State of New South Wales v Currie

Supreme Court of NSW|2021-03-01|Before: Davies J, Bellew J

Judgment

The State of New South Wales seeks an order that the defendant be subject an extended supervision order (ESO) for a period of five years. In the interim, the State seeks orders pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (CHROA) appointing two qualified psychiatrists and/or registered psychologists to examine the defendant and furnish reports to the Court, and an order that the defendant be subject to an interim supervision order (ISO) from 12 March 2021.
The defendant was sentenced on 25 September 2005 for two counts of aggravated sexual assault and threaten actual bodily harm, and one count of assault with an act of indecency. The defendant was sentenced to an overall sentence of 13 years and four months commencing 13 November 2007 and expiring 12 March 2021, with a non-parole period of 10 years expiring 12 November 2017.
On 26 November 2019 the defendant was granted parole, and he was released on 11 December 2019.

Legislation

Section 5B of the CHROA provides: 5B Making of extended supervision orders - unacceptable risk The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if: (a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and (b) the person is a supervised offender (within the meaning of section 5I), and (c) an application for the order is made in accordance with section 5I, and (d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.

The defendant's criminal history

The defendant was born in August 1963 and is now aged 57. His criminal record is extensive, and dates back to 1976 when he was a child. His offending continued into adulthood, with offences occurring in most years that he was residing in the community.
His record consists primarily of property and violence offences. However, in 1995 he was sentenced for eight counts of aggravated sexual intercourse without consent committed in 1994. On each count he received a sentence of seven years with a four year non-parole period.
He was released to parole on 12 May 1999. Whilst on parole for those offences, on 13 January 2000 he was charged with an offence of aggravated sexual assault which was alleged to have occurred between 20 and 22 December 1999. He was convicted of this offence, but the Court of Criminal Appeal quashed the conviction and ordered a re-trial as a result of a mis-direction of the trial judge: R v Currie [2002] NSWCCA 126. Of some significance is the fact that in dismissing a ground of appeal on the basis of an unreasonable verdict, Dowd J said at [90]: In my view, cumulatively, of all the matters raised collectively as well as individually, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the offence of sexual intercourse without consent. For the reasons expressed above do not have a doubt as to the guilt of the appellant.
At the re-trial the defendant was ultimately acquitted. However, the Court can have regard to the alleged criminal conduct despite the acquittal when considering the matter of unacceptable risk: State of New South Wales v Tiggelen [2018] NSWSC 1399 at [102]; State of New South Wales v Sleeman (Preliminary) [2018] NSWSC 562 at [14].
After being sentenced for the index offences on 29 August 2008, the defendant was sentenced on 16 October 2008 for two unrelated offences of aggravated break and enter. The sentence imposed for those offences was entirely subsumed in the sentences for the index offences.

The index offences

The victim of these offences was a 24 year old woman from Estonia who was travelling around Australia on a working holiday. On 23 September 2005 she travelled to Byron Bay to celebrate her birthday. She met the defendant who offered her a lift to Sydney for $60.00. The victim accepted and they left that evening. After driving for approximately 40 minutes, they stopped and shared a joint of marijuana.
The defendant then drove to a remote property under the pretence that he was taking a shortcut. The defendant told the victim he wanted "to make love" to her, to which the victim responded she was not interested. The defendant said, "We can do this the easy way or we can do it the hard way". A struggle ensued as the victim attempted to get out of the vehicle. The defendant had a knife in his right hand and he put it to the victim's neck. The knife was about eight to ten centimetres long, similar to a fishing knife. The victim said, "Please no, why are you doing this?" and the defendant said, "You know how to play the game". The victim said, "Please don't hurt me". She also said, "I'll do whatever, just put away the knife".
The defendant then exposed his penis and said, "I want you to give me a blow job". He forced the victim's head onto his groin and forced his penis into her mouth. The victim said that she did not want to do this. This was the first count of aggravated sexual intercourse.
The defendant then told the victim to get out of the vehicle. He took her to the makeshift table, lifted her up and placed her on the table. He pulled up her t-shirt and sucked her breasts. That was the indecent assault count.
The defendant then pulled the victim's pants and underwear down and placed his penis into her vagina. He continued to have sexual intercourse with her until he ejaculated. This was the second count of aggravated sexual intercourse.
Both the victim and the defendant then got back into the vehicle and the defendant drove for some time until the victim had the opportunity to get out of the car at Macksville. The victim then bought a train ticket to Sydney, and on arrival in Sydney she reported the matter to the police.
When Judge Black DCJ sentenced the defendant, he had a report from a psychiatrist, Dr Westmore. Dr Westmore was asked to provide an opinion about whether the defendant's behaviour as found by the jury could have been affected by his psychiatric condition at the time. Dr Westmore diagnosed him as suffering from a psychotic illness which he thought was a Schizoaffective Disorder, but a differential diagnosis was Bipolar Affective Disorder with psychotic symptoms. He also diagnosed him as suffering from Conduct Disorder arising in adolescence, Alcohol Abuse, Cannabis Abuse and Antisocial Personality Disorder.
In giving his opinion, Dr Westmore said: On the balance of probability, he was suffering from an early relapse of his mental illness at that time and again on the balance of probability, it is likely his mental illness was present to some degree when the offending behaviour occurred on 24 September 2005. … I do note the existence of a previous sexual offence, which I am presuming at this time occurred in the absence of a hypomanic episode. If that is the case, then it reflects longer standing behavioural problems of a sexual offending type and those problems are likely to be multidetermined in their aetiology, including the presence of aggressive sexual urges and his inability to control them and issues arising from his personality. … Mr Currie has in the past demonstrated dangerous behaviour as reflected in his criminal history and the matters now before the court. He has had problems in the past with insight and compliance and while in a manic state, his risks to the community will increase.
The defendant was examined by Dr Gordon Elliott at the request of the State Parole Authority in August 2018. Dr Elliott's diagnosis and conclusions were these: DIAGNOSIS Mr Currie has an unequivocal diagnosis of a chronic psychotic illness. His illness has required at least three psychiatric inpatient admissions and I note he has a history of involuntary treatment in the community utilising long acting injectable antipsychotics administered under the conditions of a CTO. His illness does appear characterised by both psychotic symptoms and abnormal mood symptoms. His account was of relatively classic mood elevation with associated increased energy, a reduced need for sleep, increased libido and rapid speaking, and less severe depressive episodes. He also has chronic psychotic symptoms that do appear treatment resistant; primarily auditory hallucinations and persecutory delusional beliefs. As such his most likely diagnosis appears to be one of Schizoaffective Disorder, a chronic psychotic illness with an additional abnormal mood component CONCLUSIONS AND RECOMMENDATIONS Mr Currie's functioning in custody appears to be settled and there does not appear to have been recent concerns about behavioural disturbances. He also appears to be progressing through the initial months of the CUBIT Program without incident. I have some concerns that he is isolating himself and that his one out cell placement means his ability to tolerate others is not being tested. It is also likely he is institutionalised as a result of his lengthy sentence. As such, his release to the community will be a high risk period for relapse. I would not however, recommend changes to his current antipsychotic regime. Whilst it is not ideal for him to be on high doses of two antipsychotics, it does appear that he has arrived at this regime through trials of multiple antipsychotics. Currently he is refusing a trial of the alternative antipsychotic Clozapine. Should his mental state in any way deteriorate on release from custody then he should be considered early for admission to a mental health facility and a trial or Clozapine. On release from custody Mr Currie should receive assertive and close follow-up by a community mental health team. He must comply with all scheduled appointments with his designated psychiatrist and case manager. He must also comply with all prescribed medications, including a trial of Clozapine if his treating team recommends it. It is essential that he avoid all illicit substances and that he submit to regular but random urinary drug screening. He must also comply with broader rehabilitation interventions, including referrals to non-government mental health support agencies. It is likely that he will be considered for a National Disability Insurance Scheme (NDIS) funding package to allow for NGO support. (emphasis added)
Before he was released to parole, the defendant participated in the High Intensity Sex Offender Program (HISOP) between 18 April 2018 and 8 May 2019. The program is a custody-based residential therapy program for men who have sexually abused adults and/or children. It is a program which balances risk management with a strengths-based approach to treatment for individuals with moderate to high risk/needs.
A report was prepared on 10 July 2019 in relation to the defendant's involvement in the program. The report said that his participation in the program was longer than the standard treatment duration due to his responsivity issues (i.e. his ability to remain awake, as well as his motivation to engage with and participate in groups), and in the earlier stages of treatment, his tendency to submit task work late.
The report said this concerning his participation in the program: 21. Although he commenced treatment externally motivated, Mr Currie struggled to establish strong internal motivation to change. As treatment continued, his efforts to engage in group and address his treatment needs (particularly when he did not perceive them to be related to his offending) appeared to wane as demonstrated by his minimal contributions, his increasing difficulty staying awake in groups, and his difficulty implementing feedback. … 22. Despite therapists providing Mr Currie with consistent constructive feedback, his lack of participation and engagement resulted in his progress in treatment being stalled. He required external incentive in order to change his behaviour, and while these changes appeared initially positive, they were short-lived. He began to show hostility toward his therapist, who he had perceived as personally holding him back, and he lacked insight into his behaviour. As new participants joined the group Mr Currie's attitude appeared to shift, and he seemed to respond well when encouraged to be a positive role-model for newer group members. 23. His behaviour when housed in the CUBIT residential wing was to some extent reflective of non-compliance with rules and guidelines. Mr Currie received seven warnings for general rule breaches and the reports from custodial staff indicated suspicion toward Mr Currie engaging in drug and tobacco use, as he was consistently noticed to be loitering or communicating with inmates from a neighbouring wing. Each time this was addressed with Mr Currie, he denied any involvement in antisocial behaviour. When subjected to urinalysis testing on three occasions, he consistently provided negative results (excluding his prescribed medication). It is worth noting that as recent as 2017, there were discrepancies between Mr Currie's self-reported use and his negative urinalysis result (CSNSW Pre-Release Report, Melissa Ryan, 31/08/2017). As such, for various reasons (e.g. timing of testing, quantity of drug used) urinalysis testing may not necessarily be reflective of abstinence, Mr Currie was also witnessed on two occasions, to pass buy-up items through a fence to inmates in the neighbouring wing and resultantly received a total of four institutional charges. Despite being charged on the first occasion, the second occasion occurred only a week later, and he failed to desist even when intervened by custodial staff and directed to stop. As a direct result of this behaviour, an exclusion zone was created for all inmates in the wing and he was placed on a Behaviour Management Plan. When this issue was processed with Mr Currie, he lacked insight into how his attitude and behaviour related to his risk of reoffending. 24. Although the impact of Mr Currie's mental health may not have been overtly evident during his time in HISOP, it is important to recognise that he has a significant mental health history which has the potential to impact his behaviour. He has been diagnosed with schizophrenia (Contact with Justice Health Psychiatrist, Dr Sunny Wade, 25/06/2019) and records indicate that bipolar affective disorder with psychotic symptoms has also been considered (Psychiatric Report, Dr Bruce Westmore, 13/08/2008). Mr Currie has previously been admitted to psychiatric facilities, been placed on a community treatment order, and has a history of non-compliance with medication (Psychology Progress Note, 21/01/2009). During periods of medication non-compliance, Mr Currie's behaviour has been erratic, aggressive, and reflective of increased sexual preoccupation (Psychiatric Report, Dr Bruce Westmore, 13/08/2008).
In the course of the program, the defendant was assessed using the STATIC-99R and the STABLE-2007 Protocols. His total score on the STATIC-99R was 6 which equates to a well above average risk, or Level IVb. His score on the STABLE-2007 was 15 which suggested a high density of criminogenic needs relative to other male sexual offenders. Combining the two protocols, he was in the well above average risk level.
A Risk Assessment Report (RAR) was prepared on 17 July 2020 by Mandy Lau, a senior psychologist at the Serious Offenders Assessment Unit. The RAR was prepared in anticipation of an application under the CHROA.
In her report, Ms Lau noted that since the defendant's release from custody in December 2019, his response to supervision has been described as satisfactory, with the exception of frequent and repeated deviations from scheduled activities. She said that a review of his parole notifications revealed that the majority of those deviations were brief, and the reasons that he provided for his decision to deviate did not raise significant concerns about his risk.
Ms Lau noted what had been said in the HISOP report, both as to his approach to the program and to behavioural issues whilst in the program.
Ms Lau noted the assessments that had previously been made using STATIC-99R and the STABLE-2007. She said that his categorisation as well above average risk level, or Level IVb, meant that he would require a high level of intervention and/or supervision according to the principles of Risk/Needs/Responsivity.
Ms Lau noted that the defendant remained in denial of his index offences for a significant period of time, claiming that the sexual activities with the victim were consensual. She said that his attitude towards his offending appeared to have changed at some point during his sentence. She said: Mr Currie now recognises that his non-compliance with his mental health treatment and his unhelpful attitudes about people that he perceived as responsible for contributing to injustice against indigenous people were some of the contributing factors to his offending. He also discussed his understanding of how during periods of poor mental health, he has a tendency to become preoccupied with these unhelpful thoughts and is generally more disinhibited.
Ms Lau also said: 55. Since his release, Mr Currie demonstrated some ability to achieve identified goals which would likely have involved some ability to plan, such as obtaining his driver's licence and seeking private accommodation, however, it was also noted that Mr Currie received assistance from his NDIS worker in this process. Therefore, his ability to obtain these identified goals may not have been a true reflection of his ability to plan and attain goals. Additionally, there continues to be evidence to suggest poor ability to recognise problems in his life without assistance from others. For example, in February 2020, Mr Currie expressed intentions to return to Tweed Heads for the birth of his grandchild in August; despite repeated feedback from others, he failed to accept that there may be a possibility that he may not be approved to travel whilst under parole supervision. In another example, Mr Currie discussed in one of his FPS sessions about lending his phone to other residents at the COSP centre; despite initially stating that he did not lend his phone and receiving suggestions from others about the possible consequences of lending one's phone to other community offenders, he ultimately decided to lend his phone to another resident regardless. His lack of insight into problematic behaviour and impulsive decision making was also demonstrated in his multiple deviations from approved scheduled activities since his release from custody. 56. A review of the parole notifications related to these matters indicated that Mr Currie received several formal warnings about these deviations, at least in the early stages of this behaviour, and was directed to adhere to scheduled activities. Despite multiple occasions of receiving feedback and directions, Mr Currie continued to deviate from his scheduled activities on a number of occasions from December 2019 to June 2020. Although these deviations were generally brief and his stated reasons for deviating did not appear to suggest intentions to engage in risky behaviour, his inability or unwillingness to modify his behaviour despite feedback and assistance in identifying negative consequences of his actions suggests that impulse control and problem-solving remains as significant risk areas. … Risk scenarios 75. Based on Mr Currie's history of offending, if he were to become sexually preoccupied, either as a result of mental health deterioration or becoming disinhibited from intoxication, and fails to adequately manage his sexual urges, he may be at increased risk of further sexual reoffending. If he were to reoffend, the victim will likely be an adult female and may be a newly acquainted stranger or a superficial acquaintance. He may socialise with the victim in a manner that allows the victim to be less guarded about being in his company. This may be through discussions about mutual friends or sharing alcohol or illicit substances with the victim. If the victim becomes resistant, Mr Currie may be willing to use a weapon to force compliance. … 82. In the event that he is considered suitable for an Extended Supervision Order (ESO), Mr Currie would be subject to intensive supervision, strict monitoring and case management by CSNSW. This may or may not include electronic monitoring, the obligation to provide weekly schedules of movement; unannounced visits by supervising staff and breath-analysis/urinalysis/drug- swab testing; assistance finding suitable employment and leisure activities; scrutiny of social contacts with the aim of increasing pro-social influences, and any relationships or associations could be monitored to ensure that Mr Currie is not using illicit drugs or associating with people who are; exclusion zones to prevent contact with the victims; directions to comply with mental health treatment; in addition to some form of psychological intervention by a CSNSW psychologist with a focus on risk management. 83. Successful risk management would involve containment of behaviours associated with risk. The ultimate goal of further intervention and supervision 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, even when Mr Currie is not under any form of legal order. Based on the identified risk areas specific to his offending, continued support and intervention in managing his mental health, navigating interpersonal conflicts, particularly in intimate relationships, effective problem-solving, impulse control and consequential thinking would be critical in preventing relapse to maladaptive behaviours. 84. In the event that no order is imposed, Mr Currie would be at unconditional liberty after 12/03/2021. He would have no support from, or any monitoring by, CSNSW. It is possible that he could remain offence-free. However, given his limited personal support network, his limited experience in the community and lengthy incarceration, he is likely to experience some difficulties with his reintegration process which may become stressors that destabilise his mental health. His ongoing difficulties with general self-regulation may increase his risk of further reoffending. Whether this risk would be considered "unacceptable" in the context of the Crimes (High Risk Offenders) Act 2006 is a matter to be determined by the Court.
A Risk Management Report was prepared by Shantelle Hodgkinson on 2 September 2020 and endorsed by Kelli Grabham, the High Risk Offender Applications and Operational Governance Officer. The report noted the HISOP report, the RAR of Mandy Lau, and the defendant's response to Community Corrections Supervision. It also referred to an assessment undertaken on the Level of Service Inventory - Revised, which found the defendant fell into the Medium risk level for general offending.
The report noted that the defendant struggled with general self-regulation, and that impulsivity and poor problem solving appear to be significant risk factors for him. The report said that there appeared to be a significant amount of entrenched trauma that had impacted his views, and experiences on racism and the way in which he interacted with authority figures. His risk factors were identified as general self-regulation, intimacy deficits, sexual self-regulation, cooperation with supervision and his attitudes.
The report recommended a weekly schedule of movements, electronic monitoring, a curfew, conditions in relation to employment and education, and the need to notify the DSO of any person he intended to associate with or form a relationship with. The conditions would require abstinence from alcohol and drugs, a right to search his electronic devices, his residence and his person and a requirement to attend psychiatric and psychological appointments. The report said that he might also need to attend assessments and subsequent community-based interventions recommended by professionals as directed by Community Corrections. The report recommended that he be subject to an ESO.
Taking into account the psychiatric reports of Dr Westmore and Dr Elliott, the HISOP report, the RAR of Mandy Lau, and the RMR, I am satisfied that, if what is contained in those reports is proved at the final hearing, they would justify the making of an ESO, bearing in mind the high test which s 5B(d) requires.
I note that the defendant did not dispute that it was appropriate that an ISO be made. The issue between the parties concerned a number of the conditions which the plaintiff seeks to have imposed as part of the ISO.

Conditions

In State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813, Hoeben CJ at CL said this concerning conditions: [43] Section 11 of the Act allows the Court to impose such conditions under a supervision order as the Court considers appropriate. This power is constrained by the scope of the Act: Winters v Attorney General of NSW [2008] NSWCA 33 at [19]. Assistance can be drawn from the purpose and statutory objects of the Act. The primary object of the Act, as provided for in s 3(1) is to provide for the extended supervision of such offenders "so as to ensure the safety and protection of the community". Subsection (2) provides that another object of the Act "is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation". [44] Important principles to be considered in relation to the imposition of conditions are: (i) having served a sentence of imprisonment for their offences, an offender has a right to personal liberty, however, this right is not absolute: State of New South Wales v Donovan at [83]; (ii) in imposing conditions, the Court needs to strike a balance between competing considerations: Attorney General for NSW v Tillman at [68]; (iii) a relevant consideration in imposing conditions is that a breach gives rise to a criminal penalty: State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36]; (iv) conditions do not have to have a demonstrated link to past offending, but they should address the risk of future offending based on the scope, purpose and objects of the Act: Wilde v State of New South Wales [2015] NSWCA 28 at [53]. (v) conditions should not be designed toward future general criminal conduct, but instead focussed on mitigating the risk of a serious offence: State of New South Wales v Green (Final) [2013] NSWSC 1003 at [36]-[38]. (vi) conditions must not be unjustifiably onerous or punitive, "nor should they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision": State of New South Wales v Bugmy [2017] NSWSC 855. (vii) conditions "must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice": State of New South Wales v Ley Thomas Baker (No 2) at [36]. (viii) to ensure a balance between the community interests and personal liberty, the Court should impose conditions that are the least intrusive possible (Lynn v State of New South Wales at [129]-[131].

Conditions 5, 6 and 7

The State proposes that these conditions should read as follows: Schedule of Movements 5. If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start. 6. If the defendant wants to change anything in his schedule of movements once it is approved by a DSO, he must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period 7. The defendant must not deviate from his approved schedule of movements except in an emergency.
In lieu of those conditions the defendant seeks that there be two conditions as follows: 5. If directed by a DSO, the defendant is to provide a summary of his anticipated movements each week limited to the places he intends to travel to, the purpose and means of his travel to those places, and the dates of travel. Such a summary is to be provided on or before the Friday prior to each week, (or as otherwise agreed between the defendant and his DSO). 6. If the defendant departs from any summary provided to his DSO in accordance with condition 5, the defendant must notify his DSO of his change of plans before doing so. unless an emergency situation.
Mr Howell of counsel for the defendant argued for the greater flexibility that his proposed conditions would give, and submitted that with the defendant having complied with the stricter conditions proposed by the State whilst on parole, his proposed conditions would represent a modest step down. Ms Curry for the State submitted that there was nothing to show that the parole conditions, which reflected the State's proposed conditions, had not been working effectively, and that they assisted the defendant in planning given his poor planning and organisational skills. She directed attention to what Kelli Grabham said in her affidavit, and how the schedule of movements interacted with the electronic monitoring.
The evidence tends to show that, apart from a number of minor deviations from his scheduled activities mentioned earlier, there has been general compliance by the defendant with the conditions concerning a schedule of movements. I consider that there is merit in the defendant's proposal for a minor loosening of the restrictions, particularly because the period he spends on an ISO will provide a good indication of what conditions will need to be imposed if an ESO is ordered. Conditions 5 and 6 proposed by the defendant should be ordered.

Condition 13

The State proposes that condition 13 relating to the defendant's accommodation should read: 13. The defendant must promptly notify a DSO of any visitor entering and remaining at his approved address and must not permit any person to stay overnight, at his approved address (other than persons who ordinarily reside at his approved address), without the prior approval of a DSO. a. A person may be pre-approved to visit the defendant's address under condition 13. b. The DSO may by notice to the defendant revoke any pre-approval granted under condition 13(a).
The defendant proposes that there be added at the end of 13(b) these words: If the DSO reasonably believes that the person will increase the defendant's risk of committing a serious offence or failing to comply with the condition of this order.
I do not think the words sought to be added by the defendant are appropriate. The assumption contained within them is that, if those words are not added, the DSO would be able to act arbitrarily and without reasonable cause. I do not consider there is any basis for that assumption.

Condition 26

The condition as finally proposed by the State reads in this way: 26. Without limiting condition 25, the defendant must not: a. associate with any people who he knows are consuming or under the influence of alcohol without the prior approval of a DSO. i. A person may be pre-approved for association under condition 26(a). ii. The DSO may by notice to the defendant revoke any pre-approval granted under condition 26(a)(i). b. associate with any people who he knows are consuming or under the influence of illegal drugs. c. associate with any person held in custody without prior approval of a DSO.
The defendant sought to add the words that had been proposed to be added to condition 13. For the reason that I gave there, I do not consider those additional words are appropriate.

Condition 31

The State proposes the following condition: 31. The defendant must not possess or use any of the following, without a DSO's prior approval: a. a knife, machete, sword or any other device that consists of a single-edged or multi-edged blade or spike that is designed or adapted to inflict violence, whether actual or threatened b. any other implement made or adapted for use for causing injury to a person; or c. anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property.
The defendant at first sought to add after the word "following" these words: (with the exception of when he attends the Men's Shed or with a DSO's approval) The reason for the addition is because one of the activities at the Men's Shed that the defendant engages in is wood carving.
The defendant then proposed in the alternative that the condition have attached to it the following words: An activity in which the defendant may need to possess an item of the type included under this condition may be pre-approved by a DSO.
The need for this condition is particularly important because of the defendant's history of using a knife to force sexual intercourse or sexual assault on women. I accept, however, that he may need to use a knife at somewhere like the Men's Shed or when he is fishing with his support worker under the National Disability Insurance Service Plan.
However, I do not see the need to add to the wording of condition 31 because it is wide enough to enable the DSO to give pre-approval for the use of a knife for specific purposes such as at the Men's Shed, or when fishing, or for any other legitimate purpose. In short, either of the proposed additions to condition 31 adds nothing to what can already be approved to enable the defendant to engage in those and similar activities.

Condition 47

The State proposes conditions 47 and 48 regarding the defendant's appearance as follows: 47. The defendant must not significantly change his appearance without the approval of a DSO. 48. The defendant must let a DSO photograph him, dressed, within one week of the commencement of these conditions and following any significant change to his appearance.
The defendant proposes that condition 47 should be omitted, partly because of the difficulty of what the word "significantly" means, and partly because any problem from a change of appearance is dealt with in condition 48. The fear the defendant has is that a different haircut or a change to his facial hair might constitute a breach of the condition.
Ms Curry submitted that the condition relates to the effective of surveillance and monitoring. She disagreed that a haircut or a change to the beard would amount to a significant change. She pointed out that similar arguments had been raised in Wilkinson and rejected by Hoeben CJ at CL.
I consider that the condition is useful for monitoring and detection of offending and/ or escalation of risky behaviours, and it is neither onerous nor intrusive. The defendant, if he wishes to change his appearance significantly, can always seek the approval of a DSO: Wilkinson at [91]-[92]. If, as the plaintiff says, the issue is simply one of surveillance and monitoring, it is unlikely that permission would be refused if the DSO knows about it in advance. I reject the defendant's application in this regard.

Conditions 51 and 55-57

The State proposes these conditions: 51. The defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults. … 55. The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with a DSO. 56. The defendant must agree to any information being shared between those persons and agencies that are involved in his supervision including, but not limited to, a DSO, NSWPF and CSNSW. 57. The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him. Before disclosing his criminal history, a DSO must first inform the defendant of their intention to disclose his criminal history and the reason for the disclosure.
The defendant proposes adding to condition 51 the following words: Unless such consultation is only in respect of a physical condition or ailment.
In lieu of the State's conditions 55-57, the defendant proposes the following: 55. The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other. The defendant must also agree to his healthcare practitioners sharing information, including reports on his progress and information he has told them, with his DSO, as considered appropriate by his healthcare practitioners for the defendant's rehabilitation and risk mitigation in relation to the defendant committing a serious offence. Before sharing any such information, the defendant's healthcare practitioner must first inform the defendant of the information to be shared. 56. The defendant must agree to any information shared by a healthcare practitioner with a DSO in accordance with condition 55, being further disclosed (where reasonably appropriate) to any other DSO, or member of the NSWPF or CSNSW working as part of an ESO team. 57. The defendant must agree to the disclosure of his criminal history to any healthcare practitioner he consults (except in accordance with condition 51). Before disclosing his criminal history, a DSO must first inform the defendant of their intention to disclose his criminal history and the reason for the disclosure.
The defendant submitted that the amendments were effectively to give him some privacy for physical ailments unrelated to his psychiatric and related conditions.
There seem to me to be some difficulties about what the defendant proposes. It assumes that there is a clear demarcation between physical and other ailments, and the DSO needs to know in any event (as the plaintiff contends) what physical problems the defendant has in terms of his compliance generally. It must be accepted that a person who is placed on an ISO or an ESO is having their liberty and privacy restricted, although the conditions endeavour to do so only to the extent necessary to ensure adequate supervision. Condition 51 is a common condition and, it seems to me, a necessary condition.
What is proposed by the defendant in condition 55 would seem to me to place an impossible burden on a health care practitioner, even if it was the defendant's regular health care practitioner. Such persons are not qualified to consider whether some treatment is appropriate for the defendant's rehabilitation and risk mitigation in relation to the defendant committing a serious offence. Although the defendant subsequently proposed omitting reference to the defendant's rehabilitation and risk mitigation, it is scarcely for a health care practitioner to judge whether something might be related to the defendant committing a serious offence. The difficulty would be highlighted if the defendant was to see a health care practitioner for the first time, and there was an obligation for that practitioner to provide information about the consultation to the DSO or some other legitimate person. Such a practitioner, without any detailed history of the defendant, would be in no position to make a judgment concerning the defendant's rehabilitation or risk mitigation.
Ultimately the plaintiff agreed to reword condition 56 so that it reads: The defendant must agree to any information being shared between those persons and other persons involved in his supervision including DSOs, and members of the NSWPF and CSNSW.
With that amendment, and the second sentence of condition 57 having been added to meet the defendant's suggestions, I consider that there should be no further alteration to conditions 51, 55, 56 and 57.

Conclusion

I make the following orders:
Pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"): a. That two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) be appointed to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; b. The defendant is directed to attend those examinations.
Pursuant to ss. 10A and 10C(1) of the Act, that the defendant be subject to an interim supervision order commencing from midnight on 12 March 2021 for a period of 28 days ("the interim supervision order").
Pursuant to s. 11 of the Act, the defendant is directed, for the period of the interim supervision order, to comply with the conditions set out in the Schedule to this judgment.
Access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application of access.
The matter is listed before Bellew J for directions at 9:30am on 18 March 2021.

DESMOND CURRIE In these conditions: "CSNSW" means Corrective Services NSW. "Commissioner" means Commissioner for Corrective Services "Defendant" means Desmond Currie, also known by the following aliases, the defendant in these proceedings and the subject of the order: • CURRIE, DESMOND JEFFREY • CURRIE, DOUGLAS JEFFREY • CURRIE, DESMOND JOHN • CURRIE, JEFFREY • SANDY, DENNIS • CURRY, DESMOND JEFFREY • MORAN, DESMOND JEFFREY • CURRIE, DESMOND • CURRIE, DOUGLAS • CURRIE, DESMOND GEOFFREY • CURRIE, DENNIS • JONES, DESMOND JOHN • RAY, JOHN DESMOND • RAY, DES • GREEN, DESMOND • CURRY, DES JEFFREY • CURRY, DES JEFFREY • CURRIE, DESMOND JEFFERY • CURRIE, DESMOND JEFFREY • CURRY, DESMOND • CURRIE, DENNIS JEFFREY • SANDY, DESMOND • ARTHUR, STAN • BYRNES, JOHN • CURRIE, DESMOND JEFFRET (sic) • MORAN, DESMOND JEFFREY • CURRIE, DESMOND JEFFREY • CURRIE, DESMOND • CURRIE, DESMOND • CURRIE, DESMOND JEFFREY • BYRNES, KEVIN ASHLEY • BYRNES, ASHLEY • BYRNES, KEVIN ASHLEY "Digital Blueprint" has the same meaning as in the Weapons Prohibition Act 1998 (NSW) and means any type of digital (or electronic) reproduction of a technical drawing of the design of an object. "Electronic Identity" means each of the following: (a) an email address, (b) a user name or other identity allowing access to an instant messaging service, (c) a user name or other identity allowing access to a chat room or social media on the internet, (d) any other user name or other identity allowing access to the internet or an electronic communication service. "DSO" means Departmental Supervising Officer, that is, any Corrective Services Officer supervising the defendant under the order. "Material" includes: 1. any written or printed material; 2. any picture, painting or drawing; 3. any carving, sculpture, statue or figure; 4. any photograph, film, video recording or other object or thing from which an image may be reproduced; 5. any computer data or the computer record or system containing the data; and 6. any other material or object on which an image or representation is recorded or from which an image or representation may be reproduced. "NSWPF" means NSW Police Force. "Associate" includes, but is not limited to, being in company with, or to communicate by any means (including by post, facsimile, telephone, email or any other form of electronic communication). "Search" includes: 1. A garment search, being a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body; and 2. A pat-down search, meaning a search of the defendant where the defendant's clothed body is touched. Part A: Reporting and Monitoring Obligations Monitoring and Reporting

The defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions of a DSO.
Where a direction may conveniently be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service.
The defendant must truthfully answer questions from a DSO, or any other person supervising him, about where he is, where he is going, who he is with, what he is doing and the nature of his associations. Electronic Monitoring
The defendant must wear electronic monitoring equipment as directed by a DSO and must not tamper with, or remove, the equipment. Schedule of Movements
If directed by a DSO, the defendant is to provide a summary of his anticipated movements each week limited to the places he intends to travel to, the purpose and means of his travel to those places, and the dates of travel. Such a summary is to be provided on or before the Friday prior to each week, (or as otherwise agreed between the defendant and his DSO).
If the defendant departs from any summary provided to his DSO in accordance with condition 5, the defendant must notify his DSO of his change of plans before doing so. unless an emergency situation.
[Deleted] Part B: Accommodation
The defendant must live at an address approved by a DSO and notify a DSO of any intention to change the defendant's address or living arrangements.
The defendant must be at his approved address between 9:00pm and 6:00am unless other arrangements are approved by a DSO.
[Deleted]
The defendant must allow a DSO to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.
The defendant must not spend the night anywhere other than his approved address or any alternative approved addresses (if relevant) without the approval of a DSO.
The defendant must promptly notify a DSO of any visitor entering and remaining at his approved address and must not permit any person to stay overnight, at his approved address (other than persons who ordinarily reside at his approved address), without the prior approval of a DSO. a. A person may be pre-approved to visit the defendant's address under condition 13. b. The DSO may by notice to the defendant revoke any pre-approval granted under condition 13(a). Part C: Place and travel restrictions
The defendant must surrender any passports held by him to the Commissioner, must not be in possession of any passports, and must not attempt to apply for any passports.
The defendant must not frequent or visit any place or district specified by a DSO, if the DSO has reasonable grounds to believe that visiting that place will increase the defendant's risk of committing a serious offence or failing to comply with any other condition of this order. Part D: Employment, finance and education
The defendant must take all reasonable steps to participate in interventions as recommended by a DSO, including the development of a case management plan which may include employment, education, training or participation in personal development programs.

Amendments 09 March 2021 - Judgment re-published with Orders and Conditions. 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: 09 March 2021

Crimes Act 1900(NSW)s 61J

Crimes (High Risk Offenders) Act 2006(NSW)ss 4, 5, 5B, 5I, 7, 10A

At a glance

Court

Decision date

Before

Source

Judgment (14 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (15)

Cited By (2)