State of NSW v Hunt (Preliminary)

HIS HONOUR:

The defendant is aged 59. He was released to parole on 24 December 2019, having been in continuous custody since 5 May 2011. He was sentenced to imprisonment for 6 years and 9 months, with an additional term of 2 years and 3 months for a series of sexual offences committed against two female victims aged 11 and 7 years. At the same time, he was sentenced for an offence of failing to comply with reporting conditions under the Child Protection (Offender Registration) Act 2000 (NSW) (the Registration Act).

The defendant’s head sentence is due to expire on 4 May 2020. He is presently residing at the Integrated Support Centre (ISC) in Campbelltown.

Pursuant to s 7(3) of the Act, a preliminary hearing is required. The plaintiff must satisfy the Court that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. If the Court is so satisfied, the plaintiff seeks an order under s 7(4) of the Act appointing two qualified psychiatrists or registered psychologists (or one of each) to conduct separate examinations of the defendant and to furnish their reports to the Court. The plaintiff also seeks an order directing the defendant to attend those examinations.

As the matter is unlikely to be listed for final hearing until after the expiry of the defendant’s sentence, the plaintiff seeks an Interim Supervision Order (ISO) pursuant to s 10A of the Act for a period of 28 days. The plaintiff also seeks an order pursuant to s 11 of the Act directing the defendant to comply with the conditions set out in the schedule to the Amended Summons for the duration of the ISO.

In support of the application for an ISO, the plaintiff relied upon an affidavit of Sarah Najjar of 28 February 2020, together with Exhibit SN-1. This exhibit comprises one volume of evidentiary material. No evidence was tendered by the defendant.

The plaintiff also relied upon a Risk Assessment Report (RAR) dated 30 September 2019 prepared by a psychologist, Samuel Ardasinski. On 15 November 2019, a Risk Management Report (RMR) was prepared by a Senior Community Corrections Officer, Cathryn Veal, from the Extended Supervision Order Team.

The relevant law for the determination of an ESO application is the Act. The primary object of the Act is protective (s 3(1)). The secondary object of the Act is to encourage high risk offenders to undertake rehabilitation (s 3(2)). In determining whether to make an ESO, the safety of the community must be the paramount consideration of the Court (s 9(2)).

The defendant accepted that in order to make orders 1-3 in the Summons it was necessary for the Court to be satisfied of two matters:

The defendant accepted that at the preliminary stage, it is not necessary for the Court to be satisfied that the matters alleged in the supporting documentation will be proved. The defendant also accepted that the Court is not required to weigh up the documentation or resolve inconsistencies or uncertainties which appear in the evidence nor is it necessary for the Court to predict the ultimate result. The Court is only required to be satisfied that, if the matters in the supporting documentation are proved, an ISO would be justified, taking into account the elevated standard of proof of a “high degree of probability” (ss 5B and 5C of the Act).

There was no issue that the defendant’s current custody will expire before the proceedings are determined.

The Unacceptable Risk Precondition requires the exercise of a discretionary judgment. The objects of the Act should be kept in mind when undertaking this evaluative task. The Court must be satisfied as to the existence of the “unacceptable risk” to a standard higher than the civil standard of proof (Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]). An “unacceptable risk” is one that is intolerable or far from normal expectations or required standards.

Determining what is an “unacceptable risk” involves a consideration of the type and nature of the offence that may be committed, absent supervision and balancing those factors. The Court may legitimately find that a person constitutes an unacceptable risk for the purpose of the unacceptable risk test, even if the likelihood of the person committing a further serious offence is determined to be low.

The plaintiff contended that the Court could be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if he is not kept under supervision having regard to:

Given the concession properly made by the defendant and by reference to the above considerations, I am satisfied that the matters alleged by the plaintiff in the supporting documentation would, if proved, justify the making of an ESO.

A purpose of the preliminary hearing is to allow the Court to filter out unmeritorious applications at an early stage. Another purpose is to give the Court the benefit of independent expert opinion before making a final decision.

The task of the Court is not to weigh up the documentation or predict the ultimate result or to consider what evidence the defendant might call at the final hearing. The test has been described as akin to the prima facie case test applied by magistrates in committal proceedings.

In State of New South Wales v Elomar (No 2) [2018] NSWSC 1034, Rothman J at [7] rejected a submission that “prima facie” proof is required of the “matters alleged” and explained that “matters alleged” in s 10A of the Act referred to the facts sought to be established by the plaintiff not the conclusion to be drawn from them. The approach of Rothman J was endorsed by R A Hulme J in State of NSW v Golding (Preliminary) [2018] NSWSC 1041 and Latham J in State of New South Wales v Strong, Robert [2018] NSWSC 1113.

Pursuant to s 9(3) of the Act, in deciding whether or not to make an ESO, the Court must have regard to the factors set out in the subsection, in addition to any other matters it considers relevant.

In the preliminary hearing context, the plaintiff must satisfy the Court that the matters alleged in the supporting documentation address the s 9(3) factors which would, if proved, justify the making of an ESO.

Although the concession by the defendant was properly made, it is still necessary for this Court to be satisfied that all statutory preconditions have been met before orders are made. The submissions of counsel for the plaintiff provide an analysis of the evidence that is before the Court and set out how the evidence satisfies all the legislative requirements. On the basis of my examination of the evidence, and a consideration of the uncontested submissions of the plaintiff, I am satisfied that the orders sought by the plaintiff should be made. Relevant factual issues, which support that conclusion, are as follows.

The defendant had a very difficult background and became a ward of the State when he was aged seven. He spent a number of his adolescent years in juvenile detention institutions where he was physically and sexually abused. He escaped from juvenile custody and hitchhiked around Australia and was essentially itinerant until he was 21 years old.

Although the defendant was married for 17 years and had three children from this union, he has been estranged from them for 20 years. He has had no contact with any other family members. He has continually engaged in criminal behaviour and substance abuse and it was common ground that he had no pro-social peers or support in the community.

The defendant is effectively illiterate with reading abilities in the lower extreme range. He also has significant physical disabilities, including a blood clot in his leg, high blood pressure, high cholesterol and Lupus.

The defendant has a history of substance abuse and acknowledged daily use of speed and ice on the occasions that he was not in custody. He was able to abstain from drug abuse during the nine years he spent in custody between 1997 and 2006 but commenced amphetamine use within two days of his release, citing homelessness and a lack of support as contributing factors. Before going into custody in May 2011, he was using two to three grams of ice and amphetamines per day.

The defendant attributed much of his offending to his amphetamine use and recalled episodes of substance-induced psychosis. He acknowledged that his proclivity to engage in criminal activity was a way of supporting his substance use. He did not regard his alcohol consumption as a difficulty. He generally consumed three to four beers a week.

The defendant has an extensive criminal history, including multiple offences of a sexual nature. He has displayed a pattern of recurrent re-offending with increasingly short periods at liberty in between sentences. He served consecutive custodial sentences between 19 December 1997 and 6 May 2006 and spent periods in custody in 2007, 2008 and 2009. He was released to supervised parole on 24 March 2010. The defendant also had a lengthy criminal history of non-sexual offending commencing when he was aged ten in the early 1970s and continuing relatively unabated until his current sentence for the index offences. These offences included theft, dishonesty, drug abuse, driving offences, violence offences and property damage.

The defendant had three prior episodes of sexual offending against three female children before the index offences.

The defendant pleaded guilty to an offence of sexual intercourse without consent against a person under the age of 16. The offence was committed between 1 December 1984 and 31 January 1986. An offence of attempting to have sexual intercourse without consent against a person under the age of 16 was committed in 1985. The victim was the defendant’s niece, who was seven or eight years of age at the time of the offending. She reported this offending to police in 1998 and the defendant was convicted and sentenced on 22 March 2000.

The first offence occurred when the defendant went to the victim’s home for dinner. After the victim had gone to bed, the defendant came into her bedroom pulled down her underclothing, rubbed her in the area of her vagina and inserted a finger. He also exposed himself and rubbed his penis against her vagina. The offending stopped when the defendant was interrupted by his wife calling out from another room.

The second offence occurred while the defendant was riding on horseback with the victim. He inserted his hand under her clothing and attempted to insert his finger into her vagina while the horse was in motion.

The sentencing judge noted that the defendant was in a position, not only of authority as an adult, but also in a position of trust as a family member. Freeman DCJ sentenced the defendant to imprisonment for 4 years with a non-parole period of 1 year and 9 months.

The defendant pleaded guilty to an offence of sexual intercourse with a child aged between 10 and 16 committed against his son’s 12 year old girlfriend. The offence occurred in June 1997. This was the third offence. The defendant was sentenced on 31 July 1998 by Shillington DCJ to a term of imprisonment of 4 years with a non-parole period of 3 years. He persuaded the victim to go to his tattoo shop and then enticed her to go to an unoccupied flat in the vicinity where he made sexual advances to her. The defendant offered her some speed which she drank. As a result, she became giddy, disoriented and started to scream and cry. Despite this, the defendant had penile vaginal intercourse with her. Shillington DCJ found that the offence was “quite clearly an extremely serious one involving a young girl and the use of a stupefying drug”.

The defendant was charged with two counts of aggravated indecent assault against his 14 year old niece. On 17 November 1997, he travelled with the victim from Leeton to Narrandera on the pretext of going Christmas shopping. While at a lake, the defendant lay down a sleeping bag and pulled the victim down on top of his chest, fondled her breasts and nibbled her ears. The victim told the defendant she felt uncomfortable, got up and refused to sit back down.

Later that day, the victim and the defendant travelled to Griffith. While at a beach area near a lake, the defendant approached the victim from behind and placed a cloth containing a possible solvent on her face, causing her to pass out. The defendant fondled her breasts and touched her vaginal area. The victim recalled him pulling down her pants but could not recall what happened thereafter. On 5 March 1998 the defendant was convicted and sentenced to a minimum term of 9 months imprisonment with an additional term of 12 months.

The index offences involved the following matters:

The sentencing judge imposed a total effective sentence of 9 years imprisonment with a non-parole period of 6 years 9 months. In sentencing the defendant, his Honour noted his “appalling” criminal history, including offending of a sexual nature in 1984, 1985 and 1997. His Honour considered this was of “particular significance” due to it being “disturbingly almost identical to” the index offences. His Honour stated:

His Honour noted that the defendant had experienced a sad and traumatic life and that his childhood appeared to be mostly loveless and lacking in any sensible constant adult supervision. His Honour had regard to the fact that the defendant was sexually abused as a child and that he was essentially itinerant. He noted that the defendant had been running from the law for many years and had “committed crime in just about every State of the Commonwealth”. His Honour stated that he did not have the “faintest idea” what the defendant’s prospects of rehabilitation were and thought that the “best predictor of his future was his past”. His Honour had regard to the fact that there were courses the defendant could undertake in gaol and that the sentence he proposed was long enough for that to occur.

His Honour found that while some of the offences, such as the first three sexual offences were somewhat opportunistic, those against the child in the separate warehouse involved a significant degree of premeditation and planning.

Ms Nasr prepared a report in February 2012, for the purpose of assisting the Court in sentencing the defendant for the index offences. Ms Nasr formed the view that the defendant was a man with poor sexual self regulation, particularly while disinhibited by the effects of illicit substances. She opined that a personality disorder was now likely manifesting itself primarily in anti-social traits. She expressed concern regarding the defendant’s extreme institutionalisation, given that “almost his entire maturation occurred within the custodial environment”. Ms Nasr added:

Ms Nasr noted that gaol was the only place in which the defendant felt “comfortable”. While he expressed a desire to no longer engage in criminal behaviour, Ms Nasr found that he had “limited insight into how to make this possible”.

Ms Nasr administered both the Static-99 and the Risk for Sexual Violence Protocol (“RSVP”). As a result of this actuarial testing, the defendant was considered to represent an overall moderate to high risk of re-offending. Ms Nasr opined:

In terms of supervision Ms Nasr found:

Ms Sweller administered the Static-99R which resulted in a score 5, indicating the defendant’s rate of recidivism was 2.7 times higher than that of the “typical” sex offender. Ms Sweller identified the following dynamic risk factors:

General Self-Regulation

The defendant’s lifestyle revolved around general criminal behaviour (stealing, violence, drug use and dealing); he engaged in avoidance-based coping; abused drugs consistently; had a sense of entitlement and was impulsive. In treatment he developed insight into these issues, and it was noted it would be important for him to continue practising his coping and problem solving skills to avoid relapse into drug use and general criminal behaviour. Ms Sweller recommended that he should be encouraged to develop structure and routine in daily life, including employment and social activities and a healthy social network to increase his ability to maintain a generally healthy lifestyle.

Ms Sweller noted that the defendant associated with others who engaged in criminal behaviour related to drug use and dealing, was estranged from his family and did not have friends from whom he could seek emotional support.

Ms Sweller found that this had posed a difficulty for the defendant in the past. He could not estimate the number of sexual partners in his life. Sex was an important part of his life. He thought about having sex with women he saw walking down the street and if he was not meeting his sexual wants in a relationship, would engage in extra-marital sexual encounters. He had casual sexual encounters, often with women to whom he sold drugs. His libido increased under the influence of drugs (especially methylamphetamine). He experienced sexual attraction to children, which had existed since his mid 20’s and which he acted on when he was significantly abusing drugs, experiencing high levels of stress or was not meeting his sexual wants with adults.

Ms Sweller found that the defendant had a history of superficial relationships. She found that despite acknowledging feeling wanted, needed and trusted by children, the defendant did not meet the criteria for emotional identification with children.

Ms Sweller found that the defendant had limited periods of time in the community between custodial sentences and that they were marked by a return to anti-social behaviour. His response to supervision was poor as reflected through failures to report, drug use and re-offending. Despite this, Ms Sweller noted the defendant was co-operative through the treatment process and acknowledged that his prior refusal to undertake treatment for his sex offending was a poor decision.

The defendant's score on the Stable-2007 was 14 suggesting a high density of criminogenic needs relative to other male sexual offenders.

Mr Ardasinski interviewed the defendant for 90 minutes on 11 September 2019. He concluded that the defendant would likely meet the diagnostic threshold for a DSM-5 diagnosis of Paedophilia-Non-Exclusive Type (Primarily Attracted to Females). This diagnosis was based upon the defendant’s acknowledgement of a history of deviant sexual interest (the defendant described it as an “attraction” to children). He had committed hands on sexual offences against pre-pubescent children in the past.

On 1 May the defendant was assessed on the LSI-R to be in the Medium-High range of recidivism. This test provides an indication of a level of risk of general and violent recidivism within 12 months post-release.

The defendant was assessed on the STATIC-99R on 4 September 2019 and received a score of five. This placed him as an above average risk of sexual recidivism.

In Mr Ardasinski’s view, the defendant’s score of 14 on the STABLE-2007 may have involved over-scoring. Nevertheless, he noted the defendant would still sit in the highest category of risk by his scoring. The areas of clinically significant concern for the defendant when considering the STABLE-2007 assessment were impulsivity, poor problem-solving skills and deviant sexual interest.

When Mr Ardasinski combined these assessments to generate a “composite assessment of risks/needs”, the defendant was found to fall in the highest level of risk. Mr Ardasinski was of the opinion that the result of the combined assessments suggested that the defendant would require a Medium-High level of intervention and/or supervision.

Mr Ardasinski administered the defendant the Violence Risk Appraisal Guide – Revised (“VRAG-R”), a tool specifically designed to assess the risk of future violence in offenders. The defendant was classified as a high risk when compared to other violent offenders.

Mr Ardasinski noted that because the defendant fell in the same category on two distinct, though related, actuarial risk measures he could have increased confidence that the defendant truly presented as an above average risk of repeat sexual offending within the next five years.

Mr Ardasinski administered the RSVP on 11 September 2019. The results suggested that the defendant exhibited an Elevated/High level of risk for repeat sexual violence. Mr Ardasinski found that the overall totality of his actuarial testing suggested that the defendant fell in the Medium-High to High risk category for sexual offending.

Based upon the actuarial assessments, Mr Ardasinski identified the following dynamic risk factors as potentially relevant when considering the defendant’s risk of sexual re-offending:

Mr Ardasinski noted that the defendant had no extant family contact and his only friend was also a child sex offender on parole. Mr Ardasinski opined that the defendant would have professional support if under supervision, but not otherwise.

Mr Ardasinski opined that the defendant’s most likely scenario for further sexual offending would involve him being left alone, unsupervised, with a known female child, likely being placed in a position of trust through his acquaintance with her parents. Mr Ardasinski also considered that the defendant might return to police attention for non-sexual offending before committing another sexual offence.

Until the commission of the index offences the defendant had refused to undertake psychological assessment in relation to his sex offending and was reluctant to discuss his offences. The defendant’s refusal to participate in therapeutic programs contributed to a recommendation that he not be granted parole for those earlier offences.

In contrast to his previous periods of incarceration, the defendant proactively pursued entry into a sex offender program following the index offences. The defendant was found suitable for HISOP. He participated in HISOP between 3 September 2018 and 3 October 2019. His participation was the subject of a HISOP treatment report (HTR), dated 10 September 2019. There was also an addendum to that report (AHTR) which was based on his participation in the program between June 2019 and 3 October 2019.

The HTR noted that while the defendant had a history of poor co-operation with supervision and hostile attitudes towards authority, he presented as willing to engage in the treatment process. The HTR noted that the defendant learned about sex through his own abusive experiences which likely led him to develop beliefs about sex such as that children were sexual beings and engage in sexual behaviour with adults. The defendant acknowledged that sex was important to him and that he had a high libido. He stated that drug abuse (particularly amphetamines) increased his libido and lowered his inhibitions. He enjoyed sex more when he was on drugs.

The HTR stated that when the defendant perceived his life to be “spiralling”, he tended to engage in self-destructive behaviour. The HTR noted that he was more likely to offend at times when his feelings of stress and being overwhelmed with life events were greater. He claimed that he had few sexual thoughts whilst incarcerated and no sexual thoughts about children. The HTR noted that if the defendant remained abstinent from drug use and engaged in a healthy lifestyle, or more generally, engaged in effective coping and problem solving and developed healthy and fulfilling adult relationships he would be more likely to manage his sexual wants appropriately.

During his periods of incarceration, the defendant had participated in various educational courses and programs, e.g. “Getting Smart” (12 sessions) and the EQUIPS Addiction program (20 sessions).

Given the nature of the defendant’s offending, Community Corrections indicated that child protection issues would be a significant case management component.

The defendant is currently registered with the Child Protection Register. An application is currently being made for a Child Protection Prohibition Order (CPPO). Mr Ardasinski was of the opinion that a CPPO would have less capacity to monitor the defendant’s association with people who had young children than a ESO. He said:

Mr Ardasinski noted that because the defendant was found to be in breach of his obligations under the Child Protection Register at the time of the index offences, a CPPO would be insufficient to moderate his risks at this stage.

Ms Cathryn Veal completed a RMR on 15 November 2019 and proposed a plan to address the defendant’s criminogenic needs. Strategies such as regular interviews with the defendant, field visits, third party contacts, electronic monitoring, schedules and psychological intervention were all proposed as part of the risk management plan if the defendant were to be placed on an ESO.

The RAR also gave consideration to the type of risk management strategies that might assist in addressing the defendant’s identified risk factors. It recommended:

The defendant had been known to Community Corrections since 1989 when he was previously subject to a 3 year supervised recognisance order. Since then, he had been supervised by Community Corrections, pursuant to several recognisances and parole orders. His response to supervision was noted to be “borderline” with reports of him becoming “haphazard in reporting” and using amphetamines.

The defendant was reported to have breached his parole in May 2010 following a positive drug test. Mr Ardasinski noted that he had avoided parole supervision by serving the entirety of previous sentences in custody. On the occasions that he had been subject to community based orders, he was “lack lustre” in his reporting and his adherence to directions to engage in offence-targeted interventions.

During the defendant’s most recent period of incarceration, he did not present as a management problem. In previous periods of custody his behaviour had been noted to not always have been positive but that he did take responsibility for his behaviour.

As indicated, the defendant was released to parole on 24 December 2019. The conditions of his parole order require him to be subject to electronic monitoring and weekly schedules. There appears to have been no issues with the defendant’s compliance with his parole conditions to date. He has expressed a level of anxiety in relation to his adjustment to functioning in the community and has advised Community Corrections that he was “overwhelmed” by the whole experience of being out of prison. He stated that he found the transition from custody, including technological changes, to be challenging. He commenced sex offender maintenance sessions with Forensic Psychology Services (FPS) and is attending Alcohol and Other Drugs (AOD) rehabilitation sessions with Odyssey House.

A recent Offender Integrated Management System (OIMS) Case Note Report expressed the following in relation to the defendant’s progress upon his release:

It follows from the above analysis of the s 9(3) factors that should the plaintiff prove those matters to the necessary standard an unacceptable risk would exist and the Court would be justified in making an ESO. There was no dispute on that issue. The contest insofar as the making of an ISO is concerned was the form of the conditions with which the defendant would have to comply during the period of the ISO.

The defendant, while acknowledging that an ESO would be a protective factor for him and provide additional motivation for general compliance and wellbeing, submitted that the imposition of overly restrictive or unnecessary conditions could actually exacerbate the risk to the community. On behalf of the defendant, it was submitted that the Court when determining whether certain conditions were necessary or required modification, was required to engage in the kind of balancing exercise discussed in Lynn v State of New South Wales [2016] NSWCA 57; 91 NSWLR 636 at [129]-[130] where Basten JA said:

Considerable agreement as to the conditions to be imposed was reached between the parties. However, there remained a dispute as to the reasonableness of some of the conditions proposed by the plaintiff.

The defendant submitted that the primary object of the Act is to provide for extended supervision and continuing detention of High Risk Sex Offenders so as to ensure the safety and protection of the community. He submitted that there was no statutory warrant under the Act to abrogate the presumption against self-incrimination.

In support of that proposition, the defendant relied upon Petty and Maiden v The Queen [1991] HCA 34; 173 CLR 95 at 99 where the plurality (Mason CJ, Deane, Toohey and McHugh JJ) said:

The defendant submitted that proposed condition 8 should be amended accordingly. He submitted that in the event that the defendant exercised his common law right to silence, that was a matter which could be the subject of further application by the plaintiff as it saw fit.

The condition proposed by the defendant was as follows:

The plaintiff relied upon the analysis of a similar issue by Beech-Jones J in State of New South Wales v Baldwin [2019] NSWSC 1882 (Baldwin). There, the proposition raised on behalf of the defendant was:

The analysis of Beech-Jones J in Baldwin was considered by R A Hulme J in State of New South Wales v Ambrym (Preliminary) [2020] NSWSC 298 (Ambrym). There, a similar point concerning the abrogation of the privilege against self-incrimination arose. R A Hulme J said:

Counsel for the plaintiff also submitted that condition 8 as proposed by the defendant was in practical terms unworkable. Built into it was the potential for considerable delay while legal advice was sought. Such inevitable delay would defeat the purpose of proposed condition 8 in that the opportunity to properly monitor the activities of the defendant would be lost.

For the reasons given by Beech-Jones J in Baldwin and by R A Hulme J in Ambrym, I am of the opinion that condition 8 as proposed by the plaintiff is authorised by s 11(1) of the Act. This is despite the fact that it does have the effect of abrogating the privilege against self-incrimination on the part of the defendant.

Accordingly, I include in the conditions to be imposed by the ICO condition 8 in the following terms:

Condition 11 as proposed by the plaintiff is:

The defendant submitted that this proposed condition should be deleted. In making that submission, he relied upon the general principle that conditions included in an ISO/ESO must be those which are reasonably necessary, and only those which are reasonably necessary. The defendant submitted that proposed condition 7, which required him not to deviate from his schedule of movements without consent, covered the same subject matter as proposed condition 11 and thus rendered proposed condition 11 otiose. The defendant submitted that on the evidence before the Court, there was no suggestion that his offending, and therefore his risk of offending, occurred at any particular time of day, or had occurred in the past at any particular time of day so that the imposition of a curfew would reduce the risk of him reoffending.

The plaintiff submitted that the schedule of movements in proposed condition 7 would probably alter over time and may well be relaxed. By providing a provision for a curfew condition independently of proposed condition 7 would allow the DSO greater flexibility in relaxing the schedule of movements.

The plaintiff submitted that there was also need from a risk management perspective to monitor more closely the defendant’s movements at night. This was against a background of the defendant being a person who had a significant substance abuse history. There remained a concern that if he was not monitored at night, at least in the beginning of the supervision period, he might be inclined to stay away from his home at night and thereby be more susceptible to or able to access illicit substances.

The plaintiff noted that there was a further degree of flexibility incorporated in proposed condition 11 in that the curfew condition would only apply if directed by the DSO. The plaintiff noted that the defendant had been in custody for a significant period of time and it was only relatively recently that he had been released to parole. The plaintiff submitted that in those circumstances, it was necessary for there to be significant structure and supervision at this early point in time until the defendant’s position in the community became more settled.

I agree with the defendant that a proper reading of proposed condition 7 makes the need for proposed condition 11 unnecessary. That, however, does require a careful reading of proposed condition 7 and there is room for ambiguity and misunderstanding. To avoid such an eventuality, proposed condition 11 should be included in the ISO conditions. Proposed condition 11 is in simple terms and can be readily understood by the defendant. I would not, however, include the qualification at the end of the proposed condition which I regard as unnecessary.

I also agree with the plaintiff’s submission as to the need for a curfew generally, given the close link between the defendant’s offending and his substance abuse. Drug transactions often take place at night, as does the abuse of drugs. I also accept that the imposition of a curfew at an early point in the defendant’s supervision is important. Accordingly, I include proposed condition 11 as modified in the defendant’s ISO conditions.

The issue between the parties is:

The defendant’s condition:

The defendant submitted that the thrust of the condition put forward by him was to remove the need for specific approval. He submitted that seven days notice was a reasonable period during which the DSO could make inquiries concerning any job, volunteer work or educational course. The defendant submitted that the difficulty with the condition put forward by the plaintiff was the likelihood of a longer period than seven days being required for the DSO to make inquiries.

The defendant submitted that the qualification “where possible” provided little comfort for him in circumstances where the need to apply for jobs is something which is necessarily part of his rehabilitation. There is often a need for a person seeking a job to have some degree of certainty in respect of the application and to be in a position to accept such a position if offered. The defendant submitted that the qualification put forward by the plaintiff meant that if, for whatever reason, it was not possible for approval to be given within seven days, he would effectively be left in a position where he did not know whether he was entitled to take up the position or even inform those who might be offering the job, of his ability to take it up. The defendant submitted that in those circumstances, seven days notice was an appropriate approach to take and would allow the DSO ample time to consider what was being put forward and to take appropriate steps in the event that there was a difficulty.

The defendant submitted that because he was functionally illiterate, the only sort of work likely to be open to him would be manual work and work of that kind normally required a person to fill the position quickly. He submitted that in real terms the requirement for an approval might well prevent him from obtaining employment even if he were successful in being offered a job.

The plaintiff submitted that providing notice rather than seeking approval would not be suitable for the defendant given the nature of his offending. The plaintiff submitted that there would be a need for a risk assessment to be undertaken before the defendant started any job, volunteer work or educational course to simply ensure that the associations were appropriate and that he was not going to have any unsupervised access to children or come into contact with children. The plaintiff submitted that although certainty in being able to take up employment, if offered, was important, there was a concern that if the defendant were to accept a job and then provide notice to the DSO who determined that the job was not appropriate, the defendant would be faced with the embarrassment of contacting the employer and declining the position.

The plaintiff submitted that by not accepting a position until approval was given would prevent that situation from occurring and would allow the appropriate risk assessments to be conducted. The plaintiff submitted that this was the reason for including in the proposed wording that “where possible”, such an assessment would be made within seven days. The Court was advised that ordinarily an approval could be given quite quickly and within less than seven days.

I accept that because the defendant is functionally illiterate and has significant health issues, his prospects of obtaining employment are poor. Even if he were to be successful, the job would almost certainly be of a manual kind. As was submitted on his behalf, jobs of that kind do not really allow for any significant delay in accepting them. Volunteer work, however, is in a different category and there would certainly be more leeway from a volunteer organisation if there were some delay before the defendant could commence such work. Given his standard of literacy, an educational course other than learning to read and write would not be a realistic prospect for him. Taking all those matters into account, but also being mindful of the defendant’s prior offending, I propose to include in the conditions a requirement that the defendant obtain the prior approval of his DSO before commencing one of the nominated activities.

The issue between the parties is whether some limitation should be imposed on the defendant which would prevent him possessing or using alcohol and entering licensed premises. It was common ground that there was no evidence to suggest that the ingestion of alcohol on the part of the defendant was related to his offending. The defendant submitted that the proposed conditions which would prohibit him from attending hotels, bars, race courses, licensed clubs etc but excluding cafes and restaurants, would not have any real effect on reducing the risk of him reoffending but would still be quite restrictive. The defendant submitted that there was no evidence as to why such a condition would be required in circumstances where amphetamine use was the problem.

The plaintiff submitted that although there was no history of ongoing problems with alcohol, there was a concern that the risk of the defendant reoffending became acute when he was disinhibited by the taking of drugs. The plaintiff submitted that alcohol could also have a disinhibiting effect on people and might lead to him reoffending thereby having the same effect as his consumption of illicit substances.

I have concluded on the basis of the evidence currently available, that a condition preventing the defendant from consuming alcohol or entering licensed premises, in the absence of any evidence of there being an alcohol problem, is unreasonable. In reaching that conclusion, I am mindful of the principle that the imposition of conditions should be limited to those which are reasonably necessary. The conditions sought to be imposed here are not reasonably necessary.

It follows that I am only prepared to impose the following conditions:

The competing positions of the parties is as follows:

The defendant submitted that in the reports relied upon by the plaintiff, it was suggested that he might obtain some benefit from activities such as joining a men’s shed, or something along those lines. Accordingly, access to such organisations should be made relatively easy for him. The defendant submitted that the giving of seven days notice rather than waiting for approval was reasonable, particularly when joining such a group might be of therapeutic value to him. The defendant submitted that seven days notice provided adequate flexibility for the DSO to take investigatory steps. The defendant submitted that it was not reasonable to require that he wait for the approval of the DSO before he could attempt to reconnect with the community.

The plaintiff accepted that it would be useful for the defendant to join various clubs and associations so that he could address his need not to be socially isolated and this would be encouraged by the DSO. The plaintiff submitted that the concern was the same as that expressed in relation to proposed condition 18, i.e. there was a need to be able to conduct a risk assessment before any approval was given. The plaintiff submitted that another consideration was not wanting to put the defendant in a position where he joined a club or social group but had to withdraw if approval was not given, or if some issue arose within that seven day notice period.

The plaintiff submitted that in relation to social networking, there was an obvious risk that the defendant might be able to gain access to children and use online services as a form of grooming. For that reason, and as a form of risk management, the DSO would want to be able to approve any social networking site before the defendant joined it.

The plaintiff also noted that despite the fact that the defendant was functionally illiterate, when it came to online grooming and communicating with children, the level of literacy might not need to be of a high level. The plaintiff also noted that the defendant had completed some computer courses and had apparently been able to write letters to his children.

I propose to impose proposed condition 28 as relied upon by the plaintiff. While it is important that the defendant develop and establish social contacts in the community, there was no particular urgency identified which would require the defendant to joint a club or other social group without the approval of the DSO if such approval was not forthcoming within seven days. The question of approval was particularly important in the context of social networking despite the defendant’s literacy problems. There is considerable potential for the defendant to reoffend unless his access to a club, internet based social network or similar organisations is carefully assessed before approval is given.

The form of this proposed condition has been agreed between the parties. Accordingly, the form of the proposed condition to be imposed under the ISO is:

This is a condition which gives the right to Corrective Services NSW (CSNSW) to search any device which the defendant might have. The issue between the parties is whether the words “or any other criminal offence punishable by a maximum of two years or more imprisonment” should be added to a requirement to allow a search of any computer device to which the defendant had access.

The defendant submitted that the inclusion of the words “seizing of a device in connection with suspected breaches of interim or extended supervision order made by the Court or any other criminal offence punishable by a maximum of 2 years or more imprisonment” was unnecessary. This was because any suspected breach of an interim or extended supervision order was likely to cover such a matter and be dealt with pursuant to s 12 of the Act.

The plaintiff submitted that while it might be correct that a breach of an ISO/ESO would catch those offences, there was a concern that there might still be matters not covered by a condition. The plaintiff submitted that the wording at the end of the proposed condition was intended to catch other offences that might not have been contemplated by the breach of either an ISO or an ESO.

I propose to impose a condition in accordance with the plaintiff’s submissions. This is because the proposed condition may well be able to pick up an offence which is not necessarily caught by s 12 of the Act.

Accordingly, proposed condition 37 as put forward by the plaintiff will be included in the ISO:

The plaintiff pressed for the imposition of the following conditions:

The defendant pressed for the inclusion of a single condition:

The issue between the parties was that the plaintiff wanted its proposed conditions 46 and 47 included in the ISO. The defendant relied only upon its proposed condition 47.

The defendant submitted that the requirement that he take all medications that are prescribed for him was a matter which infringed upon his personal autonomy. The defendant submitted that the particular issue to which the conditions were directed was adequately covered in his proposed condition 47. The defendant submitted that it was a matter for him, even in the case of prescription drugs, as to what drugs he took. The defendant accepted that it might or might not be the case that some concern would arise if he was not taking his prescribed medications. He submitted that the plaintiff was going too far when it required him to take those drugs as a specific condition. The defendant submitted that if there were a particular issue about a prescribed medication that he was not taking, then under his proposed condition 47 the DSO would be notified about it and in that circumstance could elect to take action about it.

The defendant submitted that a breach of one of these conditions gave rise to a criminal penalty and accordingly it was reasonable that if he, for whatever reason, did not wish to take a particular medication he could refrain from doing so. He submitted that this is not something for which he should be criminally punished and there remained scope for the DSO to maintain monitoring in the circumstances in accordance with his proposed condition 47.

The plaintiff submitted that proposed conditions 46 and 47 had to be read together. The plaintiff submitted that in relation to proposed condition 46, not only did it require the defendant to take prescribed medication, but he must take the medication only in the manner that is prescribed. The plaintiff submitted that where there is a defendant who had a significant substance abuse history in relation to drugs, there was a concern that any medication that he did take should be closely monitored and his adherence to only taking it as prescribed was something that the DSO would seek to scrutinise. This was why the condition is sought in conjunction with proposed condition 47.

I am of the opinion that conditions 46 and 47 as sought by the plaintiff go too far. As was raised in argument, if the defendant was not complying with condition 47, he would almost certainly by that time be in breach of condition 46. Moreover, I cannot see the need for imposing such an onerous requirement as is set out in condition 46 in circumstances where there is an obligation on the part of the defendant to notify the DSO immediately if he ceases to take or declines to commence taking any medication prescribed for him. On this issue, I prefer the condition 47 proposed by the defendant.

As a result of the above analysis and the agreement reached between the plaintiff and the defendant, the ISO which I will impose includes conditions as set out in the schedule to this judgment.

I make the following orders: