State of New South Wales v Amacha

Relevant law

1. The primary object of the Act, contained in s 3(1), is to "provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community." Another object is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation: s 3(2) of the Act.
2. Section 7 of the Act prescribes pre-trial procedures upon the making of an application for an ESO. Relevantly, the Court must, if satisfied that the material in the supporting documentation would, if proved, justify the making of a high-risk sex offender ESO, make orders appointing two psychiatrists and/or psychologists (or a combination thereof) to examine the defendant and directing the defendant to attend to those examinations.
3. Section 10A of the Act provides that this Court, in proceedings for an ESO, may make an order for an ISO prior to the final hearing if it appears to the Court that the offender's current custody or supervision will expire before the proceedings are determined and that the matters alleged in the supporting documentation would, if proved, justify the making of a high-risk sex offender ESO.
4. Before the orders sought at the preliminary hearing can be made, I must be satisfied that the supporting documentation, if proved, would justify the making of a high-risk sex offender ESO. Section 5B(1) of the Act provides that an offender can be the subject of a high-risk sex offender ESO "if and only if" the offender is a "high risk sex offender." Section 5B(2) of the Act provides that an offender is a "high risk sex offender" if he 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…is not kept under supervision."
5. A "sex offender" is defined in the Act as a person over the age of 18 years who at any time has been sentenced to imprisonment for a serious sex offence: s 4. The definition of "serious sex offence" in s 5 of the Act, insofar it pertains to offences against adult victims rather than children, includes offences under Division 10 of Part 3 of the Crimes Act where the offence is committed in circumstances of aggravation; an offence under s 61K or 66EA of the Crimes Act; and an offence under ss 38, 86(1) (a1), 111, 112, 113 or 114 (1) (a), (c) or (d) of the Crimes Act that has been committed with intent to commit an offence under Division 10 of Part 3 of that Act where the offence intended to be committed is punishable by imprisonment for seven years or more.
6. The offender has been convicted of a number of sexual assaults, but only one of them is an offence that comes within the defintion of a "serious sex offence": the offence of maliciously inflict actual bodily harm with intent to have sexual intercourse contrary to s 61K of the Crimes Act. It is to be noted that the offence of sexual intercourse without consent contrary to s 61I of the Crimes Act does not fall within the definition of a "serious sex offence"; rather, it is an "offence of a sexual nature": s 5(2)(a) of the Act.
7. Section 5I(1) of the Act provides that an application for a high-risk sex offender ESO may be made only in respect of a supervised sex offender. A "supervised sex offender" is a sex offender who, when the application for an order is made, is, relevantly, in custody or under supervision while serving a sentence of imprisonment for an offence of a sexual nature: s 5I(2)(a)(ii) of the Act. The defendant is serving the balance of parole for an offence of sexual intercourse without consent, which is an offence of a sexual nature within the meaning of s 5(2)(a) of the Act. I am thus satisfied that the defendant is a supervised sex offender with the meaning of the Act and that he is in the final six months of custody/supervision.
8. The remaining test to be satisfied in ss 5B(2) and 10A of the Act is that the supporting documentation before me, if proved, would satisfy me to a high degree of probability that the offender poses an unacceptable risk of committing a "serious sex offence" (as described above at [8]) if he is not kept under supervision.
9. In order to determine whether this test has been satisfied, it is necessary to have regard to the supporting documentation.

Supporting documentation

1. An application for a high-risk sex offender ESO must be supported by documentation that addresses the mandatory considerations set out in s 9(3) of the Act and include a report (prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner) that addresses the likelihood of an offender committing a further serious sex offence: s 6(3) of the Act. The State formally read on its application two affidavits of Gareth Martin affirmed 24 February 2017 and 13 March 2017 respectively. Exhibited to the affidavit of 24 February 2017 was the supporting documentation upon which the State relied in its application.

The defendant's background

1. The defendant is 36 years old. He is the eldest of three sons. His parents migrated to Australia from Lebanon. His father is a taxi driver and his mother is a child care worker. They are members of the Druze religion, which is a minority group in Lebanon. The defendant grew up in Hurlstone Park. His parents worked hard and sent the defendant to an expensive private school. The defendant has complained that he was the only student of Lebanese background at the school and thus felt like an outcast. Both of his brothers studied economics at university. Most of his extended family resides in Lebanon. The defendant is rarely visited by any of his family members in gaol. His parents are apparently not aware of why he is in custody and the defendant has refused to consent to officers from Community Corrections to speak with them.
2. The defendant completed his HSC and briefly commenced studying Economics at the University of Wollongong before he discontinued his studies. He commenced an apprenticeship in spray painting, which he discontinued, and also was able to obtain a forklift drivers licence. Although he has been employed over the years, his employment has mainly been on a temporary basis. While on parole recently he was only able to obtain some irregular casual employment.
3. The defendant has reported commencing cannabis use at the age of 15. He has also reported using amphetamines and MDMA and is prone to drink to excess. The index offences were committed while he was intoxicated and under the influence of cannabis.
4. The defendant first came into contact with the law when he stole a motor vehicle at the age of 17. Thereafter he acquired a lengthy and diverse criminal history that includes convictions for driving offences, robbery armed with a dangerous weapon and assault occasioning actual bodily harm. He was first imprisoned when he was sentenced to six months' imprisonment for driving offences at the age of 24. He had no convictions for sex offences before committing the index offences at the age of 26.
5. The defendant has reported problematic relationships with women throughout his life. His first relationship ended when he was 19 because she wanted to get married. His second relationship ended in circumstances of domestic violence. That break up was resisted by the defendant. His third relationship was with a Spanish woman residing in Queensland with whom he communicated over the internet and never actually met in person. Material before me indicates that most of his sexual relationships with women have been "one night stands."

The 'index' offences

1. On 1 May 2009, Puckeridge QC DCJ sentenced the defendant in relation to three counts of sexual intercourse without consent contrary to s 61I of the Crimes Act and one count of maliciously inflicting actual bodily harm with intent to have sexual intercourse contrary to s 61K of the Crimes Act. Those offences occurred in Paddington and his Honour referred to them as the "Paddington offences." The defendant's conviction for the Paddington offences followed a trial.
2. His Honour found the facts of the Paddington offences in accordance with the evidence given by the complainant at trial. In the early hours of 29 September 2007, the defendant and the complainant met at the Oxford Hotel on Oxford Street. His Honour found that there was contact between the defendant and the complainant inside the Hotel, although the evidence of the complainant was that the offender "came out of nowhere" while she and a friend were waiting outside the Hotel for a taxi. She gave evidence that she was intoxicated and in a "terrible condition". The defendant, the complainant and a friend of the complainant got into a taxi together. The complainant's friend then left the taxi because he was "sick of comments by [the defendant] that he loved the defendant and sick of the complainant saying to the offender to leave her alone."
3. The complainant changed taxis twice to try to get away from the defendant, but he followed her. She was very drunk and recalled little. A taxi took her and the defendant to her apartment in Paddington. The complainant remembered passing out on her bed and waking up later with the defendant undressed beside her. She got up to get a glass of water and then go to the bathroom, but the defendant kept telling her to stay in bed. He forced the door of the bathroom open. The complainant went back to bed because she was scared of the defendant. The defendant asked for oral sex and she refused. The defendant again demanded oral sex and said that afterwards he would leave. The complainant relented. The defendant said to her, "suck [my] cock till I come."
4. The defendant then demanded that the complainant "suck his cock" again. He said, "Make me come or I'll hit you." The complainant said no. The defendant replied, "Suck me or I'll break your face." She again said no, but then commenced performing fellatio on the defendant because she was scared and he had become aggressive.
5. The defendant said to the complainant, "I want to fuck you." A "fight" broke out, which started when the defendant hit the complainant in the face with his fist. The defendant hit the complainant about the face several times. (This was the conduct the subject of the count of maliciously inflict actual bodily harm with intent to have sexual intercourse contrary to s 61K of the Crimes Act). The complainant started to scream for help. The defendant said, "Shut up or I'll break your face." The complainant gave evidence that she was strangled.
6. The complainant again told the defendant to leave her apartment after he had told her to stop screaming. He said that he would go and asked her not to call the police. She was crying. The defendant asked her to "suck [his] cock" again before he left and the complainant refused. She said, "No, no. I just want you to leave. Please leave, please." He responded, "Suck me off or I break your face." She against relented because she was afraid of the defendant. The police arrived as another physical altercation between the defendant and the complainant was breaking out.
7. The defendant's case was that the sexual intercourse was consensual. He claimed that he acted in self-defence in a "fight" with the complainant.
8. At the same time as the defendant was sentenced for these offences he was also sentenced in relation to two counts of sexual intercourse without consent to which he had entered pleas of guilty. His Honour referred to those offences as the "Miranda offences". They were the subject of agreed facts, which his Honour summarised as follows (which summary was extracted in the subsequent judgment of the Court of Criminal Appeal in Amacha v R, R v Amacha [2010] NSWCCA 180 at [26]): "The agreed facts show that the offence occurred on 5 May 2007. The complainant and the offender met at the Zanzibar Nightclub in King Street, Newtown. The agreed facts show that the complainant and a number of her friends attended the nightclub on that date and that whilst at the nightclub she had a conversation with the offender, who she had not met before. The offender provided the complainant with his mobile telephone number and shortly after that the complainant and her friends left the nightclub. In the course of driving a friend home she was contacted by the offender and they arranged to meet. The complainant then picked up, according to the agreed fact, the offender and drove to Canterbury where they purchased some cannabis and then drove to the complainant's premises at Miranda. The cannabis was consumed and the offender, after consumption, went into the complainant's bedroom and got onto the bed. The agreed facts state that the offender made the complainant put his penis in her mouth and said, "Suck me off, suck me off." The agreed facts state that the offender was not physically violent with the complainant but his attitude led her to conclude that she had to perform oral sex on him. The agreed facts also state that the complainant started to cry after the offender stated to her that he wanted to 'to fuck' her. When she started to cry the offender said, 'Well, just suck my cock. Suck me off and make me come.' The complainant, according to the agreed facts, carried out oral sex on the offender whilst they were lying on the bed and at the time she carried out such act was still crying. She drove the [offender] to his address at Canterbury and before she left - or before he left the vehicle another act of sexual intercourse occurred in nature of fellatio. The conduct which occurred in the complainant's home is the subject of count 1 of the indictment. The conduct which occurred in the complainant's home is the subject of count 1 of the indictment. The conduct of the offender in the complainant's vehicle is in [sic] the subject of Count 2."
9. The offender also slapped the complainant across the face with the back of his hand while at the complainant's home. An offence of common assault was placed on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
10. In relation to both the Paddington and Miranda offences, his Honour imposed a total effective sentence of imprisonment for nine years, to commence on 29 September 2007 and to expire on 28 September 2016, with a non-parole period of seven years and four months, to expire on 27 January 2015.
11. The sentencing judge observed that the defendant does not appear to have accepted responsibility for his actions and will need to obey any parole directions concerning anger management and drug and alcohol counselling.
12. Both the defendant and the Crown subsequently appealed to the Court of Criminal Appeal. The Court (Allsop P, Grove and Hislop JJ agreeing) dismissed the defendant's sentence appeal and allowed the Crown appeal in part. In dismissing the defendant's appeal, Allsop P found at [53] that, "The offences involved violent and brutal physical and sexual aggression." The sentences imposed upon the defendant by Puckeridge DCJ were set aside and lengthier sentences substituted for some offences. The effect of the defendant's resentencing is that his head sentence for the last of the Paddington offences (sexual intercourse without consent contrary to s 61I of the Crimes Act) is to expire on 28 March 2017.

CUBIT report

1. The supporting material included a detailed Custody Based Intensive Treatment ("CUBIT") Report dated 31 March 2016 under the hand of Aimee Press, forensic psychologist. The CUBIT programme is a six - ten month residential therapy programme for sex offenders. It took the defendant a period of over 20 months to complete CUBIT. Ms Press reported that the delay was attributable to a combination of issues, including the length of time taken by the defendant to produce written work, resistance to feedback, minimisation, and difficulties engaging with others. He was reported as displaying a pattern of "impression management." That is, he was considered to be more concerned with making a good impression than actually absorbing the content of the programme.
2. The report records that the defendant provided justification for the sexual offences that focused on minimising his responsibility. It is noted in that report that the defendant does not accept that he still poses a risk and that he is hindered by a desire to be seen as treated and changed. It is reported that he has attributed responsibility elsewhere and rationalises his actions.
3. An analysis of the defendant's risk of sexual recidivism was undertaken for the purpose of the report. It concluded that the defendant was in the very high priority category for supervision and intervention.

Conduct whilst in custody

1. The defendant was in custody from 29 September 2009 until 7 April 2016, at which time he was released to parole. He was arrested on 8 December 2016 for further offences and his parole was treated as revoked on 6 December 2016.
2. The defendant has committed 11 breaches of discipline while in custody, including possession of prohibited goods, fighting, intimidation, and damage to property. He has been described by staff as having a "very poor attitude" and as being argumentative, non-compliant and difficult to manage. He has also been described as having a poor attitude when he does not get his own way and being aggressive and intimidating to officers.
3. His general conduct while at Junee Correctional Centre was described as unacceptable between 2011 and 2013. He was transferred from Junee back to the Metropolitan Special Programs Centre (MSPC) in July 2013 to enable visits from his family based in Sydney. His conduct upon transfer was described as poor. He was reluctant to follow directions and had difficulty associating with other inmates. His conduct was described as being improved and more settled prior to his release on parole.
4. It is to be noted that, when he was arrested for his recent matters on 8 December 2016, he was described as being agitated and non-compliant whilst in police custody

Risk Assessment Report

1. An application for a high-risk sex offender ESO must include a report (prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner) that addresses the likelihood of an offender committing a further serious sex offence: s 6(3) of the Act. The supporting documentation includes a report of Dr Richard Parker dated 2 December 2016 that satisfies this criterion.
2. Dr Parker was impeded in his assessment of the defendant's level of risk by the defendant's failure to attend for examination. The defendant did not refuse to attend to see Dr Parker, but instead kept re-scheduling until Dr Parker ran out of time and had to prepare the report without a meeting with him. Dr Parker summarised the defendant's history and then turned to consider the risk of his reoffending.
3. Dr Parker noted that it is not scientifically possible to predict accurately whether or not an individual offender will or will not reoffend. The best that can be offered is an estimate that is anchored in empirical literature specifying features associated with risk. Dr Parker conducted the STATIC-99R test, which is an instrument designed to assist in the prediction of sexual recidivism for individuals charged with or convicted of sexual offences. Dr Parker concluded that when compared to other adult sex offenders the defendant's score is in the 94th percentile. That means that roughly 92% of sex offenders scored lower than he did and roughly 4% scored higher.
4. Dr Parker also used the STABLE-2007 test, which is an actuarial tool developed to assist clinicians to identify stable dynamic risk factors for sexual reoffending. The defendant's score on this test was 13 out of a possible 24, which Dr Parker classified as "high." Dr Parker combined these two tests to generate an overall "very high" risk level.
5. Dr Parker opined that, so long as the defendant is unable to form stable intimate relationships, he will continue to seek sexual gratification through impersonal encounters such as the situations that led to the index offences. Dr Parker also raised, apparently for the first time, the possibility that the defendant may suffer from Asperger's Syndrome. He noted that such a condition can be difficult to diagnose in adults. He indicated that he is not experienced in that area and was not in a position to make a diagnosis, but identified factors such as the defendant's social impairment, narrow interests, compulsive need for introducing routines and interests, and speech, language and non-verbal communication problems as being potential indicators of Asperger's Syndrome.
6. Dr Parker's conclusion was that the defendant is at a high risk of committing further sexual offences. He is of the view that a return to the defendant's previous lifestyle, involving regular substance abuse and casual sexual relations, would be "highly concerning." He indicated that there is the potential for such relationships to involve complex issues of consent at a time when both parties are under the influence of mind-altering substances. Dr Parker concluded that it is considered likely that the defendant would resume a lifestyle similar to that which preceded the index offences.

Other reports

1. Included in the supporting documentation was a report from Mahmoud Elsayed, Community Corrections officer in the ESO team at CSNSW. He set out the defendant's history of supervision and then addressed how best to meet the defendant's risk factors. This report addresses similar risk factors as identified by Dr Parker; namely, attitude, self-regulation, intimacy deficits and substance abuse. The report recommended weekly interviews, field visits, monitoring of schedules and curfews, non-association and place restrictions, referral to psychology services, referral to psychiatric services, referral to alcohol and other drug services, and alcohol and drug testing.
2. I note that the defendant was seen by Dr Bruce Westmore, psychiatrist, in 2008 for the purpose of his sentencing proceedings for the index offences. He concluded that the defendant needed to attend a sex offenders' programme to acknowledge his offending behaviour, to attend drug and alcohol counselling and to address his problems with anger management and rejection.

Previous response to supervision

1. The defendant was first sentenced to a recognisance in July 1997 in relation to possessing implements and taking and driving a conveyance without consent. He breached that bond in January 1998 when he committed a robbery in company and with a dangerous weapon. He later received a 12 month supervised bond on 1 October 1998 following a goods in custody conviction. Although he was reported as responding favourably to that order, he subsequently breached it in July 1999 when he was charged with two counts of possessing prohibited drugs and other offences. He also received a supervised bond on 16 August 2000, which he breached in November 2001 by committing an offence of assault occasioning actual bodily harm.
2. When the defendant was subject to bail in 2001 and 2002, he failed to report as directed during that time.

Conduct while on parole: breach of parole report

1. The defendant was released to supervision on parole on 7 April 2016. His response to supervision was described as "hostile." His interactions with community corrections, his treating psychiatrist and other service providers were considered to be of concern. He was described as argumentative and as lacking insight into his offending behaviour.
2. On 3 August 2016, his treating psychologist considered that the defendant presented as an acute risk of reoffending given his hostility towards women. In June 2016, the defendant was issued with a formal written direction to adhere to a curfew between 11pm and 5am due to his suspicious activities around numerous restaurants, clubs and pubs. He was unable to provide credible reasons for such loitering and he apparently signed the written direction with reluctance on 29 June 2016.
3. The defendant was directed to commence psychiatric intervention as a condition of parole. When he did, he disclosed that his treating psychiatrist had recommended that he cease using medication. This was subsequently found to be untrue. The psychiatrist disclosed that the defendant was intimidating and that there would be no therapeutic alliance between them. He refused to see him again, noting that when the defendant does not get his own way he "escalates."
4. On 5 September 2016, the defendant's supervision was transferred to a male officer. The defendant informed the officer that he viewed women as "sexual objectification" and was particularly fixed on women's breasts.
5. The report concluded that the defendants "embedded sense of self entitlement towards females appears to remain entrenched within him." A decision was subsequently made to revoke the defendant's parole, quite apart from his further arrest for the pending charges, due to breach of a condition that he undertake psychiatric assessment and counselling.

The defendant's mental health

1. The defendant has described suffering depression and anxiety since 2002. Leading up to the index offences, he was taking Arapax three times a day. He has been prescribed Avanza in custody to help with mood and sleep. In early 2016, he was prescribed escitalopram (anti-anxiety medication) daily. As stated above, the defendant stopped taking his medication soon after being parole, deciding that it was unnecessary. He only recommenced taking it when reminded that it was a condition of his parole.

The pending charges

1. Included in the supporting documentation is the police facts sheet in relation to the defendant's pending charges. The victim of those charges is a 26-year-old woman whom the defendant had met three days earlier and with whom he had become intimate. It is alleged that he rang her at work on 6 December 2016. She told him that she could not speak to him as she was working, but he continued to call her. He said to her, "If you don't answer the phone and talk to me I'm going to come into your work, I don't give a fuck who is in there and what you are doing."
2. She subsequently met the defendant near her place of work that afternoon. He demanded her telephone. When she refused to give it to him he snatched it and said "no you fucking bitch you can't tell me what to do." He then asked for money and when she refused to give him any (as she did not have it to give) he became agitated and swore at her, saying, "you're a dog give me the money I don't care about anyone I will kill you, your mum, your dad, your brother I don't give a fuck." She asked him to stop shouting at her and asked him to give her phone back. He pushed her away and when she went to go he grabbed her shoulder and then her arms. She was scared. He said to her "I don't care I will fucking slap you give me the money." He then pushed her and said "stop give me the money you fucking bitch." During the struggle she fell to the ground and grazed her knees. She went to police because she feared that he would assault her again and because she wanted her phone back.
3. He has been charged with demanding property with menaces, stalk/intimidate and common assault. The defendant denies these offences and they are listed for a defended hearing on 7 April 2017.

Consideration

1. In this matter, I am satisfied that the material in the supporting documentation would, if proved, justify the making of a high-risk sex ESO. That is, I am satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he…is not kept under supervision."
2. That standard of proof is higher than the civil standard but lower than the criminal standard. The determination as to whether the risk is unacceptable is an evaluative task: Lynn v State of New South Wales [2016] NSWCA 57 at [51] per Beazley P. As Basten JA pointed out in Lynn at [124], the statutory exercise involves four steps which are interlocking. His Honour observed: "The exercise required by the statute in considering an application for an extended supervision order can be broken down into four steps, which are not appropriately described as temporal stages, one consequent on the other; rather, they interlock. The steps are to identify (i) the nature and seriousness of the risk posed by the offender with respect to further serious violence offences, (ii) the appropriate conditions which might be imposed as part of an extended supervision order, (iii) the likely effect of such an order in removing or diminishing the risk and (iv), if an order is otherwise appropriate, whether there are factors personal to the offender which would militate against making the order."
3. The supporting documentation demonstrates that the defendant has committed sexual offences in the past. He has completed CUBIT but still appears to lack insight into his offending behaviour. He has mental health issues and possibly Asperger's Syndrome. His response to supervision has been mixed over the years, but problematic in recent times. Following his most recent parole, his response was described as "hostile." The index offences were committed when the defendant was intoxicated and under the influence of cannabis. He has a sense of entitlement when it comes to women and sexual relationships. As Dr Parker notes, if he were to adopt the same lifestyle as prior to the index offences he will place himself in situations which would be "highly concerning."
4. Even having regard to the limitations inherent in any predictors of risk, the defendant has been described as having a very high risk of re-offending. He has certainly had limited insight into his offences in the past and plainly has trouble relating appropriately to women. It is of concern that the defendant has recently been charged with offences of violence said to have been committed in the context of an intimate relationship, albeit they are not of a sexual nature.
5. The question for my determination involves consideration of the Court's task at the final hearing, thus I am required to have regard to the factors in s 9(3) of the Act. I have had regard to all of the factors in s 9(3) of the Act. I have set out the material relevant to each of those considerations above. In particular, I have had regard to the safety of the community, the relevant reports, the results of the risk assessments, and the report prepared by Corrective Services as to the extent to which the offender can reasonably and practicably be managed in the community. I have also had regard to the programs he has already undertaken, including CUBIT, and his willingness to participate in any such programs, his compliance while on parole, his criminal history, the views of the sentencing court, and the other material before me.
6. It is to be noted that in order to be satisfied that the defendant is a high-risk sex offender I must be satisfied that he poses a risk of committing a "serious sex offence", not just an offence of a sexual nature. I have had regard to whether there is an unacceptable risk, to a high degree of probability, that he would commit an aggravated form of a sexual offence or another offence contrary to s 61K of the Crimes Act such as that he has already committed. Despite the fact that he has only committed one such serious sex offence before, I am nonetheless satisfied to the requisite standard that he is a high risk sex offender, taking into account all of the material before me and in particular his attitude to his offending, the facts of the index offences, the risk assessments, his attitudes to women, his history of offences of violence and his poor response to supervision. I note that one circumstance of aggravation for sexual assault involves the use of violence. The defendant exhibited violence to both victims of sexual assault in 2007. In addition, his pending charges also involve violence on his most recent sexual partner. I am satisfied to a high degree of probability that, if the defendant is not supervised, there is an unacceptable risk that he will commit a serious sex offence.
7. I note the operation of s 10C(1A) of the Act, which provides that an ISO is suspended during any period in which the defendant is in lawful custody. Section 10C(3) provides that any day or part of a day on which an ISO is suspended does not count towards the three-month limit referred to in sub-s (2). If the defendant is convicted at his hearing and remanded until sentence or receives a custodial sentence, it may be that he remains in custody until the final hearing in this matter in any event. It is simply not known what will occur on 7 April 2017 and, as an order such as this must be sought while the defendant remains a supervised sex offender, it has been necessary for the State to seek these interim orders.

Proposed conditions

1. Having concluded that the defendant should be made the subject of an ISO for 28 days, s 11 of the Act provides I may direct the defendant to comply with such conditions as I consider appropriate. Some directions are set out in s 11 of the Act. The conditions I impose must be specifically designed to address issues relevant to the currently identified risk factors in relation to future serious sex offending, rather than general offending. Moreover, such conditions cannot be unjustifiably onerous or simply punitive. I have had regard to the relevant legal principles extracted at [37] - [46] of Wilde v State of NSW [2015] NSWCA 28.
2. In imposing supervision conditions the court must be mindful that it is an offence to breach a condition of an ISO. Accordingly, the State must demonstrate that there is a proper basis for the making of the conditions in the first place. It is also important that the conditions are in clear terms so that the defendant knows what he must do and what he must refrain from doing.
3. The proposed conditions sought by the State are attached to the amended summons.
4. The parties were ultimately able to resolve most of their disagreements regarding the appropriate interim orders prior to the hearing, leaving only two areas of dispute before me.
5. The first dispute concerned whether condition 10 should be imposed. That is a curfew condition that provides that, "The defendant must be at his approved address between 9:00pm and 6:00am unless other arrangements are approved by the DSO." It was submitted on behalf of the defendant that there would already be a condition requiring the defendant to provide his schedule of movements to his DSO. In addition, other conditions preclude him from visiting certain types of premises. It was submitted that those conditions would suffice and that the addition of the curfew condition was unnecessary. Counsel for the State, on the other hand, submitted that those conditions do not completely cover the same proposed concerns.
6. I have had regard to the relevant risk as outlined in the material before me. In particular, I have had regard to the defendant's recent conduct while on parole. It is of concern that, in June 2016, a condition had to be imposed on the defendant as a condition of his parole to remain in his place of residence between 11pm and 5 am. The Breach of Parole report to which I have had regard described the defendant as engaging in "suspicious activities between these hours around numerous restaurants, clubs and pubs" and he was unable to provide credible reasons for such loitering.
7. I consider that condition 10 is necessary and appropriate. It is a condition in simple terms that would be easy for the defendant to comprehend. It is a condition to which he has already been subject while on parole. I am satisfied that it is necessary and not unduly onerous.
8. The only remaining dispute was in relation to the last six proposed conditions, which pertain to medical intervention and treatment. Those conditions are set out in the attached orders and I do not repeat them here. The dispute was not as to whether those conditions were necessary. Rather, it turned on the appropriate wording of the conditions.
9. Ms Cook, on behalf of the defendant, submitted that the words "if directed" should be added before each of the six conditions. She submitted that the addition of these words is appropriate to provide clarity to the defendant as to his obligations. She stated that the addition of the words does not make the conditions more onerous. She further submitted that the absence of the words would hinder the defendant's rehabilitation. During submissions, Ms Cook did not press for the words to be added to conditions 46, 47 and 48, but pressed her application regarding conditions 45, 49 and 50.
10. Ms Callan on behalf of the State resisted the addition of the words "if directed" to the conditions pertaining to medical treatment on the basis that they would add an undesirable ambiguity or gloss in respect of conditions where clarity is a high priority. This was particularly so in the present case, it was submitted, given the defendant's response to supervision to date. It was important that the language of these conditions be sufficiently clear, given that any breach of them would be a breach of the ISO and accordingly an offence. Ms Callan opposed the addition of the words on the basis that it made the conditions less clear and more confusing, not because it was considered that the addition of those words "watered down" the conditions.
11. I accept the submissions made by both parties that it is crucial that the terms of any conditions be sufficiently clear so that the defendant fully understands his obligations. I do not accept that it would make it easier for the defendant to understand his obligations under the ISO by adding the words "if directed" before each of conditions 45, 49 and 50. The orders in their current terms make clear the defendant's obligations. No doubt that will be explained to the defendant. Accordingly I do not propose to add the words "if directed" to conditions 45, 49 and 50.
12. Ms Cook submitted that the words "with informed consent" should be added to to condition 47. Ms Callan submitted that the addition of the words was not necessary.
13. The condition in its current form requires the defendant to take medication "that is prescribed to him by his healthcare practitioners." I have considered whether the addition of the words is necessary. Conditions requiring persons to take their medication as directed by their health professionals are not only routinely imposed as conditions of ISOs and ESOs but also as conditions of parole and bail. Such a condition does not give the DSO authority to force the defendant to take medication against his will. Rather, that stage of the process is one that occurs between the health practitioner and the defendant. A health professional cannot prescribe medication to a person without his or her informed consent. The defendant has been under a similar condition in the past. He stopped taking his prescribed medication while on parole, but resumed taking it once he was informed that he would be in breach of his parole if he did not take it.
14. I ultimately did not need to resolve this issue as a note was sent to my Chambers after the hearing on behalf of the State withdrawing its opposition to the addition of the words. Accordingly, I propose that the terms of condition 47 be "the defendant must take all medications that are prescribed to him, with his informed consent, by his healthcare practitioners."
15. For completeness I confirm that I do not propose to impose condition 17 as it is too unclear and thus would pose difficulties in compliance. When I raised my concerns in that regard, counsel for the State did not press condition 17.
16. I propose to make all of the other interlocutory orders sought by the State, including the setting of a timetable and the fixing of a hearing date. Such a course was agreed upon by counsel for the defendant.

ORDERS

1. I make the following orders: 1. Pursuant to s 7(4)(a) of the Crimes (High Risk Offenders) Act 2006 ("the Act"), the Court appoints qualified psychiatrist, Dr Jeremy O'Dea and registered psychologist Jenny Howell to conduct separate psychiatric and psychological examinations, respectively, of the defendant and to furnish reports on the results of those examinations to the Court by no later than 5:00 pm on 3 May 2017. (1(a)) The parties have leave to approach my Associate to vary the court appointed experts if required. 2. Pursuant to s 7(4)(b) of the Act, the defendant is directed to attend examinations by the Court appointed psychiatrist and psychologist named in Order 1. 3. Pursuant to s 10A of the Act, that the defendant be subject to an interim supervision order to commence on 28 March 2017, for a period of 28 days. 4. Pursuant to s 11 of the Act, the defendant is directed to comply with the conditions set out in the Schedule attached to these Orders for the duration of the interim supervision order made in Order 3. 5. That the plaintiff file and serve any further evidence on which it intends to rely by 5:00 pm on 3 May 2017. 6. That the plaintiff file and serve written submissions on which it intends to rely by 5:00 pm on 5 May 2017. 7. That the defendant file and serve any further evidence on which he intends to rely by 5:00 pm on 12 May 2017. 8. That the defendant file and serve written submissions on which he intends to rely by 5:00 pm on 16 May 2017. 9. That the plaintiff file and serve any submissions in reply by 5:00 pm on 19 May 2017. 10. That the matter be listed for hearing on 22 May 2017 at 10:00 am with an estimated duration of 2 day(s). 11. Pursuant to s 77 of the Crimes (Administration of Sentences) Act 1999, the Commissioner of Corrective Services is directed to cause the defendant to be produced at the Court, or via audio-visual link, for the final hearing on 22 May 2017 unless the Court otherwise orders. 12. The parties have liberty to apply to relist the matter on one working days' notice. 13. The Court notes that the plaintiff proposes, if required to exercise liberty to apply to bring the matter before a Duty Judge if the Interim Supervision Order referred to in Order 3 is to expire before the final hearing of this matter. SCHEDULE OF CONDITIONS OF SUPERVISION ROBI ALVIN AMACHA Departmental Supervising Officer (DSO) Corrective Services NSW (CSNSW) *Any reference to DSO includes any other employee of CSNSW who may also supervise the defendant from time to time Part A: Reporting and Monitoring Obligations Monitoring and Reporting
2. The defendant must accept the supervision of CSNSW until the end of the Order.
3. The defendant must report to the DSO as directed by the DSO.
4. The defendant must follow all reasonable directions given by his DSO. Electronic Monitoring
5. If directed, the defendant must wear electronic monitoring equipment as directed by the DSO. Schedule of Movements
6. If directed, 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 once it is approved by 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 approved schedule of movements except in an emergency.
9. The defendant must truthfully answer questions from his DSO 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 9:00pm and 6:00am unless other arrangements are approved by his DSO.
12. The defendant must allow his DSO to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.
13. The defendant must not spend the night anywhere other than at 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, unless that person is a member of the defendant's immediate family. 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 of CSNSW.
17. The defendant must not go to a place if his DSO tells him he cannot go there.
18. DELETED 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. Part E: Drugs and alcohol
21. The defendant must not possess or use alcohol or illegal drugs, and he must not possess or use prescription medication other than as prescribed.
22. The defendant must submit to testing for drugs and alcohol as directed by his DSO.
23. The defendant must not enter or loiter around any licensed premises (with the exception of cafes and restaurants where alcohol may be sold) without the approval of his DSO.
24. 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. Part F: Non-association Associations with Others
25. The defendant must not contact or associate with any victims of crimes for which the defendant has been charged and convicted, or with people that his DSO tells him not to.
26. The defendant must not associate with any people who he knows, or ought reasonably to know, are consuming or under the influence of illegal drugs.
27. The defendant must not associate with any people who he knows, or ought reasonably to know, are consuming or under the influence of alcohol without the approval of his DSO.
28. The defendant must not engage the services of sex workers without the approval of his DSO.
29. If the defendant intends or plans to start an intimate or sexual relationship with someone, he has to tell his DSO. The DSO may disclose the defendant's criminal history to that person if the defendant refuses or fails to do so.
30. 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: Access to the internet and other electronic communication
31. If directed, the defendant must give his DSO a list of all devices, services and applications he uses to communicate with others 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 and relevant passwords and codes, used by the defendant and the nature and details of the internet connection, as directed . The defendant must advise the DSO of any change to the inventory, or any of these details, immediately.
32. The DSO may remotely inspect any internet account used by the defendant, including the defendant's email addresses, in monitoring compliance with this order.
33. The defendant must obey any reasonable directions by his DSO about the use of phones, tablet devices, data storage devices, computers and other devices, including any reasonable directions relating to his access to the internet.
34. The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO. Part H: Search and seizure
35. If the DSO believes on reasonable grounds 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.
36. 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.
37. During a search carried out pursuant to condition 34 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, 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.
38. The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use.
39. 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 34 to 37 above. Part I: Access to pornographic, violent and classified material
40. The defendant must not, without the approval of his DSO, 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 J: Personal details and appearance
41. The defendant must not change his name from "Robi Alvin Amacha" or use any other name without the approval of his DSO.
42. The defendant must not use any alias, log-in name, or a name other than "Robi Alvin Amacha" or use any email address other than those known to the DSO under condition 30 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email.
43. The defendant must not permanently change his appearance without the approval of his DSO.
44. The defendant must let CSNSW photograph him.
45. 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 K: Medical intervention and treatment
46. The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults.
47. The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend.
48. The defendant must take all medications that are prescribed to him, with his informed consent, by his healthcare practitioners.
49. 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.
50. 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.
51. 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 20 June 2017 - In paragraph [19], the word "grievous" deleted and replaced with "actual". 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: 20 June 2017