State of New South Wales v DJM

Matters alleged in the supporting documentation

1. The supporting documentation included: 1. the defendant's criminal history in both New South Wales and other records relating to his custodial history, which established, inter alia: 1. that the index offences were disseminating child pornography contrary to s 91H(2) of the Crimes Act 1900 (NSW), using a child under 14 years of age for pornographic purposes contrary to s 91G(1)(a), three counts of aggravated sexual intercourse with a person under the age of 16 contrary to s 61J(2)(d) (with other offending taken into account on a Form 1), and possession of child pornography contrary to s 91H(2); 2. the defendant was eventually sentenced in respect of the index offending to imprisonment for a total effective period of 13 years and 4 months expiring on 7 February 2023; 3. the defendant had a limited history of punishment in custody, the last incident being recorded in 2014; 1. the risk assessment report dated 27 July 2022 of Ms Cieplucha, Senior Psychologist, Serious Offenders Assessment Unit. Ms Cieplucha's report included details of the defendant's family, education, employment and relationships as well as his psychiatric and psychological history and his cognitive functioning. She noted the defendant's denial of any significant history of alcohol or drug abuse. Ms Cieplucha also reported on his offending behaviour including the index sexual offending in 2009 and the earlier sexual offending in 2001 and his attitude towards the offences. Her report also dealt with his incarceration and supervision history and his involvement in offender programs, including the High Intensity Treatment Program (HISOP). Ms Cieplucha recorded that using the Level of Service Infantry - Revised (LSI-R) actuarial risk instrument, the defendant scored, in October 2021, in the "Medium range of risk/needs for general and violent offending". His risk of sexual reoffending was assessed in July 2022 using the Static Risk Factors (Actuarial Assessment-Sex Offending) - STATIC - 99R, and the defendant's scores indicated that his risk was "Above Average", and this level of risk was explained in more detail by reference various statistics. Using the Dynamic Risk Factors - STABLE - 2007 tool, the defendant was assessed as having a "High density of criminogenic needs relative to other male sexual offenders". When the STABLE - 2007 was combined with the STATIC - 99R to generate a composite assessment of risk/needs, the defendant was in the "Above Average Risk level". Ms Cieplucha also assessed the defendant using the Risk of Sexual Violence Protocol (RSVP) structured professional judgement tool. In doing so, Ms Ciepluch concluded: "The overall totality of evidence suggests that [the defendant] falls in the Above Average risk range for sexual offending relative to other adult male sexual offenders. [The defendant] has been convicted of contact sexual offences against pubescent females on two occasions, with an escalation in severity of sexual violence in his index sexual offence and he continues to present with a high density of criminal needs. … If an Order is not imposed, [the defendant] would be at unconditional liberty after the 07/02/2023. He would be subject to the Child Protection Register (CPR), and a five-year Child Protection Prohibition Order bracket 'CPPO') which commenced in September 2021. Under a CPPO, [the defendant's] access to children under 18 could nominally be restricted, and there may be conditions restricting his access to certain things if they are deemed relevant to his risk. However, he would have no support from, or any monitoring by, CSNSW. [The defendant] would be able to engage with an appropriate service provider for further psychological assistance to address outstanding criminal needs relating to his sexual offending, however, may be less motivated to do so without the oversight and direction of CSNSW. …". 1. the risk management report dated 9 September 2022 of Ms Robinson, Senior Community Corrections Officer, Extended Supervision Order Team. Ms Robinson's report noted that the defendant fell in the above average risk category of sexual re-offending and summarised the risk factors relevant to the defendant. Ms Robinson recommended various conditions be included in any management plan including: electronic monitoring; the submission of a weekly schedule of movements; accommodation and place and travel restrictions; drug and alcohol abstention conditions; conditions limiting his associations with children; limited access to the internet and other electronic communications; search and seizure conditions; and, medical related conditions designed to ensure that the defendant engages with sex offender or other psychological interventions. 2. the Notices issued to the defendant under the Child Protection (Offenders Registration) Act 2000 (NSW) on 13 September 2021 and 19 June 2003; 3. the indictment, Form 1 and agreed facts in relation to the index offending to which the defendant pleaded guilty; the sentencing decision of Syme DCJ of 20 February 2012 and the judgment of the Court of Criminal Appeal DJM v R [2013] NSWCCA 101 which imposed a total effective sentence of 13 years and 4 months, commencing on 8 October 2009 and expiring on 7 February 2023, with a non-parole period of 10 years. The Court of Criminal Appeal accepted the sentencing judge's finding that there was "the need for an extended period of supervision as part of the sentence" noting that "Mr Watson-Munro confirms that such a period of supervision will be necessary to as he puts it 'reinforce and galvanise the progress that he has made during the course of his time in prison.'"; 4. the indictment, statement of agreed facts and sentencing decision of Garling DCJ of 20 June 2002 in relation to the defendant's earlier sexual offending in 2001 to which he pleaded guilty and was sentenced to two years' imprisonment with a non-parole period of one year. The sentencing judge noted that the defendant was receiving psychiatric treatment at or about the time of that offending and his problems included being very impulsive, vulnerable, having a propensity to make the wrong type of decision and having difficulty with self-confidence; 5. documentation relating to the defendant's applications for release to parole including, but not limited to, pre-release reports concerning the defendant dated 2 August 2021, 29 June 2020 and 3 July 2019, a report headed "Pre-release Report MANIFEST INJUSTICE" dated 24 May 2021, reports from psychiatrists Dr Elliott of 14 October 2020, Dr Allnut of 6 and 7 October 2011 and Dr Quinn of 17 June 2002 and 31 October 2001, reports from psychologists Mr Watson-Munro of 18 August 2011 and Dr van den Berg of 21 September 2020, and the State Parole Authority determination that the defendant be released to parole not later than 2 September 2021. It can be noted that the latest psychiatric report, being that of Dr Elliot, included the following conclusions and recommendations: "[The defendant's] primary treatment avenue will remain psychological treatment for sex offenders. With regards to his mental health, he should remain on parnate although it is likely that his lithium was subsequently be reduced and possible ceased. His current medication would be manageable by a general practitioner with referral for further psychiatric review if his mood deteriorates. He may benefit from a mental health care plan and referral to a clinical psychological on release to discuss general strategies for managing his mood and avoiding relapse. At this point is risk of sexual recidivism appears manageable without the prescription of an anti-libidinal agent"; 1. Mr Wu's HISOP Treatment report of 17 May 2021 which, in addition to the recommendations for managing the defendant's risk set out in par 28 of the report, included the following: "27. In order for [the defendant's] risk of recidivism to be managed successfully upon release, he will need to address the dynamic risk factors outlined above [in the report]. [The defendant] presented as someone who had difficulty listening and accepting feedback, and wanting to impress so would omit issues if they painted him in a negative light. This was linked to his tendency to feel victimised so he is likely to work better with others if he is reminded that they are only offering an opinion and his experiences are validated and normalised. He is more likely to disclose if rapport can be established with him, and the rationale for certain questions explained so he does not feel he is being targeted or is getting into trouble. [The defendant] will require ongoing support with recognising his risk areas and problems. He will need assistance with identifying consequences and be given feedback about problems he may not be aware of. He should be encouraged and supported to develop new friendships and seek intimate relationships with adult women in the community, which will assist him with addressing intimacy deficits and achieving a healthy sex life. 1. the Parolee Progress Report dated 6 January 2022 of Ms Newson and Ms Thomasen, Acting Unit Leaders, Probation and Parole Service. The report indicated that the defendant had generally been compliant with his Parole conditions and that further psychological counselling would be sought; and 2. Corrective Services New South Wales Case Note Reports (sometimes referred to as OIMS notes) on the defendant from 4 June 2012 to 30 September 2022 and Ms Cheung's notes on the defendant's attendance at FPS for the Maintenance Group between November 2021 to May 2022.

Should an ISO be made?

1. If the matters alleged in the supporting material are assumed to have been proved, in my view the making of an ESO would be justified because, having regard to the matters identified in s 9(3)(c), (d), (d1), (e), (e1), (e2), (f), (g), (h), (h1) and (i) of the CHRO Act, I would be satisfied to a high degree of probability that the defendant posed an unacceptable risk of committing another serious offence if not kept under supervision by way of an order.
2. Accordingly, my discretion to make an order for the interim supervision of the defender is enlivened in this case. Since there is no opposition to an ISO being made, there are no factors to which the parties have pointed which would militate against the exercise of the discretion to make an ISO in the present case and I cannot discern that there are any such factors, I propose to make an ISO for a period of 28 days in respect of the defendant.
3. The remaining issue for determination is the conditions with which the defendant should be directed to comply in respect of the ISO.

Conditions of the ISO

1. By the commencement of the preliminary hearing, the parties had reached an agreed position as to the proposed conditions which would be appropriate for inclusion in any ISO. In my view the conditions proposed by the State and agreed to by the defendant are appropriate in the circumstances disclosed in the supporting material, some relevant portions of which have been referred to in more detail above, subject only to some minor amendments, which were raised by the Court with the parties during the hearing and which both parties accepted were suitable and appropriate. Accordingly, subject to those minor amendments, the conditions will be those agreed between the parties.

Orders

1. For these reasons, the orders of the Court are: 1. Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the CHRO Act), two qualified psychiatrists or registered psychologists (or a combination of such persons), as agreed between the parties, are appointed to conduct separate examinations of the defendant and to furnish reports on the results of those examinations to the Supreme Court of New South Wales on a date, as agreed between the parties. 2. The defendant is directed to attend the examinations in order (1). 3. Pursuant to ss 10A and 10C(1) of the CHRO Act, the defendant is made the subject of an interim supervision order commencing immediately after the expiration of the defendant's sentence on 7 February 2023, for a period of 28 days. 4. Pursuant to s 11 of the CHRO Act, the defendant is directed to comply with the conditions set out in the schedule to these orders for the duration of the interim supervision order. 5. The parties have liberty to apply, if the parties are unable to reach agreement for the purposes of order (1).

CONDITIONS OF SUPERVISION Departmental Supervising Officer (DSO) Corrective Services NSW (CSNSW) In these conditions: "CSNSW" means Corrective Services NSW. "Commissioner" means Commissioner for Corrective Services "Defendant" means "[XXX]", the defendant in these proceedings and the subject of the order.

(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:
7. 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
8. 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

1. The defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions of a DSO.
2. 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.
3. 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
4. Subject to conditions 4A and 4B, the defendant must wear electronic monitoring equipment as directed by a DSO and must not tamper with, or remove, the equipment. 4A. After a period of 1 month from the imposition of the ISO, the defendant will no longer be required to wear the electronic monitoring equipment and condition 4 will cease to apply. 4B Following the removal of electronic monitoring because of condition 4A, condition 4 will reapply if at any time during the term of the ISO if any of the following occurs: (i) the defendant is charged with an offence of breaching the ISO, or with a prescribed sexual offence or a serious indictable offence; (ii) the defendant fails to comply with conditions 5, 6 or 7, other than by a minor breach or breaches; or (iii) a DSO is reasonably of the opinion that condition 4 is needed due to an increase in the risk of the defendant committing a prescribed sexual offence or a serious indictable offence. Schedule of Movements
5. If directed by his DSO, the defendant is to provide a summary of his anticipated movements each week (or over successive weeks) for approval, limited to places he intends to travel to, the purposes and means of his travel to those places, the dates of travel, but not his travel route or precise timetable. If so directed, the defendant is to provide that summary no later than noon on the Monday immediately following the issue of the directions. It must be an honest summary of the defendant's anticipated movements.
6. A DSO must not withhold approval of the defendant's attendance at any location unless attendance would give rise to a risk of committing a serious offence to a risk of breach of another condition of this order.
7. It will not be a breach of this condition if the defendant departs from the summary, provided the defendant notifies his DSO of his change of plans before doing so, or if that is not possible, as soon as is reasonably practicable afterwards.

Part B: Accommodation

1. 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.
2. 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.
3. 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.
4. 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.

Part C: Place and travel restrictions

1. The defendant must not leave New South Wales without the approval of the Commissioner of CSNSW.
2. The defendant must not frequent or visit any place or district specified by a DSO.
3. Without limiting condition 13 above, the defendant must not go to any of the following without the prior approval of a DSO 1. Camping grounds and caravan parks; 2. Residences where the defendant knows that persons aged under 18 years ordinarily reside.

Part D: Employment, finance and education

1. The defendant must not start on his own initiative any job, volunteer work or educational course without the approval of a DSO.
2. The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by a DSO.

Part E: [Deleted]

1. [Deleted]
2. [Deleted]
3. [Deleted]

Part F: Non-association Association with Children

1. The defendant must not associate with anyone who he knows or reasonably should know is under 18, other than incidental contact in a public place in the course of the duties of the minor; or with the written permission of a DSO and in accordance with any requirements reasonably determined by a DSO, including that the contact takes place in the presence of an adult who has been approved in writing by a DSO. Associations with Others (not children)
2. The defendant must not associate with any person or persons specified by a DSO.
3. Without limiting condition 21, the defendant must not associate with any person held in custody without prior approval of a DSO.
4. The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary. Before disclosing the defendant's criminal history, a DSO will first inform the defendant of the intention to disclose the criminal history and the reason for the disclosure and will give the defendant an opportunity to, within a reasonable time as set by the DSO, make the disclosure himself.
5. The defendant must obtain written permission from a DSO prior to joining or affiliating with any club or organisation

Part G: Access to the internet and other electronic communication

1. The defendant must obey any reasonable direction by a DSO about communication, internet access and use of electronic devices (including, but not limited to, approval of devices used, method of communication, access to the internet and restrictions on deleting information).
2. The defendant must not use any alias, electronic identity, log-in name, name other than "[XXX]" or any email address other than those known to a DSO. The defendant must give a DSO a list of all devices, services and applications he uses to communicate with or to access the internet and advise a DSO of any change to the list immediately. This includes phones, tablet devices, data storage devices or computers.
3. The defendant must only use an electronic device which has the ability to access the internet after the device has been disclosed to a DSO and the device has been seen and approved for use by a DSO.
4. The defendant must provide the details of telephone numbers, service provider account numbers, email addresses or other user names as well as any relevant passwords, pin codes and pass codes used by the defendant and the nature and details of the internet connection, as directed.
5. The defendant must provide a DSO with all passwords, pin codes and pass codes used to access all electronic devices, electronic applications, internet sites and communication platforms of any kind.
6. The defendant must not use any coded or encrypted messaging application or service.
7. The defendant must provide any code or encryption for any electronic data or any electronic communication if discovered on the defendant's electronic devices or accounts as a result of a search or a remote inspection.
8. The defendant must not access, join and/or connect to any social networking service or application without the prior approval of a DSO, including, but not limited to, use of internet-based email, instant messaging services, online community services, multi player video games and other telecommunications-based services including text and voice services.
9. The defendant must provide consent for a DSO (or any other person requested by a DSO) to remotely inspect any internet account used by the defendant, including any internet service provider account, email accounts and social media accounts, in monitoring compliance with this Order.
10. The defendant must not delete or alter any applications, email, text messages, any electronic message, call history, any data, internet search, internet or application search history, any application chat or communication history from his phone, computer, tablet or any other electronic device without the prior consent of a DSO.
11. The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with a DSO.

Part H: Search and seizure

1. If the DSO reasonably believes that a search 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. a search and inspection of any part of, or anything in, the defendant's approved address; 2. a search and inspection of any part of, or anything in, any vehicle owned, hired by or under the control of the defendant; 3. a search and inspection of any part of, or anything in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or 4. a search and examination of his person.
2. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure carried out pursuant to this Order.

Part I: Access to pornographic, violent and classified material

1. If the defendant purchases, possesses, accesses, obtains, views, participates in or listens to material classified or material that would be classified as Refused Classification, X18+, Restricted Category 2 and Restricted Category 1, or any other material as directed by a DSO, he must notify his DSO within 24 hours of having done so.

Part J: Personal details and appearance

1. The defendant must not change his name from "[XXX]" or use any other name without notifying a DSO.
2. The defendant must not significantly change his appearance without the approval of a DSO.
3. 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.
4. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide a DSO with such details.

Part K: Medical intervention and treatment

1. The defendant must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction.
2. The defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults.
3. If the defendant takes any medication, he must only take medication that is prescribed to him by his healthcare practitioners in the manner prescribed.
4. The defendant must notify a DSO immediately if he ceases to take or declines to commence taking any medication as referred to in the above condition.
5. 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.
6. 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.
7. The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him.

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: 03 February 2023