Anderson v State of New South Wales

Procedural history of the litigation

1. Mr Anderson was due to be released on Saturday 17 October 2015, following a total effective sentence of 13 years. An application for an extended supervision order under s 5C or a continuing detention order under s 5D of the Act could be made at any time after 17 April 2015: ss 6(2) and 13B(3). The State's summons was not filed until 6 October 2015. As well as orders for psychiatric examination and interim detention, the State's summons sought final orders of a continuing detention order for 12 months, followed by an extended supervision order for a period of five years. The summons was listed for directions on Friday 9 October 2015, and for a hearing on Monday 12 October 2015.
2. On Thursday 15 October 2015, Hamill J made orders for psychiatric examination and that Mr Anderson be subject to an interim supervision order for a period of 28 days: State of New South Wales v Anderson [2015] NSWSC 1515. The interim supervision order was extended for two further periods of 28 days, first by Adams J on 11 November 2015: [2015] NSWSC 1679, and subsequently by Schmidt J on 8 December 2015: [2015] NSWSC 1871.
3. The State's summons was listed for final hearing before the primary judge on Monday 14 December 2015. The existing interim supervision order expired on 6 January 2016. Moreover, s 10C(2) prevented that order from being renewed for any period after 14 January 2016. The primary judge was, accordingly, obliged to determine the application on a final basis with a high degree of urgency.
4. Three psychiatric experts were cross-examined at the final hearing: Dr Furst, on his 3 August 2015 report, and Drs Ellis and O'Dea, the two psychiatrists who examined Mr Anderson pursuant to the orders made by Hamill J. The State tendered in excess of 1000 pages of material, and written submissions in excess of 200 paragraphs. The latter were clearly excessive and placed an unnecessary burden on the primary judge.
5. Before turning to the reasons of the primary judge, it is convenient to address the structure of the Act.

The structure of the Act

1. The Act is premised upon the proposition that there is a class of offenders who have been convicted of serious crimes and have served the entirety of their sentences of imprisonment, but who, even so, should not enjoy unconditional liberty in the community, because of the risks of reoffending. The Act identifies "high risk sex offenders" and "high risk violent offenders" (those two classes are not mutually exclusive). Speaking generally, the Act treats each of those classes of people in the same way. Orders were sought against Mr Anderson on the basis that he was a high risk sex offender, and it was common ground that he was such.
2. The Act requires applications for extended supervision orders and continuing detention orders to include a report prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner assessing the likelihood of the offender committing a further serious sex offence or serious violence offence, as the case may be: ss 6(3) and 14(3). To that end the Act requires there to be a preliminary hearing, at which the Court may appoint two such psychiatrists, psychologists or medical practitioners to conduct separate examinations: ss 7(4) and 15(4). The Act also authorises the making of interim supervision (ss 10A and 10B) and interim detention orders (ss 18A and 18B). Strict time limits are imposed by the Act. In particular, an interim order may only be made for a period of 28 days, and may only be extended for a period not exceeding three months.
3. In relation to the final orders which are the subject of the present appeal, ss 5B, 5C and 5D are central. "5B High risk sex offender (1) An offender can be made the subject of a high risk sex offender extended supervision order or a high risk sex offender continuing detention order as provided for by this Act if and only if the offender is a high risk sex offender. (2) An offender is a high risk sex offender if the offender is a sex offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision. (3) The Supreme Court is not required to determine that the risk of a person committing a serious sex offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious sex offence. 5C Extended supervision orders for high risk sex offenders (1) The Supreme Court may, on application under this Act, make an order for the supervision of an offender if the offender is a high risk sex offender. (2) An order made under this section is an extended supervision order. (3) An extended supervision order made under this section may also be referred to as a high risk sex offender extended supervision order. 5D Continuing detention orders for high risk sex offenders (1) The Supreme Court may, on application under this Act, make an order for the detention of an offender if the offender is a high risk sex offender and the Supreme Court is satisfied that adequate supervision will not be provided by an extended supervision order. (2) An order made under this section is a continuing detention order. (3) A continuing detention order made under this section may also be referred to as a high risk sex offender continuing detention order."
4. It suffices in order to summarise and resolve the essential submissions which arise on this appeal to observe that ss 5B and 5D mandate a two stage process. The first question is that posed by s 5B, which is whether the person is a high risk sex offender. This entails the Court being satisfied, to a high standard, that the offender would pose an "unacceptable risk of committing a serious sex offence if he or she is not kept under supervision". Only if the answer to that question is affirmative can there be power to make either a continuing detention order or an extended supervision order.
5. The second question only arises if the person is a high risk sex offender. It is the question posed by s 5D, which is whether the Court is satisfied that adequate supervision will not be provided by an extended supervision order. If the answer to that question is affirmative, then there is power to make a continuing detention order. (For the purposes of this appeal, we put to one side the separate discretion whether to make a continuing detention order at all, discussed in State of New South Wales v Donovan [2015] NSWCA 280 at [14]-[15].)
6. There are at least four important differences between the questions posed by ss 5B and 5D. The first two differences flow directly from the text of the statute. One is that the Act requires a different level of satisfaction to be achieved in relation to the first, as opposed to the second. Another is that the second question is only reached in the event that the first question has been answered affirmatively.
7. A third is that it is established that the test of "adequate supervision" in s 5D is not "anchored" to an assessment of "unacceptable risk", but involves a wider ranging inquiry, including having regard to the secondary purpose of the Act of encouraging rehabilitation: see State of New South Wales v Donovan.
8. A fourth is that there is a wide range of conditions which could be imposed by an extended supervision order, so that the issue posed by s 5D also involves considering a range of conditions and whether if imposed they would constitute adequate supervision: see Lynn v State of New South Wales [2016] NSWCA 57.
9. Finally, an appeal lies from the making of or the refusal to make an order. There is no occasion in this appeal to address the nature of that appeal. The parties proceeded on the basis that it was necessary for Mr Anderson to establish legal error.

The decision of the primary judge

1. Although the matter was listed for two days, the hearing completed at the end of the first day, and her Honour advised the parties that she would list the proceedings for judgment on Friday 18 December 2015. On that day, her Honour delivered reasons of 164 paragraphs, and made a continuing detention order for a period of 12 months, followed by an extended supervision order for a period of 5 years commencing from the date of the expiry of the continuing detention order. Mr Anderson appeals only from the continuing detention order. At all times, he has consented to the imposition of an extended supervision order, in the terms sought by the State, a copy of which is contained in the Schedule to this judgment.

Two minor matters

1. Two minor matters may be mentioned about the judgment. The first is that, owing to a typographical correction which did not alter the substance of the judgment, the paragraph numbering of the judgment as delivered to the parties differs from that made available on Caselaw. The difference is a single paragraph. In what follows, we shall refer to the paragraph numbering in the version on Caselaw.
2. The second is that her Honour made a further order (order 4) to the effect that reports be provided to Corrective Services officers. That order reflected what was conceded to be an error in the final relief sought in the State's summons. An order of this nature is appropriate in a preliminary application under the Act, but is not called for when final orders are made.
3. Nothing substantive turns on either matter, although both are consistent with the urgency which attended to the preparation and delivery of the judgment.

The opening section of the judgment

1. Her Honour dealt with the procedural history of the litigation at [1]-[7], and the statutory framework at [8]-[26]. Notwithstanding the concession by Mr Anderson, it remained essential for her Honour to be "satisfied to a high degree of probability" that Mr Anderson met the elements of the definition of a "high risk sex offender" pursuant to s 5B. Her Honour appreciated as much, and said at [25]: "There is no real dispute that the defendant is a high risk sex offender, and I am satisfied of that to the high standard specified by s 5B(2) of the Act." That conclusion was not challenged on appeal.
2. Given that Mr Anderson consented to the making of an extended supervision order, and there was no dispute about any of the conditions attaching to such order, the critical issue was that posed by s 5D. Her Honour correctly identified the substantial question arising from s 5D(1) at [26]: "The question is whether a continuing detention order is necessary for the safety and protection of the community, as the State contends, or whether, as the defendant submits, the Court should find that an extended supervision order will provide adequate supervision of the defendant, and ensure the community's protection."
3. Her Honour then dealt with Mr Anderson's personal circumstances and his history of criminal offending at [27]-[89], and the evidence of his response to the interim supervision order in force over the preceding eight weeks at [90]-[100]. Her Honour dealt in some detail with the psychiatric evidence of the three psychiatrists who were cross-examined, at [101]-[142].

The final section of the judgment

1. The final section of her Honour's judgment is the section of greatest importance for the purposes of this appeal. It was headed "Is Supervision Enough?" That section was introduced by [143]: "The principal question for the Court to determine is whether adequate supervision will not be provided by an extended supervision order, such that a CDO should be made, as sought by the State. There is no issue that the defendant meets the threshold criteria in the Act and is a 'high risk sex offender': s 5C(1). The issue that is in dispute is whether that risk can be managed in the community, formally, the question posed by s 5D(1)."
2. In [144], her Honour anticipated the conclusion, stating that: "Having carefully, indeed anxiously, considered all of the evidence, I am not satisfied that supervision in the community pursuant to an ESO is adequate."
3. At the conclusion of that section, in [162]-[163], her Honour reiterated her conclusion on the issue posed by s 5D(1) as follows: "Having considered the evidence before the Court, and having had regard to the matters referred to in s 17(4) of the Act, I am satisfied that adequate supervision will not be provided by an extended supervision order. Accordingly, I intend to make the orders sought by the State." Section 17(4) identifies 13 matters to which "the Supreme Court must have regard" in determining whether or not to make a continuing detention order or extended supervision order.
4. The intervening paragraphs, [145]-[161], are directed, in terms, to the risk posed by Mr Anderson in the event that his release is unsupervised. We have found it convenient in what follows to anticipate the submissions made by Mr Anderson on appeal when describing the paragraphs in this section of the judgment.
5. Paragraph 145 is directed to a serious risk of reoffending posed by Mr Anderson in light of his lengthy criminal history and his failure to respond to "any form of restraint and supervision imposed upon him". This is undoubtedly linked to the question posed by s 5D, but as we read her Honour's reasons, the reference was to his breach of parole and bail in 1994. Nothing was said about the considerably more intrusive regime contemplated by the extended supervision order in 2015.
6. Paragraph 146 referred to risk assessments based on static and dynamic factors, and paragraph 147 to the weight of the psychiatric evidence; neither paragraph referred to supervision at all. Paragraph 148 referred to Mr Anderson's substance abuse disorder, and the fact that relapse by him could lead to catastrophic results. But again there was no analysis of the effect of the extended supervision order upon the risk of relapse.
7. Paragraphs 149 and 150 referred to Mr Anderson's lack of insight into his sexual offending, and 151 to what was said to be a refusal fully to engage in rehabilitative programmes, which were said to add to the risk posed by him and "points to his continuing non-compliance". Again, these paragraphs did not mention the conditions of the proposed supervision order.
8. Paragraphs 152 and 153 referred to the extended period of supervised parole envisaged by the sentence imposed by the Court of Criminal Appeal in 2002. Both paragraphs pointed to the risk of Mr Anderson being unable to cope without resort to drug use or other unproductive and risky behaviour, and the risk of an angry or violent response to the slights and injuries of daily life. But neither paragraph addressed the impact of the conditions of the proposed extended supervision order (such as the prohibition on the use or possession of drugs, and the random drug tests, to which he would be subject) upon that risk, nor did either paragraph make mention of the consequences of a breach of a condition of an extended supervision order (which are much more serious than those following a breach of a condition of parole).
9. Paragraph 154 referred to Mr Anderson's use of drugs in October 2015, which "[indicated] clearly his continuing inability to comply with prohibitions on drug use, and remain drug-free" and emphasised the risks of a relapse into drug use, but again made no assessment of the impact of the terms of the proposed supervision order.
10. Paragraph 155 is the only paragraph in this section of the reasons (aside from the introduction and concluding paragraphs) which expressly refers to "adequate supervision". It is as follows: "The defendant's compliance with the ISO is a positive feature of his case which he relies upon to argue that an ESO will provide adequate supervision for him and adequate protection for the community. Whilst I do not dismiss his positive conduct lightly, and am concerned at possibly halting or adversely affecting the defendant's rehabilitation, I have viewed his period of compliant conduct and positive work history in light of three factors. They are, the longstanding and apparently deeply entrenched nature of the defendant's anti-social conduct; the treatment resistant nature of the disorders from which he suffers; and the defendant's well documented capacity to present an acceptable, if completely superficial, self-image to others when he thinks there is benefit to him. I am very troubled by the likelihood that the defendant's recent compliance is no more than a manifestation of his desire to remain out of custody, and would evaporate as soon as that end had been achieved by this Court making an ESO."
11. Paragraphs 156 and 157 differentiated between custody based, and community based, rehabilitation, and did not address the adequacy of the supervision order.
12. Finally, paragraphs 158-161, which conclude the section of the reasons entitled "Is Supervision Enough", were directed exclusively to the risk of harm if Mr Anderson were released without supervision: "158 The defendant has demonstrated a capacity to sexually offend in a most serious way, without regard to legal restraint or the restraints of common humanity, with disastrous and likely life-long consequences for his victim. 159 The gravity of the consequences of the risk posed by the defendant manifesting is very high indeed. Even if the risk of the defendant committing a serious sexual offence may be low, it has been recognised that a defendant may nevertheless pose an unacceptable risk pursuant to the statutory test: State of New South Wales v Richardson (No 2) [2011] NSWSC 276 at [94]; State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [16]. 160 The test in s 5B(2) is satisfied if there is a risk that the defendant will commit a serious sex offence which is present to a sufficient degree so that the safety and protection of the community cannot be ensured unless an order for the defendant's continuing detention is made: State of New South Wales v Thomas (Preliminary) at [20]; State of New South Wales v Thomas (Final) [2011] NSWSC 307 at [56]- [58]; State of New South Wales v Conway [2011] NSWSC 588 at [30]; State of New South Wales v KAS [2012] NSWSC 1139 at [6]. 161 Whilst his eight weeks of liberty gives some indication that the risk posed by the defendant may not manifest, there is a solid body of evidence of much more deeply entrenched and long lasting anti-social behaviour that suggests the contrary conclusion."

Grounds of appeal

1. The amended grounds of appeal were all directed in various ways to the primary judge's assessment of whether adequate supervision would be provided by the extended supervision order. It is not necessary to identify each of the grounds, which in any event overlapped. It suffices to identify two aspects of Mr Anderson's challenge, which were at the forefront of both parties' submissions. The first is a failure to address the issue of adequate supervision posed by s 5D. The second is a failure to have adequate regard, pursuant to s 17(4)(d1), to the risk management report prepared by Mr Makar.
2. The principal point made by Mr Anderson was that in the dispositive paragraphs, [145]-[161], there was no substantial attention directed to the adequacy of the supervision that would be provided by the extended supervision order. Mr Johnston SC, who appeared with Mr Coady for the appellant, contrasted the questions posed by ss 5B and 5D and submitted: "In effect, when one goes through the reasons that her Honour provides at [144] through to [164], it would appear ... that what her Honour is doing is making that evaluation of both factors at the same time and doesn't adequately separate the two considerations."
3. Mr Johnston drew attention to the analysis which Hamill J had given to Mr Makar's risk management report, to the evidence about how compliance with the conditions imposed by an extended supervision order was monitored and the incentives upon Mr Anderson to comply with the terms of a supervision order. His Honour concluded, taking into account the "onerous conditions and quasi-custodial nature of the supervision and accommodation" imposed by the proposed interim supervision order, that the imposition of such order would achieve the primary objective of the Act. Indeed, the greater part of his Honour's judgment (at [28]-[48]) dealt with these matters.
4. In contrast, Mr Johnston observed that the primary judge did not mention Mr Makar's report in terms at all. Mr Makar's report was, as Mr Kell, who appeared with Ms Phillips for the State, conceded, a mandatory relevant consideration by reason of s 17(4)(d1).
5. More substantively, Mr Johnston observed that nowhere was there consideration of the impact of any of the proposed conditions of supervision. As it was put in oral address: "[T]here just is no consideration of the conditions of the ESO, and the evidence that was relied upon both by the State and referred to in the submissions of the defence as to the adequacy of those conditions."
6. Those conditions were onerous. They were 53 numbered obligations, many of which turned upon the discretion of a Departmental Supervising Officer or "DSO". The conditions included the following (which is not exhaustive).
7. Electronic monitoring and reporting: Mr Anderson must wear electronic monitoring equipment as directed by his DSO. This equipment consists of a securely fitted anklet which identifies its wearer's location using Radio Frequency (RF), Global Positioning System (GPS) and Global System for Mobile (GSM) technologies. There was evidence that: "The anklet is customised to the size of [the] offender's ankle. It is made of grey plastic on the outside, is about the size of a large digital watch, is light in weight and is waterproof. The anklet is reinforced with steel bands and Kevlar which make it difficult to remove without the use of a special unlocking device. Once secured, if attempts to remove or damage the anklet are made, an alarm will be sent to EEMG staff."
8. Without descending into unnecessary detail, the system enables monitoring of Mr Anderson's location 24 hours a day 7 days a week, with a capacity to initiate an alarm if he (say) did not adhere to the curfew or attended a location prohibited by his DSO (for example, a local bottle shop or hotel). Mr Anderson must report to his DSO as directed.
9. Schedule of movements: Mr Anderson must provide if asked a weekly plan of his movements three days before it is due to start, must give 24 hours' notice of any change in his schedule of movements and must not deviate from that schedule except in an emergency.
10. Accommodation: Mr Anderson must live at an approved address and must be at that approved address between 9pm and 6am each day unless some other arrangement is approved by his DSO. Mr Anderson must not permit any other person to enter and remain, or stay overnight, at that address without the DSO's prior approval.
11. Drugs and alcohol: Mr Anderson must not possess or use alcohol or illegal drugs or prescription medication other than as prescribed, must submit to drug and alcohol testing as directed by his DSO, must not enter any licensed premises without his DSO's approval, and must attend and participate in programmes and courses for drug and alcohol rehabilitation as directed by his DSO. He must not discharge himself from such programmes and courses without the prior approval of the DSO.
12. Non-association: Mr Anderson must not associate with people consuming or under the influence of alcohol or illegal drugs. If Mr Anderson starts a relationship, he is required to tell his DSO, who in turn may tell the person about Mr Anderson's criminal history. He must not join any internet or mobile based social networking scheme without first obtaining the written permission of his DSO.
13. Weapons: Mr Anderson must not possess or use any firearm, and must not carry on his person at any time after leaving his residence any knife or other cutting instrument or any rope, cord, cable ties, or other instrument of restraint.
14. Communications: Mr Anderson must give his DSO a list of all communication devices, including phones, tablets, and computers, must obey any reasonable directions about the use of those devices, and must authorise his telephone and internet service providers to share information with his DSO about his accounts.
15. Search and seizure: Mr Anderson must submit to a wide range of searches and inspections of his person and premises by his DSO and must allow his DSO to seize anything which, inter alia, the DSO reasonably suspects will compromise his compliance with the extended supervision order or which his DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of committing a serious offence.
16. Personal details and appearance: Mr Anderson must not change his name, use any other name, or change his appearance without the approval of his DSO, and must let Corrective Services photograph him.
17. Medical intervention: Mr Anderson must advise his DSO of any healthcare practitioners that he consults and must agree to those practitioners sharing information, including reports on his progress and information he has told them, with each other and with his DSO. He must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend. That information is to be shared between all agencies involved in his supervision. If Mr Anderson ceases to take medication that he has been prescribed he is to notify his DSO within 24 hours.
18. The regime consequent upon the making of an extended supervision order has three other important features. If Mr Anderson fails to comply with the requirements of the extended supervision order, he is guilty of an offence under s 12. The maximum penalty is imprisonment for 5 years or 500 penalty units, or both. Moreover, he would then become a "supervised sex offender" and may be made subject to a further application for a continuing detention order pursuant to s 13B. Finally, Div 3A confers power upon the Supreme Court to make "emergency detention orders" for the detention of an offender who is the subject of an extended supervision order, or an interim supervision order, who, because of altered circumstances, cannot be provided with adequate supervision, and who, without adequate supervision, poses an imminent risk of committing a serious offence.

Failure to address adequate supervision

1. On one view, her Honour formed the opinion that Mr Anderson's criminal history, his past contravention of parole and bail conditions, and his limited engagement in rehabilitation programmes in custody, coupled with the institutional misconduct charges accumulated in custody, meant that he would not adhere to the terms of any extended supervision order with the result that it was not necessary for her Honour to address the particular conditions proposed by the State. To the extent that that is the basis of the decision, it emerges most clearly from [155] which is reproduced above; it may perhaps also appear in [145]. However, even so we do not think that the evaluation of adequate supervision required by s 5D has occurred. For one thing, the fact that her Honour made an extended supervision order for five years commencing at the conclusion of the continuing detention order might suggest that her Honour was satisfied that after twelve months additional detention, adequate supervision would be provided, although her Honour's reasons do not deal with this issue.
2. If it were the case that Mr Anderson's recent good conduct were motivated by the reality that any breach would lead to his imprisonment, then at least on one view that is supportive of the making of an extended supervision order. What is absent from [155] is an analysis of how the regime imposed by an extended supervision order would cause Mr Anderson's recent compliance to "evaporate". It will be seen in what follows when we address the expert evidence that even Dr Furst, who held the strongest views in favour of a continuing detention order, acknowledged that an extended supervision order would provide a "moderate" motivator to Mr Anderson to comply, while the other expert evidence was more optimistic.
3. What is more, none of the 53 conditions proposed in the extended supervision order is mentioned in this section of the judgment. No mention is made of the impact those conditions will have on the aspects of Mr Anderson's behaviour which pose a risk to the community. No mention is made of the consequences to Mr Anderson of their breach. To the contrary, this portion of her Honour's reasons, fairly read, is directed to reasoning supporting a conclusion that the unsupervised risk posed by Mr Anderson's return to the community is unacceptable. As it was put in argument: "BATHURST CJ: The problem, putting it in colloquial terms and not nearly as eloquently as the President put to you, is that on one view, her Honour paid a great deal of attention to all the risks but not much to what was being proposed to avert it and particularly the Makar report. KELL: Yes. BATHURST CJ: That's the difficulty, isn't it?"
4. It will be clear from the foregoing that there was no answer to that difficulty. The clear differentiation made by the Act between an unacceptable risk of committing a serious sex offence if unsupervised and adequate supervision does not appear in the reasons. It follows that material error is disclosed.

Failure to have regard to the risk assessment report from Corrective Services

1. We would also reject the State's submission that it should be inferred that her Honour had regard to the risk assessment from Corrective Services (the report prepared by Mr Makar), even though it is not mentioned in her Honour's reasons.
2. The starting point is that the reasons which are actually stated are to be understood, on appeal, as recording the steps that were in fact taken by the primary judge in arriving at the end result: The Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 at [130]. It is true that the primary judge said that she had considered all the evidence, and had had regard to the matters referred to in s 17(4).
3. The obligation imposed by s 17(4)(d1) was that "the Supreme Court must have regard to ... any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community." That imposed an obligation to have regard to the contents of the Makar report, which expressed views on the extent to which Mr Anderson could be managed in the community as opposed to in custody. Those were matters which went directly to the question of adequate supervision posed by s 5D.
4. It could not be said that the report was prominent in the materials with which her Honour was burdened. It was to be found in the fifth lever arch folder of materials, behind tab 246, as is indicated by footnote 82 to paragraph 159 of the State's written submissions to the primary judge.
5. If the primary judge had considered the contents of the report, it would be expected that its contents would have been reflected in her Honour's reasons. It would also be expected that there would be an account of whether her Honour agreed or disagreed with the views expressed in it. It is to be borne in mind that the report dealt squarely with the central issue posed by s 5D of adequate supervision.
6. The report is a document of 16 pages. It identifies risks posed by Mr Anderson's release from prison, and the measures which could be taken to address those risks. For example, there is extensive information about the nature and effectiveness of the electronic monitoring. There is no need to summarise the report in its entirety for present purposes. We take, by way of example, the matter which (because her Honour referred to it repeatedly in her judgment: see [67], [88], [147], [148] and [154]) was regarded as being of considerable significance: the risk posed by Mr Anderson relapsing into drug use.
7. The risk of Mr Anderson relapsing into drug use was clearly identified in the report. The management strategy stated: "• Mr Anderson to engage with a treatment provider in order to maintain treatment gains made. • Community Corrections would ensure contact is maintained with any such treatment provider and it is envisaged that Mr Anderson's progress would be regularly discussed. • Mr Anderson would be subject to random urinalysis and targeted testing for alcohol use. • Mr Anderson may be mandated to participate in treatment in a residential rehabilitation facility should he relapse into illicit substance use."
8. The report went on to indicate the limitations of that management strategy and the risks which remained. We do not for a moment consider that the proposed management strategy is necessarily a fool proof answer to the risks posed by Mr Anderson's return to the community, and would readily acknowledge that some measure of risk remains, as did Mr Makar. However, the point of present relevance is that the reasons of the primary judge disclose no analysis of the effectiveness of the measures proposed to be put in place to manage the risk posed by Mr Anderson relapsing into substance abuse as discussed in the report. The failure to do so strengthens the inference that in fact the report was not taken into account.
9. Given the volume of material, the placement of Mr Makar's report within that volume of material, the centrality of its contents, and the urgency with which the decision was required, we are not persuaded that consideration was given to the report as was required by the Act. Accordingly, we would conclude that this ground of appeal is also made out.

Orders

1. For those reasons, the appeal must be allowed. By way of summary, we have concluded that the existing continuing detention order was made without a proper evaluation of whether adequate supervision would be provided by an extended supervision order in the terms propounded by the State and accepted by Mr Anderson. We have also concluded that it was made without consideration of the report prepared by Corrective Services NSW for that very purpose, contrary to the requirement of the Act.
2. The question then arises as to the course which should be taken by this Court.

Should the application be remitted?

1. Mr Anderson submitted that this Court should, on the evidence before it, be satisfied that the extended supervision order to which he consented would provide adequate supervision for the purposes of s 5D, so as to avoid the need for a remitter. The State, however, submitted that "there should be a remittal of the proceeding for a number of reasons, including that there isn't the current up-to-date evidence of the psychiatric opinion".
2. We agree with the State. By reason of s 75A(6) of the Supreme Court Act 1970 (NSW), this Court has both the powers and the duties of the court at first instance, including making findings of fact, pursuant to s 5D. In determining whether adequate supervision would be provided by an extended supervision order, this Court is therefore required, by s 17(4)(b), to have regard inter alia to the reports prepared by qualified psychiatrists in relation to Mr Anderson. The evident intent of the mandatory regime for the conducting of psychiatric examinations shortly before the making of any order is for the Court to have the benefit of up-to-date assessments of the offender. The psychiatric opinions presently available are some five months out of date. Further, those opinions do not have regard to the whole of the period prior to 18 December 2015 during which Mr Anderson enjoyed conditional liberty, nor to his conduct in detention from 18 December 2015 to date. In the particular circumstances of this case, the Court would be assisted by expert opinion on the question whether Mr Anderson's exemplary behaviour when released on an interim supervision order late last year was merely temporary or was likely to be sustained in the longer term.
3. In our view, the issues are too important - for Mr Anderson, his mother and sister, as well as for his victims and the broader community - to be determined on a final basis on out-of-date information, without the benefit of up-to-date psychiatric opinion. The State's application for a continuing detention order should be remitted for determination in accordance with law. The orders which we propose will oblige Mr Anderson to attend all psychological and psychiatric assessments as directed by his DSO, which will enable the updated reports sought by the State to be obtained.

What interim orders should be made?

1. The final question is what order should be made pending the determination of the State's application for a continuing detention order. Here, again, the parties were divided. Mr Anderson submitted that there should be an interim supervision order, as had been made by Hamill J and continued by consent on two subsequent occasions. The State asked this Court to make an interim detention order.
2. The power to make the interim detention order sought by the State is conferred by s 18A, and the power to make the interim supervision order sought by Mr Anderson is conferred by s 10A. Both sections are made applicable to this Court on appeal by subss 75A(6) and (10) of the Supreme Court Act. The sections are as follows: "18A Interim detention order-high risk sex offender The Supreme Court may make an order for the interim detention of an offender if, in proceedings on an application for a continuing detention order, it appears to the Court: (a) that the offender's current custody (if any) will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk sex offender extended supervision order or a high risk sex offender continuing detention order." "10A Interim supervision order-high risk sex offender The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, it appears to the Court: (a) that the offender's current custody or supervision will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk sex offender extended supervision order."
3. The State seeks both an extended supervision order and a continuing detention order, so the opening words of both sections are satisfied. The effect of allowing the appeal and remitting the State's application will be that the first precondition, in paragraph (a) of both sections, will be satisfied. It is sufficient in order to enliven the power to make either order if it appears to the Court that the matters alleged would, if proved, justify the making of a high risk sex offender extended supervision order. Although it is common ground that such an order should be made, it is necessary for the Court to be satisfied independently of this.
4. That in turn means that it is necessary to be satisfied, to a high degree of probability, that Mr Anderson poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision.
5. We are so satisfied. What follows is an abbreviated account, focussing principally upon the offences involving serious sexual violence, which is taken in part from her Honour's reasons and in part from the reasons of the Court of Criminal Appeal in 2002, and expanded by reference to what Mr Anderson reported to Drs Ellis and O'Dea late last year.
6. Mr Anderson has a very lengthy history of substance abuse, principally alcohol, cannabis, and heroin, but including amphetamine, methamphetamine and cocaine. He left school at the beginning of Year 8. Between 1982 and 1992, when Mr Anderson was aged 17-27, he was repeatedly convicted of assault, possession of drugs, break, enter and steal. He reported that his history of theft was driven by the need to finance his drug habit. His offending over the last three decades has included offences involving serious violence. In 1987 he assaulted a woman (his then partner), causing a wound to her eye which required sutures. In 1990 he was convicted of assault occasioning actual bodily harm. The victim this time was a five year old boy, the son of his partner at the time, who sustained a broken rib and bruising when Mr Anderson lost his temper. In 1994 he was convicted of two offences of maliciously inflicting bodily harm with intent, based on his stabbing two men, telling the second, who had pleaded with him to calm down, "Die you little cunt".
7. For present purposes, where the focus is upon an unacceptable risk of Mr Anderson committing a serious sex offence, what is most significant about the 1994 offence is that it was committed while he was subject to parole and bail. For that offence, he was sentenced to ten years' imprisonment, with a minimum non-parole period of seven years and six months.
8. The crimes which were most serious and most relevant for present purposes were committed when Mr Anderson and another inmate escaped from Grafton Correctional Centre on 28 February 2001, and attacked a 50 year old woman, not known to them, as she walked to her car. She was assaulted, her mouth covered by tape and her hands bound. She was taken to an isolated area in a State forest, where she was raped by both men, threatened with being stabbed, and told "we could slit your throat". She was forced to have oral sex with Mr Anderson and subjected to other sexual indignities. She was also robbed, before being left in a town. At hospital, the victim was found to have numerous abrasions and extensive bruising, a labial split and a dislocated left knee. Mr Anderson told Dr Ellis that he had been using heroin while in prison at the time, and that he and his co-offender had used speed after escaping.
9. A Crown appeal on sentence was allowed by the Court of Criminal Appeal. Both that Court and the sentencing judge regarded the criminality as falling "just short" of the worst case, bearing in mind that although the victim was in fear of her life and had suffered substantial injuries, the worst class of case could involve more substantial physical injuries. The Court of Criminal Appeal imposed an additional sentence of thirteen years, with a non-parole period of ten years: R v Anderson [2002] NSWCCA 304. The primary judge observed at [62], with respect correctly, that the sentence imposed by the Court of Criminal Appeal would have reflected the restraint relating to Crown appeals which predated the enactment of s 68A of the Crimes (Appeal and Review) Act 2001 (NSW) (see R v JW [2010] NSWCCA 49; 77 NSWLR 7). Her Honour did not rely on that circumstance as a matter relevant to determining whether to make a continuing detention order, and (lest there be any doubt about it) it would have been erroneous to have done so. The fact that statute has subsequently altered the sentence for an offence is not relevant to the discretion to make an order under the Act at the conclusion of the term of imprisonment imposed under the superseded regime.
10. While in custody, Mr Anderson has received further convictions for the possession of drugs, and more than 30 institutional misconduct charges. Three of those charges related to violence (in 1989, 1999 and 2008); largely they appear to have related to the possession of, or testing positively for, drugs. He escaped from custody in 1992 as well as on 28 February 2001. When interviewed by Corrective Services, he said that he had also escaped from Glen Innes Prison Farm a "half-dozen" times but had not been caught. A risk assessment report prepared by Corrective Services states that Mr Anderson "did not consider his behaviour of leaving the Glen Innes Prison Farm as constituting an escape as he had every intention of returning after he had met up with his girlfriend at the time".
11. The same report summarised his history while in prison favourably: "Outside of the above institutional charges and criminal convictions, the vast majority of custodial staff case notes reflect a positive view of Mr Anderson, his behaviour and his work ethic within custody over the duration of his incarceration. Mr Anderson is routinely described as co-operative, compliant and a dedicated worker."
12. Mr Anderson originally rejected participating in the Custody Based Intensive Treatment Program (CUBIT), but completed it in 2011. Also in 2011 he completed four of the five scheduled custody based maintenance group sessions, but refused to complete the course. In September 2015, he completed two further sessions of custody based maintenance.
13. All of Drs Furst, Ellis and O'Dea were of the view that Mr Anderson would pose an unacceptable risk if released from prison unsupervised. As noted at the outset, Mr Anderson accepted as much, and consented to an extended supervision order with a duration of five years. We are of the view that a lengthy period of supervision is required, without which there would be an unacceptable risk that Mr Anderson would commit a serious sex offence. Hence, the power to make an interim detention order or an interim supervision order is available.
14. That is not an end to the matter. It is one thing for the power to keep Mr Anderson in prison for a further 28 days to be available. It is another for it to be appropriate to exercise that power. The discretion as to which interim order should be made falls to be exercised in light of the primary objective of the Act (protecting the community) and its secondary objective (promoting the offender's rehabilitation).
15. We have concluded that the appropriate exercise of discretion is to make an interim supervision order, rather than an interim detention order.
16. We have had regard to Mr Anderson's appalling criminal history, and, especially, to the possibility that he might relapse into substance abuse and commit another serious crime of sexual violence, bearing in mind, especially, the spontaneity of his previous offending.
17. We have had regard to the expert opinions. The body of expert opinion is not only out-of-date. It is also mixed. Without summarising all aspects of it, we indicate its nature in what follows.
18. Dr Furst was highly sceptical, and indeed initially recommended a further continuing detention order for a period of five years. In contrast, Dr Ellis endorsed the treatment plan proposed in the probation and parole documents (which is reflected in the terms of the extended supervision order), although recognising, as we read his report, that making a continuing detention order would be open on the evidence. Dr O'Dea was less pessimistic still, and concluded: "[W]ith the above 'Proposed Conditions Interim Extended Supervision Order' successfully in place, under the provisions of an ESO, Mr Anderson's risk of committing a further 'serious sex offence' (as defined in Section 5(1) of the New South Wales Crimes (High Risk Offenders) Act 2006) would from a psychiatric perspective be adequately and appropriately managed."
19. Dr Ellis accepted in his testimonial evidence before the primary judge that an alternative view, namely, making a continuing detention order, was reasonably open. Dr O'Dea, although called by the State, was in substance cross-examined by counsel for the State, and maintained his preference for an extended supervision order, although he also acknowledged that an alternative view could be taken. For his part, Dr Furst acknowledged when cross-examined by counsel appearing for Mr Anderson that the conditions of an extended supervision order would constitute moderate motivators for Mr Anderson not to act in breach of it.
20. In short, the expert opinion evidence does not disclose a clear-cut view as to the appropriate exercise of discretion. However, the relatively recent history of Mr Anderson points significantly in the direction of making an interim supervision order, rather than an interim detention order.
21. First, the decision by Hamill J on the same issue was in favour of an interim supervision order, as opposed to an interim detention order. It is true that this Court has the benefit of evidence not then available to Hamill J. However, that further evidence is supportive of the making of an interim supervision order because, with one exception, the evidence points to continued compliance and good conduct both in the community and when imprisoned pursuant to the continuing detention order. We also note that the State did not seek to appeal from the order made by Hamill J.
22. Secondly, the exception mentioned above is the fact, prominent in the State's submissions on appeal and in the reasons of the primary judge, that at the end of his head sentence, Mr Anderson had relapsed into the use of drugs on one occasion. He was detected to have used Buprenorphine in the final days of his sentence, a matter which was not known when Hamill J's orders were made. This is a matter of significant concern, given the association disclosed by Mr Anderson's history between his substance abuse and offending, with potentially disastrous consequences.
23. However, on balance, a number of countervailing matters outweigh the concern engendered by Mr Anderson's use of drugs in October 2015. One is that, on the evidence before this Court, that was an isolated incident, which has not been repeated. Another is that Mr Anderson is well aware that the use (and for that matter merely the possession) of alcohol or illicit drugs is a contravention of the supervision order to which he will be subject, which is itself a serious crime and which, almost certainly, will result in his being returned to prison. In other words, the supervision order may be expected, of itself, to be a powerful motivating factor for Mr Anderson to comply with its conditions.
24. Thirdly, we have regard to the stance taken by the State. Officers of the State became aware only days (and perhaps, only hours) after the order was made by Hamill J that Mr Anderson had relapsed into illicit drug use. No application was made to return the matter before Hamill J for review. Just as importantly, the order made by Hamill J expired after 28 days. The State, even so, consented to its extension. It did so on two separate occasions. There was no evidence or submission, when the matter was raised during the hearing of the appeal, that the State's stance was the result of accident or inadvertence on those occasions.
25. In those circumstances, we think that we must proceed on the basis that the State was satisfied that the single instance of relapse into drug use at the end of the head sentence did not materially impact upon whether a supervision order would provide adequate supervision. No other explanation is consistent with the stance taken by the State, through its lawyers, in November and December 2015.
26. Fourthly, Mr Kell submitted that the making by this Court of an interim detention order would be to the preserve the status quo. That led to this exchange: "KELL: Yes, and there wasn't the evidence that there is now from the experts at a final hearing, the oral evidence of the experts and, in my submission, it's really intended to preserve the status quo until the matter can go to a first instance primary judge who will deal with the matter, and there may be further evidence on what interim orders should be made. BATHURST CJ: The problem with that is, on one view, her Honour erroneously altered the status quo. It's not necessarily palatable that you make an order preserving the effect of a decision erroneously reached when, firstly, three judges prior to that were content to make an extended supervision order. Whilst it was by consent, they had to be satisfied it was appropriate. And, secondly, at least over the time of the extended interim supervision orders, they were adequate or successful, it might be said."
27. We respectfully agree. We are doubtful that questions as to the status quo arise in the exercise of discretion under the Act in the same way as is familiar when an interlocutory injunction is sought. However, to the extent that the status quo is relevant, it cannot be that Mr Anderson should be kept in interim detention when three judges have proceeded on the basis that an interim supervision order is sufficient, and error infects the continuing detention order pursuant to which he is presently imprisoned.
28. Fifthly, the best indicator of what is likely to happen in the next 28 days, if Mr Anderson is released from prison and subjected to an interim supervision order, is, in our view, what occurred in comparable circumstances last October. Mr Anderson's conduct while subject to an interim supervision order was, so far as the evidence discloses, exemplary. We fully acknowledge the concerns expressed by the primary judge, to the effect that that exemplary conduct was a product of an appreciation that there was an imminent final hearing (see [155] which is reproduced above). Indeed, we share the concern. However, the same position will prevail as a result of the order which we propose. That is to say, Mr Anderson will be aware that in the imminent future, the continuing detention order sought by the State will be determined on a final basis. In addition to the considerable motivation flowing from the terms of the interim supervision order, Mr Anderson should be powerfully motivated to comply.
29. Hence, we propose making an interim supervision order, with all of the conditions proposed by the State (and to which Mr Anderson made no objection). To be clear, none of the foregoing should be read as precluding the court to which this matter is remitted from reaching the conclusion that s 5D supported the making of a continuing detention order. We would anticipate that in any event the evidence before the court will be materially different from that presently available in respect of Mr Anderson's conduct over the last six months.

Miscellaneous matters

1. Having reached that conclusion, there are a number of more technical aspects to the orders which we propose which should be explained.
2. We note that the interim supervision order made in October 2015 and extended in November and December 2015 expired when the primary judge made a continuing detention order: s 18D(1). The further interim supervision order made by this Court will be a new order, which may remain in place for no more than three months.
3. The terms of that order will authorise Mr Anderson's DSO to instruct him to subject himself to psychiatric assessment, for the purposes of obtaining updated reports, ideally from Drs O'Dea and Ellis.
4. The existing extended supervision order is of a term of five years commencing "from the date of expiry of the continuing detention order". We propose that the continuing detention order be set aside and the question whether a new one be made be remitted. However, no challenge was made to the existing extended supervision order.
5. It follows that in the event that a continuing detention order is made, it should be followed by the extended supervision order for a period of five years. Alternatively, if a continuing detention order is not made, then the existing five year extended supervision order should commence immediately. The orders we propose below address this by varying the commencement date of the extended supervision order.
6. In a similar case, this Court extended a detention order by one day before a supervision order took effect, in order to achieve an orderly transition from custody to supervision: see State of New South Wales v Donovan at [130]. It may also be noted that Hamill J delivered his judgment on the Thursday before the Saturday on which Mr Anderson's sentence expired. It is appropriate for the same reasons to follow the same course here.
7. Finally, it was common ground that in the event that the appeal were allowed, costs should follow the event.
8. The formal orders we propose are as follows: 1. Appeal allowed with costs. 2. Set aside orders 1, 2 and 4 made on 18 December 2015, with effect from 11am 28 April 2016. 3. Remit to a judge sitting in the Common Law Division the determination of the question whether a high risk sex offender continuing detention order should be made. 4. Vary order 3 made on 18 December 2015 by replacing "from the date of the expiry of the continuing detention order" by the words "from the date of the expiry of any continuing detention order made on remitter pursuant to order 3 made by the Court of Appeal on 27 April 2016 or from the date of the determination on that remitter not to make a continuing detention order", with the result that it reads: "(3) Pursuant to ss 5C and 9(1)(a) of the Act the defendant, for a period of 5 years from the date of the expiry of any continuing detention order made on remitter pursuant to order 3 made by the Court of Appeal on 27 April 2016 or from the date of the determination on that remitter not to make a continuing detention order, be subject to an extended supervision order and, pursuant to section 11 of the Act direct that, for the period of the extended supervision order, the defendant comply with the conditions set out below in the Schedule to these Orders." 1. Order, with effect from 11am 28 April 2016, that the appellant be the subject of an interim supervision order for a period of 28 days, and that he comply with the conditions of that order as set out in the Schedule below for the period of that order. 2. Liberty to either party to apply to a single Judge of Appeal to vary the time at which orders (2) and (5) above commence.

Monitoring and Reporting

1. The defendant must accept the supervision of Corrective Services NSW (CSNSW) until the end of the Order.
2. The defendant must report to the Department Supervising Officer (DSO) or any other person supervising him as directed by the DSO.
3. The defendant must follow all reasonable directions by his DSO or any other person supervising him.
4. The defendant must attend the police station nearest to his approved accommodation within 3 days of the date of this order and provide a copy of this order.

Electronic Monitoring 5. The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him.

Schedule of Movements 6. If he is asked to, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start. 7. If the defendant wants to change anything in his schedule of movements after he has given it to his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period 8. The defendant must not deviate from his schedule of movements except in an emergency. 9. The defendant must truthfully answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing.

Part B: Accommodation 10. The defendant must live at an address approved by his DSO. 11. The defendant must be at his approved address between 9pm and 6am unless other arrangements are approved by his DSO. 12. The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time. 13. The defendant must not spend the night anywhere other than his approved address without the approval of his DSO. 14. The defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO.

Part C: Place and travel restrictions 15. The defendant must not leave New South Wales without the approval of CSNSW. 16. The defendant must surrender any passports held by the defendant to the Commissioner. 17. The defendant must not go to a place if his DSO tells him he cannot go there. 18. The defendant must not attend any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment, or where alcohol or drugs are illegally sold.

Part D: Employment, finance and education 19. If the defendant is unemployed, the defendant must enter available employment if and as directed by the DSO or make himself available for employment, education, training or participation in a personal development program as directed by the DSO. 20. The defendant must not start any job, volunteer work or educational course without the approval of his DSO. 21. The defendant must not sign any legal instrument that gives the defendant control of any money or assets of another person or organisation, without prior approval of the DSO. 22. The defendant must not sign any lease, mortgage, contract for sale for goods or services above the value of $500, hire agreement, power of attorney, deed, or any instrument relating to obtaining any credit, opening of any account held at a bank, credit union, building society or similar institution, without prior approval of the DSO. 23. The defendant must not form any corporation, partnership, unincorporated association or register any business names without prior approval of the DSO.

Part E: Drugs and alcohol 24. The defendant must not possess or use alcohol or illegal drugs, and he must not possess or use prescription medication other than as prescribed. 25. The defendant must submit to testing for drugs and alcohol as directed by his DSO. 26. The defendant must not enter any licensed premises without the approval of his DSO. 27. The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as directed by his DSO, and must not discharge himself from such programs and courses without prior approval of his DSO.

Associations with Others (not children) 28. The defendant must not associate with people that his DSO tells him not to. 29. The defendant must not associate with any people who are consuming or under the influence of illegal drugs or alcohol. 30. N/A. 31. If the defendant starts a relationship with someone, he has to tell his DSO who may want to tell the person about his criminal history. 32. The defendant must obtain written permission from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service

Part G: Weapons 33. The defendant must not possess or use any firearm within the meaning of s.4 of the Firearms Act 1996 or prohibited weapon as defined in s.4 and Schedule 1 of the Weapons Prohibition Act 1998. 34. The defendant must not carry on his person, at any time he has left his residence, any knife or other cutting instrument or any rope, cord, cable ties, or other instrument of restraint.

Part H: Access to the internet and other electronic communication 35. The defendant must give his DSO a list of all devices he uses to communicate with or to access the internet. This includes phones, tablet devices, data storage devices or computers. This includes the details of telephone numbers, service provider account numbers, email addresses or other user names used by the defendant and the nature and details of the internet connection, as directed. 36. The defendant must obey any reasonable directions by his DSO about the use of phones, computers and other devices, including any reasonable directions relating to his access to the internet. 37. The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO. 38. The defendant must provide a list of communication devices and data storage devices in the defendant's possession and advise the Departmental supervising officer of any change to the inventory immediately.

Part I: Search and seizure 39. If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to f below) is necessary: a. for the safety and welfare of residents or staff or persons present at the defendant's approved address; b. to monitor the defendant's compliance with this order; or c. because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence; then the DSO may direct, and the defendant must submit to: d. search and inspection of any part of, or any thing in, the defendant's approved address; e. search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant; f. search and inspection of any part of, or any thing in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or g. search and examination of his person. 40. For the purposes of the above condition: a. a search of the defendant means a garment search or a pat-down search. b. to the extent practicable a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO. NOTE: "Garment search" means a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body. "Pat-down search" means a search of a person where the person's clothed body is touched. 41. During a search carried out pursuant to condition 35 above, the defendant must allow the DSO to seize anything found in, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise: a. the safety of residents or of staff at the defendant's approved address; b. the welfare or safety of any member of the public or any other person; or c. the defendant's compliance with this order; or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence. 42. The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use. 43. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions 39 to 42 above.

Part J: Access to pornographic, violent and classified material 44. The defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification, X18+, R18+, Restricted Category 2 and Restricted Category 1, or any other material as directed by the DSO.

Part K: Personal details and appearance 45. The defendant must not change his name from Ronald Anderson or use any other name without the approval of his DSO. 46. The defendant must not change his appearance without the approval of his DSO. 47. The defendant must let CSNSW photograph him. 48. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details.

Part L: Medical intervention and treatment 49. The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults. 50. The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend. 51. The defendant must take all medications that are prescribed to him by his healthcare practitioners. 52. If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify the DSO within 24 hours of ceasing to take the medication. 53. The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his DSO. 54. The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW.

Amendments 27 April 2016 - [8] - "14 January 2015" replaced with "14 January 2016" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 April 2016