State of New South Wales v Richardson (Preliminary)

HIS HONOUR: By an Amended Summons filed 9 October 2020 the plaintiff seeks the following orders:

In support of those orders, the plaintiff relies upon three affidavits of Isabel Kallinosis, affirmed 10 August, 4 September and 2 October 2020. Included in the material placed before the Court were two folders of documents identified as Exhibit IK-1 to the first of the affidavits of Ms Kallinosis referred to above.

The position of the defendant in relation to the orders sought in the Amended Summons was set out in his written submissions as follows:

The defendant did not dispute that the threshold criteria contained in s 5B(a), (b) and (c) of the Act are met. The defendant agreed that:

Despite the concession by the defendant, it is still necessary for the Court to analyse the evidence before it in order for it to be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious crime unless an Interim Supervision Order (ISO) is made.

Section 9(2) of the Act provides that in determining whether or not to make an Extended Supervision Order (ESO) “the safety of the community must be the paramount consideration”. Section 9(3) of the Act sets out the following mandatory relevant considerations which the Supreme Court “must also have regard to in addition to any other matter it considers relevant” in considering whether to make an ESO:

The considerations contained in s 9(3) provide a central framework for the Court in making a decision as to whether to make an order and the conditions that it might regard as appropriate.

Section 7 of the Act requires a determination that:

The reference to “justify the making of ESO” in s 7 of the Act refers back to s 5B which provides the pre-condition for the making of an ESO. These include, in accordance with s 5B, that the Supreme Court is 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 the order.

At the preliminary hearing, the Court is not required to assess the weight of the supporting documentation in support of the ESO, or to seek to predict the outcome of the proceedings for final orders. Instead, the Court is to engage in an evaluative exercise taking into account all of the supporting documentation and, proceeding on the assumption that the facts alleged in the supporting documentation are proved, to determine whether those facts would justify the making of an ESO.

While it is the case that the test pursuant to s 5B applies to both preliminary proceedings and final hearings, the important difference is that there is an assumption that the matters relied upon by the State in the supporting documentation are, for the purposes of the preliminary hearing, taken to be proved. In short, the Court in considering the test prescribed by s 7(4) does so from the assumption that the facts will be proved in accordance with the test prescribed by s 5B(d).

The defendant grew up in Sydney with his mother, father and two brothers. The defendant’s upbringing was not marked by any significant disadvantage. It was stable and he was not exposed to abuse or neglect in his early life. The defendant’s schooling was consistent over the years and he remained at school until he was 18. The defendant was an average student. He had maintained steady employment as a bank clerk until his first sentence of imprisonment in 1992. Upon his release in 1995, the defendant completed an Associate Diploma in Accounting and thereafter worked as an accountant.

The defendant has been involved in two motor vehicle accidents in which he sustained injuries to his lower back and neck. He has suffered from ongoing back problems and chronic pain ever since.

The defendant met the victim in early 2011 while she was on holidays with her family. At the time the victim was approximately 13 years old and the defendant was aged 46. The defendant approached her and informed her father that he might be able to get the victim some modelling work. He provided her father with a business card to this effect. By late 2012, the defendant and the victim were communicating electronically.

In early 2013, the victim agreed to travel to Sydney (from Taree) for the purpose of having photos taken by the defendant to be used to initiate a modelling career. The defendant deposited money in the victim’s account and met her in Sydney on 24 February 2014. The victim was then aged 15 years and 8 months. The defendant was aged 48. Over the following two days, the defendant bought the victim some clothes and took her to a beach where he photographed her both clothed and unclothed. He booked her a room in a hotel in the city and booked himself into the same room.

On the last night, the defendant and the victim were watching a movie in the hotel room on the bed together. The victim fell asleep. When the victim woke up, the defendant was moving off her side of the bed naked and she noticed that her shorts and underwear had been moved aside. The defendant had unprotected sex with the victim while she was sleeping and as a result, she gave birth to a daughter when she was about 16 and a half years old.

Judge Madgwick stated that the defendant had a long record of uncontrolled sexual behaviour including a serious matter in 1991. His Honour acknowledged that there had been a lengthy period during which the defendant did not come under notice, but that the entire record indicated that periodically he had been unable to resist sexual urges which had built up in him.

The Court found that having regard to the defendant’s entire history, remorse was not likely to be a major factor in his rehabilitation. The Court found that the defendant’s previous record aggravated the seriousness of the matter because he had had “ample warning and opportunity to change his ways”. His Honour found that the defendant was intelligent enough to recognise the seriousness of his conduct and that he knew there were avenues available to bring his impulses under control.

The defendant’s first offence as an adult occurred on 16 September 1982 when he approached a girl aged 17 on an escalator while in David Jones. The defendant made admissions upon his arrest on 8 October 1982 to following the female onto the escalator, having felt an urge, and then moving his hand inside her skirt, touching her on the thigh and buttocks.

The defendant returned to the same store on 8 October 1982 and was observed by security to be following another female on the escalator. The defendant upon his arrest, stated that he had commenced placing his hand on the inside of the victim’s skirt but was interrupted by security staff who detained him. The defendant was charged with an attempted act of indecency.

The defendant was convicted of both offences on 30 June 1983 and sentenced to a 2 year good behaviour bond.

During the currency of the bond, the defendant was again charged with conduct involving the unlawful assault of a female. The defendant on 12 January 1984, was within a lift at Myers shopping centre at Chatswood, when he touched the backside of a woman for a period of a few seconds. As the victim was leaving the lift, the defendant blew kisses towards her whilst holding the lift door open. The victim raised the alarm when she saw the defendant again on 9 February 1984. The defendant initially entered a plea of not guilty, but changed his plea to guilty on 12 September 1984. He received a fine of $300.

In 1988 the defendant was charged with an offence of “peep or pry”, pursuant to s 547C Crimes Act 1900 (NSW). The conduct related to him being in a building on 4 August 1988 in St Leonards without reasonable cause. The matter was dismissed when no evidence was offered by the prosecution. A subsequent charge of wilful and obscene exposure was also brought on 26 April 1989, but was also dismissed on 11 December 1989 at Burwood Local Court.

Between 14 October 1991 and 16 November 1991, the defendant committed the following offences involving four different female victims:

The facts of the 14 October 1991 offence were that in response to an advertisement by the victim for shared accommodation, the defendant attended an inspection. After the inspection, the defendant asked to re-inspect a bedroom. When the victim entered the bedroom, the defendant prevented her from leaving. As she went to pass him, the defendant pushed her with both hands causing her to fall backwards onto a bed.

The defendant produced a knife and told the victim to remove her clothing. The victim refused which caused the defendant to bring the knife up to the victim’s face and threaten her with violence if she did not comply with his demands.

The victim removed her clothing and was told by the defendant to lie on the bed and spread her legs. After other threats to the victim, the defendant grabbed her hand and placed it on his penis. He then took her by the back of the head and forced it down onto his penis. He held the victim’s head while he pushed his penis into her mouth. The defendant told the victim to lie on the bed and began to perform oral sex on her. He then got off the bed and left the premises.

On 26 October 1991, the defendant enquired about shared accommodation and went to inspect a home unit at 7:00pm. After the victim showed the defendant around the unit, he persuaded her to let him return at 8:45pm. At that time, the defendant entered the victim’s apartment and pointed a small knife at her. The defendant began masturbating. He told the victim that he would use the knife if he had to.

A struggle ensued when the victim took hold of the knife and the defendant forced her against the opposite wall, pushing his pelvis against her and trying to kiss her. The defendant attempted to move the victim towards a spare bedroom but she struggled and screamed. The defendant released her and began to masturbate again with his other hand and raised the knife towards the victim, while she was on the floor. As the victim began to edge her way along the wall to the front door, the defendant took hold of her hand and a struggle occurred in which the intercom was knocked off the wall. The victim told the defendant that security would arrive soon and he left.

The facts of the 15 November 1991 offence were that the defendant responded to an advertisement for shared accommodation and attended a unit to inspect it. When the victim had showed the defendant the unit, he asked to see her bedroom. When the victim walked into her bedroom past the defendant and turned around, he was standing in front of her with a pocket knife in his right hand pointing at her. The defendant told the victim to be quiet and that he would not hurt her. The victim screamed “call the police” which caused the defendant to back out of the room and leave.

The facts of the 16 November 1991 offence were that the defendant responded to an advertisement for shared accommodation and attended the unit to inspect it. When the victim showed him around the unit, he went into her bedroom and she followed him. The defendant pushed the victim onto the bed. When the victim got up from the bed, she was confronted by the defendant holding a scalpel in his right hand which was pointed at her.

The defendant said to the victim “give me a kiss” and began to rub his left hand up and down the front of his trousers. The defendant then moved closer to the victim with the scalpel pointed at her chest. When the defendant was about six to eight inches away from her, she grabbed hold of his right wrist with her right hand and a struggle ensued. As the defendant jerked his hand backwards, he dragged the scalpel across the victim’s right hand resulting in her sustaining a cut to that hand. The defendant fled from the unit.

The defendant pleaded guilty to those four offences before Judge Johnston on 9 October 1992. The defendant received a concurrent sentence for the two offences of common assault and malicious wounding of 12 months. A sentence of 4 years, with a non parole period of 3 years was imposed for the aggravated sexual assault offence. The sentences commenced on 25 May 1992 so that the defendant was eligible for release to parole on 24 May 1995.

During the hearing of these matters, the Court considered previous medical reports and noted that from the age of 15, the defendant had experienced sexual problems which resulted in him consulting various professionals. Dr Taylor, a consultant psychologist, stated that the defendant may have a degree of organic brain disorder but that it could not explain the progressive deterioration in his ability to cope with his sexual feelings.

Judge Johnston concluded that if the defendant were to not offend again, he would have to accept a good deal of supervision and counselling.

The defendant was charged with an offence of “peep and pry” arising out of an incident on 8 December 1998, when he entered the rear yard of a house and observed a girl aged 16 years, who was standing near her bedroom window dressed in pyjamas. Upon seeing the defendant looking at her through her window, she screamed and the defendant fled. The victim’s father pursued the defendant and detained him inside his vehicle a short distance from the house.

The defendant received a fine in the sum of $800 and a good behaviour bond which was for a period of two years from 10 February 1999.

The defendant was charged with an offence of “peep and pry” relating to conduct said to have taken place on 17 October 2003. The offence was dismissed by the Downing Centre Local Court on 22 March 2004. The defendant was charged with wilful and obscene exposure relating to him exposing his penis in a public place on 20 February 2004. On 24 March 2004 that charge was withdrawn in the Ryde Local Court.

The defendant’s pattern of sexually inappropriate conduct in public places continued in 2005 when he was charged with a “peep and pry” offence in addition to an offence of enter enclosed lands. The conduct comprised the defendant looking through the windows of premises. The conduct was reported by a woman who had observed the person looking through her front window. The defendant fled the scene and was later apprehended by police. The defendant was sentenced on 21 August 2006 to a fine of $500 and a 2 year s 9 good behaviour bond (Crimes (Sentencing Procedure) Act 1999 (NSW)) with a condition that he accept treatment by a psychologist and be supervised by the Probation and Parole Service.

A further s 9 bond was imposed on the defendant on 28 November 2013 for the offence of “behave in an offensive manner in/near a public place or school”. The defendant entered a woman’s dress store on 13 February 2013 and approached a female shop assistant and asked to try on some female clothing. He engaged the assistant in a discussion concerning his sexual desires. The defendant walked up close to the victim and started to breathe heavily and said “oh fuck yeah” a number of times before the assistant left the store to seek help. The defendant was apprehended by police a short time later when attempting to enter another female boutique store.

It should be noted that there is a gap of twenty two years between the commission of the serious sexual offences, i.e. between 1991 and 2013. Even so, there appears to have been no de-escalation of risk posed by the defendant.

The following risk assessments were obtained in relation to the defendant:

In the 2020 RAR, Ms Pateman concluded that the defendant posed a well above average risk of further sexual offending. She found that the deviant sexual interests (e.g. exhibitionism, voyeurism, transvestism and toucherism) and the enduring nature of his offending behaviour was indicative of the ongoing presence of sexual preoccupation. It was noted that two of his most recent victims were teenage girls indicating a possible sexual interest in pubescent females. The report found that the defendant’s sexual offending had increased in severity and that he did not appear to accept responsibility or acknowledge any purposeful sexual offending behaviour (p 23).

The 2020 RAR recorded the following test results. The Static-99R instrument (which has a moderate accuracy in predicting sexual recidivism for individuals charged with or convicted of a sexual offence) gave the defendant a score of 7, placing him as a “well above average risk”.

The STABLE-2007 instrument identified dynamic risk factors for sexual offending as follows:

The combined effect of both those tests was an “overall well above average” risk level (Level IV-b) of sexual offending.

The 2020 RAR identified the following risk scenarios:

Ms Pateman stated that in such circumstances the defendant would be experiencing an increased intensity of sexual tension and would provide himself with justifications for having his needs met through sexual offending.

Ms Pateman stated that it was likely that the defendant would target a young and vulnerable victim due to his low confidence around women, his anticipation that this person may be less resistant to his advances and his propensity to utilise weapons and violence to reduce overall victim resistance when attempting to achieve sexual gratification.

This report stated that the latest risk assessment conducted on 28 April 2020 resulted in the defendant being assessed as within the high risk category of sexual offending. The report proposed a management strategy for the defendant which would include, weekly in person interviews, regular home and field visits, electronic monitoring and an associated schedule of activities and access to Forensic Psychological Services (FPS).

The 2020 RMR noted that the defendant’s access to community support was limited to his brother (who was in custody) and his teenage daughter with whom he had had no contact during his most recent period in custody. The report noted that there might be impediments to the implementation of the case management plan because of the defendant’s reluctance to acknowledge the need for offence specific treatment. In particular, the defendant might be resistant to home visits given his failure to engage with such a requirement while he was subject to community corrections supervision in 2006.

The report noted that the defendant had expressed significant displeasure about having to schedule and plan his activities in advance and questioned what it would achieve. The report also noted that electronic monitoring would not prevent the defendant from being involved in high risk situations or offending behaviours while he is engaging in an approved activity.

The report noted the lack of meaningful progress by the defendant through engagement in custody based treatment such as the High Intensity Sexual Offender Program (HISOP). The report found that the defendant’s stated unwillingness to engage in further intervention demonstrated his lack of insight and raised concerns regarding his capacity to comply with an ESO.

The defendant was released to parole on 30 June 2020 to reside at the Nunyara Community Offender Support Program centre (COSP). During this time, the defendant had experienced difficulties complying with his schedule of movements and conditions. He had made numerous complaints about the conditions placed upon him. The defendant has issues with things such as yearly reporting, updating contacting details and restrictions on travel. The defendant believed that he should be exempt from a curfew. The defendant has been behind schedule on numerous occasions, resulting in the Community Corrections Officer (CCO) calling the defendant to see where he was. Although the defendant’s breaches of conditions on parole have been minimal, they appear to demonstrated his incapacity to be compliant with supervision. This was evidenced by a comment to a CCO to “send him back to gaol as it was too much”.

Since the defendant’s release to parole, a provisional Apprehended Domestic Violence Order (provisional order) has been made. The order was made for the protection of the defendant’s ex-partner and 15 year old daughter. The provisional order contains an exclusion zone to restrict the defendant accessing places near or around the residence of “the persons in need of protection” (PINOPs).

The defendant since his release to parole has been insistent that he be given access to his daughter. He indicated to a CCO that having discussed it with his ex-partner, she was willing to consider such access. When staff contacted the defendant’s ex-partner on 3 July to verify such information, she stated that the defendant was “absolutely not” to have contact with her daughter. It was further revealed to staff that the defendant had got access to his ex-partner’s address without her knowledge. She had received several miscalls and text messages from the defendant after she agreed to meet with him to sign paperwork on 2 July 2020. On 3 July 2020, the defendant and his ex-partner attended a solicitor’s office. Shortly after the meeting, the defendant called his ex-partner on a number of occasions and sent numerous text messages.

The final hearing for the application for an Apprehended Domestic Violence Order has not yet been heard.

The plaintiff submitted that the defendant had demonstrated a lack of insight into his actions on numerous occasions. The plaintiff noted that in a letter dated 18 February 2019 to the Sex Offender Programs, the defendant stated that the sentence imposed on him by the judge was “incorrect” and “without foundation”. In this letter, the defendant also blamed his legal team for his sentence. The plaintiff submitted that in this letter the defendant had dealt with the index offence in a way which blamed the victim and minimised his actions. The plaintiff submitted that this was evident when the letter stated:

The plaintiff relied upon the following further instances which it submitted demonstrated the defendant’s lack of insight into his offending:

The plaintiff submitted that the defendant has the capacity to manipulate those around him and to be deceitful in order to have his sexual desires met. The plaintiff submitted that he had displayed a capacity to deceive those closest to him regarding his sexual offending. This was evidenced by him failing to disclose his past offending to his wife, using false names in the past to avoid detection and also in relation to utilising his fictitious role as a modelling agent to commit the index offence.

The plaintiff submitted that the defendant had been noted to “have his own agenda of tasks that he deems priority. He appears to staff shop, attempt to split staff and is manipulative in trying to get staff to assist him with what he wants to do”. The plaintiff submitted that the defendant appears to provide constant excuses and blames everyone else for why he has been unable to achieve a set task.

The plaintiff submitted that the defendant had displayed a pattern of serious offending, notwithstanding the gaps in his criminal history, and the versatility of his offending profile. The plaintiff submitted that it was in this context that the risk profile of the defendant had to be considered. The plaintiff submitted that the gap in the defendant’s criminal history between the two discrete episodes of serious sexual offending does not preclude the nature of the risk posed by the defendant rising to an unacceptable level. The plaintiff submitted that the opportunistic and varied nature of the serious offences committed by the defendant highlighted the proposition that the risk posed by him meets the threshold level of an unacceptable risk.

The plaintiff submitted that despite the offending of the defendant involving low level voyeurism and public exposure offences, the evidence suggested that his current risk profile was closely aligned with the commission of further serious offences. The plaintiff submitted that the defendant’s current risk scenarios primarily relate to the targeting of vulnerable young women to achieve sexual gratification. The plaintiff submitted that the defendant was likely to utilise his personal skills and intelligence to entice victims. The plaintiff submitted that it was in the context of these advances being rejected, that the defendant had the capacity in the past to utilise violence and weapons to overcome any resistance.

On the basis that this is a preliminary application and what is being sought is an Interim Supervision Order, 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 an Interim Supervision Order.

In carrying out the evaluative process to reach that conclusion, I am conscious of the fact that the Court is not required to assess the weight of the supporting documentation or seek to predict the outcome of the proceedings for final orders. Accordingly, I have engaged in that evaluative exercise taking into account all of the supporting documentation and proceeding on the assumption that the facts alleged in the supporting documentation are proved. Accordingly, I propose to make an Interim Supervision Order in respect of the defendant.

That does not end the matter. There is, as was foreshadowed at the beginning of this judgment, a dispute between the parties as to what conditions should be imposed on the defendant as part of the Interim Supervision Order.

Before dealing with the submissions as to the content of the conditions which should be imposed, it is useful to keep in mind the test provided for by the Act when there is a dispute as to the content of a condition.

Section 11 of the Act relevantly provides:

The Court is to impose “such conditions” as it considers appropriate. The determination of the specific conditions to be imposed depends upon the scope of s 11. The word “appropriate” can only be interpreted in the context of s 5B which gives the Court the power to make an ESO. In particular, the ESO can only be made where the Court is satisfied to the requisite standard that there is an “unacceptable risk of committing another serious offence”. The ESO is accordingly directed to the mitigation of risk of the offender committing a further serious offence. The conditions that are made pursuant to the power in s 11 can only be appropriate where they go to the mitigation of the relevant risk. The relevant risk here is offending of the type that the defendant has engaged in previously.

The intent and objects of the Act must be borne in mind when undertaking this assessment. As observed in Attorney-General for New South Wales v Tillman [2007] NSWCA 119 at [45]:

The making of an ESO requires an assessment that the individual conditions sought specifically address issues relevant to the currently identified risk of future “serious offending” and not offending generally. Conditions ought not to be imposed that are onerous or simply punitive; State of New South Wales v Green (Final) [2013] NSWSC 1003 at [37].

The Court’s consideration of appropriate conditions includes the discretionary factors that are relevant to whether or not an ESO is imposed. The breadth of the required analysis was summarised by N Adams J in State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36]:

The Courts have recognised that care is to be exercised when imposing conditions to ensure that they relevantly address the risk identified. Fullerton J in State of New South Wales v Bugmy [2017] NSWSC 855 stated at [89]:

The Court has held that in order to satisfy the legislative intent of the Act, conditions need to adequately target the identified risk factors.

In State of New South Wales v Tannous [2020] NSWSC 292, amendments were made to a number of conditions to be imposed on the defendant on the basis that a balance was required to be struck between the primary object of the Act and the rehabilitation needs of the defendant. His Honour Justice Rothman noted:

The defendant opposes the imposition of Conditions 5-7. Those conditions provide:

When considering those conditions, it needs to be kept in mind that the defendant has not opposed the imposition of Condition 4 which provides that he must wear electronic monitoring equipment as directed by a DSO and must not tamper with or remove the equipment.

The plaintiff submitted that the relevant risk was that the defendant would again engage in serious sexual offending with the potential victims being not only young females, but also adult females. The plaintiff submitted that when one looked at the RAR and the RMR, they showed that the defendant had sexual self-regulation issues and lacked insight into the high risk scenarios which had led to earlier offending on his part. The plaintiff submitted that those reports made it clear that the defendant was likely to focus upon young women because they would be easier to manipulate.

By reference to the defendant’s previous offending, the plaintiff submitted that such offending could occur without warning and unless a scheduling provision was in place, there would be no way for the DSO and other Corrective Services personnel to anticipate or prevent such offending. The plaintiff submitted that electronic monitoring would not prevent offending of the kind which had occurred in the past because while electronic monitoring could identify where the defendant was located from time to time, it said nothing about the sort of activities he may or may not have been engaged in at that time.

The plaintiff submitted that the whole purpose of scheduling was to enable an offender to structure his or her time and to plan the particular activities that would be engaged in on any specified day. The plaintiff submitted that with such planning in place, the dynamic risk factors which had been identified for the defendant would be less likely to cause him to engage in the opportunistic sexual offending as he had in the past.

The Court was provided with a current weekly schedule which illustrated close control over the defendant’s activities in that not only was a destination identified but the time taken to reach that destination and to return from it was also specified. That having been said, there was in many cases quite a broad timeframe. On four of the days, the timeframe was between 8:45am and 4:00 to 5:00pm in the afternoon. The schedule described the defendant as renovating his mother’s house during the day on those occasions.

The defendant opposed the imposition of a schedule on the basis that it was unnecessary and irrelevant to the identified risk factors. The defendant submitted that the RAR described the most likely scenario for further sexual offending as occurring “following a period of instability and increased stressors in the community”. The defendant noted that the RAR described a period of potential emotional collapse and of the defendant struggling to cope. The defendant submitted that that scenario inevitably would take place over a substantial period of time and that there should be adequate warning to the DSO of such a deterioration in the defendant’s state of mind so as to be able to prevent the occurrence of any sexual offending.

The defendant submitted that he did not suffer from addiction problems and so was not in the same category as defendants who required close monitoring and scheduling of activities because of their addictions and because in many cases, they had come from a structured background (i.e. a prison) and were struggling to come to grips with their first period of liberty.

In general, the defendant submitted that scheduling was quite inappropriate when one had regard to his history of sexual offending.

In relation to these conditions, the decision which I have come to is that during the currency of the ISO, the defendant should be required to comply with the scheduling conditions. The current scheduling roster, which was placed before the Court, although somewhat restrictive in relation to travelling times, was otherwise quite flexible and broad in that the daily program covered many hours of the day without being unduly prescriptive as to the precise activities which would be carried out.

I have had particular regard to the RAR and the RMR which set out the management strategy planned for the defendant. The expert opinion there expressed, particularly in the RMR, is to the effect that scheduling of the defendant’s activities is a fundamental concept in providing protection for the community from an offender like the defendant. It is from the start point of scheduling that other strategies to manage the defendant come into effect.

A clearer picture as to the relevance and benefit of scheduling should emerge when up to date reports are obtained from either or both a psychiatrist and a psychologist independently retained, who can be asked to comment specifically on what is to be gained by the defendant from scheduling.

The next condition which was challenged by the defendant was Condition 9 as follows:

The plaintiff submitted that a number of the defendant’s offences had occurred at night, e.g. the “peep and pry” offences and the inspection of premises under the pretext of looking for shared accommodation all occurred after dark. Some of the “shared accommodation” offences involved serious sexual offending.

The defendant submitted that the imposition of a curfew was not relevant to mitigate an identified risk factor. The defendant submitted that he is not currently subject to a curfew under his parole conditions. The defendant submitted that drug and alcohol issues, as well as negative peer associations (which are often used to support the imposition of a curfew) did not apply to him.

I agree with the submission on behalf of the defendant, particularly since he is not currently subject to a curfew. As was pointed out in argument, there is already in Condition 2 a requirement that the defendant must spend the night at his approved address which further reduces the benefits, if any, to be obtained from the imposition of a curfew.

The defendant objected to Conditions 15 and 16 which are in the following terms:

The plaintiff submitted that Condition 15 was drafted in order to manage risk. That is why it was expressed in such broad terms. The plaintiff submitted that Condition 15 needed to be read with Condition 16 which does not involve a blanket prohibition but invites consultation with the DSO before the defendant attends one of the specified locations.

The plaintiff explained that libraries were included because they contained areas dedicated to children. The plaintiff submitted that pools were also included for a similar reason. The plaintiff submitted that if the defendant intended to use a pool for therapeutic purposes because of his bad back, it was simply a matter of consulting with his DSO and choosing a time when children were not about.

The defendant submitted that Condition 15 was too broad and in any event it was unnecessary in that it was open to the police to obtain an ADVO or AVO which would achieve the same purpose, together with the availability of powers under the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

The defendant submitted that some of the venues referred to in Condition 16 were not connected with any risk of him offending in a way which was relevant to his past offending. The defendant particularly objected to the prohibition on attending cinemas, libraries, pools and internet cafes. The defendant submitted that he would require access to the internet if he is successful in engaging in his former employment as an accountant. The defendant submitted that the search powers provided for in the conditions were sufficiently wide to allow full supervision of the use by him of the internet.

There seems to me to be something of a misunderstanding of the nature of the defendant’s offending insofar as children are concerned. There is no evidence of any offence against a child per se. The vulnerable group would appear to be pre-pubescent or pubescent females and adult females. Accordingly, the protection of children seems to be unnecessary when one has regard to the history of the defendant’s offending. That having been said, there was no objection taken by counsel for the defendant to the focus upon children and accordingly, I will take that issue no further.

In relation to swimming pools, experience has made it clear that sexual predators do take the opportunity of attending such places to view young people of both sexes. Accordingly, there should be some qualification on the defendant doing so. Given the undoubted therapeutic value of a pool in the context of the defendant’s bad back, the suggestion by the plaintiff is reasonable, i.e. that the defendant consult with his DSO as to appropriate times to attend a pool to enable him to engage in exercise and manage his lower back pain.

Accordingly, I would delete Condition 15. In relation to Condition 16, I would delete subparagraphs (c) and (d). I would not remove (j). If the defendant does return to his previous employment as an accountant, he will undoubtedly have his own computer and will be using that rather than a device in an internet café to conduct his business.

The defendant objected to Conditions 21, 22 and 23 which are in the following terms:

I do not see any basis for imposing Conditions 21, 22 and 23 as part of the defendant’s ISO. The use of prohibited drugs is forbidden in any event and there is no evidence that the defendant had or has a drug problem or used drugs. Similarly, there is no connection between the ingestion of drugs and alcohol and the defendant’s offending. The same comment applies to Condition 23. It has no relevance to the defendant’s offending.

The defendant objected to Condition 26. Condition 26 is in the following terms:

The difficulty with that condition is that the defendant’s younger brother is currently in custody. He would appear to be the only relative that the defendant has contact with. There is no suggestion in any of the material before me that the defendant’s offending had anything to do with his brother or that he was assisted in any way by his brother.

Leaving aside his brother, there is no connection between the defendant’s offending and any association on his part with a person who is or has been in custody. Accordingly, I find that Condition 26 is irrelevant to the risk of the defendant engaging in serious sexual offending and should not be imposed as part of his ISO.

The defendant objected to Conditions 42 and 43. Those conditions were as follows:

The defendant explained his objection to the conditions as follows:

The plaintiff’s response to the defendant’s objection was to add an additional Condition 42a. That condition was in the following form:

It seems to me that the defendant’s concerns are substantially alleviated by the provisions of Condition 42a, particularly if it is made clear that Condition 42 is subject to the qualification set out in proposed Condition 42a.

Accordingly, those conditions will now read:

The defendant objected to Conditions 51-56. Those conditions provided:

The defendant articulated his objections to those conditions as follows:

In support of the inclusion of Conditions 51-56, the plaintiff referred to some provisional diagnoses of the defendant which took place many years ago. The plaintiff was not able to make those diagnoses relevant to the defendant’s health as it is now.

The plaintiff did submit that Condition 54 could be made relevant if the words “where it is relevant to managing his risks” were added to that condition.

I am prepared to impose Condition 54 with that addition to it but I am not persuaded that at this stage the other “health” conditions have any relevance to the risk of the defendant seriously offending in the future. On the material currently available, apart from his back pain and the need to attend a pool from time to time for therapeutic purposes, no nexus has been established between the defendant’s health and his offending, either in the past or the risk of serious offending in the future. Accordingly, the only conditions which I will impose of this kind are Conditions 49, 50 and 54 as modified by the plaintiff.

I have annexed to the judgment the conditions which I propose to impose.

The orders which I make are as follows: