State of New South Wales v Bird

Supreme Court of NSW|2016-11-30|Before: Garling J, Beech-Jones J

Judgment

By a Summons filed on 6 September 2016, the State of New South Wales ("the State") sought orders pursuant to the Crimes (High Risk Offenders) Act 2006 ("the HRO Act") that the defendant, Mr Bird, be subject to a continuing detention order for a period of 6 months from his proposed date of release, and thereafter subject to an extended supervision order ("ESO") for a period of 5 years.
At the commencement of the hearing on 30 November 2016, counsel for the State informed the Court that the State no longer sought a continuing detention order, and only sought an ESO subject to specified conditions, for 5 years.
Mr Bird is due to be released on 10 December 2016, after serving a sentence of imprisonment imposed on 5 September 2012 by Black DCJ in the District Court at Lismore.
Mr Bird opposed the making of a continuing detention order, but does not oppose the making of an ESO. His counsel opposed the length of time and the imposition of a number of conditions.
On 21 September 2016, Beech-Jones J granted the relief sought in paragraph 1 of the Summons, namely an interim order pursuant to s 15(4) of the HRO Act appointing two qualified psychiatrists to examine the defendant. His Honour ordered that the matter be listed for final hearing on 30 November 2016.
For the reasons which follow, I am of the opinion that an ESO ought to be made for a period of 5 years commencing on 10 December 2016, subject to the conditions set out in the Schedule to this judgment.

Relevant Legislation

It is necessary to set out the relevant provisions of the HRO Act, which constrain the decision-making of the Court in these proceedings.
The objects of the HRO Act are set out in s 3: "(1) The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders … so as to ensure the safety and protection of the community. (2) Another object of this Act is to encourage high-risk sex offenders … to undertake rehabilitation."
It is the State's contention in these proceedings that Mr Bird is a high-risk sex offender.
Section 5B makes provision for a person to be found to be a high-risk sex offender. Relevantly, it provides: "5B 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."
The concept of a serious sex offence is also central to the disposition of these proceedings. A serious sex offence is defined in s 5 of the HRO Act in the following terms: "(1) For the purposes of this Act, a 'serious sex offence' means any of the following offences: (a) an offence under Division 10 of Part 3 of the Crimes Act 1900, where: (i) in the case of an offence against an adult or a child, the offence is punishable by imprisonment for 7 years or more, and (ii) in the case of an offence against an adult, the offence is committed in circumstances of aggravation (within the meaning of the provision under which the offence arises), …"
It is unnecessary to set out the detail of the underlying provisions because the State contends, and counsel for Mr Bird accepts, that he is a supervised sex offender in accordance with s 5I of the HRO Act, which means that the Crown is entitled to make an application for an ESO.
In considering the State's application for an extended supervision order, s 9 of the HRO Act identifies the matters to which this Court must have regard. It is in the following terms: "9 Determination of application for extended supervision order (1) The Supreme Court may determine an application for an extended supervision order: (a) by making an extended supervision order, or (b) by dismissing the application. … (3) In determining whether or not to make an extended supervision order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant: (a) the safety of the community, (b) the reports received from the persons appointed under section 7 (4) 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, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, (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) …, (g) …, (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)."
The HRO Act provides that these proceedings are civil proceedings and are to be conducted generally in accordance with the law (including rules of evidence) relating to civil proceedings.

Concessions

In her written submissions for the final hearing, counsel for the defendant informed the Court that the defendant made the following concession for the purposes of this hearing, and to be taken into account in this judgment. The concessions were that: 1. the defendant is a sex offender within the meaning of that term in s 4 of the HRO Act; 2. the defendant is a "supervised sex offender" within the meaning of, and for the purposes of s 5I of the HRO Act; and 3. the Court would be satisfied that the defendant is a high risk sex offender within the meaning of s 5B(2) of the HRO Act, and as such, the Court would be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a further serious sex offence if not kept under supervision.
Counsel for the defendant submitted that the concessions to which reference has just been made are such that, in substance and effect, the Court would be satisfied to the requisite standard on the available material of the relevant criteria for the making of an ESO, but not necessarily on the terms or conditions for that ESO or for the duration which the State sought.
It is appropriate in this judgment to record some relevant factors, and make reference to some parts of the evidence. However, the Court is entitled to place significant weight upon concessions properly made by a defendant in these proceedings where the defendant is represented by counsel. Here, there is no question but that these concessions have been carefully considered and represent the product of such consideration.
I also note that the defendant did not place any evidence before the Court. Whilst there is no obligation on the defendant so to do, and he is not be penalised in any way by not doing so, the absence of any evidentiary dispute means that findings of fact can be more easily made.

Evidence

The State relies upon the following evidence: 1. An expert report prepared by forensic psychiatrist Dr Jeremy O'Dea, filed on 26 October 2016; 2. An expert report prepared by forensic psychiatrist Dr Gerald Chew, filed on 24 October 2016; 3. An affidavit of Ms Danielle Matsuo affirmed on 15 November 2016; and 4. An affidavit of Mr Greg Garrett sworn on 15 November 2015.
The following facts are drawn from the evidence.

Mr Bird's Prior Sexual Offending

The offence for which the defendant is presently serving a sentence has been earlier described at [7]-[14].
On 2 May 2004, when the defendant was 16 years of age, the defendant was charged with 15 offences, including four charges arising from two incidents of sexual offending. These charges were dealt with by the Mental Health Court in Queensland.
The first incident of sexual offending occurred on 27 March 2003, when the defendant was just over 15 years of age. It was alleged that the defendant entered a hospital in south east Queensland claiming to be the nephew of a female patient, who was in a vegetative state. Hospital staff allowed the defendant to visit the patient. About 20 minutes later, hospital staff observed the defendant on top of the patient with his pants pulled down. He appeared to be having sexual intercourse with the patient. He was pulled off the patient by a security officer and held at the hospital until police arrived. He later told police in an interview "I didn't mean to…".
In relation to this incident, the defendant told Dr O'Dea: "when I raped a girl … on a bed in a hospital … I just went in there … thought I'd do something … I was drunk … and I wanted to have sex … I saw her there … I had opportunity … I was drunk at the time … and stoned and that … and sniffing paint … I thought I had a chance … it was stupid … I apologised and that …"
The second incident of sexual offending occurred on 1 May 2003, a few months after the first sexual offence. It was alleged that the defendant approached a woman while she was outside her house. The defendant asked her for a cigarette lighter, to which she replied that she did not have one. The defendant loitered outside the victim's house for 10 to 15 minutes before forcing his way inside through the front door. Inside, the defendant grabbed the victim and forced his hand down the front of the victim's pants, touching her vagina. The victim managed to break free and call police. Police arrived at the house and arrested the defendant.
In relation to this incident, the defendant told Dr O'Dea: "I tried to go in a house … I was sniffing paint … and glue … spray cans … I was high off my head … I wasn't drinking … or smoking 'Yandi' [cannabis] … or other drugs … I seen the lady at the front of her house … on the veranda … I asked her if I could use the toilet … she wouldn't let me … so I asked her for a glass of water … she got me one … I pushed her back in the house … and tried to rape her … she fighted me off … she ran to the kitchen to ring someone … she rang the cops on me …"
On 20 September 2004, the charges were heard by Wilson J in the Mental Health Court in Queensland. Wilson J found that the defendant did not suffer from a mental illness but that he suffered from mental retardation and a substance use disorder. Her Honour found that the defendant was permanently unfit to stand trial and that he was at a high risk of reoffending.
On 1 December 2004, Wilson J made a forensic order in which she ordered the defendant to reside at a mental health service facility and made other orders relating to his treatment in the community.
It is important to note that, as a result of her Honour's finding that the defendant was permanently unfit to stand trial, and the procedures governing the Mental Health Court in Queensland, no convictions were recorded against the defendant. The sexual offences on 27 March 2003 and 1 May 2003 have therefore not been the subject of a contested trial or a formal plea by the defendant.
In State of New South Wales v Conway [2011] NSWSC 488, Simpson J (as her Honour then was) made the following observations about the scope of an offender's criminal history that could be taken into account on an application for an extended supervision order under the Crimes (Serious Sex Offenders) Act 2006: "21 On behalf of the defendant it was argued that … the consideration specified in s 9(3)(h) (the offender's criminal history) ought not to include any offences other than those that resulted in conviction or finding of guilt. I do not accept this construction. If it were correct, the words "criminal history", which are the principal subject of the sub-paragraph, would add nothing to that which appears in parentheses; and nor would the words "and any pattern of offending behaviour" that follow the parentheses. 22 In my opinion, it is appropriate to take into account those instances of sexual misconduct to which the defendant has admitted. Having regard, particularly, to the defendant's intellectual disability, it was submitted that an issue arises whether those instances could properly be labelled part of his "criminal history". This was because it could not be assumed that the necessary mens rea accompanied the actions said to constitute the offences… 23 I accept that a question arises, and may well arise on a final hearing, concerning the extent to which some of the conduct referred to may be taken into account. However, as was conceded on behalf of the defendant, even if it cannot be shown that the defendant could have been convicted of offences in respect of those episodes of misconduct, and that they therefore may not be taken into account as "criminal history", that he engaged in the conduct is clearly relevant to sub-para (i), and, I would add, to sub-para (a). In my opinion, the whole of the conduct that is attributed to the defendant is relevant to the present consideration."
I respectfully agree with those observations. They apply with equal force to the provisions of the HRO Act, which contains the same statutory language.
It appears from the tendered material that the defendant initially disputed the charges in relation to the incidents on 27 March 2003 and 1 May 2003. However, as the extracts from Dr O'Dea's interview with the defendant demonstrate, the defendant has now admitted to the offences. In those circumstances, it is in my opinion appropriate to take these earlier offences into account in determining whether to make the orders sought by the State.

Expert Reports

On 21 September 2016, Beech-Jones J ordered pursuant to s 15(4) of the HRO Act, that two psychiatrists be appointed to conduct separate examinations of the defendant and provide reports to the Court: see State of NSW v Bird [2016] NSWSC 1420. It is appropriate to review and take into account those reports.
Dr Jeremy O'Dea, a forensic psychiatrist, completed his report on 26 October 2016.
The defendant told Dr O'Dea that he was from Logan in Queensland, and was a member of the Waka Waka and Bungalong indigenous peoples. He gave a history of a difficult upbringing during which time he lived in a number of different houses, occasionally as a ward of the State, and with his aunties. He has had limited formal education. He is unable to read or write, and related an extensive history of petrol sniffing, alcohol and cannabis abuse and dependence from an early age.
The defendant's first encounter with the juvenile justice system appears to be in July 1991 at the Toowoomba Children's Court when he was 11 years and 5 months old. No conviction was recorded and the defendant was reprimanded with respect to possession of property reasonably suspected of being stolen.
Dr O'Dea then recorded an extensive discussion with the defendant about his criminal offending including his past sexual offending.
Dr O'Dea recorded the results of a psychological assessment from June 2003, which indicated that the defendant was functioning within the intellectually deficient range of intelligence, and the results of a further psychological report in 2011, that the defendant's "… performance was consistent with his measured IQ which was in the extremely low range (69 and below) and commensurate with a percentile rank of 1 …".
He recorded a history of childhood diabetes.
Dr O'Dea concluded in the following terms: "54. I did not diagnose Mr Bird as suffering from any major psychiatric illness. … 56. I also note Mr Bird's history of at least 'mild intellectually disability' in the context of relatively disorganised childhood, limited education and a history of problems with conduct and poor behavioural controls since childhood, with repeated offending from the age of 11 years included repeating sex offending since the age of 15 years. 57. I understand that his three sex offences occurred in the context of intoxication, particularly with alcohol, and appeared relatively impulsive, and associated with disinhibition when intoxicated. 58. Whilst his general and forensic history, together with his apparently limited insight and remorse, may be best understood in the context of his alcohol and other drug abuse, and his level of intellectual functioning; it may also point to Mr Bird having an evolving personality disorder with antisocial and psychopathic traits. 59. On the basis of Mr Bird's history of repeated sex offending from a young age, in the context of an extensive history of substance use disorder, his limited insight and remorse, and his still young age; it would seem reasonable to assume he has a significant risk of engaging in further sex offending behaviours in the community in the long term, including of committing a further serious sex offence … particularly if he were to continue to use alcohol and/or cannabis or other illicit substances, with this risk the appropriate focus of specific and structured risk management in the community in the long term. 60. As such, it would appear reasonable to assume that Mr Bird will require to remain totally abstinent from alcohol, cannabis and other illicit drug use in the community in the long term, in order to manage and minimise his risk of engaging in further sex offending behaviours in the community in the long term, including of committing a further serious sex offence …"
Dr O'Dea opined that it would be of assistance to Mr Bird to engage in ongoing structured and supervised alcohol and other drug counselling and rehabilitation in the community in the long term, and that he be provided with judicious use of available and appropriate medication to assist him controlling his cravings for alcohol. Dr O'Dea also noted that Mr Bird should be referred to a suitably qualified and experienced forensic psychiatrist for further assessment of his overall sexuality and his sex offending behaviours.
Dr O'Dea was of the opinion that by reason of the defendant's level of intellectual functioning: "… it is unlikely that psychological therapies alone would prove effective in managing Mr Bird's risk of engaging in further sex offending behaviours in the community in the long term, including of committing a further serious sex offence … Rather, the judicious use of testosterone lowering (or anti-libidinal) medication … is likely to prove the most effective intervention, in conjunction with abstinence from alcohol and illicit substance use, in reducing this risk."
Dr O'Dea accepted that the defendant's diagnosis of diabetes may make the prescription of such medication complex.
Dr O'Dea went on to consider general risk issues. He referred to the various risk assessment tools, and noted their limitations. He also noted the uncertainty surrounding the making of clinical judgments of future risk. He expressed the following view: "72. With this in mind, from a full clinical psychiatric risk management perspective, and as judged by various actuarial and more so-called dynamic risk assessment instruments, Mr Bird's risk of engaging in further sex offending behaviours in the community in the long term would seem to be considered significantly high and appropriate for specific psychiatric treatment as outlined … 73. More specifically, it would seem reasonable to consider that there would be a significantly higher degree of probability that Mr Bird would pose an unacceptable risk of committing a further 'serious sex offence' … in the community in the long term if these above outlined treatment interventions above, and in particular abstinence from alcohol and illicit drug use in the long term, were not successfully implemented in the context of community supervision and monitoring."
Dr O'Dea was of the view that further detention in custody was unlikely to significantly reduce the risk that the defendant presented on release into the community. He went on to recommend that there should be an extended supervision order of the defendant in the community for five years with regular monitoring and reviews. He said: "76. Mr Bird's risk of relapse of his substance use disorder, and his associated risk of engaging in further sex offending behaviours in the community, and of committing a further 'serious sex offence' in the community, remains long term, and of at least a further 5 years duration. Therefore, from a psychiatric risk management perspective, any appropriate risk management program implemented should be long term and at least of 5 years duration, and should be regularly monitored and reviewed every 6 to 12 months dependent on this progress."
Dr Gerald Chew completed his report on 4 October 2016. It was filed on 24 October 2016.
Dr Chew obtained a history which was essentially the same as that obtained by Dr O'Dea. He performed a mental state examination in which he concluded that there was no formal thought disorder, there were no delusions and no hallucinations. He thought the defendant's affect was reactive and congruent with mood. He thought the defendant's presentation was consistent with previous testing indicating intellectual disability.
He concluded that the defendant suffered from a mild intellectual disability and displayed difficulties in many domains including reading and writing. He concluded that the defendant suffered from an alcohol use disorder which was in remission in a controlled environment. He concluded that the defendant did not suffer from any major mood or psychotic disorder.
In attempting to describe the defendant's risk of committing a further serious sex offence, Dr Chew said this: "Mr Bird poses a risk of committing a further offence. Prediction of risk of reoffending is fraught with difficulty. It can be said that the best predictor of future behaviour is past behaviour, thus the fact that Mr Bird has committed sex offences places him at risk of committing further offences. One of the may modifiable risk factors for Mr Bird is his substance use, and if he can remain abstinent, I think that his risk of reoffending will be significantly lowered. It is important to also maintain factors protective to reoffending such as stability of housing, meaningful education/employment, stable pro-social network."
Dr Chew undertook a STATIC-99 test and found that the defendant was in the moderate-high risk category of recidivism. Dr Chew noted that the recidivism estimates provided by the STATIC-99 test were group estimates based upon reconvictions. As such, he did not think that those estimates directly corresponded with the recidivism risk of an individual offender which may be higher or lower than the probabilities derived from the STATIC-99 test.
Dr Chew has asked for his opinion as to whether the risk which Mr Bird posed could be managed in the community. Of this he said: "I am of the view that Mr Bird's risk can be managed in the community under an ESO, if he completes the current CUBIT program in custody satisfactorily and has the appropriate management plan in place. … If abstinence can be maintained, then his risk of recidivism will be markedly diminished. A cornerstone of successful community placement is appropriate supervised transitional accommodation, and I understand that 24 hours staffed accommodation has been identified via the CJP."
Dr Chew did not recommend the prescription of hormonal anti-libidinal medication, particularly because it was relatively contra-indicated in individuals suffering from diabetes.
Dr Chew was asked to provide his views on the appropriate duration for an ESO. His attention was drawn to the fact that under the HRO Act, an ESO cannot exceed 5 years, although further extension supervision orders can be made. His opinion was this: "It is difficult to estimate the appropriate length of time of an ESO. Clinically, I would recommend engagement with services for a prolonged period, including offense specific services and also alcohol and drug services. How coercive this should be needs to be assessed on a regular and periodic basis depending on progress and engagement with treatment."

Other Evidentiary Material

The State also relied upon other evidence, including the opinion of a psychologist, Danielle Anna Matsuo, who is a registered psychologist. Ms Matsuo has never met the defendant. She provided information in her affidavit based upon her review of a series of risk management reports and the proposed conditions of supervision for the defendant.
Ms Matsuo noted that since November 2015, Mr Bird had been participating in a prison-based residential therapy program known as "Self-Regulation Program for Sexual Offenders". It is a program designed for men who have sexually abused adults and/or children and have an intellectual disability or other cognitive impairment and have limited adaptive skills in the jail environment.
Ms Matsuo noted that the defendant had attended 111 sessions in this program in a 10 month period up to 30 September 2016. Ms Matsuo noted that, at the time she deposed to her affidavit, the defendant had not completed the treatment and, accordingly, a treatment report was not available. However, she was provided with an update by the psychologist conducting the program. It was to the following effect: "It is considered that Mr Bird has gained all that he can from cognitive behavioural therapy at this point in time. He has identified some risk factors and developed plans to manage them. Keeping him in treatment to review and implement these plans is not considered necessary or beneficial. Rather, he needs an opportunity to implement these plans in the community in real life situations. Having support from CSNSW and agencies such as the Community Justice Program will be valuable in assisting him implement these plans."
It was anticipated that this program would be completed before the end of November 2016.
The State also relied upon an earlier expert report by Dr Scott Harden, a psychiatrist, which was dated 1 July 2003. The report was obtained with respect to charges the defendant was facing in Queensland.
Dr Harden undertook a mental state examination. He expressed this conclusion: "It was not possible to perform more detailed cognitive testing, but the WISCIII results from the psychologist showing a performance IQ in the 60-70s and verbal IQ in the 50s, were noted, as was the likelihood that his overall IQ was likely to be in the 50-62 range."
He concluded this diagnosis: "It is my opinion with a reasonable degree of medical certainty that the defendant did meet criterion for mild mental retardation of the Diagnostic and Statistical Manual of Mental Disorders 4th edition, at the time of interview. He also may have met criterion for a substance use disorder - solvent. It is not possible to make any comment regarding whether he has a disorder of sexual preference … given the stage of the legal process (as he has only been charged, and there has been no finding with regard to the commission or otherwise of the sexual offences)."
Dr Harden concluded that the defendant suffered from a mental infirmity which he described as "mental retardation". He also concluded that the defendant was unfit for trial at that time.
As well, the plaintiff pointed to a report from a Ms Dyer, a child safety officer in the Department of Child Safety of the Queensland government. That report appears to have been provided to the Court to assist in the determination of the appropriate sentence to be imposed on the defendant.
There were a series of other reports relied upon by the plaintiff. The first in point of time, relevant to this hearing, is a risk assessment report of Ms Amee Press of 27 May 2016. Ms Press prepared her report for the Commissioner for Corrective Services in light of the application which was to be made under the HRO Act.
Ms Press administered the STATIC-99R test. She expressed this conclusion: "56. Mr Bird's total score on the STATIC-99R was 5 … placing his score in the high risk category relative to other male sexual offenders. The rates of sexual recidivism for sexual offenders within the normative samples who had the same total score as Mr Bird were between 11.4% and 25.2% over 5 years, and between 22.6% and 35.5% over 10 years. The recidivism rate of individuals convicted/charged with sexual offences with the same score as Mr Bird would be expected to be about 2.7 times higher than the typical sexual offender as identified in the sample population. Only 5% of sexual offenders in the routine sample would score below Mr Bird's score."
Ms Press noted in particular that the reoffending considered relevant for the purposes of STATIC-99R was not of a kind necessarily required to meet the criteria of serious sexual offence as defined in the HRO Act. Ms Press, by reference to other assessments, including STABLE-2007 and RSVP, concluded that Mr Bird "… currently presents a high risk of committing further sexual violence".
She considered that a number of dynamic factors were relevant, or potentially relevant, in considering Mr Bird's risk of sexual re-offending. They were: 1. substance abuse; 2. poor problem solving skills; 3. poor co-operation with supervision requirements; 4. impulsivity; 5. sexual regulation and possible deviance; 6. limited social support and lack of re-integration planning; and 7. intimacy and social skills deficits.
Ms Press expressed these conclusions with respect to overall risk: "80. The management of risk involves the offender improving their level of functioning in the aforementioned dynamic risk areas. As individuals address and become more skilled at managing dynamic risk factors, their ability to manage their overall risk improves. For Mr Bird, the risk he currently poses is unlikely to be significantly changed without consistent external controls. 81. The overall totality of evidence suggests that Mr Bird falls in the high risk category of sexual and other criminal offending, relative to other adult male sexual offenders. It is not clear to what extent any future sexual violence or other criminal offending would approach the threshold of a 'serious sexual offence' as defined in the [HRO] Act."
In her conclusions and recommendations, Ms Press said this: "83. Given Mr Bird's risk and current lack of management strategies, including no structured release plan, it is considered necessary that Mr Bird successfully completes his current SRO-SO program. It would seem unlikely, given the limited progress he has made to date, that Mr Bird would only require another six months to complete the requirements and demonstrate application of any knowledge and skills gained. …. 84. In the event that Mr Bird is subject to an extended supervision order (ESO), it is likely that he would be subject to ongoing intensive supervision and case management by CSNSW … The goal would be to encourage the development and maintenance of a stable and sustainable lifestyle, so that new habits can be formed that might endure beyond supervision. With ongoing supervision and professional support, the long term aim would be to foster problem solving in a structured lifestyle including employment, pro-social activities and access to appropriate social and professional supports, such that the requirement for assistance from external bodies to contain Mr Bird's risk of sexual or other offending is minimised. However, given his level of cognitive functioning, lack of insight into his risk and limited ability to regulate his own behaviours, it is likely that Mr Bird will continue to require external sources of control and support to attenuate his risk. Such supervision could minimise risk of behaviour that might otherwise result in a sexual offending scenario. 85. In the event that no order is imposed, after the 10/12/2016, Mr Bird returns to the community with no supervision. It may be that Mr Bird could independently remain offence free. However, there [are] currently no identified structures and realistic integration plan that could appropriately moderate the risk factors identified. He identified support persons that present a risk to him returning to antisocial behaviours including substance use, and did not establish realistic plans regarding employment or structured activities that would attenuate the risk associated with idle time. …"
On 11 July 2016, Mr Therese Sartor, a senior community corrections officer, completed a risk management report. That report demonstrated that it was possible, by the imposition of an extended supervision order, for appropriate supervision and strategies to be put in place to reduce the risk of the defendant reoffending.

Discernment

I have had regard to each of the matters required by the terms of s 9 of the HRO Act which is set out above at [20]. Many of them have been referred to earlier in this judgment. I note that I am also required to have regard to the objects of the HRO Act identified in [15] above. Of particular relevance in the circumstances of the case are the safety of the community (s 9(3)(a) of the HRO Act), and the progress and achievement of the defendant in undertaking various treatment or rehabilitation programs whilst in custody (s 9(3)(e) of the HRO Act).
I am satisfied that the State has established all of the necessary preconditions for this Court to make an ESO.
In light of the opinions of both Doctors O'Dea and Chew, that the defendant requires ongoing treatment, supervision and assistance, I am satisfied that it is appropriate for this Court to make an ESO, subject to appropriate conditions.
The first question which arises is the period of time for which the ESO ought be made. The State sought that the order be made for 5 years. The defendant opposed the making of an order for that length of time, submitting that it was not necessary, and that a shorter time would be appropriate. No specific time period was identified by the defendant as appropriate.
The reports of the defendant's progress in various rehabilitation and treatment programs whilst he has been in custody indicate that essentially due to his lack of reading and writing skills, and his intellectual disability, he often takes longer to complete tasks than others, particularly those who do not suffer from any intellectual disability. This requires the defendant to apply himself consistently over time in order to achieve the identified goals. Past experience demonstrates that on some occasions the defendant has not been able, at his first attempt, to achieve satisfactory goals. Nevertheless, as the reports show, with support and persistence, the defendant has been able, whilst in custody, to make reasonable progress.
The Court does not have before it, a proposed program for the defendant. It is therefore not able to derive from any such proposed program the length which it is anticipated any rehabilitation or other treatment programs will take.
The only evidence before the Court as to the period necessary for an extended supervision order is that contained in the report of Dr Chew, who describes the period as a "prolonged period": see [59] above, and that of Dr O'Dea, which is set out at [51] above, namely that a period of at least 5 years is appropriate.
In considering this question, in my view, the Court must attend and give effect to the objects of the Act. The primary object of the HRO Act is to "… ensure the safety and protection of the community". Another objective is to encourage rehabilitation.
Having regard to the defendant's intellectual disability, and his past history of progress through courses, and the opinions of both Dr Chew and Dr O'Dea, it seems to me that the appropriate way of giving effect to the objects of the Act and, in particular, the protection of the community, is to impose an ESO for the maximum period of 5 years.
It needs to be recognised that, even though an ESO is imposed for 5 years, the conditions which are presently formulated, can be changed for the benefit of the defendant, by the departmental supervising officer where it appears that the defendant has made real progress towards rehabilitation, provided that such amelioration is consistent with the protection of the community.
Accordingly, an ESO will be imposed for a period of 5 years to commence from the last day of the defendant's term of imprisonment, which is 10 December 2016.
It is necessary also for the Court to be satisfied that the conditions sought by the State are appropriate in the circumstances: s 11 of the HRO Act.
I note that s 12 of the HRO Act provides that a person who fails to comply with the requirements of an extended supervision order, which would include the conditions imposed, would be guilty of a criminal offence for which they may be fined or sentenced to a term of imprisonment for up to 5 years.
In Attorney-General for NSW v Tillman [2007] NSW CA 119, the Court observed at [5] that the objects of the HRO Act reveal "… that the legislation is protective rather than punitive in its intent". It is necessary to bear in mind, when considering the appropriateness of conditions, that conditions are not meant to punish a defendant, but are designed to promote the objects of the Act by ensuring the safety and protection of the community, and facilitating rehabilitation of serious sex offenders.
Although conditions are intended to be punitive, they may nevertheless impose constraints on behaviour. They can extend to mandatory participation in rehabilitation programs.
I adopt with respect the test described by Beech-Jones J in State of NSW v Fisk [2013] NSWSC 364 at [99], where his Honour said: "The imposition of 'appropriate' conditions under s 11 is governed by the overriding purpose of mitigating the identified risk of the high risk sex offender committing either serious sex offences or at least offences of a sexual nature."
Beech-Jones J added to this, in State of NSW v Burns [2014] NSWSC 1014 at [59] that : "Usually it will be necessary for such a condition to be related to the mitigation of the unacceptable risk that led to the formation of the conclusion of the relevant offender as a high risk offender."
Conditions are not designed to relate to criminal offending generally, but are designed to address conduct which relates to the risk of future serious sex offences.
In Wilde v State of NSW [2015] NSWCA 28, at [53], the Court said: "53. Care always needs to be taken with use of language which is different from the statutory text. Section 11 does not require that there must be a specific demonstrated link to the past offending which is the basis of the order made under the Act. Rather, the court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order. 54. As the cases to which we have referred correctly state, it is not appropriate for the court under s 11 to impose conditions on a person directed to general future criminal conduct. But the condition does not have to have a 'demonstrated' link to the past offending in the sense submitted by the appellant. Conditions C(19) and E(30) provide a good example of conditions that may be appropriate notwithstanding that the past sex offences did not involve conduct of the type constrained by such conditions. Here, the appellant's serious sex offences had no connection with any association with an Outlaw Motorcycle Gang. Nonetheless, for the reasons we explain below, at [69]-[70], there was no error in his Honour imposing conditions prohibiting the appellant's association with such groups."
I will bear these principles in mind when considering the appropriateness of the conditions.
It is also fair to bear in mind that in the final form presented to the Court, there was little dispute, if any, by the defendant with respect to the conditions. The State, by the time of the final hearing, had taken into account concerns expressed by counsel for the defendant, and had adjusted a number of the conditions to take account of those concerns.
Accordingly, the Court was only called upon to deal with two conditions in any substantial way.
The first condition was numbered [25], which was in the following terms: "The defendant must tell his DSO if he has a phone, computer or anything else that allows him to get on to the internet. He will need to tell his DSO what the telephone numbers are, who the phone companies are, what his email addresses are, and any other information he is asked."
The defendant submits that such a condition is inappropriate, because there is nothing in the defendant's past offending which suggests that the use of devices to access the internet has in any way contributed to his offending.
As well, the defendant submits that having regard to the conditions with respect to search and seizure, the defendant is also liable to have his mobile telephones, computers or other devices of a like kind searched in the circumstances set out in those conditions.
The State submits that the imposition of this condition is appropriate to enable the supervising officer to oversee the defendant's rehabilitation. In particular, the State submits that, particularly having regard to the need for the defendant to be assisted into an orderly reintegration into the community, and in particular assisted to be encouraged to make sensible judgments and to be prepared for independent living in the community, the condition is an appropriate one to allow proper supervision and if a problem with the use of the internet emerges, for it to be addressed as part of the defendant's ongoing rehabilitation.
In my view, the condition proposed by the State is both reasonable and appropriate.
The defendant is a person who, at least according to the history, does not seem to have had much, if any, engagement with the internet. It may be that he will have little in the future. However, access to the internet provides the defendant with an opportunity to explore areas of interest. He can do so in private. In so doing, he will be confronted with temptations of a kind which may tend to increase his risk of reoffending, and which may tend to adversely affect his independent decision-making.
In those circumstances, particularly as this is not an invasive condition, in my view it is appropriate to ensure the protection of the community and to facilitate the rehabilitation of the defendant, that this condition be imposed.
The remaining condition which led to a concern being expressed by the defendant, was one that the defendant must let Corrective Services take photographs of him. The State submitted that this was an appropriate condition so that Corrective Services and/or the police had a reasonably current photograph of the defendant if any need to apprehend him for breach of conditions arose.
As well, it seems to me, that if a departmental supervising officer was to change, it would be useful for the new officer to have a photograph of the plaintiff.
The defendant submitted that an open-ended condition of the kind suggested did not address the type of photograph to be taken, how often photographs could be taken and how intrusive that condition may be.
Taking into account those concerns, I am satisfied that an appropriate condition would be as follows: "The defendant must let Corrective Services take a facial and full body photograph of him every 12 months, or else whenever it reasonably appears to the DSO that the defendant's appearance has changed."

Conclusion

I am satisfied that it is appropriate to impose an extended supervision order. I am satisfied that the conditions set out in the Schedule to this judgment are the appropriate conditions to reflect the objects of the Act.

Orders

I make the following orders: 1. Order that pursuant to s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 that the defendant be subject to a High Risk Sex Offender Extended Supervision Order for a period of 5 years commencing on 10 December 2016. 2. Order that pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006, for the period of 5 years from 10 December 2016, being the period of the extended supervision order referred to in Order 1, the defendant comply with the conditions set out in the Schedule to this judgment.

A. Monitoring and Reporting (1) The defendant must accept the supervision of Corrective Services NSW (CSNSW) until the end of the Order. (2) The defendant must report to the Department Supervising Officer (DSO) as well as any other person that his DSO tells him to. (3) The defendant must follow all reasonable directions by his DSO or anyone else who might be supervising him. (4) The defendant must go to the police station closest to where his DSO says he can stay, within 3 days of an ESO being made, and he must give the police a copy of this Order.

B. Electronic Monitoring (5) The defendant must wear electronic monitoring equipment if his DSO tells him that he needs to and comply with all instructions given by his DSO in relation to the operation of the equipment. (6) The defendant can only take off his electronic monitoring if his DSO gives him permission to. (7) The defendant must not damage or tamper with his electronic monitoring equipment.

C. Schedule of Movements (8) If he is asked to write a weekly plan of what he would like to do, the defendant must give a weekly plan to his DSO and this must be given it his DSO 3 days before it is to start. (9) If the defendant wants to change his weekly plan after he has given it to his DSO, he must let his DSO know about the change 24 hours before the change, unless his DSO gives him permission to give a shorter time to let the DSO know, or unless there is emergency. (10) If his DSO or anyone else who is looking after him asks the defendant questions about where he is and where he is going, the defendant must tell the truth. (11) The defendant must not go to a place if his DSO tells him he cannot go to that place.

D. Accommodation (12) The defendant must only live at a place where his DSO gives him permission to live. (13) The defendant must stay at home where he lives between 9 o'clock at night and 6 o'clock in the morning, unless his DSO gives him permission to be home at different times. (14) The DSO can visit the defendant at any time at the place where the defendant is allowed to live. If this officer visits, the defendant must allow the officer to come inside where he lives. (15) The defendant must only spend the night where he is allowed to live and not anywhere else. He can spend the night somewhere else if his DSO gives him permission to. (16) The defendant must not leave New South Wales without approval of his DSO or someone acting on his DSO behalf.

E. Employment, Finance and Education (17) The defendant can only start a job, do volunteer work or do an educational course if his DSO gives him permission to.

F. Drugs and Alcohol (18) The defendant must not have alcohol with him, must not drink alcohol, must not use illegal drugs, and must not use any drugs unless prescribed by his doctor. (19) The defendant must allow himself to be tested for taking drugs and drinking alcohol if asked by his DSO or anyone else who is looking after him. (20) The defendant can only go inside any hotel or pub or any place where alcohol is sold if his DSO gives him permission to. This condition does not apply to the defendant going inside a café, restaurant, theatre, movie cinema even if alcohol can be bought at those places. (21) The defendant must go to any programs and courses for drugs and alcohol rehabilitation if his DSO tells him that he needs to.

G. Non Association (22) The defendant must only be with people who his DSO tells him he can be with. The defendant must not be with anyone if his DSO tells him that he should not be. (23) The defendant must not be with anyone who he knows are planning on using illegal drugs, or who are using illegal drugs. (24) If the defendant wants to start an intimate relationship with someone, he has to tell his DSO because his DSO may need to tell the person about why the defendant has been to court in the past.

H. Internet and Phone (25) The defendant must tell his DSO if he has a phone, computer or anything else that allows him to get on to the internet. He will need to tell his DSO what the telephone numbers are, who the phone companies are, what his email addresses are, and any other information he is asked.

I. Personal Details and Appearance (26) If the defendant wants to change his name from William Bird he needs to have permission from his DSO. (27) The defendant needs permission from his DSO if he wants to permanently change how he looks. (28) The defendant must let Corrective Services take facial and full body photographs of him every 12 months or whenever it reasonably appears to the DSO that there is a change in the appearance of the defendant.

J. Search and Seizure (29) The defendant, or his approved address, can be searched if his DSO believes on reasonable grounds that it needs to be done to protect the safety of others. (30) The defendant, or his approved address, can be searched if his DSO believes on reasonable grounds that it needs to be done to check that the defendant is doing what he should be doing on the Order. (31) The defendant, or his approved address, can be searched if his DSO believes on reasonable grounds that it needs to be done because something may have happened or might happen that might make it more likely that the defendant will commit a serious offence. (32) If there is a search the defendant must give permission for the search and must hand over anything that he is asked to by his DSO. (33) The defendant must give permission to CSNSW to search any telephone, tablet device, data storage device or computer that he may have or use.

K. Medical Intervention and Treatment (34) The defendant must tell his DSO who his doctors, nurses, psychologists and psychiatrists are, and where they work from. (35) The defendant must go to all appointments with psychologist and psychiatrists that his DSO tells him to. (36) The defendant must give permission to his doctors, nurses, psychologists and psychiatrists to tell his DSO about what the defendant has told them. (37) The defendant must give permission for any details being shared between people who are helping him.

L. Grievances with DSO (38) If the defendant is unhappy about anything his DSO asks him to do, or which his DSO tells him he cannot do, the defendant can either himself write, or tell another person (such as a friend, a relative or another person who is helping the defendant), to write to the Commissioner of CSNSW to let the Commissioner know what the problem is. The Commissioner of CSNSW must take into account the letter written by, or on behalf of, the defendant when deciding whether what the DSO says should stay the same or whether it should be changed. (39) If the defendant is unhappy about anything his DSO asks him to do, or which his DSO tells him he cannot do, the defendant can also tell the Manager of the Extended Supervision Order Team about what the problem is and that complaint is to be passed on to the Commissioner of CSNSW. The Commissioner of CSNSW must take into account the defendant's oral complaint when deciding whether what the DSO says should stay the same or whether it should be changed. 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: 30 November 2016

At a glance

Court

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Before

Source

Judgment (23 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (7)