Conditions
87 It is necessary to consider what conditions should be fixed. Again, as I have said, there is controversy with respect to several proposed orders.
88 In approaching the question of conditions, I bear in mind what was said in State of New South Wales v Tillman [2008] NSWSC 1293 at [68], that the imposition of conditions which are considered appropriate involves the striking of a balance between relevant considerations, so as to provide an outcome which is fit and proper. I bear in mind, as well, that the imposition of conditions under this Act creates a statutory offence if conditions are breached. The consequence of the ordering of a condition emphasises the need for a proper basis to be demonstrated for the condition to be made in the first place.
89 Condition 2 seeks an order that the Defendant report personally once a week to the departmental supervising officer or otherwise as directed by that officer.
90 I am satisfied that an order in terms of Condition 2 should be made. This topic was touched upon in the oral evidence of Ms Hanna (pages 7-8 of transcript). It does not seem to me that this condition is vague, nor unduly onerous. The very process of reporting personally involves some element of flexibility. I am satisfied that Condition 2 ought be included amongst the reporting and monitoring obligations to be included in the order of the Court.
91 Proposed Condition 4 seeks a condition that the Defendant must not, for the period of the supervision order, commit any offence punishable by a period of imprisonment.
92 It was submitted for the Defendant that this condition is unnecessary. If the Defendant commits another offence, no doubt he will be dealt with for it by the appropriate Court. The imposition of a condition of this type, it is said, is not justified, having regard to the statutory purposes of the Act. The Plaintiff relies upon the decision of State of New South Wales v Carr [2009] NSWSC 813, where Hall J, at [38] and following, considered a condition of this type. In the end, his Honour included a condition in these terms as part of a final order, noting that there was evidence that there was some interrelationship between heightened risk factors in the Defendant in that case, and the commission of any offences.
93 In my view, a similar conclusion may be reached, at least on the interim basis, concerning the present Defendant. With respect to his serious sex offences in 2000 and 2001, there were surrounding non-sexual offences which appear to demonstrate aspects of instability and an association with drug and alcohol abuse, so that it can be said that that his non-sexual offending can be related to sex offending. This point has been made in the risk assessment report of Mr Sheehan. I note, of course, that the Defendant committed non-sexual offences in March 2010, which are to come up for sentence next month. In my view, the imposition of Condition 4 as a condition for this interim order is an appropriate exercise of power under the Act and I propose to include that condition.
94 Conditions 5 and 6 concern the proposed requirement that the Defendant wear electronic monitoring equipment and inform the departmental supervising officer of his movements 48 hours in advance.
95 Counsel for the Defendant placed emphasis upon the fact that an unsuccessful application was made to the State Parole Authority in June this year for the inclusion of such a condition as a condition of the Defendant's parole. I do not think that the decision of the State Parole Authority sheds any particular light on the approach this Court should take at this time on this application. This Court has before it a significant body of additional evidence, in particular, the report of Mr Sheehan which bears upon the issue of monitoring.
96 It is also submitted for the Defendant that there is simply no need demonstrated for such a condition, that the Defendant is now living with his family at his parents' house and is attending TAFE, and that conditions of this sort are simply not required. It is submitted that the Defendant is not in the class of offender of the type one sometimes sees in these applications, where there is a risk of sex offending against children, so that the location of a Defendant near a school or another place where children gather is of concern. It has not been contended for the Plaintiff that the Defendant is in that class of sex offender.
97 It is, however, submitted that there are aspects of his behaviour, including a pattern of life between September 2008 and May 2010 (and certainly in 2000 and 2001) where being out at places where alcohol or drugs could be consumed, where women were met, seemed to be a regular part of his life. There is also the explanation given in evidence yesterday by Ms Hanna (at pages 9-10 and 15 of the transcript) concerning what was said to be the necessity for electronic monitoring.
98 It was submitted for the Defendant as well that the wearing of an electronic monitoring device could prove embarrassing to the Defendant during his studies and generally, and that the question of whether a device ought be required at all could be left as a question to be addressed for the psychiatrists to report to the Court.
99 I have given careful consideration to the submissions on this issue. It is correct, as counsel for the Defendant submits, that if the Court comes to make an interim supervision order, an electronic monitoring condition is not an automatic part of that process. Whether a condition of that type ought be made depends upon whether it is necessary in the circumstances of the case.
100 I bear in mind a number of factors in this respect. Although there has been some stability on the part of the Defendant in recent months, there has been an earlier history, in my view, of significant instability involving the use and abuse of alcohol and drugs. There can be no certainty, of course, that that pattern will not repeat itself. It seems on the face of it, to be a fairly well entrenched pattern. I have regard as well to the pressures that the Defendant is under. Amongst other things, he has a sentencing hearing in the middle of October 2010.
101 Of course, the real question is: is the condition needed to serve the purposes of this Act; that is, to enhance protection of the public by reducing the risk of serious sex offending on his part?
102 I am persuaded that it is appropriate that this condition be included in the conditions which the Court will fix as part of the interim order. In this respect, I have regard in particular to the evidence of Ms Hanna (at page 10 of the transcript). I note, of course, that these conditions will not commence until 19 September 2010. No doubt, the psychiatrists who are called upon to report will consider this aspect, and the electronic monitoring issue may be considered in the light of what happens as a result of the order I will make. It seems to me, however, that given the history of the Defendant, and the volatility in his life in the last two years (albeit with a period of relative stability in the last four months), that conditions of this sort will serve the public interest, and the protection of the public, with respect to the risk of serious sex offending by the Defendant.
103 In my view, Condition 6 is capable of being fashioned in a way that will not create an onerous obligation on the Defendant. There appears to be some measure of predictability in his life, including attendance at TAFE. No doubt, otherwise he should be at home with his young family. Therefore, the notification of movements ought not be a significant problem. If there are particular urgent movements which are to be undertaken, as may well occur with a young child, then there is a process of communication which can be utilised. I do not think that these conditions are unduly onerous, and I am satisfied in the circumstances that they ought be included.
104 Proposed Condition 9 seeks that the Defendant be placed under a curfew.
105 It is submitted for the Defendant that he is not presently subject to a curfew, and that is the case.
106 There have been past problems when curfew conditions have been in place. This is not an argument against the use of a curfew condition. In fact, it seems to me that it is an argument in favour of it. For the purposes of this legislation, I am satisfied at this time that a curfew condition ought be included and Condition 9 will be included.
107 Condition 19 seeks a requirement that the Defendant give notice if he was to enter into a relationship with a woman. It is common ground that this proposed condition ought be amended in the form of an exception, given his current relationship with [XXX]. I will include a qualification to Condition 19 in the manner which has been proposed by counsel.
108 Condition 22 seeks that the Defendant accept psychological and psychiatric treatment and the taking of psychiatric medication if and as prescribed by a medical practitioner.
109 The fact is that the Defendant is not presently taking any psychiatric medication. The evidence before the Court on this application does not suggest that he is suffering from a condition which is likely to see the need for psychiatric medication. This is not a case where there is said to be any medication, relating to sexual urges, that may need to be considered.
110 In my view, the requirement that the Defendant take psychiatric medication ought be deleted from proposed Condition 22. If the psychiatrists who undertake the statutory examinations form the view that there is some appropriate need for psychiatric medication, no doubt that question can be revisited.
111 Proposed Condition 29 requires, in effect, the giving of consent by the Defendant to the provision of access to information.
112 It has been submitted for the Defendant that it is appropriate to exclude from Condition 29 the requirement that the Defendant consent to disclosure of protected information under s 194 Crimes (Administration of Sentences) Act 1999. I am satisfied that that restriction ought be included in Condition 29.
113 Accordingly, I am satisfied that an order ought be made for psychiatric examination by two psychiatrists of the Defendant, and that an order ought be made that the Defendant be subject to an interim supervision order from 19 September 2010.
[See transcript for further submissions concerning formal
aspects of order - Short minutes handed up]
114 HIS HONOUR: I make Orders 1 through to 8 in accordance with the terms of the order which I have signed and dated today. The signed copy will be sealed by my Associate.