State of New South Wales v DJM (Preliminary)

By a summons filed on 24 October 2022, the plaintiff, the State of New South Wales, sought interim and final orders under the Crimes (High Risk Offenders) Act 2006 (NSW) (the CHRO Act), including an extended supervision order (ESO), against the defendant. By leave granted on 1 February 2023, the plaintiff filed an amended summons seeking the same orders but with amendments made to the form of the conditions sought to be imposed under the ESO.

The matter came before me for a preliminary hearing on 1 February 2023 at which time the State sought by way of interim relief:

In proceedings for an ESO, if the Court is satisfied following the preliminary hearing that "the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order":

As to s 10A(a), since the defendant’s current custody will expire at the end of 7 February 2023 and he has not yet been examined under s 7(4) and no date for a final hearing will be set until after 7 February 2023, I am satisfied that his current custody will expire before the present proceedings are determined.

Thus, the Court in this case must make examination orders and may make an ISO if, assuming the matters alleged in the supporting documentation are proved, they would justify making an ESO.

The making of an ESO is governed by s 5B of the CHRO Act, which provides:

The written submission filed on behalf of the defendant for the purposes of the preliminary hearing indicated that he did not take issue with the statutory preconditions for the making of ESO in s 5B(a), (b) and (c) being met in the present case and I am satisfied that they have been.

It was not submitted that any of the statutory conditions in s 6 of the CHRO Act for the State’s making an application for an ESO and the pre-trial procedures set out in s 7(1)-(2) have not been complied with in this case and I am also satisfied that they have been in light of the summons and the evidence of Ms van Lieven.

Accordingly, in the circumstances of the present case, whether “the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order" turns on whether the Court, assuming those matters are proved, is 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, as required by s 5B(d) of the CHRO Act.

For the purposes of the interim hearing, the defendant did not wish to make any submission as to whether, assuming the matters alleged in the supporting documentation were proved, the Court could be satisfied to a high degree of probability that the defendant posed an unacceptable risk of committing a further serious offence if not kept under supervision, so as to satisfy the requirement in s 5B(d). Furthermore, the defendant did not oppose the Court imposing conditions to the effect of the conditions proposed by the State in the schedule to the amended summons. The defendant also did not oppose the making of the order for examinations and report under s 7(4) of the CHRO Act.

Given the fact that there were, in effect, no matters remaining in dispute between the parties, these reasons can be somewhat shorter than might otherwise be the case.

In determining whether I was satisfied that the matters alleged, if proved, would justify the making of an ESO, I took into account the principles which I summarised in State of New South Wales v Shields (Preliminary) [2022] NSWSC 469 at [12].

The supporting documentation included:

If the matters alleged in the supporting material are assumed to have been proved, in my view the making of an ESO would be justified because, having regard to the matters identified in s 9(3)(c), (d), (d1), (e), (e1), (e2), (f), (g), (h), (h1) and (i) of the CHRO Act, I would be satisfied to a high degree of probability that the defendant posed an unacceptable risk of committing another serious offence if not kept under supervision by way of an order.

Accordingly, my discretion to make an order for the interim supervision of the defender is enlivened in this case. Since there is no opposition to an ISO being made, there are no factors to which the parties have pointed which would militate against the exercise of the discretion to make an ISO in the present case and I cannot discern that there are any such factors, I propose to make an ISO for a period of 28 days in respect of the defendant.

The remaining issue for determination is the conditions with which the defendant should be directed to comply in respect of the ISO.

By the commencement of the preliminary hearing, the parties had reached an agreed position as to the proposed conditions which would be appropriate for inclusion in any ISO. In my view the conditions proposed by the State and agreed to by the defendant are appropriate in the circumstances disclosed in the supporting material, some relevant portions of which have been referred to in more detail above, subject only to some minor amendments, which were raised by the Court with the parties during the hearing and which both parties accepted were suitable and appropriate. Accordingly, subject to those minor amendments, the conditions will be those agreed between the parties.

For these reasons, the orders of the Court are:

The defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions of a DSO.

Where a direction may conveniently be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service.

The defendant must truthfully answer questions from a DSO, or 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.

Subject to conditions 4A and 4B, the defendant must wear electronic monitoring equipment as directed by a DSO and must not tamper with, or remove, the equipment.

If directed by his DSO, the defendant is to provide a summary of his anticipated movements each week (or over successive weeks) for approval, limited to places he intends to travel to, the purposes and means of his travel to those places, the dates of travel, but not his travel route or precise timetable. If so directed, the defendant is to provide that summary no later than noon on the Monday immediately following the issue of the directions. It must be an honest summary of the defendant’s anticipated movements.

A DSO must not withhold approval of the defendant’s attendance at any location unless attendance would give rise to a risk of committing a serious offence to a risk of breach of another condition of this order.

It will not be a breach of this condition if the defendant departs from the summary, provided the defendant notifies his DSO of his change of plans before doing so, or if that is not possible, as soon as is reasonably practicable afterwards.

The defendant must live at an address approved by a DSO and notify a DSO of any intention to change the defendant’s address or living arrangements.

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.

The defendant must not spend the night anywhere other than his approved address or any alternative approved addresses (if relevant) without the approval of a DSO.

The defendant must promptly notify a DSO of any visitor entering and remaining at his approved address and must not permit any person to stay overnight at his approved address (other than persons who ordinarily reside at his approved address), without the prior approval of a DSO.

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

The defendant must not frequent or visit any place or district specified by a DSO.

Without limiting condition 13 above, the defendant must not go to any of the following without the prior approval of a DSO

The defendant must not start on his own initiative any job, volunteer work or educational course without the approval of a DSO.

The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by a DSO.

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The defendant must not associate with anyone who he knows or reasonably should know is under 18, other than incidental contact in a public place in the course of the duties of the minor; or with the written permission of a DSO and in accordance with any requirements reasonably determined by a DSO, including that the contact takes place in the presence of an adult who has been approved in writing by a DSO.

The defendant must not associate with any person or persons specified by a DSO.

Without limiting condition 21, the defendant must not associate with any person held in custody without prior approval of a DSO.

The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary. Before disclosing the defendant’s criminal history, a DSO will first inform the defendant of the intention to disclose the criminal history and the reason for the disclosure and will give the defendant an opportunity to, within a reasonable time as set by the DSO, make the disclosure himself.

The defendant must obtain written permission from a DSO prior to joining or affiliating with any club or organisation

The defendant must obey any reasonable direction by a DSO about communication, internet access and use of electronic devices (including, but not limited to, approval of devices used, method of communication, access to the internet and restrictions on deleting information).

The defendant must not use any alias, electronic identity, log-in name, name other than “[XXX]” or any email address other than those known to a DSO. The defendant must give a DSO a list of all devices, services and applications he uses to communicate with or to access the internet and advise a DSO of any change to the list immediately. This includes phones, tablet devices, data storage devices or computers.

The defendant must only use an electronic device which has the ability to access the internet after the device has been disclosed to a DSO and the device has been seen and approved for use by a DSO.

The defendant must provide the details of telephone numbers, service provider account numbers, email addresses or other user names as well as any relevant passwords, pin codes and pass codes used by the defendant and the nature and details of the internet connection, as directed.

The defendant must provide a DSO with all passwords, pin codes and pass codes used to access all electronic devices, electronic applications, internet sites and communication platforms of any kind.

The defendant must not use any coded or encrypted messaging application or service.

The defendant must provide any code or encryption for any electronic data or any electronic communication if discovered on the defendant’s electronic devices or accounts as a result of a search or a remote inspection.

The defendant must not access, join and/or connect to any social networking service or application without the prior approval of a DSO, including, but not limited to, use of internet-based email, instant messaging services, online community services, multi player video games and other telecommunications-based services including text and voice services.

The defendant must provide consent for a DSO (or any other person requested by a DSO) to remotely inspect any internet account used by the defendant, including any internet service provider account, email accounts and social media accounts, in monitoring compliance with this Order.

The defendant must not delete or alter any applications, email, text messages, any electronic message, call history, any data, internet search, internet or application search history, any application chat or communication history from his phone, computer, tablet or any other electronic device without the prior consent of a DSO.

The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with a DSO.

If the DSO reasonably believes that a search is necessary:

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

If the defendant purchases, possesses, accesses, obtains, views, participates in or listens to material classified or material that would be classified as Refused Classification, X18+, Restricted Category 2 and Restricted Category 1, or any other material as directed by a DSO, he must notify his DSO within 24 hours of having done so.

The defendant must not change his name from “[XXX]” or use any other name without notifying a DSO.

The defendant must not significantly change his appearance without the approval of a DSO.

The defendant must let a DSO photograph him, dressed, within one week of the commencement of these conditions and following any significant change to his appearance.

If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide a DSO with such details.

The defendant must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction.

The defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults.

If the defendant takes any medication, he must only take medication that is prescribed to him by his healthcare practitioners in the manner prescribed.

The defendant must notify a DSO immediately if he ceases to take or declines to commence taking any medication as referred to in the above condition.

The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with a DSO.

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

The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him.