The defendant is a 31 year old Indigenous man. He comes from a troubled background and difficult childhood. His parents separated at an early age (although they have reconciled subsequently) and he lived with his grandfather until he was 10. He was placed in the care of the State thereafter.
The defendant has an extensive criminal history which commenced in 2002 when he was only 11 years old. Although much of the offending might be described as minor, some of the offending involved violence, including domestic violence as well as property theft or damage. Further, it is apparent from his criminal history that he has had difficulty complying with bail or parole conditions.
Whilst he completed primary school, he experienced difficulties in high school. He informed a psychologist, Mr Patrick Sheehan, in 2015 that he had been placed in a special class. He says he commenced using cannabis in Year 7. It seems that he left school around that time. He has not undertaken any education since early high school.
He has never had a paid job. According to Mr Sheehan, he described having a lifelong association with persons where crime and criminal activity were considered normal.
He has had relationships including a number of intimate relationships.
His most significant relationship was with the daughter of the person who he came to assault on 18 August 2013, the assault being the subject of the index offence. She was living with her mother at that time. They had a child who was four years old in 2013.
In 2011 the mother of that young woman obtained an apprehended domestic violence order for her protection. On 18 August 2013 the defendant attended at the mother's home, albeit the young woman was not there. An altercation took place and the defendant struck the mother in the face and head several times. A friend of the mother arrived at the house some time later and observed her lying on the couch bleeding. The defendant was still there. The defendant commenced assaulting the mother again, kicking her in the stomach, hitting her and punching her in the head. When she fell to the floor, the defendant continued to kick her. He then became involved in a fight with the friend. It seems that there was some issue between them relating to the defendant's young son.
When the Police arrived, the defendant was still at the premises. He was holding his son as well as a knife. He was observed to hold the knife near the child's throat and yell, "I've barricaded the house, fuck off or I'll kill them all". A stalemate ensued. At some stage a Police Officer entered the premises. The defendant responded by grabbing the mother by the hair and using her as a shield. He again threatened to kill her and pushed a knife towards her throat. He also kicked, punched and elbowed her.
It is only necessary to say that the violence that happened inside the premises that day was significant. It involved the use of a knife as well as acts of violence over an extended period.
The mother was diagnosed with a traumatic brain injury. She suffered a fractured eye socket. She remained in intensive care for 14 days.
The defendant was sentenced to an aggregate sentence of 7 years and 9 months imprisonment with a non-parole period of 5 years and 6 months for the index offending. His total sentence expires on 18 May 2022.
The defendant was released on parole on 22 February 2022. Since being on parole, he appears to have complied with his conditions of parole.
He has sought assistance from Dignity Limited (Dignity), a not for profit organisation that provides services to persons at risk of homelessness. I am in receipt of a letter from the Operations Manager of Dignity dated 6 April 2022. The defendant arrived at Dignity on 22 February 2022. The Operations Manager, Gabrielle McPherson, says that the defendant has been forthright about his history. He has been assisted by support workers who manage his temporary accommodation. As of 13 April 2022, he has moved into his own accommodation which he will lease for a period of 12 months.
Further, he has been offered 20 hours per week employment with a corporate partner of Dignity. He is hoping to obtain a forklift operator's licence.
It is apparent that the support that he has received from Dignity has been beneficial to him.
An officer from Community Corrections has suggested that Community Corrections has no concerns about the defendant at this time. He has started his TAFE course and is undertaking a Certificate III in Warehousing, attending 4 days per week for 6 weeks. It seems that he is guaranteed employment on completion of the course. He is said (by the officer) to be committed and focused.
According to Mr Sheehan, the defendant's intellectual functioning is at the lower end of the range. His background is characterised by cross-generational disadvantage, deprivation and antisocial behaviour that is commonly observed in men with persistent and diverse adult offending. His prospects may be improved by both participation in institutional programmes and through stable accommodation.
These views are supported by Holly Cieplucha, a Senior Psychologist in the Serious Offenders Assessment Unit at the Long Bay Correctional Complex. Ms Cieplucha identifies a number of criminogenic needs or risk factors which are relevant to his risk of violent reoffending. They include:
1. His violent lifestyle;
2. Violence during institutionalisation, criminal associations and weapon use;
3. His general aggression and impulsivity;
4. His lack of insight into violence;
5. His substance abuse; and
6. His lack of community support.
She says that serious violent offending would most likely occur in response to situational stresses related to an intimate relationship that he might form. He is in the high risk range for violent reoffending.
To improve his chances of a successful reintegration into the community, he would benefit significantly from having stable accommodation with established linkages to appropriate support and assistance to implement appropriate risk management strategies. He would also benefit from a structured routine through employment.
He has now secured stable accommodation but not yet commenced employment.
As set out in the supplementary pre-release report prepared by the Community Corrections Officer, the defendant acknowledges that he is a violent person and requires assistance to not use violence in the future. Yet, having struggled to find interventions that would assist, he did not see the benefit in engaging in offence targeted programmes in a custodial environment.
[2]
Findings
I will comment further on the material when considering the conditions which are in dispute. It is only necessary to say that:
1. The defendant falls in the high risk range for general and violent reoffending;
2. There remain a number of dynamic risk factors which impact upon his risk of violent reoffending, including a history of engaging in violence across a range of contexts, including in the company of negative peers and involving the use of weapons. His violence has continued in the correctional environment to a certain extent;
3. He has had difficulty managing negative emotions and has used both verbal and physical aggression in interpersonal interactions;
4. He demonstrates impulsivity and a lack of capacity to engage in consequential thinking;
5. He has limited insight into his problems with violence, albeit he recognises that he is a violent person;
6. The index offence occurred in the context of heavy substance abuse, albeit there is no evidence to suggest recent substance abuse;
7. Prior to commission of the index offence he demonstrated a poor response to supervision, although again, that historical factor must be considered in light of his ongoing compliance with his conditions of parole;
8. He has completed the EQUIPS suite of programmes whilst in custody, although he did not complete the violent offenders therapeutic programme which was considered most appropriate for him;
9. There is no current apprehended violence order in place, although again, he has not had any contact with his former partner since the index offence; and
10. His response to supervision has been historically unsatisfactory but again it is necessary also to have regard to the fact that he has complied with his conditions of parole since being released on 22 February 2022.
I am satisfied having regard to all of the evidence that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO.
In these circumstances, I must make an order appointing two psychiatrists and/or psychologists to conduct examinations and to furnish reports to the Court. I still have a discretion as to whether to make an ISO but, in the circumstances, I am satisfied an ISO should be made.
At least between the parties, there remains an issue as to the conditions which should be imposed. The defendant has been complying with his conditions of parole since being released. However, he still poses a high risk of reoffending, having regard to his risk factors.
[3]
The conditions
The defendant accepts most of the State's proposed conditions. The State has agreed to a small number of changes as proposed by the defendant. A small number of conditions remain in dispute.
Annexed to this judgment is a schedule of conditions which I consider should be imposed. I will comment only on the conditions in dispute.
The Court is permitted to impose such conditions as it "considers appropriate": s 11 of the Act. That necessarily involves the striking of a balance between relevant considerations so as to provide an outcome which is fit and proper: State of New South Wales v Ali. [4]
The conditions must be related to the mitigation of the unacceptable risk: State of New South Wales v Burns. [5]
The conditions must not be unnecessarily onerous. Further, they must address identified risk factors but these must be considered in a realistic way: State of New South Wales v Ley Thomas Baker (No 2). [6]
Any condition must have the capacity to reduce or mitigate the risk which is unacceptable rather than merely being a condition which may be more generally appropriate in respect of serious violent or serious sex offenders. Merely identifying the possibility that a particular condition might reduce or eliminate the risk without regard to the particular offender's specific risk factors would not suffice.
[4]
Electronic monitoring and schedule of movements: Conditions 4, 5, 6 and 7
The State seeks the following conditions:
Electronic Monitoring
4. The defendant must wear electronic monitoring equipment as directed by a DSO and must not tamper with, or remove, the equipment.
Schedule of Movements
5. 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.
6. If the defendant wants to change anything in his schedule of movements once it is approved by a DSO, he must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period.
7. The defendant must not deviate from his approved schedule of movements except in an emergency.
The defendant says that he should not be subject to such conditions.
The State relies on the report of Kelli Grabham as to the appropriateness and benefits of electronic monitoring and a condition requiring that the defendant provide a weekly schedule of movements. Ms Grabham suggests that the proposed condition in respect of electronic monitoring merely provides the Departmental Supervising Officer (DSO) with the ability to direct the defendant to wear electronic monitoring equipment. It can be implemented at the discretion of the DSO. She refers to four ESO monitoring stages which differ with regard to the requirements for electronic monitoring, a schedule and a curfew.
She says the equipment is not cumbersome and can be concealed by long pants. In her experience, fixing electronic monitoring to a defendant's ankle does not impede employment prospects generally.
The State submits that electronic monitoring and a schedule of movements would assist in monitoring the defendant's movements to ensure that he is not frequenting areas where he may gain access to illicit substances. Further, the State points to the defendant's history of breaching bail and apprehended domestic violence orders.
It is suggested that a schedule of movements is appropriate so that his DSO has advance notification of anticipated movements and so as to assist the defendant in developing a routine.
The defendant opposes these conditions, principally on the basis that these conditions are more onerous than the conditions to which he has been subject since being released on 22 February 2022. The defendant says that he has shown himself capable of complying with his conditions of parole and that there have been no instances of conduct which might suggest that he would not continue to comply with less onerous conditions in such a way as to negative the risk factors.
In particular, the defendant says that the requirement to wear an ankle bracelet will impede his employment prospects and reintegration into the community. He has a concern that others may infer he is a sex offender. He has had no contact with the victim or his ex-partner since the index offending.
I am not satisfied that the defendant should be subject to either electronic monitoring or a schedule of movements. As the defendant points out:
1. He has settled into stable accommodation;
2. He is undertaking a course and pursuing employment options; and
3. He is complying with his current conditions of parole.
In my view, imposing electronic monitoring and a schedule of movements would be regressive.
Whilst the primary object of the Act is to provide for extended supervision so as to ensure the safety and protection of the community, another object of the Act is to encourage high risk offenders to undertake rehabilitation: s 3(2) of the Act.
I am not satisfied that these conditions would be appropriate having regard to the defendant's risk factors. His offending has tended to be impulsive and associated with either being in the company of antisocial peers or the breakdown of a domestic relationship. Certainly, substance abuse may be a trigger but it is not clear to me how monitoring of his movements would impact upon those risk factors in the particular circumstances of this case.
In the circumstances, I do not consider that there is a sufficient nexus between the defendant's risk factors and the need for electronic monitoring or a schedule of movements.
[5]
Employment: Condition 18
The proposed condition is set out as follows:
18. The defendant must not start on his own initiative any job, volunteer work or educational course without the approval of a DSO.
The defendant opposes this condition on the basis that it would unreasonably restrict his ability to obtain work. The effect of the condition would be that he could not actually start work until he obtained the approval of his DSO.
I raised with the parties that, bearing in mind his limited education and qualifications and despite the fact that he is apparently undertaking a course so as to obtain a licence to operate a forklift, it might be expected that some of the employment he would obtain would be casual, spasmodic or on a daily or weekly basis. I have a concern that Condition 18 might restrict his ability to obtain such work. I suggested that a solution may be to impose the qualification: "unless it is not reasonably possible to do so".
The State agreed with this suggestion. The defendant opposes the condition on the basis that:
1. Condition 19 requires him to notify his DSO if he ever has any change in his employment; and
2. The State has not established that a particular type of employment might impact upon his risk factors. The defendant again highlights that he is not a sex offender. In any event, his offending has been associated with impulsivity rather than planning.
In my view, it is appropriate that the defendant keep his DSO informed of the work that he is performing. It is hardly an onerous obligation. Any problem with it not being practical to inform the DSO in advance of commencing new employment may be solved by the addition of the words I propose.
In the circumstances, Condition 18 will be amended to include the words "unless it is not reasonably possible for him to do so".
[6]
Disclosure of criminal history: Condition 29
Condition 29 is proposed in the following terms:
29. The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary.
The State says that this condition does not require a blanket disclosure and is exercised at the discretion of the DSO. The State says that it is particularly important, given that the index offending occurred in a domestic setting. This condition would enable a DSO to disclose the defendant's criminal history to a domestic partner and/or family whenever it is deemed necessary to do so.
The defendant submits that the condition is potentially a highly invasive condition which may discourage the defendant in building prosocial relationships at work and elsewhere. It has the capacity to impede the defendant's rehabilitation and thereby increase the risk of violent reoffending.
I agree with the defendant. There has been only one incidence of serious violent offending being the index offence. Whilst that offending occurred in a domestic situation, it will be important not to impede the defendant's capacity to form relationships. Just as stable accommodation and employment will reduce his risk factors, so will the development of positive relationships with his peers.
In my view, the State has not established that Condition 29 is appropriate.
[7]
Weapons: Condition 31
Whilst there was a dispute as to Condition 31 the State agrees with the defendant's proposed amendment to Condition 31.
[8]
Access to the internet and other electronic communication: Conditions 32 to 42
The State submits that proposed Conditions 32 to 42 are all relevant to managing risks associated with internet use and devices. The conditions are sought to assist in mitigating his current dynamic risk factors. The State refers to Wilde v State of New South Wales [7] as supporting the proposition that there does not need to be a demonstrated link to the past offending for such a condition to be imposed. Rather, what is required is an assessment of whether the condition is appropriate to address the risk of future offending. In this regard, the State points to the risk assessment report and the possibility of the defendant identifying with criminal peers as being something which would escalate the risk.
Further, drug use has been identified as a major influence upon the defendant's past offending behaviour.
Monitoring the defendant's internet usage could allow the DSO to be aware of contact with any past, future or current domestic partners or even the victim of the index offence and the victim's family.
Again, the defendant points to the fact that he is not a sex offender. Further, the defendant submits there is adequate monitoring of the defendant's association through other conditions such as Condition 3 and Condition 27. The defendant submits that the protection of his privacy is significant.
It is difficult to link the imposition of such conditions with mitigation of risk having regard to the defendant's history of offending. None of his offending has been related to the use of the internet. None of his offending has been planned. It may be unlikely that, if he regresses into substance abuse, such substance abuse will be reduced by the DSO having access to his electronic devices.
Further, there is nothing in the defendant's history which might suggest that in some way joining a social networking service or using message applications or services such as WhatsApp would increase his risk of reoffending.
In my view, Conditions 32 to 42 are standard conditions which the State often seeks to impose on sex offenders. It is not clear to me how restricting the defendant's internet usage or providing the DSO with access to his phone or any computer necessarily reduces the risk factors which exist in this matter.
The State has not established that any of the Conditions 32 to 42 are appropriate.
[9]
Search and seizure of electronic devices: Condition 43
The defendant consents to Condition 43 except that he submits that it must be modified to delete the words "any computer, or electronic and communication device". This is consistent with the defendant's opposition to Conditions 32 to 42.
The State submits that those words contained in Condition 43 relate to Conditions 32 to 42. As I have rejected Conditions 32 to 42, I accept that Condition 43 should be amended so as to delete those words.
[10]
Medical intervention and treatment: Condition 50
The defendant must notify a DSO of the identity and address of any healthcare practitioner that it consults. The State now agrees with the defendant's proposed amended condition.
[11]
Orders
I make the following orders:
1. Pursuant to s 7(4) of the Act:
1. I appoint two qualified psychiatrists, psychologists (or combination of such persons) to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and
2. I direct the defendant to attend those examinations.
1. Pursuant to s 10A of the Act, the defendant be subject to an interim supervision order from 19 May 2022 ("the interim supervision order");
2. Pursuant to s 10C(1) of the Act, the interim supervision order be for a period of 28 days;
3. Pursuant to s 11 of the Act, I direct that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule to this judgment; and
4. I order that access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.
[12]
Corrective Services NSW (CSNSW)
In these conditions:
"Associate" includes, but is not limited to, being in company with, or to communicate by any means (including by post, facsimile, telephone, email or any other form of electronic communication).
"CSNSW" means Corrective Services NSW.
"Commissioner" means Commissioner for Corrective Services.
"Defendant" means Charles Cameron Barlow, also known as Charles Cameron, the defendant in these proceedings and the subject of the order.
"DSO" means Departmental Supervising Officer, that is, any Corrective Services Officer supervising the defendant under the order.
"Electronic Identity" means each of the following:
(a) an email address,
(b) a user name or other identity allowing access to an instant messaging service,
(c) a user name or other identity allowing access to a chat room or social media on the internet,
(d) any other user name or other identity allowing access to the internet or an electronic communication service.
"NSWPF" means NSW Police Force.
"Search" includes:
a garment search, being 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; and
a pat-down search, meaning a search of the defendant where the defendant's clothed body is touched.
[13]
Part A: Reporting and Monitoring Obligations
Monitoring and Reporting
The defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions of a DSO.
Where a direction may conveniently be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service.
The defendant must truthfully answer questions from a DSO, or any other person supervising him, about where he is, where he is going, who he is with, what he is doing and the nature of his associations.
Electronic Monitoring
Deleted.
Schedule of Movements
Deleted.
Deleted.
Deleted.
[14]
Part B: Accommodation
8. The defendant must live at an address approved by a DSO and notify a DSO of any intention to change the defendant's address or living arrangements.
9. The defendant must be at his approved address between 9pm and 6am unless other arrangements are approved by a DSO.
10. Deleted.
11. The defendant must allow a DSO to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.
12. The defendant must not spend the night anywhere other than his approved address or any alternative approved addresses (if relevant) without the approval of a DSO.
13. The defendant must promptly notify a DSO of any visitor entering and remaining at his approved address and must not permit any person to stay overnight, at his approved address (other than persons who ordinarily reside at his approved address), without the prior approval of a DSO.
[15]
Part C: Place and travel restrictions
14. The defendant must surrender any passports held by him to the Commissioner, must not be in possession of any passports, and must not attempt to apply for any passports.
15. The defendant must not leave New South Wales without the approval of the Commissioner.
16. The defendant must not frequent or visit any place or district specified by a DSO.
[16]
Part D: Employment, finance and education
17. The defendant must take all reasonable steps to participate in interventions as recommended by a DSO, including the development of a case management plan which may include employment, education, training or participation in personal development programs.
18. The defendant must not start on his own initiative any job, volunteer work or educational course without the approval of a DSO unless it is not reasonably possible for him to do so.
19. The defendant must notify a DSO of any intention to change his employment if practicable before the change occurs or otherwise at his next interview with a DSO.
20. The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by a DSO.
[17]
Part E: Drugs and alcohol
21. The defendant must not use prohibited drugs, or abuse drugs unlawfully obtained.
22. The defendant must not:
a. possess or consume alcohol without the prior approval of a DSO; or
b. possess or use prohibited drugs or drugs unlawfully obtained.
23. The defendant must submit to drug and alcohol testing.
24. The defendant must not enter any licensed premises including hotels, bars, racecourses and licenced clubs, but excluding cafes and restaurants, without the prior approval of a DSO.
25. The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as reasonably directed by a DSO, and must not discharge himself from such programs and courses without prior approval of a DSO.
Part F: Non-association
Associations with Others (not children)
26. The defendant must not associate with any person or persons specified by a DSO.
27. If the defendant starts a sexual or romantic relationship or friendship with a woman, he has to tell a DSO within 24 hours from the start of that relationship or friendship. The defendant must truthfully answer any questions that a DSO asks regarding the relationship or friendship. The DSO may want to tell the person about his criminal history. The DSO will give the defendant an opportunity to inform the person himself.
28. The defendant must not:
a. associate with any people who he knows are consuming or under the influence of alcohol without the prior approval of a DSO;
b. associate with any people who he knows are consuming or under the influence of illegal drugs; or
c. associate with any person held in custody without prior approval of a DSO.
29. Deleted.
30. The defendant must obtain written permission from a DSO prior to joining or affiliating with any club or organisation.
[18]
Part G: Weapons
31. The defendant must not possess or use any of the following, without a DSO's prior approval:
a. a knife, machete, sword or any other device that consists of a single-edged or multi-edged blade or spike that is designed or adapted to inflict violence, whether actual or threatened;
b. any other implement made or adapted for use for causing injury to a person; or
c. anything intended, by the person having custody of the thing, to be used to injure or menace a person.
NOTE: The defendant is permitted to keep kitchen knives and tools at his approved residence for the purposes of household tasks and property maintenance, and he must not use them or have them on his person when Corrective Services NSW staff and/or NSW Police are present at his approved address.
[19]
Part H: Access to the internet and other electronic communication
32. Deleted.
33. Deleted.
34. Deleted.
35. Deleted.
36. Deleted.
37. Deleted.
38. Deleted.
39. Deleted.
40. Deleted.
41. Deleted.
42. Deleted.
[20]
Part I: Search and seizure
43. The defendant must submit to the search of any item or place in his possession or under his control, including his residence, any vehicle in which he is traveling or which is under his effective control, or any storage facility, garage, locker, or commercial facility; and to the seizure of any object located during the search.
44. 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 this Order.
[21]
Part J: Personal details and appearance
45. The defendant must not change his name from "Charles Cameron Barlow" or use any other name without notifying a DSO.
46. The defendant must not significantly change his appearance without the approval of a DSO.
47. The defendant must let a DSO photograph him, dressed, within one week of the commencement of these conditions and following any significant change to his appearance.
48. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide a DSO with such details.
[22]
Part K: Medical intervention and treatment
49. The defendant must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction, including for the purposes of a Mental Health Care Plan or Community Treatment Order.
50. The defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults, if a DSO asks him to.
51. The defendant must take medications that are prescribed to him by his healthcare practitioners only in the manner prescribed.
52. The defendant must notify a DSO immediately if he ceases to take or declines to commence taking any medication as referred to in the above condition.
53. The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with a DSO.
54. The defendant must agree to any information being shared between those persons and agencies that are involved in his supervision including, but not limited to, a DSO, NSWPF and CSNSW.
55. The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him.
[23]
Endnotes
[2019] NSWSC 776 (Lonergan J).
[2019] NSWSC 559 (Garling J).
[2018] NSWSC 1921.
[2010] NSWSC 1045 at [88] (Johnson J).
[2014] NSWSC 1014 at [59] (Beech-Jones J) (as his Honour then was).
[2015] NSWSC 483 at [36] (Adams J).
[2015] NSWCA 28 at [53] (Beazley P, McColl JA and Ward JA); [2015] 249 A Crim R 65.
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: 12 May 2022
The primary object of the Act is protective rather than punitive. It provides 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: s 3(1) of the Act.
The Court may make an order for the interim supervision of an offender, pursuant to s 10A of the Act, if in proceedings for an ESO, it appears to the Court that:
1. The offender's current custody or supervision will expire before the proceedings are determined; and
2. The matters alleged in the supporting documentation would, if proved, justify the making of an ESO.
The defendant's current period of supervision in the community will expire before the proceedings are determined.
It is not necessary that the Court be satisfied at the preliminary stage that the matters alleged in the supporting documentation will be proved. The Court is only required to be satisfied that, if those matters are proved, an order would be justified, bearing in mind the elevated standard of proof, namely, a high degree of probability: ss 5B and 5C of the Act; State of New South Wales v Wilmot (Preliminary) [1] ("Wilmot"); State of New South Wales v Sturgeon [2] ("Sturgeon").
It follows, that on the preliminary hearing, the Court is not involved in weighing up the documentation or resolving any conflicts, inconsistencies or uncertainties which appear in the documentation. Nor is it necessary for the Court to predict the ultimate result or to assess the likelihood of the ultimate result: see Sturgeon at [6]; Wilmot at [7].
An ESO may be made if the matters set out in ss 5B(a)-(c) of the Act are established and the Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order: s 5B(d) of the Act.
The meaning of "an unacceptable risk" in s 5B(d) and the principles which are to be applied were summarised by Hoeben CJ at CL in State of New South Wales v Holschier (No 2) [3] at [23]-[24] as follows:
"As to the meaning of the phrase 'an unacceptable risk', the case law establishes the following:
(a) What the court must find to be unacceptable is the 'risk' of the offender 'committing a serious [sex] offence if he or she is not kept under supervision' (see Lynn v State of New South Wales [2016] NSWCA 57; 91 NSWLR 636 at [51] (Beazley P)).
(b) The word 'unacceptable' - which means, relevantly, 'so far from a required standard, norm, expectation etc as not to be allowed' - is one that 'requires context in which, or parameters against which, the unacceptable risk can be measured' (see Lynn at [50]).
(c) While the HRO Act does not specify 'the precise parameters or standard or norm against which that determination (i.e. the determination whether an offender poses an unacceptable risk) is to be made', this 'must be so' because '[a] determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made' (see Lynn at [51]).
(d) The determination whether an offender poses an unacceptable risk has to be understood in the context of the objects or purposes of the Act; in particular, its purpose in ensuring the safety and protection of the community (see Lynn at [55]).
(e) The right of an offender to his or her personal liberty at the expiry of a sentence of imprisonment is not relevant to the determination whether an offender poses an unacceptable risk (Lynn at [44], [55]-[58], [128], [148]). Nevertheless, as their Honours held, the intrusion on a subject's liberty and privacy are undoubtedly matters which the Court may take into account in its discretion to make an ESO.
The 'unacceptable risk' inquiry is not discretionary, but it does involve an evaluative balancing exercise. It involves consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate: New South Wales v Simcock [2016] NSWSC 1805 at [71]."