State of New South Wales v Bastian

State of New South Wales v Bastian - [2016] NSWSC 331 - NSWSC 2016 case summary — Zoe

[4]

Section 5B provides: "High risk sex offender (1) An offender can be made the subject of a high risk sex offender extended supervision order or a high risk sex offender continuing detention order as provided for by this Act if and only if the offender is a high risk sex offender. (2) An offender is a high risk sex offender if the offender is a sex offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision. (3) The Supreme Court is not required to determine that the risk of a person committing a serious sex offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious sex offence."
Section 5C confers power on this Court to make an ESO in respect of a high risk sex offender. Implicit in s 5C is that the supervision imposed by an ESO is sufficient to counter what would otherwise be an "unacceptable risk". Supervision can only be regarded as "adequate" if it is effective to reduce the risk such that the offender no longer poses an unacceptable risk.
Section 5H entitles the plaintiff to apply to this Court for an ESO. Section 5I(1) provides that an application for a high risk sex offender ESO may be made only in respect of a supervised sex offender. A person who is under supervision (under an ESO) is, relevantly, a supervised sex offender: s 5I(2).
Section 7 provides for pre-trial procedures. Of present relevance, s 7(4) provides: "(4) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders: (a) appointing: (i) 2 qualified psychiatrists, or (ii) 2 registered psychologists, or (iii) 1 qualified psychiatrist and 1 registered psychologist, or (iv) 2 qualified psychiatrists and 2 registered psychologists, to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and (b) directing the offender to attend those examinations."
Section 9(3) provides that the following are to be taken into account in determining whether to make an ESO: "(a) the safety of the community, (b) the reports received from the persons appointed under section 7 (4) [court-appointed experts] to conduct examinations of the offender, and the level of the offender's participation in any such examination, (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further relevant offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further relevant offence, . . . (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, (f) the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order, . . . (h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will in future commit offences of a sexual nature (in the case of an application for a high risk sex offender extended supervision order) or serious violence offences (in the case of an application for a high risk violent offender extended supervision order).
Section 10 provides that an ESO can be made for a total of five years. Section 10A provides for an ISO to be made in certain circumstances. The decision whether to make an ISO is to be made by reference to the same considerations as apply to an ESO. Section 10A provides: "Interim supervision order - high risk sex offender The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, it appears to the Court: (a) that the offender's current custody or supervision will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk sex offender extended supervision order."
Section 11 provides for the conditions that may be imposed on an ESO. A breach of ESO conditions is an offence under s 12 of the Act.
Section 13 of the Act relevantly provides: "Supervision order may be varied or revoked (1) The Supreme Court may at any time vary or revoke an extended supervision order or interim supervision order on the application of the State or the offender. . . . (1B) Without limiting the grounds for revoking an extended supervision order or interim supervision order, the Supreme Court may revoke an extended supervision order or interim supervision order if satisfied that circumstances have changed sufficiently to render the order unnecessary. (2) For the purpose of ascertaining whether to make such an application in relation to an extended supervision order, the Commissioner of Corrective Services must provide the Attorney General with a report on the offender at intervals of not more than 12 months. (3) The report must indicate whether the Commissioner considers the continuation of the extended supervision order to be necessary and appropriate."
These proceedings are to be conducted as civil proceedings: s 21.

[12]

November/ December 2002 offences: including four counts of aggravated sexual assault victim aged 10-14 years and two counts of incite person under 16 years to commit indecent act

In November 2002 the defendant met two twelve-year old boys at a service station in Goulburn. He purchased pornographic material and invited the victims to view the magazines at his house. The defendant asked them to expose their penises to him, which they did (these acts became counts one and two on the indictment). He performed oral sex on both of them and persuaded them to perform penile anal penetration on him (counts three to six on the indictment). This conduct continued for some months (there were several offences on a Form 1). The victims said that they took part in these acts because the defendant promised to provide them with a mobile phone and money.
In November or December 2002 the defendant befriended a woman who helped him when he fell over in front of her house. She described him as coming across "as a grandfather type figure" who was "very friendly towards me and the kids". The defendant introduced the woman to a man whom he said was his brother. The woman and the defendant's brother began a relationship. When the couple went out, the defendant would baby sit the woman's children. In early 2003 two of the younger children told their mother that the defendant had sexually abused them. The defendant admitted that he had fellated the penis of the young boy, who was five.
After the two children had revealed the abuse, handwritten notes containing sexually explicit material, including the names of the two 12-year old boys (referred to above), were found at the defendant's home.
On 11 April 2003 the defendant was charged with a series of offences arising from the conduct referred to above. He pleaded guilty to all six counts on the indictment and was convicted at the Goulburn District Court of four counts of aggravated sexual assault, victim aged 10-14 years; and two counts of incite person aged under 16 years to commit an act of indecency. The following additional 25 offences were included in a Form 1: 1. 22 counts of sexual intercourse with a person aged 10-14 years (which concerned the twelve-year old boys); 2. 2 counts of incite person aged under 16 years to commit an act of indecency (which concerned the twelve-year old boys); and 3. one count of sexual intercourse with a person under 10 years (which concerned the five-year old boy).
The defendant was sentenced in the District Court by Blackmore DCJ who imposed a total sentence of eight years, with a non-parole period of six years, to commence on 11 April 2003, structured as follows: Count Sentence Commencement 1 Fixed term of 12 months 11 April 2003 2 Fixed term of 12 months 11 April 2003 3 (& Form 1) Seven years including non-parole period of five years 11 April 2004 4 & 6 Four years with non-parole period of three years 11 April 2003 5 Fixed term of four years 11 April 2004

[16]

2011 offences: breaches of conditions 3 and 19

On 20 April 2011 the Departmental Supervising Officer (DSO) gave the defendant a formal written direction (pursuant to condition 3 of the First ISO) that he was not to have any form of contact with any sex offender.
On 4 May 2011 the defendant wrote to a sex offender at the Campbelltown COSP where the defendant himself was residing. The letter was discovered when it was marked return to sender.
On 17 May 2011 the defendant wrote to another known sex offender at the Nunyara COSP at Malabar but this letter was not discovered until later.
On 23 May 2011 the defendant's DSO told him that he would be issued with a formal warning regarding the breach (relating to the letter of 4 May 2011). On 24 May 2011 two compliance officers visited the defendant at the Campbelltown COSP to discuss the direction he had been given on 20 April 2011. He was asked whether he had breached the direction on occasions other than with respect to the letter on 4 May 2011. He disclosed no other breach. The compliance officers reviewed the defendant's phone which contained various texts to other sex offenders living within the community.
On 25 May 2011, the DSO and a Senior Compliance and Monitoring Officer visited the defendant, who was given an opportunity to disclose any other contact he had made with sex offenders. He made no such disclosure, although he had sent the letter to another sex offender on 17 May 2011, as referred to above. The defendant admitted that he knew that he was breaching the First ISO at the time he breached it. His phone was reviewed; it contained numerous texts which he had sent to other sex offenders. The contents of his in-box had been deleted, with the result that their responses could not be reviewed.
The letter which the defendant had sent on 17 May 2011 was received on 24 May 2011. Its existence came to the attention of the DSO, who identified it as another (undisclosed) breach of condition 3.
From May 2011 the defendant has had weekly psychological counselling sessions with Forensic Psychology Services (FPS). The notes are in evidence. They are redolent with references which reveal the defendant's sexual preoccupation with young boys and potential grooming of such boys.
The First ESO commenced on 29 June 2011 (see above). It contained, relevantly, the same conditions set out above.
Further breaches of a similar nature to those set out above (contact with sex offenders) were detected in August 2011, as a result of which the defendant was arrested on 16 August 2011 and charged with two counts of failing to comply with an ISO or ESO (by failing to comply with conditions 3 and 19). He pleaded guilty to the two charges, as a result of which he was convicted and sentenced by the Campbelltown Local Court to a term of imprisonment of 6 months commencing 16 August 2011 and expiring on 15 February 2012.

[17]

2013 offences: breach of conditions of ESO and possession of child pornography

On Friday 18 January 2013 COSP employees inspected the defendant's room and found two Secure Digital cards. They asked him whether there was any child pornography on the cards. He admitted that there was a single image of 5 naked persons, including three young boys. The defendant was cautioned and interviewed by police in the course of which he made admissions about possessing child pornography. He also made admissions about accessing websites that contain child pornography but told police that no evidence to that effect would be found.
While the police were reviewing the image, the defendant received a further text message from a third person that clearly described a sexual act taking place between an adult male and a 13-year old boy. He was interviewed again. In the course of the interview he admitted that he was interested in the three naked boys aged 10 to 15 and the fact that if had had more time he intended to masturbate over the image. He said that he received the image from another resident at COSP as a birthday present and intended to delete the image once he could no longer be stimulated by it, so that he could avoid detection by COSP staff or police. The defendant admitted that he used internet sites to access similar images. The police facts recorded: "The accused states that he would rather use these means of stimulation in his words to abuse himself rather than go out into the community and re-offend against other children. The accused when speaking to police referred to a skateboarding facility in close proximity to his residence."
As a result of these events, the defendant was again convicted of failing to comply with conditions 3 and 19 of his First ESO, as well as the offence of produce, disseminate or possess child abuse material contrary to s 91H(2) of the Crimes Act. He was sentenced to a term of imprisonment for six months that commenced on 18 January 2013 (being the date on which he was taken into custody).

[18]

Subsequent events including 2016 offence: breaches of ESO

On 4 November 2013 the defendant told FPS that he had had contact with school-aged children who catch the bus outside his Housing NSW accommodation. He met the father of the children in the course of cleaning up around the units. The father later introduced the defendant to his wife and children. The defendant began waving to the children whenever he saw them at the bus stop.
On 25 June 2014 the defendant was found at home with a young male in his twenties, whom he said he had met in Campbelltown. Enquiries made of Community Corrections Officers revealed that the young male, Matthew Potter, had drug and alcohol problems; had been scheduled for schizophrenia; and had often been found by police sleeping in parks. The defendant has referred to Mr Potter at times as his "nephew", "step-nephew", and "step-grandson".
On 2 July 2014 the DSO directed the defendant orally not to associate with Mr Potter. On 5 July 2014 the DSO gave him a formal written direction to that effect. On 21 December 2014 the defendant was given a final written direction and warning not to associate with Mr Potter by any means.
On 9 September 2014 the defendant told FPS, in connection with his sexual preoccupation, that he admitted to thinking (regarding sex with young boys): "if it was done to me, why can't I do it to others?"
The evidence is not precise about when Depo Provera was first administered to the defendant. However, a report of his general practitioner, Dr Samara-Sekera, dated 6 February 2015 recorded that an injection of Depo Provera was administered every three months. On 2 March 2015 the defendant reported that he experienced erectile dysfunction as a result of the injection and that he no longer had an interest in children.
However, on 13 May 2015, his FPS maintenance notes recorded that the defendant admitted a continuing sexual interest in young boys, of any age, including "about 5". He said that he would often see such a boy and "have a thought". This history is to be contrasted with the supposed effect of the anti-libidinal drug in reducing sexual desire and suggests, according to Dr Furst, whose opinion is addressed in more detail below, an ongoing deviant sexual preoccupation which, if acted upon, would lead to the commission of the types of serious sex offences listed in the table set out above.
On 27 July 2015 police went to the defendant's home because of a domestic dispute between the defendant and Mr Potter which involved violence. No action was taken other than a verbal direction reiterating the prohibition on the defendant's associating with Mr Potter. In July 2015 the defendant applied to Housing NSW to have Mr Potter added as an additional occupant of his premises. The request was declined.
On 2 September 2015 the defendant told FPS that he was viewing pornography daily as a form of coping.
In October 2015 the defendant was assessed by the Western Sydney Aged Care Assessment Team (ACAT). On 29 October 2015 he was assessed as being eligible to receive residential respite care at a low level or the home care package level 1 and 2.
Clare McNaughton became the defendant's DSO on 20 December 2015. On 25 December 2015 Ms McNaughton conducted an unannounced visit to the defendant's home (in premises managed by Housing NSW in Guilford). When the defendant answered the door, he suggested to Ms McNaughton that they sit outside as he had just sprayed "bug spray" inside. Ms McNaughton insisted on coming in. As soon as she entered she saw a young adult male sleeping on the defendant's bed. The defendant identified the young man as his "nephew" and said his name was "Matthew", but not "Matthew Potter"; the defendant confirmed that his name was Matthew Porter.
Ms McNaughton woke up the young man (who appeared to be in his early twenties) who was wearing a plaster cast for a broken arm. According to the defendant, Mr Potter's drowsiness was a result of his having taken medication the previous day. Ms McNaughton asked for his name, to which he answered "Matt". When she asked for his full name, he answered, "Matt Potter". The defendant became tearful and said that he would kill himself if he were not permitted to associate with Mr Potter. Ms McNaughton gave a further verbal direction that he was not to associate with Mr Potter.
As referred to above, on 9 December 2015, Fagan J made an ISO against the defendant which commenced on 28 December 2015 (the Second ISO). It relevantly contained conditions equivalent to conditions 3 and 19 of the First ESO. Justice Fagan also ordered that Dr Furst and Dr Martin conduct psychiatric examinations of the defendant and report to the Court.
On 29 December 2015 Detective Senior Constables Ware and Payne visited the defendant at home. When he answered the door, he told the officers that there was no one else at home. Detective Payne called out to Mr Potter and directed him to come out of the house. Mr Potter emerged from the residence. He told the officers that he had been living with the defendant off and on since August 2015. The defendant was arrested. His mobile telephone was seized and searched.
Photographs were taken of text messages on his phone. Several of these text messages appear to be to or from a man called Daniel. I infer from their content, context and the references to FPS that Daniel is also a sex offender. The following texts indicate that the defendant has tried to enlist Daniel's help to locate vulnerable people: "Try to find someone is [sic] homeless and let him know what I said and you can give him my phone number" "Try and fine [sic] someone it is going to be cold for the next 6 weeks ok if you fine [sic] one give him my phone number ok and get him to call ok"
I accept the plaintiff's submission that these text messages show that the defendant makes advances to others to induce them to come to him.
Other texts found on the defendant's phone contain sexually explicit messages. There were also 204 videos and 332 images found, all of which were pornographic. The males depicted are young. The plaintiff does not suggest that I could be satisfied that any one of them is younger than 18 years, although some may appear so. The messages and the pornographic material indicate a strong sexual preoccupation from which I infer that the Depo Provera is not having any substantial effect on reducing the defendant's libido.
On 6 January the defendant entered a plea to the offence of breaching his First ESO and the Second ISO. On 20 January 2016 the matter came before Brown LCM at the Local Court at Parramatta for sentence. Mr O'Brien (who appeared on behalf of the defendant) made the following submission, which I assume to have been made on instructions: "Also he will inevitably have another extended supervision order put in place, probably for the rest of his life. Inevitably, it would appear, for the rest of his life given the findings of the previous judgments, given the determinations by Local Courts that he's in breach of those orders and that he's spent time in custody referable to those breaches. So he's not someone who is going to be at large into the future. He is going to be supervised, he is going to be on orders for the entirety of his life."
At the conclusion of the hearing, the defendant was convicted of breaching the First ESO and sentenced to 9 months imprisonment from 29 December 2015 (the date on which he was taken into custody).

[27]

The condition regarding pornography: outright prohibition or permission at discretion of DSO

The principal area of disagreement between Dr Furst and Dr Martin was as to the appropriate condition relating to pornography: whether it ought be permitted with the approval of the defendant's DSO, or whether it ought (as the plaintiff submitted) be prohibited entirely.
Dr Furst considered that a condition permitting pornography only with the approval of the defendant's DSO would be appropriate. He said that there was no particularly hard evidence either way that viewing adult gay pornography would either increase or decrease the risk of offending. Dr Furst accepted that the defendant had a sexual preoccupation. In answer to the proposition that viewing adult gay male pornography would tend to increase his sexual preoccupation, Dr Furst said: "There's a risk that it would increase his sexual arousal and the medication that he is receiving, the Depo‑Provera injections, those injections are designed to decrease his sexual arousal and testosterone levels. I guess that you can make an argument that the viewing of pornography, such as this, goes against the clinical goals, treatment; but there is also an argument that viewing the pornography provides some kind of outlet or relief for people. It is really a bit mixed in terms of the impact that it might have on somebody."
It emerged from further questioning that Dr Furst's reluctance to support an outright prohibition on adult pornography was its legality. He said: "I am a little bit reluctant to recommend restrictions on material that's legal or sexual contact with adult males which is legal as well, to take the argument further. But the discretion for the officer ‑ I thought more as a clinical need the discretion might allow a therapeutic connection and working relationship between himself and the officer supervising him as there were, for example, a few movies that he is allowed access to that seemed appropriate."
As to the risk that access to such material would tend to increase the defendant's arousal, Dr Furst said: "I think it stands to reason viewing material like that would tend to increase someone's level of arousal or sexual arousal and in someone who has a sexual deviance that can be of concern. But I'd see it more as a possible increase of risk rather than the likelihood that his risk would then increase to a significantly higher level."
Dr Martin explained his preference for an outright prohibition in the following terms in his oral evidence: "It is obviously a highly contentious issue and I don't think there is strong evidence one way or the other around whether watching pornography definitely increases the risk. But I do think it sends a mixed message to Mr Bastian. So I referred in my report to him problems with boundaries and I think he has a personality disorder. I think it is inconsistent with the general risk management process of reducing his sex drive and using medication to ‑ he is taking medication to reduce his libido. And I think to be allowed to watch pornography of any type is probably inconsistent with that. I think it can be regarded as "a slippery slope". So to be allowed to use one type of pornography can potentially lead to another type especially in a person who is highly sexually preoccupied. There is a compulsive element to his sexual behaviour and I do think it is ‑ I think it probably does ‑ probably would lead to increased sex drive, watching pornography in that sense and that is going to be directly related to his risk of re‑offending."
For the reasons given below, I prefer Dr Martin's view.

[37]

Section 9(3)(a): the safety of the community

In the present case, the relevant section of the wider community whose safety is compromised by the risk posed by the defendant is the section which comprises young males, including those as young as five. While male children in that group might generally be regarded as vulnerable because of their age, the defendant appears to target particularly those boys who are homeless or otherwise disadvantaged by reason of their lack of supports and poor socioeconomic situations. Such persons may be easy prey to someone such as the defendant who is in a position to offer accommodation (in his Housing NSW residence) or inducements, in the form of cash or items of property. Although the defendant himself is not in a particularly good financial position and is, and has long been, dependent on social security benefits, the victims he targets are, themselves, in such dire straits that the defendant's resources may provide an inducement.
The defendant has also shown a capacity to work with other sex offenders for a common purpose by texting them about potential assignations and victims.
The defendant has an entrenched sexual deviance which inclines him to sexual contact with such males. He has neither inclination nor capacity to control his sexual urges, which remain strong and persistent notwithstanding his age and the anti-libidinal medication which he has been taking for more than a year. He has shown a capacity for deviousness when trying to conceal breaches of conditions from his DSO (such as making excuses for not allowing his DSO or police into the house when he knew that Matthew Potter was within). Although he has some difficulty with mobility such that he requires a mobile scooter on some occasions, his techniques for luring potential victims do not depend on good mobility.
He has been consistently assessed as presenting a high risk of re-offending. Although not all offences in respect of which he presents a risk are "serious sex offences", almost all are. His preference for young males means, effectively, that any physical contact with them of a sexual nature is prohibited by Division 10 of Part 3 of the Crimes Act and is punishable by 7 or more years' imprisonment. The only relevant offence committed by him that was an offence of a sexual nature, rather than a serious sex offence, was the offence contrary to s 91K of possession of the pornographic image.

[40]

Conditions

As referred to above, the defendant has been subject to the First ISO, the First ESO and the Second ISO. Mr Averre did not object to any conditions which have been in place already. However, the plaintiff has reviewed its conditions and added or modified conditions, to which the defendant takes exception.
Some of the defendant's objections are substantive, such as the objection to electronic monitoring, scheduling and the prohibition on pornography, while others are more formal and can be dealt with more briefly. I propose to set out my decision on the conditions to which the defendant objects in the following table and provide further reasons below where I consider this to be necessary to explain my rulings. Proposed condition Objection Ruling and brief reasons 4 - police station Inapposite Unnecessary 5 - electronic monitoring Significant intrusion; no provision for review Necessary (see below); in-built discretion for DSO provided for 6 - weekly schedule 3 days in advance Previous version stipulated 2 days Necessary; may assist in controlling impulse 8 - deviation only in emergency New condition Condition appropriate 9 - truthfully answer DSO New condition; difficult to comply with given defendant's difficulties with authority figures Condition appropriate (see below) 11 - curfew between 9pm and 6 am Previous condition expired after 12 months Condition appropriate; could be the subject of direction by DSO in any event. 13 - must stay overnight at approved address without approval of DSO New condition Condition appropriate having regard to need for close monitoring of defendant's conduct 14 - not permit anyone to stay at approved address without prior approval of DSO New condition Condition appropriate having regard to defendant's practice of exploiting vulnerable people 16 - must surrender passport New condition No evidence that required. Unnecessary. 17 - must not go to a place prohibited by DSO New condition Condition appropriate 18 - prohibited places New conditions (c) - (j) and provision for exception if accompanied by person approved by DSO Condition appropriate, given nature of places listed. 19 - not attend places where sexually explicit material sold or drugs and alcohol illegally sold New condition Condition appropriate given need to minimise the defendant's opportunities for arousal. 20 - possession of illegal drugs New condition which is unnecessary as it is already a criminal offence Condition appropriate because of separate consequences of breach of ESO. 23 - not approach someone he knows is under 18 without approval New condition; age previously was 16 Condition appropriate; adequate provision for flexibility by reason of approval. 25 - not associate with people consuming illegal drugs or alcohol New condition. Condition appropriate as illegal drugs or alcohol may be destabilising having regard to defendant's previous substance abuse problems 26 - not engage services of a sex worker New condition Condition appropriate as defendant's sexual appetite unlikely to be assuaged and tends to fuel sexual preoccupation 27 - must disclose new relationship to DSO New condition: former condition required disclosure only if person had children Condition appropriate. 28 - permission of DSO required to join club or mobile-based social networking service New condition Condition appropriate given past difficulties in monitoring and enforcement and tendency of defendant to use others to gain access to potential victims. 29-37- access to the internet and search and seizure of computer or other device by DSO on reasonable grounds New conditions Condition appropriate given the defendant's history of using his phone to store pornographic images and videos and communicate with other sex offenders 39 - no access to pornography New condition; should be subject to prior approval of DSO Condition appropriate on the basis of Dr Martin's opinion set out above; see additional reasons below. 40 - must not use any other name New condition Condition appropriate. 42 - must let Corrections photograph him New condition Condition appropriate to keep identification current and to take account of change of staff and DSO and ageing process which leads to change in appearance. 43 - inform DSO of forms of identification New condition Condition appropriate 46 - must take prescribed medication New condition Condition not shown to be necessary. 47 - must inform DSO if ceased to take prescribed medication New condition Condition necessary only in the case of anti-libidinal medication.

[52]

Part G: Search and seizure 33. If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to f below) is necessary: a. for the safety and welfare of residents or staff or persons present at the defendant's approved address; b. to monitor the defendant's compliance with this order; or c. because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence; then the DSO may direct, and the defendant must submit to: d. search and inspection of any part of, or any thing in, the defendant's approved address; e. search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant; f. search and inspection of any part of, or any thing in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or g. search and examination of his person. 34. 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. 35. 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. 36. The defendant must allow CSNSW or any other person nominated by his DSO to search any phone, tablet device, data storage device or computer that he may use. 37. 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 33 to 36 above.

At a glance

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Judgment (55 paragraphs)

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Legislation Cited (3)

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