a. the defendant must accept home visits by a Corrective Services officer as directed by that officer;
b. the defendant must report to a Corrective Services officer as directed by that officer;
c. the defendant shall not change his place of residence without prior approval of a Corrective Services officer;
d. the defendant must not associate or make contact with children aged 16 years and under;
e. the defendant must not attend public places regularly frequented by children and in which children are present at the time including, but not limited to, schools and amusement parlours, and such places as a corrective services officer may direct;
f. the defendant must wear electronic monitoring equipment as directed by a corrective services officer;
g. the defendant must not change his name from Wiliam John Gallagher;
h. the defendant must participate in treatment and rehabilitation as directed by a corrective services officer; and
i. such other conditions as the Court considers appropriate.
74 From the material available to me there is little doubt that the defendant is likely to commit a further serious sex offence if he is not kept under appropriate supervision. His history of repeated offending, often within a short period of his release from a term of imprisonment for his previous offences and his lack of preparedness to undertake appropriate treatment indicate that he has little insight into his behaviour and lacks a capacity to control his impulses if not restrained. The psychological evidence, which for present purposes I must accept, all indicates that the defendant presents a high risk of re-offending. Accordingly, it appears to me that having regard to the relevant supporting documentation, that if it is proved, it would justify the making of an extended supervision order.
75 I must emphasise that I make this decision having regard to the statutory regime which does not provide an opportunity for the defendant to test the evidence or bring other evidence to contradict it. The decision which I make in relation to this interim application and preliminary hearing will play no part in the ultimate resolution of the Attorney-General's application.
76 The remaining question is whether adequate supervision can be provided by the making of an interim supervision order. Having regard to the material tendered before me on this application, I do not believe that adequate supervision in the relevant sense, is available. The defendant has no home and there is no evidence that any person within New South Wales will be able to provide him with support if he is released from custody. Before his recent incarceration he appears to have been an itinerant and the evidence before me indicates that he would be unlikely to establish a permanent residence upon his release.
77 The defendant resists the making of any order and submits that his current position where he has received little treatment and assistance is in large part due to the failures within the justice system. He submitted that he should not be kept in prison by reason of the fact that there are no community based treatment programs available and that effective rehabilitation is only available in prison. There are, no doubt, public policy, resource, and effectiveness issues which may explain why community based treatment is not available. It may also be that with the enactment of this legislation, further and considered thought needs to be given to whether or not community based treatment programs with appropriate supervision might not be made available. Those are matters which I could not begin to consider or resolve on this application. However, even if the defendant's complaint is justified, I am not satisfied it could prevail at this stage of the proceedings. I stress again that it will be necessary to explore all of these matters at a final hearing when consideration can again be given to whether or not effective ongoing treatment might be available under appropriate circumstances if the defendant is released.
78 Evidence was tendered of the possibility of confining the defendant's movements by including him in the electronic monitoring program. As that program is presently carried out, this would require him to have a permanent address with an available telephone landline. As I have indicated, there is no evidence that either facility would be available and accordingly, at present, the electronic monitoring program does not appear to be available.
79 As I have earlier indicated, I have also been provided with affidavit evidence from Mr Middlebrook, who is the chief superintendent of the Office of the Commissioner for Corrective Services. He has had responsibility for managing a special project which has developed satellite technology which may be able to be used to electronically monitor offenders. The system uses the global positioning system technology with which many people are familiar.
80 The evidence suggests that if such a system was available, it has the potential to provide more immediate knowledge of an offender's movements than the current electronic monitoring program. Apparently, it can be managed so as to alert the monitoring officer if an offender intrudes into what I referred to earlier as exclusion zones, which could include schools, parks, or other areas where children congregate.
81 Although the system would appear to have significant advantages beyond those provided by the electronic monitoring program, Mr Middlebrook identifies weaknesses, of which the most significant is that the system depends upon the offender keeping the GPS unit fully charged and carrying the unit whenever he is away from home base.
82 Mr Middlebrook has also given evidence that the system is not 100 percent reliable, and can be prone to signal problems related to time, location and weather factors. Weak signal locations or large buildings can allow an offender to remain untracked for considerable periods of time. Mr Middlebrook also indicates that the technology has not yet been tried in real time on offenders.
83 Having regard to the defendant's previous pattern of offending, I am not presently persuaded that electronic monitoring, in any form, would presently provide sufficient protection from the prospect of him re-offending. The evidence before me indicates that at best the available devices may, if functioning appropriately, alert the authorities to the fact that he has either left a designated location or has intruded into an area from which he has been prohibited, but it could be hours before he was subsequently located.
84 Given the pattern of his previous offences, and the fact that he, upon release, would not appear to presently have the prospect of a permanent home, the defendant would, in my opinion, have the opportunity to re-offend before he could be located.
85 The defendant's past behaviour does not suggest that he will accept the obligations as to his movements which might be imposed if he was released under supervision. Having regard to his antecedents, and the present state of the evidence, I am not satisfied that adequate supervision could be provided by an extended supervision order. The defendant, when last in the community, failed to report in accordance with the Child Protection (Offenders) Registration) Act 2000 (NSW) and has expressed a wish to disappear when released from custody. In my opinion a supervision order is not appropriate and, at this stage, an interim detention order must be made. However, I stress again that the findings which I have expressed are made having regard to the evidence which is presently available, all of which would require reconsideration at a final hearing where substantive orders are under consideration.
86 I make orders 1 and 2 in the summons.
87 I direct that the orders be entered forthwith and an appropriate warrant issued.
88 I have already stressed that any finding which I make today has been made having regard to the evidence presently before the Court on this interim application. It is important to recognise that the legislation contemplates that, that finding having been made, the Court will then appoint two qualified psychiatrists to conduct separate psychiatric examinations of the defendant and furnish reports to the Court. By that means, the legislation makes plain that, although a judge is required to form a view at the preliminary hearing stage, the decision which is ultimately required to be made is one which will be informed by two psychiatrists appointed by the Court.
89 It is also important to bear in mind that an offender who is the subject of proceedings in which a preliminary hearing has been held, also has the right to bring whatever evidence he or she may wish to tender to the Court to assist in the ultimate resolution of the application.
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