State of New South Wales v Tannous (Preliminary)

1. [1]

   The State of New South Wales, (“the plaintiff”), commenced proceedings by Summons, filed on 7 November 2019, against the defendant seeking interim and final orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). An Amended Summons was filed on 12 December 2019 that refines the conditions proposed as a result of negotiations between the parties.

2. [2]

   The defendant is presently on parole having been released on 8 March 2018. He had been sentenced on 19 June 2014 to a head sentence of six years and six months (which included a three-year six month non-parole period) for five counts of sexual intercourse with a child aged between 10 and 14 years pursuant to s 66C(1) of the Crimes Act 1900 (NSW). His head sentence will expire on 27 January 2020.

3. [3]

   The final relief sought is the imposition of an extended supervision order, (“ESO”), for a period of three years during which time it is proposed that the defendant be subject to certain conditions set out in the schedule to the Amended Summons.

4. [4]

   There was debate about the necessity and appropriateness of some of the proposed conditions which led to further negotiation between counsel. Issue remained regarding conditions 9 (accommodation), 19 (education), 37(a) and 37(b) (searches), and 42 (access to pornographic material).

5. [5]

   By way of interim relief, the Amended Summons seeks an order that the defendant be subject to an interim supervision order (“ISO”) for 28 days, to be renewed every 28 days for a maximum period of three months.

6. [6]

   The Amended Summons also seeks orders appointing two psychologists and/or psychiatrists to examine the defendant and furnish reports, that those reports be provided to the Court, and that the defendant be directed to attend those examinations.

7. [7]

   The usual order limiting access to the Court’s file in respect of any document by a non-party is also sought.

8. [8]

   The defendant reserves his position in relation to final orders for an ESO but does not resist the making of an ISO, provided that the Court is satisfied that the relevant test is met, that is that the matters alleged in the supporting documentation tendered by the plaintiff would, if proved, justify the making of an ESO on the basis that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision.

9. [9]

   The comprehensive written submissions of both parties provided clarity as to those matters and the evidence available to support the order.

10. [10]

    Because the defendant opposed some of the conditions of the ISO proposed by the plaintiff, the preliminary hearing was limited to the legal principles and evidence relevant to the conditions in issue.

Background

1. [11]

   The defendant is a 40-year-old man with a history of sexual offending. The index offences are the third episode of sexual offending, the second episode involved children and the most serious in terms of the youth of the victim who was only 10 years old.

2. [12]

   First, in 1999 the defendant committed two counts of indecent assault and one count of threatening injury with intent to commit indecent assault, against an 18-year-old woman. The offences involved the defendant pushing the victim down on a bed, holding her face down, holding a knife close to her face and neck, attempting to handcuff her wrists, rubbing his genital area against her back, turning her over and holding her back on the bed and rubbing his genital area against her genital area. [1]

3. [13]

   In 2002 the defendant pleaded guilty to committing aggravated indecent assault against a 15-year-old boy which involved him meeting the boy, (whom he did not know) at a skate park, twisting the victim’s arm behind his back, guiding him into a toilet block and pinning him against a wall, taking the victim’s pants down, covering the victim’s mouth and fondling the victim’s genitals. The defendant also exposed his own penis during the assault.

4. [14]

   Relevant to the question of appropriate conditions and in particular the proposed search condition is that the New South Wales Police facts sheet associated with this 2002 offence stated that police located in the offender’s vehicle a security officer’s silver badge fixed inside a leather wallet, a Stanley knife, tape and rope. In the boot there was a bag containing leather ankle straps and chains, rubber gloves, rope, pegs and condoms.

5. [15]

   The index offending which occurred in 2012 when the defendant was 33 years old involved a camping trip where the 10 year old victim, who was the nephew of the defendant’s friend, was lured away from the group by the offender on two separate occasions. The offender put the victim’s penis in his mouth three times and put his finger into the victim’s anus on two occasions. Wells DCJ, after a Judge alone trial, found him guilty of all of those offences.

6. [16]

   According to a report of psychologist Laura Durkin dated 1 May 2014 which Judge Wells took into account on sentence, nothing was indicated in the defendant’s upbringing that explained how it was that he came to commit the offences. He described that his parents were supportive and loving people of good character.

7. [17]

   The defendant apparently described himself to Ms Durkin as engaging in conduct that was a “bit stupid”. He asserted that he was aggressive, defiant, reckless, impulsive and destructive and “very immature”, and believed that he was cognitively impaired. He mentioned that he began to engage in “delinquent behaviour” involving drug use and some crime, and “struggled” throughout primary and high school.

8. [18]

   The defendant told Ms Durkin that he has a high libido and has had at least 50 sexual partners since the age of 18, and that he would like to engage in sex several times a day although recognising that generally was not possible. He said that he had learned to control his urges through distraction or occasional masturbation.

9. [19]

   For the 1999 offending the defendant was sentenced by Judge Nield to a head sentence of three years with a non-parole period of one year taking into account the defendant’s youth, vulnerability, attention deficit hyperactivity disorder and cannabis abuse.

10. [20]

    For the offending in 2002 to which he pleaded guilty at the first opportunity Judge Delaney, like Judge Nield, found special circumstances and gave a head sentence of four years and four months with a non-parole period of two years and six months.

11. [21]

    During his incarceration for the 2002 offences, the defendant commenced but then removed himself from the Custody-Based Intensive Treatment program (“CUBIT”), citing that he found the program “too emotional and difficult” and that he “felt lost and confused which led to him being depressed”; he found the homework and group discussion “out of his league and hard to understand,” and could not handle the workload. [2]

12. [22]

    The defendant ultimately participated in the CUBIT program between 4 November 2016 and 18 October 2017. In the CUBIT treatment report [3] it was noted that whilst participating the defendant had difficulty complying with program rules and expectations and received seven warnings. It was noted that he had difficulties with self-regulation and engagement in treatment.

13. [23]

    There is reference to him having been in a long-term relationship with a male partner but in his affidavit sworn 4 December 2019 the defendant stated that this relationship ended in September 2019. [4]

14. [24]

    After release on parole on 8 March 2018 the defendant apparently experienced a high degree of anxiety regarding the need to comply with schedules and thus potentially breaching his parole. Although he had no qualms about being placed on ankle monitoring, he was anxious about it being appropriately charged and at times when the battery went flat this led to heightened anxiety. In his affidavit he outlined that these anxieties led to a conversation with his parole supervisor Nicole, who made a decision to remove the scheduling but keep the monitoring. Understandably his parole has detailed conditions regarding restriction on activities and access to places where children are. He currently lives with his parents except for a short period in August and September 2019 when he was approved to live with his partner.

15. [25]

    He has been provided with a therapy dog called Blaze whom he trains. He says that he has had difficulty seeking employment because he has to tell employers about his offences. He is on the disability support pension and so does not have a work requirement. [5]

16. [26]

    The defendant says that he has been seeing a psychologist regularly and recently has sought out his own psychiatrist for assistance, Dr Adam Martin, and this has been helpful. [6]

17. [27]

    The defendant states that he has stayed off drugs and has not failed a drug test since August 2012, despite having contact with his brother who has an apparent cannabis use problem.

Legislative framework

1. [28]

   The preliminary statutory requirements for an ESO (and here, an ISO) are in my view satisfied.

2. [29]

   The Act stipulates in s 6 that the application may not be made until the last nine months of the offender’s current custody or supervision and that it must be accompanied by material relevant to a determination of the appropriateness or otherwise of an ESO as set out in s 9(3) of the Act.

3. [30]

   That material has been provided and includes amongst other relevant material a detailed Risk Management Report dated 3 December 2019 by Ms Grabham and a supplementary report by the same author dated 24 July 2019, as well as a Risk Assessment Report by Dr Richard Parker dated 26 November 2019 with two updated Supplementary reports by him dated 31 May and 27 September 2019.

4. [31]

   A preliminary hearing for an ISO is required prior to the final hearing pursuant to s 7(3) of the Act, and the purpose is to determine whether the Court is satisfied that the matters alleged in the supporting documentation would, if proved justify the making of an ESO: s 10A(b) of the Act. If not satisfied I must dismiss the application: s 7(5).

5. [32]

   If I am so satisfied, I must make orders appointing two psychologists or psychiatrists to conduct separate examinations of the offender and furnish reports.

6. [33]

   The four prerequisites set out in s 5B of the Act are conceded by the defendant and in my view all satisfied:

7. [34]

   Sections 5B(a) and (b) of the Act are satisfied as the defendant is a supervised offender because he is an offender who is under supervision while serving a term of imprisonment for an offence of a sexual nature: section 5I(2)(a)(ii). Section 5B(c) is satisfied as the application has been made in accordance with s 5I.

8. [35]

   In terms of s 5B(d), “serious offence” is defined in s 4 to include a serious sex offence, and defined in s 5(1)(a)(i) to include an offence within Division 10 of Part 3 of the Crimes Act 1900 (NSW) that is punishable by imprisonment for seven years or more. The index offending under s 66C for which the defendant was sentenced in June 2014 is clearly within this Division of the Crimes Act 1900 (NSW).

9. [36]

   In deciding whether I am satisfied to a high degree of probability that the offender oppose poses an unacceptable risk of committing another serious offence not kept under supervision under the order, I do not have to make a finding that it is more likely than not that an offender will commit a serious offence for there still to be an unacceptable risk, and I may find that a person poses an unacceptable risk even if the likelihood of them committing a further serious offence is low, but there is a high gravity of consequences for the victim: State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [43]; State of New South Wales v Stevenson (Preliminary) [2019] NSWSC 492 at [16].

10. [37]

    Section 9(2) makes it clear that in determining whether or not to make an ESO, the safety of the community must be the paramount consideration. This is consistent also with the primary object of the Act stated in s 3(1) which is the safety and protection of the community.

11. [38]

    Encouragement of offenders to undertake rehabilitation (s 3(2)) is not a “secondary” object of the Act but is, properly considered, another object of the Act. There should not be any primacy given to rehabilitation of offenders where it interferes with the safety and protection of the community. This is a particularly relevant consideration given this defendant and the nature of his offending – using threats, fear, and physical coercion to sexually offend against children, and the personality and psychological difficulties he apparently continues to exhibit, in particular his sense of entitlement, impulsivity and sexual focus on young boys.

12. [39]

    As made clear in Attorney General For New South Wales v Tillman [2007] NSWCA 119, (although dealing with the counterpart provision under the previous version of the current legislation):

13. [40]

    See also more recently the approach of Hoeben CJ at CL in State of NSW v Holschier (No 2) [2018] NSWSC 1921:

Section 9(3) Considerations

1. [41]

   The s 9(3) considerations relevant at this preliminary hearing stage are analysed in the following paragraphs.

2. [42]

   In a report of June 2001 Mr Rendell described the defendant as: [7]

3. [43]

   Mr Rendell also identified the defendant as in the high range of risk of sexual recidivism using the Static 99 risk assessment tool. He noted dynamic risk factors such as intimacy deficits, inadequate positive peer social influences, evidence of an inability to generally and sexually self-regulate, lack of investment in offence specific treatment, and a desire to maintain secrecy.

4. [44]

   In 2003, psychologist W. John Taylor [8] administered a range of tests which showed [9] parameters which indicated overall, a moderate predisposition for sexual recidivism.

5. [45]

   Ms Durkin, psychologist, in May 2014 determined on the application of various risk assessment tools that the defendant had an overall high risk of re-offending.

6. [46]

   A Pre-Sentence Report by Kate Solomon dated 6 May 2014, applying the various risk assessment tools, determined that the defendant’s risk rating was “high compared to other adult male sex offenders”.

7. [47]

   The CUBIT Treatment Report dated January 2018 reflects scoring from assessments carried out in October 2017 which placed the defendant in the IV-b category which corresponds to a risk rating of well above average.

8. [48]

   A detailed risk assessment report dated 31 May 2019 was prepared by Dr Richard Parker in which Dr Parker concluded that the defendant was assessed at being a high risk of committing further sexual offences. He noted that whilst the defendant had completed the CUBIT program, he still employs the same thinking patterns that fuelled his offending which result in a focus on his own desires to the exclusion of other people’s needs. [10]

9. [49]

   Dr Parker also noted dynamic risk factors such as sexual preoccupation, sexual attitudes and problems with self-regulation. He acknowledged that marijuana use had been a problem in the past but was not a current problem. Dr Parker made reference to what the defendant had told Ms Donaldson in the context of the CUBIT program that his ideal frequency of sex would be “1000 times a day”. Dr Parker said that whilst this is unlikely to lead to offending by itself, in combination with other criminogenic needs, this provides the drive to offend. [11]

10. [50]

    Dr Parker also identified problematic sexual attitudes held by the defendant and that it was possible that the defendant subscribed to the view of children as sexual beings, or that his emotional state overrode any concerns about his victims or the appropriateness of his conduct. Dr Parker also took the view that there was an “entitlement implicit theory” playing a role in the offending. Overall he considered that the defendant’s inability to delay gratification was closely related to his impulsivity and that this was something that was a substantial problem for the defendant, identified both in the CUBIT program and also noted when he was under community supervision.

11. [51]

    The risk management report of 24 July 2019 by Ms Veal and Ms Grabham of Corrective Services NSW notes that the psychological risk assessment undertaken on 5 February 2019 placed the defendant in the high risk category of sexual offending.

12. [52]

    The report evaluates the defendant’s response to supervision as unsatisfactory and that since his release to parole his response has been “borderline”, primarily due to emotional reactions and behaviour when challenged with decisions with which he does not agree or fully comprehend.

13. [53]

    In April 2019, due to a deteriorating response to supervision often displaying an aggressive hostile attitude to supervision, a breach of parole report was submitted. That report questioned his ability to adapt to a normal community life due to his deteriorating response to supervision. A concern was expressed that due to the defendant’s difficulty managing his emotions, his risk of reoffending becomes elevated consistently with what was said in the CUBIT treatment report by Ms Donaldson.

14. [54]

    The defendant’s FPS therapist also indicated about the same time that his behaviour had become increasingly hostile and that his engagement in programs was “superficial”. There was a pursuit of management strategy including weekly face-to-face interviews, random tests, some field visits including scheduled and unscheduled home visits, and referral to additional services.

15. [55]

    As already observed, the defendant failed to complete CUBIT in 2004, but reattempted and completed CUBIT in 2017-2018, although not without difficulty. Relevant observations by Ms Donaldson in her report include:

16. [56]

    He indicated a lack of full acceptance of his responsibility for the offending: [12]

17. [57]

    The defendant was noted also to maintain sexual thoughts about males aged between 14 and 16: [13]

18. [58]

    There were comments in Ms Donaldson’s report regarding ambivalence towards treatment and expressions of frustration and disengagement during treatment. On seven occasions he expressed an intent to sign himself out, but did not go through with it.

19. [59]

    It was noted that the defendant still engaged in minimisation of his offending, initially saying that he could not remember the offences due to drug use and that he did not understand why he offended against such a young victim. He argued that the 1999 offences with the adult female victim were consensual, and that “she contributed to them” and that his offence in 2002 was also consensual. It was noted that he progressed through treatment to his acceptance of responsibility “increasing somewhat” but that general acceptance of responsibility remained a challenge.

20. [60]

    There was concern that he may return to smoking cannabis which “is likely to trigger an increase sexual libido”, although Ms Donaldson did not explain the mechanism of that concern. She mentioned the possibility of the defendant seeking friendships with younger people if he cannot connect with those of his own age, and there is an attendant risk that he would push sexual boundaries with those young persons.

21. [61]

    Dr Parker noted in his report that since release the defendant has been difficult to manage, reflecting a similar pattern of behaviour to that reflected in the CUBIT case notes, and that if he does not get the response he wants from supervising staff, he will escalate it, bombard them with emails or messages to try and obtain a different answer come from a different staff member, all accompanied by high levels of emotional arousal.

22. [62]

    It should also be noted that the defendant was on the Child Protection Register when he committed the index offences, and that he committed the 2002 offence whilst he was on parole for the 1999 offences. [14]

23. [63]

    This is set out in [11] to [15] of this judgment.

24. [64]

    The focus of Nield DCJ and Delaney DCJ was on the defendant’s young age, cannabis use and psychological vulnerability at the time of that earlier offending in 1999 and 2002.

25. [65]

    Relevantly, Nield DCJ noted that the defendant showed no contrition, rejected the jury’s verdicts and blamed the complainant.

26. [66]

    Delaney DCJ observed that at the time of the offending in 2002, the defendant was on conditional liberty and the victim was 15 years old. His Honour noted the report of W. John Taylor, psychologist, that referred to unstable personality functioning, antisocial and passive aggressive characteristics and high disposition towards substance abuse, but no indication of an emotional disorder.

27. [67]

    In 2014 Wells DCJ took particular account of the report of Ms Durkin dated 1 May 2014 and the risk assessment Ms Durkin made that the defendant fell into the high risk category for re-offending.

Conclusion

1. [68]

   In all the circumstances I am satisfied that the material in the supporting documentation, if proved, would justify the making of an ESO. In reaching that conclusion I have borne in mind the need to be satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO (s 5B(d)). I am satisfied that it is appropriate to make an ISO in all the circumstances and I make an order accordingly with conditions as set out in the annexure to this judgment. I also make the related orders sought.

Conditions

1. [69]

   Section 11 of the Act provides for conditions that may be imposed on a supervision order. Subsection 11(1) provides that an extended supervision order or interim supervision order may direct an offender to comply with such conditions as the Supreme Court considers appropriate, and then goes on to list the type of conditions that may be imposed. Agreement as to the conditions that ought to be imposed have been negotiated and agreed except accommodation (condition 9), education (condition 19), search and seizure (condition 37(a) and 37(b)), and access to pornography (condition 42).

2. [70]

   The proper approach to the imposition of conditions is set out by the Court of Appeal in Wilde v State of New South Wales [2015] NSWCA 28:

3. [71]

   In his written submissions the defendant submitted that the defendant’s family home should be specified as the address where the defendant is required to reside and should not be subject to approval by his DSO. It was argued that this will enable the defendant to have the security and support that this address provides as a place that he can reside under the ISO.

4. [72]

   This position evolved during argument to the following proposed wording:

5. [73]

   The rationale behind this position was that it at least provides an opportunity for some stability, given the defendant has been living at this address both before August 2019 and after September 2019, has the readily available support of his parents, and there is evidence this is going well.

6. [74]

   I was taken to evidence in the Case Notes, particularly those around September and October 2018 when options for housing were being pursued for the defendant by FACS. What those Case Notes show is the difficulties encountered by persons tasked with the role of assisting the defendant to find accommodation. [15] It was difficult to arrange accommodation at short notice, and the expense of rent could well be prohibitive. Even going to a COSP had implications for the defendant because his assistance animal was not yet a registered assistance animal. [16]

7. [75]

   A Case Note dated 8 October 2019 indicated that the defendant had reported that he was managing the relationship with his brother and was happy to remain in his parents’ home, and that that made things more financially stable. There were also positive observations noted regarding the cleanliness and organisation of the home on a visit.

8. [76]

   On 14 October 2019 there was a further Case Note that the defendant reported that he found it positive to be at home with his parents and that he was able to avoid his brother in any conflict.

9. [77]

   The plaintiff maintained that it was critical to the success of the accommodation arrangement that the DSO could review the situation in the event that the defendant’s parents’ address was no longer considered appropriate. The expressed concern was the presence of the defendant’s brother living in the house and the acknowledgement that this brother had issues with illicit drug use.

10. [78]

    There is evidence in the defendant’s affidavit of his concerns and observations in that regard:

11. [79]

    In my opinion the concerns expressed by the defendant about his brother’s drug use and presence in the family home can be viewed through two different lenses. The defendant’s affidavit evidences that his brother’s drug use is an issue but there is an awareness of the need to keep his distance from his brother and to stay away from drug offending given his own risks in relation to that. The evidence overall supports a conclusion that the defendant has in fact remained drug-free since 2012. What he says about the complexities of the position with his brother indicates a good level of insight and understanding. There is also undoubtedly a protective aspect for the defendant associated with the stability of being at home with his parents.

12. [80]

    There is persuasive evidence of the multiple difficulties associated with the defendant having to find other housing. The difficulties are not just financial but practical. This is made very clear in the references in the Case Notes to which I was taken by counsel for the defendant. However, the plaintiff does need to retain discretion to require an alternative position it if becomes untenable.

13. [81]

    I am of the view that the form of condition proposed by the plaintiff in respect of accommodation is appropriate. It allows a level of monitoring and flexibility without losing the support and stability of the defendant being able to live in the family home, at least until any obvious unresolvable problem emerges, particularly as he transitions to supervision under the ISO. I have made a slight adjustment to the wording proposed by the plaintiff by rearranging the words to reflect the current residential position.

14. [82]

    Given that the defendant is on a disability support pension it is common ground that deleting the requirement for the defendant to work was appropriate. The observations of Fagan J in State of New South Wales v BG (Final) [2019] NSWSC 200 at [58] are apposite:

15. [83]

    The defendant submitted that to require the defendant to comply with condition 19 as presently drafted means potentially his failure to cooperate with every suggestion about education and occupation of his time considered reasonable by his DSO, has the very serious implication of a potential finding of a breach of the ISO (or ESO) and the potential for a further period of imprisonment to be imposed to a maximum of five years under the legislation.

16. [84]

    JIRS statistics tendered showed a significant number of persons who went before the criminal justice system for a breach of an ESO were imprisoned for a period of six months or more.

17. [85]

    It was argued that the condition was not appropriate. There was no real connection shown to how it would reduce any offending risk. It evidenced a paternalistic attitude rather than a connection to risk or rehabilitation.

18. [86]

    Counsel for the plaintiff argued that it is appropriate for the defendant to be required to make himself available for education, training, or participation in a personal development program as directed by the DSO, in order to facilitate his engagement in constructive and pro-social activity, and to mitigate the risk of reoffending arising from his sexual preoccupation, his difficulties with emotional self-regulation and his potential to relapse into illicit substance abuse which was associated with his past offending. It was also submitted, correctly in my view, that there is no evidence that every breach of an ESO condition leads to prosecution; many are treated with warning and never go to court.

19. [87]

    However I am of the view that condition 19 is not appropriate, and I accept the defendant’s submission in this regard. There is no suggestion in the material tendered by the plaintiff that any of the offending was born of the defendant not having sufficient occupation with his time. It was all opportunistic and occurred at times when it seems that the defendant had a job. I embrace the position taken by Fagan J in State of New South Wales v BG (Final) [2019] NSWSC 200 at [58]. I decline to impose condition 19.

20. [88]

    I take the view that it is appropriate to circumscribe and/or reasonably limit searches to ensure that there are built in checks and balances against the misuse of search and seizure power in circumstances where no legislative limits, such as are imposed on police officers in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).

21. [89]

    Reliance was placed by the defendant on the approach taken by Hamill J in State of New South Wales v Steven Single [2019] NSWSC 176 at [53]. I agree that approach has much to recommend it. There his Honour said:

22. [90]

    This led to the addition of condition 38A which I consider to be an appropriate limit on search frequency in this case:

23. [91]

    Oral argument was confined to whether the search and seizure provisions ought to be triggered by the DSO’s reasonable belief that a search is necessary: 37(a) “for the safety and welfare of residents or staff or persons present at the defendant’s approved address or secondary preapproved overnight address”; and 37(b) “to monitor the defendant’s compliance with this order.”

24. [92]

    The defendant accepted that proposed condition 37(c) “because the DSO reasonably suspects the defendant has either breached the conditions of this ESO or engaged in conduct associated with an increased risk of the defendant committing a serious offence”, is an appropriate trigger for search and seizure.

25. [93]

    It was argued that the insertion of condition 38A, which limits the number of searches that can be performed, was not sufficient to protect the defendant from unnecessary interference.

26. [94]

    In my opinion, given the impulsive and opportunistic nature of a number of the defendant’s previous offences, some of which were committed against young children, and which involved their removal to another location and physical coercion, and given the concerning list of items found in the defendant’s car at the time of his offending in 2002, the condition as proposed by the plaintiff is appropriate, particularly given the tempering of the permissible frequency of condition 37(b) searches by the limits prescribed by condition 38A.

27. [95]

    Conditions 37(a) and 37(b) remain unaltered.

28. [96]

    The defendant argued that this condition should be deleted because there is no evidence that there is any connection between the defendant viewing legal pornographic, violent or classified material and his prior offending behaviour. The principles in State of New South Wales v BG (Final) [2019] NSWSC 200 at [80]-[81] were cited:

29. [97]

    The plaintiff maintained that the condition permitting the defendant to view pornographic material only with prior approval of his DSO, was appropriate to monitor the defendant’s identified risk factor of sexual preoccupation which provides his drive to reoffend.

30. [98]

    The plaintiff amended the initially proposed condition to limit it to sexually explicit material and to remove from the preclusion, material classified due only to violent or other content and to material classified R18+.

31. [99]

    Having considered the submissions and the authorities I am of the view that this condition ought not be imposed. There is no evidence linking the offending risk to the defendant watching pornography, and I do not consider the condition to be protective or helpful in facilitating rehabilitation.

    1. (1)

       Pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006(“the Act”) I appoint two qualified psychiatrists and/or registered psychologists to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations.

    2. (2)

       I direct the defendant to attend those examinations.

    3. (3)

       Pursuant to s 10A of the Act, the defendant is subject to an interim supervision order commencing on 28 January 2020.

    4. (4)

       Pursuant to s 10C(i) of the Act, the interim supervision order is for a period of 28 days.

    5. (5)

       Pursuant to s 11 of the Act, I direct that the defendant, for the period ofthe interim supervision order, comply with the conditions set out in theSchedule to this judgment.

    6. (6)

       Access to the Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.