State of New South Wales v Burchell - [2017] NSWSC 1191 - NSWSC 2017 case summary — Zoe

NSWNSWSC

State of New South Wales v Burchell

[2017] NSWSC 1191

Supreme Court of NSW|2017-09-04|Before: Adamson J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2017-09-04

Before

Adamson J

Source

Original judgment source is linked above.

Judgment (48 paragraphs)

[1]

Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid Commission (NSW) (Defendant) File Number(s): 2017/129611

[2]

Judgment

By summons filed on 1 May 2017 the State of New South Wales (the plaintiff) seeks an extended supervision order (ESO) for the maximum period of five years pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). All references to legislation in these reasons will be references to the Act, unless otherwise specified.
At the preliminary hearing, which was listed before me on 24 May 2017, I made orders pursuant to s 7(4) of the Act appointing experts to examine the defendant and furnish reports. Dr Adams and Dr Sheehan examined the defendant and furnished reports to the Court in accordance with the orders.
Ms Cook, who appeared on behalf of the defendant, accepted that the application was made in time; the defendant is over 18 years; he is a sex offender within the meaning of s 4; he is a supervised sex offender within the meaning of s 5I; and the Court would be satisfied to a high degree of probability that the defendant is a high risk offender such that an ESO could be made.
Since the summons was filed, the plaintiff has made various amendments to the conditions which are contained in a schedule to the summons, in part in response to the submissions made on behalf of the defendant by Ms Cook. Those presently pressed are contained in a schedule which was filed on 22 August 2017. These will be addressed further below. The principal issues in the proceedings are the duration of any ESO and the conditions of any such ESO.

[3]

The relevant legislation

Section 3 of the Act provides: "Objects of Act (1) The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high-risk violent offenders so as to ensure the safety and protection of the community. (2) Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation."
The legislative purpose of the Act is protective, not punitive. As appears from the terms of s 3, the protective purpose is fundamental.
The term "sex offender" is defined by s 4 of the Act to mean "a person over the age of 18 years who has at any time been sentenced to imprisonment following his or her conviction of a serious sex offence".
Section 5(1) of the Act defines "serious sex offence". The definition relevantly includes an offence under Division 10 of Part 3 of the Crimes Act 1900 (NSW) which is punishable by a sentence of imprisonment of 7 years or more (such as offences against ss 61I and 61J); and an offence under s 38 of the Crimes Act that has been committed with intent to commit an offence under Division 10 of Part 3 of the Crimes Act which is punishable by a sentence of 7 years' imprisonment or more.
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."
The plaintiff may apply to this Court for an ESO (s 5H), which can be made by this Court under s 5B. The persons against whom such an application can be made are set out in s 5I and relevantly include a person who is serving a sentence of imprisonment for a serious sex offence, or an offence of a sexual nature, or for another offence which is being served with a sentence for a serious sex offence or an offence of a sexual nature.
Section 6 provides that an application for an ESO may not be made until the last 6 months of the offender's current custody and must be supported by documentation which includes a report by a relevant expert (qualified psychiatrist, registered psychologist or registered medical practitioner) that assesses the likelihood of the offender committing a further serious sex offence.
Section 7 provides for pre-trial procedures for an application for an ESO. Section 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, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can be reasonably and practicably 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) 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, (g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004, (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 period not exceeding five years. Section 11 provides for the conditions that may be imposed on an ESO (or ISO). Failure to comply with the requirements of an ESO (or ISO) is an offence under s 12.
These proceedings are to be conducted as civil proceedings: s 21. Section 25 empowers the Attorney-General to require provision of certain information. Any document produced in answer to an order in writing under s 25(1) is admissible in proceedings under the Act, "[d]espite any Act or law to the contrary": s 25(3).

[12]

The index offence: March 2013

On Sunday 17 March 2013 the 3-year old victim was playing with her 4-year old sister among the clothing racks of the baby wear department at Big W within the Market Town Shopping Centre Newcastle. Her mother was nearby. The victim moved out of her mother's sight. The defendant approached the victim, pulled down her underpants and touched her vagina. When arrested the defendant co-operated and made admissions. The NSW Police Statement of Facts noted that the defendant stated that he had used the drug "ice" earlier that day and stated he could not recall events inside Big W, although he could recall, in detail, events either side of the alleged incident. He eventually admitted to the offence and stated "I didn't touch her on the bottom, I touched her on the fanny". He confirmed that he used his fingers to touch the victim's vagina and that he moved her underwear to the side. The Statement of Facts also noted that the defendant stated that he was not reliant on drugs, but that if he takes the drug ice it "messes with his head". The defendant also admitted that ice "triggers sexual thoughts." At the time of the offence he was the subject of a Child Protection Prohibition Order which was to expire on 15 July 2013 and was on the Child Protection Register.
The defendant was sentenced by Maiden SC DCJ on 4 September 2013 in the District Court at Newcastle in respect of one count of indecent assault pursuant to s 61M(2) of the Crimes Act following a plea of guilty. His Honour sentenced the defendant to a term of imprisonment of 4½ years with a non-parole period of 3 years. The defendant became eligible for parole on 23 March 2016 and was released to parole on 30 March 2017. His sentence expires on 23 September 2017. His Honour noted the defendant's history of offending as well as the four previous instances of sexual offending. The sentencing judge had regard to the report of Dr Richard Furst, consultant forensic psychiatrist who noted diagnoses of bipolar disorder; substance use disorder (cannabis and amphetamines); a personality disorder (anti-social with borderline features); and paedophilia. His Honour said: "The paedophilia that Dr Furst refers to is heterosexual paedophilia consistent with a primary paraphilia, that is a disorder of sexual arousal and attraction. That matter perhaps is relevant to his offending behaviour on this day and what must be and which I find what has occurred is that Mr Burchell has had an underlying paedophile condition and when he took the substance ice, either on the day or earlier, that whatever control mechanisms he may have had when substance or alcohol free dissipated and gave rise to him seeking out the victim on this day. In doing so, I accept that it was not planned, however, it is clear that by going to that part of the store that he was looking for a young female to attack, which he did. ... I find that it was his drug use that caused that behaviour notwithstanding that he had an existing psychiatric condition. ... what is clear is that because of his complex psychiatric conditions he was unable to control those conditions when affected by alcohol."
His Honour addressed the connection between drug-induced disinhibition in the following passage: "What is most saddening about this matter, besides what is the actual offending behaviour and what may be the effect on the young girl and her family, is that this matter, in my mind, would not have occurred had Mr Burchell not taken the illicit substances which I have earlier referred to. This is a matter where he knew, from his experience of his various offending behaviours and period of time in incarceration what would happen if he could not control his instincts. In this matter what has occurred is that he took ice and as for the finding I have set out above this is most likely the reason that this offence occurred."
The defendant was in custody for the index offence from 4 March 2012. He was not released to parole in March 2016 as he had not completed a program to address his sex offending. He commenced the Custody-Based Intensive Treatment (CUBIT) program on 7 December 2015 at Cessnock gaol. He was transferred to Metropolitan Special Program Centre, at Long Bay gaol on 6 February 2017. He was released to parole on 30 March 2017. The conditions of his parole include a requirement that he attend Forensic Psychology Services (FPS) and drug and alcohol counselling. His parole has been supervised by the ESO team since his release. From the date of his release he was living at the Nunyara Community Offender Support Program Centre (COSP).
On 9 May 2017 the Local Court at Waverley made a Child Protection Prohibition Order (the Prohibition Order) in respect of the defendant pursuant to s 5 of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW). The terms of the Prohibition Order relevantly provided: "The Local Court orders that [the defendant] is prohibited from engaging in specific conduct, namely: . . . 7) Not to be in the possession of any images depicting children or child-like images. . . . 9) Not to be in possession of any children's underwear or nappies. . . ."

[13]

Breach of the Prohibition Order

In May and June 2017 the defendant behaved aggressively towards staff at Nunyara COSP and was given warnings about his behaviour. He failed to attend his weekly scheduled case review meeting on 18 May 2017, which was the second occasion on which he had failed to attend. On 19 May 2017 he was given a written warning. He was also sanctioned about failing to save in accordance with his budget. On 15 June 2017 he commenced employment as a labourer.
In June 2017 there were several occasions on which he was abusive to COSP staff. On 27 June 2017 he was directed, as per his parole conditions to be of good behaviour and adapt to normal community life, "to behave in an acceptable manner and refrain from offensive language."
Ultimately it was determined that he would be obliged to leave the Nunyara COSP and move to the Campbelltown COSP because of his aggression towards staff.
On 27 June 2017 when his room at the Nunyara COSP was being cleared out by staff in preparation for his relocation, items were found in it which led to his being charged on 28 June 2017 with breaches of condition 7 of the Prohibition Order. The Facts Sheet attached to the Court Attendance Notice sets out the particulars of breach. The items found in his room which are alleged to constitute a breach of condition 7 were: a Stella Magazine (a lift-out from The Sunday Telegraph) which depicted a mother with a baby, a pram and a toddler child; and a Foodworks brochure which included advertisements for nappies which depicted a mother with her toddler in a nappy. Section 13 of the Child Protection (Offenders Prohibition Orders) Act provides that the offence of contravene a prohibition order carries a maximum penalty of 5 years' imprisonment and a maximum fine of 500 penalty units ($55,000). Although baby items were apparently found in his room, these were not the subject of a charge.
The defendant's parole was revoked on 12 July 2017, effective from 27 June 2017, on the basis of this charge. An application for review of the revocation was withdrawn by the defendant. The Director of Public Prosecutions has elected to proceed on indictment. The matter is next listed for mention in the Central Local Court on 10 October 2017. This is the first occasion on which it will be in the committals list. Presently the defendant is in custody serving the balance of his sentence for the index offence, which will expire on 23 September 2017. An application for bail prior to revocation of his parole was refused. Accordingly, unless there is a further bail application, he will remain in custody on remand on the expiry of his sentence.

[20]

Any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community (s 9(3)(d1))

Jessica Smith, Senior Community Corrections Officer at the Cessnock Parole Unit prepared a report dated 9 December 2015. At that time release to parole was not recommended as the defendant had not yet completed the CUBIT program. Ms Smith noted the defendant's lack of social support in the community and his poor behaviour in custody. In the next report, dated 11 January 2017, Ms Smith noted that the defendant was doing the CUBIT program and had demonstrated good progress. Ms Smith noted that the defendant had not committed any institutional misconduct since May 2015 and that parole would be recommended in March 2017 when it was expected that the defendant would have completed CUBIT.
Ajay Dayal, a Senior Community Corrections Officer within the ESO team, prepared a Risk Management Report dated 20 February 2017 in which the defendant's periods in custody and under supervision were noted. Mr Dayal identified the defendant's risk factors as being: substance abuse; alcohol abuse; sexual drive/preoccupation; intimacy deficits; and sexual attitudes. Mr Dayal proposed a management plan which includes the following: weekly interviews; random drug testing; random field visits; attendances at FPS; electronic monitoring with a curfew and the requirement to submit a weekly schedule in advance; non-association and place restrictions; and review of internet access. Mr Dayal prepared a further report dated 18 May 2017. As at that date, Mr Dayal described the defendant's engagement with Community Corrections as "satisfactory" although he noted that the defendant's stay at the accommodation was "borderline" since he had, on a number of occasions, displayed aggression towards staff and other residents. He also commented that although the defendant had a few minor deviations from his weekly schedule of movements at the beginning of his period on parole, his compliance had improved. Mr Dayal also reported that the defendant was attending group sessions at FPS and that his participation was reported to be satisfactory. Mr Dayal said that the defendant had been randomly tested for drugs and alcohol and all results were negative. I note that Mr Dayal's updated report predates the recent events referred to above, which have led to revocation of the defendant's parole.
Pauline Jeffress, who was assigned as the defendant's Departmental Supervising Officer (DSO), opined as to the management of the defendant while he is in the community. She used the Level of Service Inventory-Revised (LSI-R) to assess his risk of re-offending. She said, in her affidavit sworn on 18 August 2017 (which was read without objection by the plaintiff at the final hearing) that the defendant was assessed under the LSI-R on 7 July 2017 as posing a medium/high risk. Ms Jeffress overrode that assessment and adjusted it to a high rating in view of his previous offending, the Static-99 result and the Sex Offender Supervision Assessment. She also referred to the Community Impact Assessment (CIA), which is a tool used by Corrective Services NSW and provides a basis for increased monitoring of offenders.
Ms Jeffress noted in her affidavit that she had tried to talk to the defendant about his aggression towards staff at the Nunyara COSP. She reported that: "on each occasion he has not taken responsibility for his actions, instead blaming others. My impression is that he does not perceive his behaviour to be intimidating."
Ms Jeffress gave further evidence about the particular conditions sought by the plaintiff, which will be addressed in further detail below. As to condition 19 she said: "Proposed condition 19 requires the offender to enter employment, or make himself available for, employment, education, training or participation in a personal development program. The Defendant has always impressed me as someone wanting to work. However, the purpose of this condition is to assist the Defendant in re-integrating into the community through ensuring that he undertakes training, education, or other programs with a view to obtaining employment and encouraging his self-worth."

[21]

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 (s 9(3)(e))

The defendant completed eight sessions of the 20-session Explore, Question, Understand, Practise to Succeed (EQUIPS) Addiction program, which was terminated due to low numbers. He completed the CUBIT program. However this took from 7 October 2015 until 2 March 2017, which was longer than expected. According to the CUBIT treatment report dated 9 March 2017 the length of time the defendant took to complete the program could be attributed to his lack of motivation to engage in the requirements of the program. The author of the report said that: "[The defendant's written tasks and oral reflections] demonstrated a basic understanding of his problematic behaviours and appropriate utilisation of the skills and strategies. He continues to have difficulties identifying the problematic behaviours when experiencing a strong emotional response or feels he is being blamed for something."
The report also noted that the defendant reported that in the period leading up to each offence the defendant was not in a relationship; lacked support; was unable to express his emotions or solve problems; questioned his purpose in life; engaged in excessive alcohol and drug use; and then increased his pornography use and masturbation. His pornography use and fantasies became more deviant, moving to pre-pubescent girls. The author of the report identified several risk factors and warning signs, which included the following: sexual pre-occupation; using sex to cope; deviant sexual thoughts; emotional inhibition; loneliness/isolation and fear of rejection; intimacy deficits; impulsivity; avoidance of solving problems; substance use; and a general lack of concern for others. The report said: "[The defendant's] contact sexual offending was impulsive and opportunistic, believing he would not get caught, and appeared to be an attempt to manage his emotions, act out sexual fantasy or sexualised thoughts he had whilst viewing child pornography."
The defendant worked in various positions in gaol from which he was dismissed because of his behaviour. However, these dismissals occurred prior to the completion of the CUBIT program. Nonetheless, his inability to maintain stable employment, even in the custodial setting, suggests that he needs supervision to maintain consistency and routine in his life with a view to minimising the risk of substance abuse and consequential re-offending.

[33]

Part D: Employment, finance and education

Proposed condition 19 provides as follows: "If the defendant is unemployed, the defendant must enter available employment if and as directed by the DSO or make himself available for employment, education, training or participation in a personal development program as directed by the DSO."
Ms Cook contended that the condition was unwarranted in the present case since the plaintiff had a good employment record and did not need to be coerced into taking employment or participating in any treatment or development program. She submitted that the intrusion into his autonomy was neither reasonable nor necessary as no nexus has been demonstrated between this condition and the risk of the defendant's re-offending. She relied on the reasons of Rothman J in State of New South Wales v Banks [2016] NSWSC 926 at [68(d)] in which his Honour rejected a proposed condition in similar form and questioned the government's power to force someone into compulsory labour. Ms Cook also referred to the view of Adams J in State of New South Wales v Russell [2015] NSWSC 488 at [33] that the requirement that a person accept employment was "such an interference with basic civil rights that it could not be countenanced except in the exceptional circumstances".
Mr Fraser referred to the reasons of Schmidt J in State of New South Wales v Amohanga [2015] NSWSC 875 at [48]-[55] in which her Honour explained the imposition of a condition to similar effect on the ESO made in that case.
I consider this condition to be reasonable and necessary. Although the defendant has shown himself to be capable of obtaining employment, his history shows that he is apt to lose it for reasons associated with his incapacity to control his emotional responses in a socially acceptable way. Employment is likely to be highly significant in reducing the defendant's risk of re-offending. It will divert him in a productive and remunerative way and assists him to live in the community in a socially acceptable manner. Moreover, the condition also covers education and training. It may be that there is a course which will assist him to obtain, retain or regain employment. If the DSO has no power to enforce such participation, the risk may not be controlled as effectively as if it were a condition. A power such as the power conferred on the DSO by conditions of an ESO is subject to the requirement that it be exercised reasonably, in good faith and for the purpose for which it was granted: Thompson v The Council of the Municipality of Randwick (1950) 81 CLR 87 at 105-106 (Williams, Webb and Kitto JJ). I am persuaded that there is a sufficiently direct link between the mitigation of the risk posed by the defendant through regular employment and the terms of the proposed condition 19. I do not regard the condition as being either onerous or oppressive in the present case. I am satisfied that it is appropriate to include it in the conditions of the ESO.

[35]

Part K: Medical intervention and treatment

Proposed conditions 50-55 (which correspond to conditions 48-53 in the Schedule to these reasons) provide as follows: "50. The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults. 51. The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend. 52. The defendant must take all medications that are prescribed to him with his informed consent by his healthcare practitioners. 53. If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify the DSO within 24 hours of ceasing to take the medication. 54. The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his DSO. 55. The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW."
Ms Cook initially submitted that each of these conditions was objected to. She contended that the defendant does not presently take any medication or have any health issues. She noted that no one can be forced to be assessed for, or take, anti-libidinal medication without consent. She queried the potential for any of these conditions to reduce any risk posed by the defendant. She also contended that the effect of proposed condition 55 was to override the presumption of privacy and submitted that a further qualification ought be added to the condition to ensure that only those who were directly involved in his supervision, management and care ought be permitted to have access to information concerning him.
Mr Fraser argued that the defendant was protected by privacy laws which would ensure that only those with an interest as specified by Ms Cook would have access to the information concerning him in any event. He relied on the oral evidence given by Drs Adams and Sheehan concurrently, in which they, in effect, agreed on the importance of those involved in the defendant's supervision, care and management being privy to the pool of information concerning him so that good, well-informed decisions could be made by all concerned on the basis of the most complete, up-to-date information.
Mr Fraser also relied on the opinion of Dr Sheehan about the potential for therapeutic medication (other than anti-libidinal medication) to attenuate the risk posed by the defendant. Dr Sheehan said: "35. Mr Burchell has a somewhat complex psychiatric history. He denied any history of psychosis or major mental illness, but there are several file entries describing odd behaviour, such as: paranoia, persecutory ideation, disordered thought, manic presentation, insomnia, and labile mood. There is a clear pattern over time of poor affective regulation in terms of having explosive fits of temper and at times it is not clear what was seen to provoke this. There was a psychiatric admission to Lismore's Richmond Clinic approximately 15 years ago. Mr Burchell told me that he was living in a tent in a caravan park at the time and that and the admission was prompted by him being angry and yelling at everyone in the park to be quiet. He was managed in the Mental Health Screening unit at MRRC during 2013 when his behaviour and presentation deteriorated. Mr Burchell reported having made one self-harm attempt (cutting his wrists) immediately prior to his father dying. However, file information suggests further acts of self-harm in younger life such as slashing his neck and carbon monoxide poisoning). He has been prescribed the atypical antipsychotic medication quetiapine (and olanzapine) on several occasions, but not since 2013. 36. Dr Furst (29 July 2013) diagnosed Bipolar Affective Disorder (manic with psychotic features), but other psychiatrists (Dr Elis and Dr Adams) formed the view that Mr Burchell's periods of bizarre presentation were attributable to his substance use, opining that the symptoms had quickly resolved upon abstinence. In my view, whilst the symptoms described are consistent with Bipolar Affective Disorder, they may also be accounted for by a combination of substance use and personality pathology, which makes a definitive diagnosis unclear at this point. 37. Mr Burchell does not currently present with symptoms of mental illness, although his mood regulation remains evidently poor. He rated his mood at 7/10. He is currently prescribed no medications at all. In my view, assessment for mood stabilising medications may have some utility going forward if such medications may assist him to manage his temper, not jeopardise his accommodation (through outbursts) and to tolerate supervision better."
I accept Dr Sheehan's opinion about the potential for medication to help the defendant to manage his temper. Although he cannot be required to take medication without his informed consent, it may be that, if he agreed to taking such medication it would help him in the way described by Dr Sheehan. In these circumstances, the conditions which relate to medication, 52-53, are reasonably necessary. Condition 50 is plainly necessary since the sharing of information is important for managing the risk posed by the defendant and assisting with his rehabilitation. Condition 51 was objected to on the ground that it merely replicated conditions 1 and 3, and potentially proposed condition 27 (which relates to drug and alcohol rehabilitation and corresponds with the actual condition 25 in the Schedule to these reasons). I consider it to be desirable that a condition such as condition 51 be spelled out expressly rather than that it be left under the rubric of the more general conditions, 1 and 3. Proposed condition 27 (now condition 25 in the ESO, see below) relates only to drug and alcohol rehabilitation rather than to other treatment courses. I do not regard condition 51 as repetitive.
I am persuaded that it is appropriate to include conditions 50-55 as proposed subject to one matter. Although Mr Fraser said that the plaintiff's position was that only those staff members who were directly involved in the defendant's management, supervision and care would be permitted to access the information referred to in proposed condition 55, I consider it to be preferable that this qualification be expressed in the condition. Accordingly, the condition which corresponds to proposed condition 55 (condition 53, see below) contains the following words at the end: "on the basis that access to such information be limited to those persons who are directly involved in his supervision, management and care"

[45]

Part H: Search and seizure

If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to f below) is necessary: 1. for the safety and welfare of residents or staff or persons present at the defendant's approved address; 2. to monitor the defendant's compliance with this order; or 3. 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: 1. search and inspection of any part of, or any thing in, the defendant's approved address; 2. search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant; 3. 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 4. search and examination of his person.
For the purposes of the above condition: 1. a search of the defendant means a garment search or a pat-down search. 2. 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.
During a search carried out pursuant to condition 37 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: 1. the safety of residents or of staff at the defendant's approved address; 2. the welfare or safety of any member of the public or any other person; or 3. 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.
The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use.
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 37-40 above.