. Those principles are as follows:

Adoption of parole conditions?

1. [101]

   As well as the standard conditions of parole as per clause 219A(1A) of the Crimes (Administration of Sentences) Regulation 2014, the defendant is currently subject to the following additional parole conditions:

2. [102]

   The defendant is on the Child Protection Register which imposes a number of limited supervision requirements, including for example, notifying of changes of address. However, the Register does not impose prohibitions on individuals like a child protection prohibition order does.

3. [103]

   The defendant currently receives support under the NDIS which will be reviewed on 19 April 2023. His funding is for:

4. [104]

   The defendant is currently residing in accommodation which is part of his NDIS package accommodation and has two workers with him at all hours. He has two streams of psychological support: one through his parole connections and another through his NDIS package. I note that with the exception of Mr Clarke’s evidence, the Court was not taken to any specific material about the care provided by NDIS workers.

5. [105]

   Kinchela Boys Homes Corporation, who allocated the defendant a NDIS Access worker and Specialist Support Coordinator, is assisting him to locate suitable accommodation, which is one of his NDIS short-term goals.

6. [106]

   The State opposed the adoption of parole conditions as the conditions attached to the ISO. It was correctly submitted that the serious sex offence was committed less than 12 months after he ceased participation in the CUBIT program and some 23 days after he had been released from custody, suggesting the parole conditions were not sufficient in this case.

7. [107]

   In opposition, counsel for the defendant submitted that the defendant had been successfully supervised under the conditions of his parole since 23 September 2022. At the time of the preliminary hearing, he had been subject to those conditions for close to five months.

8. [108]

   Counsel for the defendant submitted that the parole involves 19 conditions where are broad, stringent and have been formulated for the specific risk profile presented by the defendant. It was submitted that any conditions attached to an ISO should emulate the defendant’s current parole conditions for the following reasons:

9. [109]

   If the defendant remains on his parole conditions as part of an ISO, those conditions will continue for a maximum time of three 28-day extensions, which is three months, until the final hearing.

10. [110]

    In oral submissions, counsel for the defendant emphasised that it would make sense for the parole conditions to continue, considering the defendant’s complex mental health diagnoses and level of cognitive functioning, rather than have a three-month period on different conditions “that may well change again at the time of a final hearing.”

11. [111]

    The defendant relied on the decision of Lonergan J in State of NSW v CD (Preliminary) [2021] NSWSC 1396 to support their position. Lonergan J adopted an offender’s existing parole conditions as the conditions of the offender’s ISO and summarised the reasons for that approach as follows (at [6]):

12. [112]

    As the defendant submitted, the defendant has been subject to the parole conditions for approximately five months, not two weeks, as was the case in the decision of Lonergan J.

13. [113]

    In reply, the State submitted that “Each matter turns on its own facts and on the Court’s assessment of the offender, the current parole conditions, the progress on parole, the nature of the risk, and the ESO conditions required to address that risk. It is important in that respect to differentiate between the purpose of parole and the purpose of conditions imposed under the Act.”

14. [114]

    The State relied upon the decision of Schmidt J (as her Honour then was) in State of New South Wales v Lee [2017] NSWSC 1766, at [86] as follows:

15. [115]

    I accept the position of the State in this respect. Given I have found that there is an unacceptable risk of the defendant committing a further serious offence if not supervised under an ESO, addressing that unacceptable risk is the foundation for the structuring of the conditions to address the risks the subject of these findings, rather than simply relying on the existing parole conditions even if there has been, over the last five months, adherence to them.

16. [116]

    It is true that it is only three months until a final hearing, but if a final ESO is made, there is a substantial chance that conditions will be fashioned specifically to deal with the risks and the consequences thereof in the context of evaluations made from the principles of s 5B(d).

17. [117]

    Following Schmidt J’s decision in Lee, individual case plans are managed so that when an offender approaches the completion of an ESO there can be a gradual reduction of restrictions and an increase in independence. This can only be achieved where the conditions give the supervisors the necessary discretion to permit such relaxation.

18. [118]

    I accept that there is a possibility as to some destabilisation of the defendant after the imposition of new or additional conditions. But there is little evidence as to the real likelihood of the same or whether any instability may or may not be successfully managed. In fact, the defendant’s own evidence counts against him on this point. The defendant indicated that after the expiration of his parole, he would cease all engagement with support services except Centrelink (see the affidavit of Ms van Lieven, page 6) and relocate to Glen Innes which is a place where he committed the robbery offence he is currently serving a sentence for (affidavit of Ms van Lieven, page 13). Whether or not the existing parole conditions have sufficiently restrained the defendant to date, that has occurred in circumstances where the defendant had an expectation that those controls may end within a relatively short timeframe. The defendant continues to demonstrate a real instability which, considering the principles above, indicates a greater need for the imposition of specific, risk management conditions in a context where the Court should give weight to risk avoidance. I consider the ISO and the conditions I will attach to it will serve that purpose.

Disputed Conditions

1. [119]

   Proposed conditions 5 and 5A are as follows:

2. [120]

   The State submitted that the Court can reasonably assume that an experienced DSO will be aware of “the nature of the risk and the factors which inform the risk, having regard to the Risk Assessment Report findings.” If the defendant was not electronically monitored, it was submitted that the only effective monitoring of the defendant would be if there was a breach of the ISO or if he committed a serious offence.

3. [121]

   The word “significant” in condition 5A(iii), it was submitted by the State, is to try and confine the phrase “increase in risk”.

4. [122]

   Mr Glover, a Community Corrections Officer who interviewed the defendant, noted that there is no requirement for electronic monitoring as part of the defendant’s current parole but that under an ESO, this would assist in ensuring adherence to the schedule of movements and enable audits to be conducted to identify any concerning patterns in his behaviour, as well as the monitoring his whereabouts. The RAR at [90] also recommends that the defendant may be obliged to wear electronic monitoring.

5. [123]

   Counsel for the defendant opposed this condition on the basis that the defendant has not be subject to electronic monitoring while on parole and it is not necessary now. It was submitted that electronic monitoring is unnecessary, considering the defendant is living on a remote property in a regional area.

6. [124]

   Further, the defendant submitted that the words in condition 5A(iii), “significant increase,” are too subjective and vague and that the Court would be minded not to make this condition.

7. [125]

   In my view, there is not a sufficient basis for the defendant to resist the imposition of this condition merely because the applicant is not presently the subject of such a restraint whilst on parole. However, it is equally the case, that the State’s contention that the electronic monitoring may assist in monitoring adherence to the schedule of movements, if fixed as a condition, is not a sufficient basis for the imposition of the condition unless there is some demonstration, by evidence, to make that connection in the present case.

8. [126]

   No other basis has been provided by the State for the imposition of electronic monitoring in this case to manage risk, over and above those protections afforded by scheduling itself.

9. [127]

   Whilst the provisions in condition 5A represent a concession by the State, modifying the circumstances in which electronic monitoring might be used, and while it might be excepted that a DSO would act reasonably in directing the compliance with that condition, the very nature of the qualifications in 5A create doubt in my mind as to whether electronic monitoring is necessary, in this case.

10. [128]

    Overall, at this stage, the State has not shown that electronic monitoring would be appropriate to address the risks that I have found in a direct or even in an indirect way.

11. [129]

    I reject conditions 5 and 5A.

12. [130]

    The State pressed the imposition of a weekly schedule of movements to be provided by the defendant three days before it is due to start. It was submitted that a schedule would the mean that the DSO would have a greater understanding of what he is doing and that a dialogue could be created between those who manage him and his behaviours and the DSO, whose role is to manage risk. Further, the State also relied upon the ongoing concerns around the defendant’s attempts at drug use.

13. [131]

    The RAR at [90] also recommends that the defendant may be obliged to provide a schedule of his daily activities. This is because it may assist in improving his decision-making skills, impulsivity and limiting his access to potential victims (e.g., break and enter offences).

14. [132]

    Counsel for the defendant submitted that there is nothing to suggest that scheduling, which the defendant has not be subject to on parole, is now necessary. It was submitted that if the Court decided to impose scheduling that a new condition 8A be inserted, as follows:

15. [133]

    The proposal in condition 8A has implicit within in that the provision of support through NDIS is sufficient to manage the risk such that him walking away from that support would create a scenario in which conditions 6, 7, and 8 are triggered. However, I have not accepted the premise of that proposition, namely, that support is sufficient to manage the risks as I have found them.

16. [134]

    I agree with the State that in the absence of electronic monitoring and given the ongoing concerns around the defendant’s attempts at drug use and mental instability, both associated with the risk of further offending, scheduling is required.

17. [135]

    I also agree with the State that a schedule of movements would introduce a greater degree of certainty on the part of those supervising him outside of Kirinari House (that is, the DSO), to understand what he is doing.

18. [136]

    Despite the defendant’s current supervision being such that people accompany him wherever he goes, a scheduling condition would provide force to this routine and as the RAR states, it could reduce the risk of him engaging with potential victims.

19. [137]

    I accept conditions 6, 7 and 8. I reject proposed condition 8A.

20. [138]

    The State submitted that the curfew within condition 10 is an important way of ensuring some stability and routine (important to reintegration which in turn indirectly reduces risk) and removing the temptation, for example, to obtain illicit drugs.

21. [139]

    Again, counsel for the defendant submitted that the present parole conditions do not involve a curfew and it is not necessary to implement one now. It was also submitted that there have not been issues with the defendant being out at night-time and that the defendant’s pattern of offending is random, rather than more frequently at night. There is no suggestion that being out at night-time would elevate his risk.

22. [140]

    I accept the defendant’s position in this case.

23. [141]

    The original condition 13 was as follows:

24. [142]

    The State pressed the original version of condition 13 on the basis that “the defendant’s assessed risk scenarios were not confined to opportunistic approaches to strangers and also included increased risk of contact sex offences in private locations.” Further, it was submitted that persons over the age of 18 can still be vulnerable.

25. [143]

    The defendant opposed this condition. An amended condition was proposed in the following form:

26. [144]

    It was submitted that preventing persons over the age of 18 from visiting the defendant’s approved address is not sufficiently connected to the defendant’s risk profile (see the RAR at [84]).

27. [145]

    The defendant’s approach to this condition, considering the nature of the risk, is expressed too narrowly expressed in the light of my earlier findings. However, even adopting an indirect approach to the management of risk as in Farringdon, the State has not demonstrated why a condition of the kind identified in Condition 13 is necessary. Accordingly, I will adopt the approach of the defendant because there is at least a clearly defined risk in relation to persons under 18 years of age.

28. [146]

    The State submitted that drug purchase use and consequent potential deleterious effect on already unstable mental health is a significant risk factor, where command hallucinations have been linked to serious sex offending by Dr Elliott. Hence, the condition mandating the provision of any information relating to the defendant’s financial affairs if directed by a DSO, was pressed.

29. [147]

    Counsel for the defendant opposed this condition on the basis that it is not sufficiently connected to the mitigation of the risk of a serious offence and is inappropriate in circumstances where a financial guardianship application is pending.

30. [148]

    I accept the defendant’s submissions in this respect.

31. [149]

    Proposed conditions 40, 44, 45, and 46 were as follows:

32. [150]

    The State submitted that the considering the defendant admitted to searching ‘teen porn’ on his phone, the use of the internet to contact and meet up with vulnerable persons is an obvious potential future risk factor.

33. [151]

    Counsel for the defendant submitted that any issues with internet use have been adequately addressed by the defendant’s current parole conditions and that these sorts of conditions are more appropriate for defendants with a history of sexual offending and moulding on the internet. The defendant does not have that past criminal history and as such, these conditions are not sufficiently connected to his risk profile.

34. [152]

    I agree with the State regarding Conditions 40, 44, 45 and 46. The concern is that the defendant might use the internet to attempt to contact or meet up with people under the age of 16.

35. [153]

    The State’s submission is supported by the RAR at [90] which recommended that the defendant’s access to the internet and electronic devices be monitored in order to scrutinise his social contacts and aim to increase pro-social influences.