State of New South Wales v Matthews (AKA Hackett) (Final)

1. [1]

   By summons filed on 22 May 2019, the plaintiff, the State of New South Wales (“the State”) brings proceedings against the defendant, Darren Matthews (aka Kain Hackett) (“the defendant”) pursuant to the Crimes (High Risk Offenders) Act 2006 (“the Act”).

2. [2]

   As set out in the summons, the State originally sought both interim and final relief.

3. [3]

   There was a preliminary hearing on 21 June 2019 at which time Fagan J made orders: State of New South Wales v Matthews AKA Hackett (Preliminary) [2019] NSWSC 770 (“Hackett Preliminary”). It was then listed for final hearing on 3 October 2019.

4. [4]

   On 21 June 2019, Fagan J made orders under s 7(4) of the Act for the appointment of psychiatric experts to examine and report upon the defendant. He also made an interim supervision order (“ISO”) on the conditions set out in the decision. On the preliminary hearing, the defendant did not dispute that he should be subject to an ISO or that he should be psychiatrically examined.

5. [5]

   Pursuant to the orders made on 21 June 2019 the defendant was examined by Dr Kerri Eagle on 16 August 2019. Dr Eagle provided a report dated 28 August 2019 (Exhibit 7). Dr Eagle also gave oral evidence. Pursuant to the earlier orders the defendant was also examined by Dr Emma Collins on 12 August 2019. Dr Collins provided a report dated 28 August 2019 (Exhibit 6). Dr Collins also gave oral evidence.

6. [6]

   The defendant did not dispute that he should be subject to an extended supervision order (“ESO”). The focus of the hearing was on the conditions of the ESO.

The Legislation

1. [7]

   As set out in s 3 of the Act, the primary object of the Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders, so as to ensure the safety and the protection of the community. Another object of the Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation. In making any orders under the Act, I would have regard to the objects of the Act.

2. [8]

   As set out in s 5B of the Act the Court may make an order for the supervision in the community of a person (an ESO) if:

3. [9]

   It was agreed between the parties that the requirements of s 5B(a), (b) and (c) are satisfied. As the defendant did not contest the making of an ESO it must be that he accepts that the Court should be satisfied to a high degree of probability that he poses an unacceptable risk of committing a serious offence if he is not kept under supervision under the ESO. However, it is necessary that the Court be satisfied independently of any concession by the parties.

4. [10]

   Being satisfied to a high degree of probability means something beyond more probably than not. The existence of the risk that is, the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof although not to the criminal standard of beyond reasonable doubt: see Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21].

5. [11]

   The meaning of “an unacceptable risk” in s 5B(d) and the principles which are to be applied were summarised by Hoeben CJ at CL in State of New South Wales v Holschier (No. 2) [2018] NSWSC 1921 at [23] and [24] as follows:

6. [12]

   An ESO may not be made unless the Court is satisfied within the meaning of s 5B(d) that the offender poses an unacceptable risk as referred to in that section. Of course, even if such a finding is made, the Court still has a discretion in the making of an ESO.

7. [13]

   In determining whether or not to make an ESO, the safety of the community must be the paramount consideration of the Court: s 9(2).

8. [14]

   In considering whether or not to make an ESO, I must have regard to the factors set out in s 9(3) of the Act.

9. [15]

   As I have already observed, the unacceptable risk enquiry is not discretionary. I must consider both the likelihood of the risk eventuating and the gravity of the risk that may eventuate: State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71].

10. [16]

    On the final hearing, the State relied upon the expert reports of Dr Kerri Eagle, Forensic Psychiatrist, dated 28 August 2019 and Dr Emma Collins, Forensic Psychologist, dated 28 August 2019, both of whom gave oral evidence. In addition, the State read the following affidavits:

    1. (1)

       Affidavit of Sarah Najjar affirmed 21 May 2019;

    2. (2)

       Affidavit of Sarah Najjar affirmed 5 June 2019;

    3. (3)

       Affidavit of Sarah Najjar affirmed 2 September 2019;

    4. (4)

       Affidavit of Kelli Grabham affirmed 6 September 2019; and

    5. (5)

       Affidavit of Kelli Grabham affirmed 24 September 2019.

11. [17]

    The defendant read the following affidavits:

    1. (1)

       Affidavit of Hayley Le sworn 20 June 2019;

    2. (2)

       Affidavit of Sue Matthews affirmed 12 September 2019; and

    3. (3)

       Affidavit of Shirley Dawn Evans affirmed 13 September 2019.

12. [18]

    It is not necessary that I merely summarise all of this evidence as the defendant does not dispute that he should be subject to an ESO. The defendant, however, disputes some of the conditions that the State seeks.

13. [19]

    However there is some critical evidence which is relevant to the issues of unacceptable risk, whether to make an ESO, as well as the conditions which should be imposed. As submitted by the State, there is a considerable overlap in the evidence on these issues.

The defendant’s personal circumstances: s 9(3)(i)

1. [20]

   The defendant is currently 46 years of age. He prefers to be known as Kain Hackett, although he is intending to change his name to Darren Hackett. He suffers from schizophrenia, an intellectual disability, has a borderline personality disorder and substance use disorder primarily involving the use of stimulants.

2. [21]

   When not in custody in recent years the defendant has experienced periods of homelessness. He has been unable to establish any regular or permanent accommodation. In her affidavit affirmed 12 September 2019, his mother, Sue Matthews, stated that she had let him stay with her on occasions but she had received a warning from the owners of her unit and he could not stay there anymore. The defendant also relied on evidence from a friend, Shirley Evans, in her affidavit affirmed 13 September 2019. Whilst she described herself as Darren’s best friend and offered as much support as she could, she did not suggest that the defendant could stay with her other than on a temporary or irregular basis.

3. [22]

   On 11 June 2019 the defendant was found to be mentally ill under s 33(1)(b) of the Mental Health (Forensic Provisions) Act 1990 and admitted into St Vincent's Hospital where he stayed for a period of eight days. He was subsequently admitted to Cumberland Hospital for seven days during the period 17 July to 24 July 2019. He was admitted to Cumberland Hospital for 11 days during the period 2 September to 13 September 2019. He is currently residing at Campbelltown Integration Support Centre. He is currently the subject of an ISO as ordered in Hackett Preliminary. The ISO expires on 13 October 2019. He is unemployed. It is unlikely that he will obtain employment.

The defendant’s criminal history: s 9(3)(h), (h1)

1. [23]

   He has an extensive criminal record during the period 1992 to 2001. He was convicted of attempted steal, common assault, entering enclosed lands and mid-range PCA offences.

2. [24]

   More significantly, in 2005 he was convicted of aggravated sexual assault in company, detain in company, occasioning actual bodily harm and robbery in company. He was sentenced to eight years in custody with a non-parole period of six years. He was released on parole on 7 June 2011.

3. [25]

   As described in Hackett Preliminary, those latter offences were committed on 29 August 2004 and involved quite appalling depravity and cruelty. He and another man abducted an 18 year old boy, forced him into the boot of a car, drove to a secluded location, threatened the victim with a knife and attempted to force him to perform oral intercourse. The sentencing judge accepted that he played a lesser role in these offences. However, he also observed that the treatment to which the victim was subjected was not only humiliating and degrading but must have caused him to have a real fear for his own safety. The sentencing judge found that the conduct was appalling but that the applicant was a follower, not a leader. He considered that, at that time, the prospects of rehabilitation were reasonably good.

4. [26]

   In 2014 he was sentenced to a further 12 months imprisonment following a conviction for behaving in an offensive manner near a public school and grooming a child for unlawful sexual activity, as well as stalking and intimidating and inciting a person under 16 years to commit an act of indecency.

5. [27]

   In 2016 and 2017 he was convicted of further offences relating to passive indecency. Most recently in June 2019, whilst still on parole, he was charged with stalk/intimidating and intending to cause fear or physical and mental harm. The charge arises out of his repeated attendance at unit complex in Surry Hills. According to the Police fact sheet, which has been admitted into evidence and to which I am entitled to have regard, the charge relates to appearances of the defendant outside the door of a victim in a unit complex, on one occasion naked, and communications and unwanted communications from the defendant to the victim.

6. [28]

   Consistent with his substance abuse disorder, the defendant has been convicted of offences relating to possession of prohibited drugs in 2014 and again in 2019. He was sentenced to an 18 months community corrections order consequent upon those offences.

Failure to comply: s 9(3)(f), (g)

1. [29]

   Further, the defendant has demonstrated an inability to comply with his reporting obligations. On 17 August 2015 the defendant was sentenced to eight months imprisonment with a non-parole period of four months for offences contrary to s 17(1) of the Child Protection (Offenders Registration) Act 2000 (“Offenders Registration Act”). Those offences occurred on 23 June 2015 and related to his failure to disclose his use of four social media applications.

2. [30]

   On 7 September 2016 the defendant was convicted of failing to comply with his reporting obligations in March 2016 contrary to s 17(1) of the Offenders Registration Act. He failed to disclose that he was using a new mobile phone. He was sentenced to imprisonment for nine months suspended upon him entering into a s 12 bond. On appeal, this was replaced with a s 9 bond of 18 months’ duration. It was subsequently varied to an 18 months community correction order commencing 18 July 2017.

3. [31]

   On 22 July 2018 the defendant was charged with three further counts of failing to comply with his reporting obligations contrary to s 17(1) of the Offenders Registration Act. The offence was related to notifying the Police of his change of address. He was sentenced to 12 months imprisonment commencing 22 July 2018. He was released on parole on 21 November 2018 and was thus on parole at the commencement of the proceedings.

Report and evidence of Dr Kerri Eagle: s 9(3)(b), (e)

1. [32]

   The defendant was examined by Dr Kerri Eagle on 16 August 2019. Dr Eagle prepared a report dated 28 August 2019. She gave evidence at the hearing.

2. [33]

   Dr Eagle considered the defendant’s mental illness and substance abuse disorder as severe. They would give rise to disinhibited, erratic and highly problematic sexual behaviours that frequently involve unsolicited sexual advances towards others. Further, she noted that the defendant had limited internal psychological mechanisms to regulate distress and emotional instability with which he had difficulty. He lived a chaotic lifestyle and his level of disorganisation was worsening rather than improving. The risk of sexual reoffending using the STATIC 99R was placed in the category of high risk/high need offenders. He was similarly placed in the highest risk category using the STABLE 2007. Dr Eagle considered that he would fall into the category of offenders who tend to reoffend sexually at three to four times at the rate of an average offender. She noted that he had consistently failed to comply with reporting requirements and treatment for his health needs. This meant that he would likely become non-compliant in the future without the level of support that he requires. The lack of any stability in his life including stable accommodation and stable influences increased the risk. Dr Eagle considered that the defendant’s risk of committing a further serious offence, including one similar to the offence he committed in 2004, would be reduced under an ESO.

Report and evidence of Dr Emma Collins: s 9(3)(b), (e)

1. [34]

   Dr Emma Collins examined the defendant on 12 August 2019 and prepared a report dated 28 August 2019. She also gave oral evidence. Dr Collins was less convinced of the defendant’s level of intellectual disability than Dr Eagle. However, she considered that the defendant did display some symptoms of psychosis, particularly in the context of drug use. He also suffered from a personality disorder. She felt that his self-reported mental health issues should be treated with caution, bearing in mind the results of the symptom validity testing. She noted that he received a score of eight on the STATIC–1990R which placed him in the well-above average risk level (iv)(b) for being charged or convicted of another sexual offence. The most problematic factors in terms of risk management comprised recent and possibly ongoing drug use, sexual preoccupation and potentially problematic sexual interest, mental health and personality disorder features. He always had difficulties across intimate and personal relationships. She opined that the defendant is a high risk sex offender and there is potential that he may commit a serious sexual offence in the future. However, based on his pattern of sexual offending, his offending has deescalated over time which suggests that the likelihood of serious sexual offending has reduced.

Other psychiatric/psychological evidence: s 9(3)(c)

1. [35]

   At the time of his conviction in 2005, he was assessed by Dr Stephen Allnutt, Forensic Psychiatrist. Dr Allnutt diagnosed a chronic psychotic disorder and felt that he suffered from symptoms of a mental disorder and had a long history of fluctuating mental illness. Dr Allnutt utilised the STATIC 99 actuarial tool for the assessment of risk and identified a number of risk factors. Dr Allnutt opined that he fell into the high risk group of sex offenders. However, Dr Allnutt considered that at that time the defendant’s prognosis was promising. In his final report of 3 November 2005, he opined that the defendant fell into a moderate to high risk group of sexual recidivism and required an offender rehabilitation programme.

2. [36]

   Dr Gordon Elliott, a Consultant Psychiatrist, provided a report to the Fairfield Local Court dated 14 November 2018. The purpose of this report was to determine whether the defendant was a mentally ill person within the meaning of the Mental Health Act 2007 (NSW) and to make treatment recommendations. Dr Elliott concluded that the defendant had a relapsing psychotic illness being either chronic schizophrenia or recurring substance-induced psychosis. He did raise the prospect that the defendant’s continued complaint of delusions and hallucinations raised a suspicion of secondary gain. Dr Elliott did not consider that the defendant would be a mentally ill person such as to require admission to a mental health facility.

Risk Assessment Report dated 9 April 2019: s 9(3)(d)

1. [37]

   This report was prepared at the request of the Commissioner of Corrective Services New South Wales. According to the author of the report, Mr Ardasinski, a Forensic Psychologist, the defendant has been assessed as posing a high risk of future sexual offending. He has myriad criminogenic needs which indicate that the risk has been chronic for some time, although his period under supervision appears to suggest some progress. He identifies the defendant’s main issue as the use of methamphetamine ice. Homelessness is also a significant issue for him. He considers that, if he is subject to an ESO, the mitigation of future risk may be enhanced by ongoing community supervision as well as participation in community-based programs and/or individual risk management sessions with the sex offender program. There is otherwise considerable agreement with the psychiatric reports for which I have already commented.

The Risk Management report dated 24 April 2019: s 9(3)(d1)

1. [38]

   Mr Mark Corcoran, the Community Corrections Officer for the ESO team prepared a risk management report which was read and endorsed by Kelli Grabham. The report was prepared to satisfy the requirements of s 9(3)(d1) of the Act. As noted in the report, it was considered crucial that the defendant engage with relapse prevention and the Forensic Psychology Service (“FPS”) as is consistent with the views of all of those who have considered and examined the defendant in that they consider that ongoing and appropriate treatment is most important to both reducing the risk and improving the defendant’s medical conditions and disorders. Mr Corcoran developed a risk management plan having regard to the risk factors identified in the risk assessment report and his interviews with the defendant. The plan involves weekly face-to-face interviews with the intention of directing him away from his chaotic lifestyle and preventing a decline of his mental health or return to drug use. The goal is to encourage the development and maintenance of a stable and sustainable lifestyle. During these interviews, cognitive behavioural intervention would be undertaken in the form of practice guides for intervention modules, the defendant would be monitored for signs of relapse into substance abuse during interviews and field visits. He would be monitored for signs of emotional and coping difficulties and mental health deterioration. Should concerns arise, he should be directed to undergo assessment by mental health services. Further, third party contacts would be made on a weekly basis, particularly with mental health medication prescribers, his mother, the FPS therapist and the substance abuse counsellor. Should issues arise with respect to his accommodation, referral to Nunyara Community Offender Support Programme would be considered. Mr Corcoran also refers to monitoring schedules and curfews. As I will refer to later, there was additional evidence on these topics during the final hearing. Further, as noted by Mr Corcoran, the monitoring and schedules would neither prevent any high risk situations or offending behaviours whilst engaging in an approved activity or in his home.

The evidence of Kelli Grabham: s 9(3)(e1), (e2)

1. [39]

   Ms Grabham affirmed an affidavit on 6 September 2019. She also gave oral evidence. She has not met the defendant but is the High Risk Offender Applications and Operational Governance Officer of the ESO team employed by Corrective Services New South Wales. In her affidavit, she sets out the role of the ESO team and the importance of an ESO, as well as some form of stability and accommodation. She says that if an ESO is not made the defendant will lose the support of the ESO team in assisting him to find stable and supportive accommodation. Annexed to her affidavit are case notes of the ESO team in respect of the defendant. I will comment further on these case notes when dealing with the terms of the conditions.

Unacceptable risk: s 5B(d)

1. [40]

   Having regard to the evidence, I am 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 the order. As such, the prerequisites for the making of an ESO s 5B(a), (b), (c) and (d) are satisfied.

2. [41]

   Whether an ESO is actually made is a matter of discretion. I am satisfied that it should be made. The Court may determine an application for an ESO either by making an ESO or dismissing the application. In determining whether or not to make an ESO the safety of the community must be the paramount consideration of the Court.

3. [42]

   I must have regard to the matters set out in s 9(3) in addition to any other matter that I consider relevant. As will be evident from the evidence on which I have already commented, I have had regard to the matters set out in s 9(3) in determining whether there should be an ESO and the conditions which should be imposed.

The Conditions

1. [43]

   The focus of the parties’ submissions was on the dispute between them as to some of the conditions. The conditions will be annexed to this judgment. It is important to emphasise that many of the risk factors are the subject of conditions which are agreed.

2. [44]

   It is only necessary to decide on the conditions in dispute which are as follows:

Additional evidence relevant to the conditions in dispute

1. [45]

   The evidence contained in the documents to which I have already referred, as well as the oral evidence, is relevant to the determination of the matters in dispute between the parties being the precise conditions which should be imposed.

2. [46]

   However, some further important evidence emerged during the oral evidence of Dr Eagle, Dr Collins and Ms Grabham, to which I will refer when dealing with the conditions in dispute.

Electronic Monitoring

1. [47]

   The State seeks a condition that the defendant wears electronic monitoring as referred to in Condition 4. The State emphasises that Condition 4 only requires the defendant to wear electronic monitoring as directed by the DSO or any other person supervising him. Ms Grabham states in her affidavit of 24 September 2019 that electronic monitoring compliments the scheduling conditions to assist in determining if the defendant is conforming to the schedule of movements that he must provide to the DSO each week. It assists in the supervision by identifying where a person deviates from the proposed schedule, such as by failing to attend appointments, or where a person attends a location from which he is prohibited from attending. She refers to an example of a person being in an exclusion zone and being contacted by the DSO who identifies that the person is travelling through an exclusion zone. She refers to when a person has not complied with the scheduled activity and would be contacted by the DSO discussing non-attendance due to safety concerns.

2. [48]

   It may be that electronic monitoring would serve these functions. However, both Dr Eagle and Dr Collins stated in their oral evidence that electronic monitoring would not act as a deterrent to the defendant. Further they emphasised the impulsive nature of his behaviour. Unlike perhaps some form of scheduling which might provide a purpose to the defendant and assist in his rehabilitation, electronic monitoring would not benefit the defendant at all (both Dr Collins and Dr Eagle said). Of course, in determining whether to make an ESO, the safety of the community must be the paramount consideration but I must also have regard to the objects of the legislation as set out in s 3. An object of the Act is to encourage high risk sex offenders and high risk violence offenders to undertake rehabilitation. Electronic monitoring would serve no purpose in this regard.

3. [49]

   Both Dr Eagle and Dr Collins were questioned about electronic monitoring. Dr Collins was uncertain as to whether she would support it. She said that she held no firm opinion about it. Dr Eagle did not suggest that the use of electronic monitoring would reduce the risk in circumstances in which the defendant suffers from schizophrenia, had an intellectual disability and tended to react impulsively. At its highest, Dr Eagle said it would be worth giving it a trial. However, she also stated that having regard to the intellectual disability and mental illness from which the defendant suffered, it would have no deterrent effect.

4. [50]

   Electronic monitoring was not imposed as a condition of the ISO. In my view, the oral evidence given on the final hearing tends to support that decision. The evidence confirmed that it is unlikely to result in any reduction in risk of the defendant reoffending. Further, the limitation expressed in the risk management report prepared by Mr Cocoran was to the effect that electronic monitoring would not prevent any high risk re-offending at an approved place or in the defendant’s home. It is more likely to have negative consequences for the defendant and expose him to the likelihood that he will breach the condition, albeit innocently.

5. [51]

   The defendant suffers from a mental illness, schizophrenia. The evidence adduced by the State tends not to support the proposition that electronic monitoring will reduce the risk of reoffending or, in any way, increase the safety of the community. I am particularly conscious of the defendant’s mental illness and am concerned that electronic monitoring would impose an intolerable burden on him, with a real risk of re-offending in terms of breaching the condition, albeit innocently, which might expose him to criminal sanction.

6. [52]

   I do not propose to include Condition 4 as part of the conditions of supervision.

Schedule of Movements

1. [53]

   The defendant opposed any order which required the defendant to prepare a schedule of movements. The defendant submitted that it was possible that he was being set up to fail in the sense that with his mental illness he would be incapable of complying with the orders for weekly scheduling. There is some support for that submission, that is, Dr Collins opined that in view of his mental illness, he would struggle to plan ahead. The defendant proposed in the alternative that the process of preparing a weekly plan be undertaken as part of his medical intervention and treatment referred to in Part J of the Conditions. Specifically, the defendant proposed that Condition 45 be amended so as to make the process of preparing some form of schedule part of his treatment and health plan undertaken with his health professionals.

2. [54]

   The State submitted that the Court would impose Conditions 5, 6, 7 and 8 as set out in MFI 3 and extracted in this judgment.

3. [55]

   The conditions sought by the State would require the defendant to provide a weekly plan three days before it is due to start with the assistance of his DSO. He must tell his DSO about the change 24 hours in advance and must not deviate from his approved schedule of movements except in an emergency. However, as set out in proposed Condition 7, if he does deviate from his approved schedule of movements he would not necessarily be in breach if there is a reasonable explanation for the deviation either being disclosed by the defendant himself or on enquiry by the DSO or those supervising the defendant. The intent is that the defendant would not be in breach if he does deviate provided there is a reasonable explanation for the deviation. What is reasonable is not specified. Nor does the second part of the proposed Condition 7 deal with any failure to actually provide a weekly plan as directed.

4. [56]

   As emerged during the evidence of Ms Grabham, the State’s proposed Condition 7 is different from what is known as “a dry schedule”. The State’s proposed Condition 7 requires a detailed and specific schedule of movements which must be prepared by the defendant with the assistance of his DSO. A dry schedule imposes a somewhat less onerous condition on the defendant. With a dry schedule the defendant is not required to precisely identify his plan movements for each day. In her affidavit of 24 September 2019 as well as her oral evidence, Kelli Grabham explained the dry scheduling. Further, at least as far as Ms Grabham is concerned, deviation from a dry schedule will not be considered a breach of conditions.

5. [57]

   A somewhat less onerous or dry schedule of movements was identified by the State in its supplementary submissions filed for the purposes of the final hearing. The State’s proposed Conditions, should the Court not accept proposed Conditions 6, 7 and 8 as proposed by the State, would be as follows:

6. [58]

   This proposed condition requires the defendant to provide an honest summary of his anticipated movements, limited to places he intends to travel to, the purposes and means of his travel to those places and the dates of travel. It also allows the defendant to depart from his summary and give notice to his DSO beforehand or if this is not possible, as soon as reasonably practicable afterwards.

7. [59]

   In his supplementary submissions provided on 8 October 2019, the defendant reiterated that he opposed the imposition of any schedule of movements but if this position was not accepted, proposed alternative conditions as follows:

8. [60]

   The defendant’s proposed alternative conditions are similar to the State’s alternative conditions and are in the nature of a “dry schedule”.

9. [61]

   In paragraph 27 of her affidavit, Ms Grabham states that a dry schedule affords a person the opportunity to set their own prosocial activities and attend at their own pace, essentially making the person solely responsible for attending and engaging in activities and interventions. Ms Grabham says that dry schedules are usually for persons who have already demonstrated ongoing stability prior to the ISO supervision period and whose identified risk factors have been largely tested in the community prior to the imposition of the condition.

10. [62]

    In Hackett Preliminary, Fagan J did not impose either electronic monitoring or scheduling conditions as part of the ISO. However, in the State’s supplementary submissions the State acknowledged that the type of less onerous conditions to which I have referred would be appropriate on the basis that it would assist in addressing issues relevant to the defendant’s identified risk factors in relation to future commission of serious sexual offences: see Wilde v State of New South Wales [2015] NSWCA 28 at [45].

11. [63]

    Specifically, the State urges the imposition of some form of a scheduling condition having regard to both the written and oral evidence of Dr Eagle and Dr Collins, which was not available at the time of the preliminary hearing, as well as the defendant’s conduct between the preliminary and final hearing, specifically that in June 2019 he had been charged with stalking/intimidating and intending to cause fear or physical or mental harm as a result of his repeated attendance at a unit complex. As the State submits, scheduling will enable both monitoring of him by the DSO and the DSO to consider in advance whether places to which he proposes to go involve a high level of risk and would assist the defendant to avoid high risk scenarios.

12. [64]

    It is also important that a condition not be imposed upon the defendant with which he is unlikely to be capable of complying. The defendant suffers from schizophrenia and intellectual disability. The State’s proposed scheduling conditions (rather than the somewhat less onerous dry scheduling condition) would, as the defendant submitted, likely set the defendant up to fail. The evidence of Dr Collins and Dr Eagle does not suggest that he would be capable of actually undertaking the task required of him on a consistent basis.

13. [65]

    As has been emphasised in both the written and oral evidence of Dr Eagle and Dr Collins, the defendant has a chaotic lifestyle. Further, he reacts impulsively, particularly with respect to sexual conduct. Periods of psychosis are linked to his use of methamphetamine. It is most important that the defendant’s schizophrenia and drug use disorder be treated and managed. Dr Eagle identified his mental health and chaotic lifestyle as the primary risk factors. She agreed that if he complies with the condition relating to his treatment, it would go a long way towards reducing the risk. The parties have agreed on conditions requiring the defendant to attend psychological assessment therapy support and treatment as directed by his DSO. He is required to take all mental health medications that are prescribed to him. He must notify the DSO within 24 hours of ceasing to take medication. He must consent to his health care practitioners sharing information as to the course of his treatment and overall progress. It is clear, that with this particular defendant, Conditions 41 and 46 relating to medical treatment intervention and treatment are particularly important.

14. [66]

    The defendant submitted that, in effect, he could prepare a weekly schedule of movements with his health care professional. That is, the defendant submitted there was no need for any additional condition relating to the preparation of a schedule of movements. I should emphasise that the parties are agreed on Part C of the conditions which impose restrictions on the defendant in respect of places he can go. The only dispute between the parties on the Part C conditions relates to proposed Condition 15 which I will address next.

15. [67]

    It was raised during the oral evidence of Dr Eagle and Dr Collins that a less onerous, limited form of condition may be of some benefit to the defendant in the sense that it will give him some purpose, require him to think about what he might be doing for the week and attempt to engage in some form of planning. Dr Eagle said that it would have a therapeutic benefit and it may serve to reduce the risk of re-offending in that way.

16. [68]

    I am mindful that a purpose of the Act is to encourage rehabilitation and, on the evidence before me, anything that provides some structure and purpose in the defendant’s life might reduce his chaotic lifestyle and reduce the impulsivity of his actions (thereby generally reducing the risk). In this regard it seems to me that both purposes of the Act may be served in imposing a form of dry scheduling on the defendant.

17. [69]

    The defendant submits that he suffers from periods of homelessness and thus it will be difficult for him to either prepare or comply with any schedule of movements. However, he is currently living in the ISC and he may be encouraged to stay in the ISC. Further, the less onerous schedule proposed by the State would at least require him to engage in some form of planning and development of some form of structure.

18. [70]

    I am also mindful of the evidence of the defendant’s mother contained in her affidavit affirmed on 12 September 2019 and the defendant’s friend, Shirley Evans, contained in her affidavit affirmed 13 September 2019. Ms Evans says he has a car and a driver’s licence and that she will keep supporting the defendant and doing everything she can to make sure he keeps up with his treatment and supervision. These witnesses were not required for cross-examination. They have offered to support and help the defendant in ensuring that he does not breach any future conditions and stays out of prison. In these circumstances, I do not consider the imposition of the form of dry schedule would be setting him up to fail, as the defendant submitted. Further I am also mindful of the evidence of Dr Eagle that the most important thing is that the defendant continue to be appropriately treated for his mental health and related disorders and that a possible return to prison would have no deterrent effect on the defendant.

19. [71]

    In the State of New South W ales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36], Adams J analysed the task in which the Court is engaged in imposing conditions having regard to s 11 of the Act as follows:

20. [72]

    In my view, the State’s proposed schedule of movements 5, 6, 7 and 8 would be unjustifiably onerous (see Wilde v State of New South Wales [2015] NSWCA 28. As was emphasised by Fullerton J in Grooms (Final) at [84] an assessment of appropriate conditions can only be made in the context of the evidence adduced in the particular proceedings informing the protective purposes of a defendant’s extended supervision and the allied purpose of promoting that person’s rehabilitation as provided for in s 3(2) of the Act.

21. [73]

    For the reasons I have identified, I am thus satisfied that the form of dry scheduling would be appropriate. There is little difference between the State’s proposed conditions as set out in the State’s supplementary submissions and the alternative conditions set out in the defendant’s supplementary submissions. The defendant’s conditions ensure that the summaries to be provided only as so directed by the DSO on or before the Friday prior to each week are proposed to include the defendant’s proposed conditions.

Proposed Condition 15

1. [74]

   The State seeks the imposition of proposed Condition 15 in the terms set out earlier. The defendant opposes the imposition of proposed Condition 15 or any variation thereof. The State emphasises that the condition is not intended to operate as an absolute preclusion from the defendant attending any place used for providing sexual services or sexually explicit entertainment, but rather that the defendant must not attend without prior approval of his DSO. The State emphasises that the second part of the proposed condition requires the DSO not to withhold approval unless the DSO considers that the defendant attending any such place elevates his risk factors.

2. [75]

   The State submitted that the intent of any condition would be not to preclude the defendant from using such services or attending a place where sexually explicit entertainment is provided at all but to prevent him going to such places three or four times a week. Dr Collins said that it would increase the risk if he was prohibited from going to locations where he could access such services.

3. [76]

   In my view, there are two fundamental problems with Condition 15 being:

4. [77]

   In undertaking the balancing exercise between ensuring that the conditions have the effect of reducing the risk and also not imposing too onerous conditions on the defendant, it is relevant to have regard to the conduct of the DSO in relation to the practical application of such a condition. See also Grooms (Final) at [91]; State of New South Wales v Keith Farringdon [2018] NSWSC 874 at [46].

5. [78]

   The DSO is expected to undertake his or her supervision in a common-sense way but it is apparent in this matter from the OIMS notes that the DSO has not always responded to a request with reference to the question of whether the defendant’s attendance would elevate his risk factors.

6. [79]

   There is no evidence that the defendant is likely to attend such places three or four times a week. There was some reference to the DSO being concerned about the defendant accessing the services too frequently, but the origins of such concerns are uncertain. No evidence emerged during the oral evidence of Dr Eagle and Dr Collins to the effect that attendance at such places, even once or twice a week, would necessarily elevate the defendant’s risk factors. In the circumstances, I am not satisfied that the imposition of such a condition would reduce the risk to the community or increase the safety to the community. It could have a counter-productive effect. I am thus not prepared to include Condition 15 in the schedule of conditions.

Access to the Internet and other electronic communications

1. [80]

   By way of summary, Conditions 26, 27, 28, 29 and 30 impose obligations on the defendant to provide his DSO with a list of all devices, services and applications he uses to access the Internet. This includes details of telephone numbers, server provider account numbers, email addresses and other names and passwords. The DSO may remotely inspect any Internet account and the defendant must obey reasonable directions given by the DSO about use of phones and other such devices. In 2016 he was convicted of failing to report with respect to his use of a new mobile phone.

2. [81]

   According to Mr Samuel Ardasinski, a senior psychologist with the Serious Offenders Assessment Unit, the defendant’s most likely scenario for further sexual offending would be while using methamphetamine ice, attendance at a public toilet or some similar amenities block and masturbating to gain sexual gratification. If an underage or otherwise vulnerable male might enter, the defendant may commit some other form of hands-on indecent acts or expose the victim to material on his mobile phone in order to groom them into sexual conduct. The use of a mobile phone is thus suggested as a potential means of re-offending.

3. [82]

   The defendant originally submitted that most of Conditions 26 to 30 are already in place as a result of the Child Protection Offender Prohibition order and his Offender Registration requirements. In the defendant’s supplementary submissions filed on 8 October 2019, the defendant conceded that the Child Protection Offender Register reporting obligations are suspended during the term of an ESO in accordance with the Offenders Registration Act (s 15) (see State of NSW v Steven Single [2019] NSWSC 176 at [22] – [23] for the effect of s 15(1)(d) of the Offenders Registration Act. The concession by the defendant makes some of the submissions made on the hearing redundant. The defendant still submits that I should have regard to the fact that the Child Protection Prohibition order remains current and the defendant must continue to comply with that order.

4. [83]

   On one view, Conditions 26 to 30 are either standard or pro forma type which the State might regularly seek in respect of sex offenders, and it might be considered that such conditions are either unnecessary or too onerous in respect of the defendant. However, I must have regard to the defendant’s earlier non-compliance with respect to the use of a new mobile phone. Further, having regard to the nature of the defendant’s mental illness and disorders and intellectual disability, it might be unlikely that this defendant would have a range of electronic devices available to him. It seems to me that Conditions 26 to 38 serve a purpose in reducing the risk and allowing the DSO to monitor and control the use of electronic devices in circumstances in which the conditions are unlikely to be very onerous for the defendant. This is particularly so in circumstances in which, on the evidence tendered by him, he now has available to him the support of a good friend and his mother, at least, in respect of ensuring compliance with the conditions.

5. [84]

   Conditions 26 to 30 should be included.

Personal details and appearance

1. [85]

   There is a small dispute between the State and the defendant as to Conditions 36 to 40 in respect of personal details and appearance. The defendant sought not to be restricted in respect of use of either Kain Alexi Hackett or Darren Hackett. He now accepts that he must not change his name from Kain Alexie Hackett or use any other name unless the change of name has been approved in accordance with the procedural requirements under Part 5 of the Births, Deaths and Marriages Registration Act 1995 (NSW). I propose to include in the conditions the slightly amended conditions proposed by the defendant in the defendant’s supplementary submissions dated 8 October 2019 adding only the words “and as approved by the DSO”.

   1. (1)

      Pursuant to ss 5B and 9(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant be under supervision in the community for a period of 2 years commencing on 10 October 2019.

   2. (2)

      Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), during the period of his extended supervision in accordance with (1) above, the defendant is to comply with the conditions in the Schedule to these reasons.

   3. (3)

      Until the final disposition of Local Court proceedings number 2019/00045212, an order restricting access to the Supreme Court’s file in respect of this proceeding such that access would only be permitted to a non-party with leave of a judge of the Court, and only after the parties have had notice of the non-party’s application for access and have been afforded an opportunity to be heard.