State of New South Wales v Farzad

A nutshell summary of the evidence and the course of the final hearing

1. The final hearing of the case was complicated by two matters of significance. The first involved a controversy surrounding the defendant's mental health diagnosis and his status under relevant mental health legislation. The second concerned the difficulties of finding accommodation in the community if the defendant were to be placed on an ESO.

The first day of the final hearing: Thursday 1 February 2024

1. On the first day of the hearing, the State tendered a significant amount of documentation in support of its application. Much of this material was annexed (or exhibited) to affidavits prepared by solicitors employed by the New South Wales Crown Solicitor's Office ("CSO"). There were also some stand-alone reports including, importantly, two reports of psychiatrists appointed at the preliminary hearing before Dhanji J. The documentation included - and I am speaking now in very general terms: 1. The defendant's criminal history in both New South Wales and Tasmania. The NSW record was in the form of a "bail report" which I found quite difficult to navigate. 2. Fact sheets, judgments and transcripts relating to a number of the defendant's criminal convictions. 3. The reports of the court appointed expert psychiatrists, Dr Gordon Elliott and Dr Calum Smith. 4. Several earlier reports to which the court appointed experts referred. Most of these were referred to in the index to the exhibits but were not produced when the exhibits were first tendered. I asked to see a couple of those reports to which reference was made by the experts at the hearing and a further volume of material was tendered (Ex D). 5. Various risk assessment and risk management reports prepared by officers of Corrective Services. 6. Reports and other documents generated by the Mental Health Review Tribunal and parole authorities. 7. An affidavit of Ryan Gaffney who is the project coordinator of the Coexisting Disorders Program within NSW Corrective Services. Annexed to the affidavit were documents relating to possible accommodation options along with material suggesting that the defendant objected to being placed in certain types or categories of accommodation. 8. A selection of Offender Integrated Management System ("OIMS") case notes. 9. Various notes, emails and other documents of which the defendant was the author.
2. The defendant read an affidavit of his solicitor annexing the standard operating procedures of the Australian Federal Police which relate to the categorisation of child exploitation material. That material was intended to place a series of offences on the defendant's record into its proper context; by which I mean, it suggested that the offences were not at the high end of offences involving child pornography.
3. I was also benefited with extremely helpful written submissions, both by Ms Kennedy on behalf of the defendant, and by Mr Aitken and Ms Thampapillai on behalf of the State. Those submissions included and incorporated the submissions provided to Dhanji J at the preliminary hearing.
4. Doctors Elliott and Smith gave concurrent evidence, with Dr Elliott in the courtroom and Dr Smith appearing by audio visual link ("AVL"). The doctors were examined in turn by Mr Aitken, with the assistance of Ms Thampapillai, and then by Ms Kennedy. The concurrent evidence occupied most of the first day finishing, as I recall, at about 3:30pm. The doctors were not formally excused because issues remained as to the defendant's status under the mental health legislation, his placement in the prison system and his compliance with the recommended medication regime. As it turned out, neither doctor was required to give further evidence on the second or third day of the hearing.
5. The case was adjourned to allow the parties to obtain updates as to possible accommodation options (in the community) and the mental health issues referred to earlier, and for closing submissions.

The second day of the hearing: Friday 1 March 2024

1. On the second day of the hearing, the State read three additional affidavits: 1. A further affidavit of Ryan Gaffney (Ex E) explaining the process to secure accommodation under the Extended Reintegration Service ("ERS"). 2. An affidavit of Johanna Fisher (Ex F), a CSO solicitor who annexed various documents including letters from the defendant to "Dr Saeed", case notes and OIMS note, an inmate profile sheet and a letter from Dr Andrew Ellis, the (acting) state-wide director of forensic mental health within Justice Health. 3. An affidavit of Lisa Collins (Ex G), the manager of Transitions Programs who confirmed much of Mr Gaffney's evidence but confirmed that the defendant "has been approved for the ERS program."
2. Mr Aitken indicated that the State sought a further adjournment of the proceedings.
3. The defendant read a further affidavit of his solicitor, which annexed some OIMS notes, but Ms Kennedy told me this affidavit was mainly directed to the anticipated application for an adjournment to be made on behalf of the State.
4. Dr Matthew Hearps, a psychiatrist and the acting clinical director of "one part" of Justice Health (as distinct from Dr Ellis, who is the state-wide director), gave evidence, providing an update as to the defendant's custodial situation, current medication and level of compliance. The defendant had been transferred from the Mental Health Screening Unit to Long Bay Hospital on 28 February 2024 two or three days before the second day of the hearing. He remained a voluntary patient.
5. A debate then commenced about the State's application to adjourn the proceedings.
6. The State sought the adjournment "with reluctance" to enable the doctors currently responsible for the defendant to undertake a "further longitudinal review" and to obtain further information concerning the accommodation options available if the defendant is released. The length of the proposed adjournment was unclear although it was suggested there could be a mention on Friday 15 March 2024 to provide me with an update before I travel to rural New South Wales to conduct a murder trial which, along with other commitments, would mean the hearing of the present matter could not resume until, at the earliest, May 2024 and possibly well into May.
7. During the argument over the adjournment, Mr Gaffney was called to give some evidence to explain or justify the delay in obtaining a clear answer to the question of whether accommodation could be arranged through the ERS programme. I accepted the truthfulness of Mr Gaffney's evidence. I do not mean any criticism of Mr Gaffney himself, but I found then, and I find now, the ongoing delay in organising suitable accommodation to be surprising, if not unsatisfactory.
8. Ms Kennedy opposed the application vigorously on the defendant's behalf. She submitted, and I am paraphrasing her far more elegant argument, that the problem was that there was nothing to suggest that there would be any clarification of the two issues and that the adjournment would simply put off for another day the making of a difficult decision in circumstances where her client remains in custody, albeit bail refused on unrelated matters. A complaint was made, which I considered to be a legitimate one, that the issues over which there is uncertainty were: "… contingent upon a release date and thus we find ourselves in a cycle wherein your Honour is asked to adjourn the matter so that steps can be taken to ascertain the address, but then the ascertaining of the address doesn't happen because the release date hasn't been set yet."
9. Again, paraphrasing and reading between the lines, the submission was that if an ESO is imposed, and the IDO revoked, it may be that the Local Court would consider the grant of conditional bail pending the resolution of the outstanding summary charges. The corollary of these matters is that an adjournment of the proceedings would have the possible effect of unnecessarily prolonging the period of the defendant's custody.
10. Another thing that happened in the course of these discussions is that the defendant volunteered that he was "prepared to live anywhere", including the boarding house style accommodation that is often used by the authorities managing high risk offenders when they are first released on an ESO. This was a change of position for the defendant who had previously, at least at times, simply refused to engage in the assessment process. At one stage he indicated he would require "a two bedroom unit preferably seaside". [2]
11. I generally accepted Ms Kennedy's submissions on the question of the adjournment but decided to allow the State an adjournment of two weeks to provide updated information. That seemed, at the time, a reasonable and just resolution in the light of the defendant's very recent transfer to Long Bay Hospital, the substance of Mr Gaffney's evidence and the defendant's less intransigent attitude to his accommodation options and more recent compliance with his medication regime.
12. So the case was adjourned until today Friday 15 March 2024 for any relevant updates, final submissions and with a view to making orders, if not providing reasons for those orders.

The third day of the hearing: Friday 15 March 2024

1. Today, the third day of the hearing, I presided via AVL for reasons that do not matter. The defendant has also appeared by that method while counsel and their solicitors appeared live in the courtroom. As with the evidence of Dr Smith, the technology was imperfect, to put it as politely as I can, and the parties had to move courtrooms at one stage. However, we managed to muddle our way through.
2. The State produced a further affidavit from Jessie Slattery-McDonald, the Operational Governance Officer in the Extended Supervision Order Team within Corrective Services. The affidavit was read and marked as Ex J. It was directed to the controversy around the fourth condition which will only arise if I decide to make an ESO. However, it also has relevance to whether a CDO should be made. The affidavit provided hearsay accounts of two death threats directed towards a doctor. The threats were allegedly made to third parties (two separate custodial officers) on 27 February 2024 and 10 March 2024. This material was directed towards as I have said, condition 4. I will have to, at some point, return to it, but it is to the effect that the defendant must not engage in any threatening, intimidating or abusive behaviour towards Corrective Services NSW or electronic monitoring staff involved in his supervision that would cause a staff member to fear for their safety and/or interfere with or impede supervision.
3. Unsurprisingly - and I mean that in no critical way - Ms Slattery-McDonald urged the Court to make such a condition on a number of bases, not least of which was therapeutic and to make it a requirement for there to be a civilised interaction between the defendant and those supervising him. Equally, people in the difficult position of administering orders under the Act ought not to be subject to the sorts of abusive, in which this defendant has it seems and I accept, from time to time engaged.
4. Returning to what was tendered today, there was a further affidavit of Ms Fisher read without objection and marked as Ex K. Several recent documents were annexed to the affidavit including a letter from the defendant which attempted to explain his exasperation with the treatment he is receiving in custody, even since his transfer to Long Bay Hospital. I will not go into the details, but it is there for those who wish to inspect the file. There was also a medical certificate dated 6 March 2024 and a letter of same date under the hand of Dr Chu each of which confirmed that the defendant remains mentally unwell and described him as "agitated", "guarded", "hostile" and "suspicious". He was said to have limited "insight" and was dismissive of suggestions made by medical staff. There were a few Justice Health notes which contained, without going into detail, some unfortunate and possibly erroneous opinions as to the character of various doctors and the attitude of the writer to the current litigation. One striking aspect of the notes was that the defendant seemed, for want of a better word, smitten with Dr Ho and expressed gratitude for having been prescribed with the drug, or medication, Risperidone. Finally, there was a letter from Dr Ellis confirming the defendant's current treatment and condition. Dr Ellis also gave evidence.
5. The State also relied on yet another affidavit from Mr Gaffney concerning attempts to organise suitable accommodation, particularly in the interim if an order was made and ERS accommodation was not available immediately. Regrettably, some of the possible accommodation options are not, at this stage, available because the defendant's psychiatric condition is not considered by those responsible to be stable. This affidavit was read without objection and marked as Ex L.
6. Returning to Dr Ellis, he provided helpful evidence about the operation of the Forensic Provisions Act and the Mental Health Act 2007 (NSW) in a case such as the defendant's. The defendant is currently a "correctional patient" which is why he was transferred to Long Bay Hospital. His status, as such, means that he can be treated involuntarily, and doctors can force him to take medication. As I understand it, this status is similar to that of a "forensic patient". At this point, the defendant is not "consenting" to the treatment and medication but is compliant with it. That is to say, he is not being physically forced to take the medication. There is currently a meeting of the Mental Health Review Tribunal scheduled on 18 April 2024 to confirm his status as a correctional patient. That decision, again as I understand Dr Ellis' evidence and the terms of the relevant legislation, will turn on the Tribunal's decision as to whether he is mentally ill.
7. If somebody applied, specifically his treating psychiatrist, the Tribunal has the power to make a community treatment order against the possibility that the defendant is to be released. It is not known whether such an application is to be made. As I understand it, no such application is currently foreshadowed.
8. This evidence, by which I mean all of the evidence to which I have just referred, led the State, again, to seek an adjournment of the proceedings so that (i) the defendant's psychiatric condition may stabilise with medication, (ii) his status under the mental health legislation is known or made clearer, specifically whether there will be a community treatment order in place and (iii) to determine whether accommodation can be arranged.
9. There is a benefit, or there may be a benefit, because certainty around these matters would be ideal. However, Ms Kennedy made a forceful and persuasive argument that the adjournment should not be granted, essentially on the same basis as she opposed the adjournment application two weeks ago, but perhaps this time with more powerful ammunition at her disposal because it has happened again and her predictions on the last occasions were proved to be correct. We are back here; we are still wondering about the defendant's mental health status and whether there is going to be accommodation available to him if an ESO is made and he is released into the community. She put it in terms of "Parkinson's Law", an adage that work expands to fill the time given to complete it. One way or another, we seem to be in a cycle where the proceedings are adjourned, and a decision is delayed, only to find out what is happening and the delay, or lack of a potential release date, does not allow the processes that need to take place to actually take place. That seems to apply both in terms of accommodation, the processes of the Mental Health Review Tribunal, and the treatment by the psychiatrists.
10. The defendant's case seems to fall into a legislative or administrative hole at the crossroads of the administration of the high-risk offender legislation and the complex operation of the mental health legislation. There is no certainty around whether there will be a community treatment order under the Forensic Provisions Act because there is no urgency to seek such an order in the absence of a release date. Certain accommodation (like the Community Offender Support Program ("COSP") accommodation) is not available because of the defendant's mental health diagnosis, while the availability of others (the ERS) is somewhat dependent on having such a disability.
11. The upshot of all of it is that I have decided to refuse the State's application for an adjournment, and to proceed to decide the case on the information I have. I accept Ms Kennedy's submission that adjourning the proceedings to obtain more certain information is unlikely to place me in a better position to make a decision and exercise the discretion required by the Act, but it is likely to delay the defendant's release date if I decided either to dismiss the summons or to impose an ESO.

Note

1. At this point in the delivering of the judgment, it was necessary to take a short break and, realising the likely length of the rest of the remarks, I advised the parties - but in particular the defendant - an outline of the orders I had decided to make.

Formal prerequisites to the making of an order, the nature of the risk assessment task and the paramount consideration under the Act

Formal requirements for the making of an order

1. Sections 5B and 5C of the Act set out, in subss (a), (b) and (c), three similar formal prerequisites for the making of an ESO or a CDO. There is no dispute that those prerequisites are established.
2. I am satisfied: 1. The defendant is an "offender" who has served a sentence of imprisonment for a "serious offence". "Offender" is defined in s 4A and "serious sex offence" in s 5. The offences charged against the defendant in 2004 were serious sex offences for which he was sentenced to full time imprisonment. 2. The defendant is a "detained offender" (ss 5C(b) and 13B(2)) and a "supervised offender" (ss 5B(b) and 5I(2)). 3. The application was made in accordance with ss 5I and 13B each of which provides certain temporal and procedural requirements which have been fulfilled in the bringing of this application.

Risk assessment to be undertaken by the Supreme Court

1. The final matter of which the Court must be satisfied before making an order, or deciding to exercise the discretion to make (or not to make) an order (whether for a supervision order under s 5B or a detention order under s 5C), involves an assessment of risk. The Court must be satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a further serious offence if they are not kept under supervision (in the case of s 5B(d)), and/or, if they not kept in detention (in the case of s 5C(d)).
2. Section 5D provides that the Court need not be satisfied that the risk of an offender committing a serious offence "is more likely than not" to determine that that there is a relevant unacceptable risk.
3. Sections 9(3) (relating to ESOs) and 17(4) (relating to CDOs) each provides a list of matters to which the Court is to "have regard" in deciding whether to make an order. Those matters are mandatory considerations but it is not an exhaustive list. The Court can also take into account "any other matter it considers to be relevant".
4. In deciding whether to make a CDO, s 17(4)(e2) requires the court to consider "whether it is satisfied the offender is likely to comply with the obligations of an extended supervision order". Section 17(5) provides that in deciding whether to make a CDO, the court "not to consider the ability to take action for a breach of the order in relation to whether there is an unacceptable risk of the offender committing further serious offences."

The primary object of the Act and the paramount consideration

1. The primary object of the Act is to ensure the safety and protection of the community by providing for the extended supervision and continued detention of certain high-risk offenders: s 3(1). That object is reiterated in s 17 which provides that the paramount consideration in determining whether to make an order of either kind is the safety of the community.

The "index offences", history of offending and non-compliance with orders, and most recent offending and incarceration

1. The defendant has a history of offending which is recorded in both New South Wales and Tasmania. However, his most grave offences were committed about 20 years ago and was dealt with in 2006 in the New South Wales District Court. These were the offences which brings him within the purview of ss 4A and 5 of the Act. Since that time, his offending has been much less serious but includes the possession of child abuse material or pornography and breaches of various orders.

The May 2004 offences

1. On 25 May 2004 the defendant was charged with the grave offences which expose him to the orders now being sought. These offences involved using [a stupefying drug] to commit an indictable offence, aggravated attempted sexual assault and the indecent assault of a child. The offences were committed on 19 May 2004.
2. Questions were raised over the defendant's fitness to stand trial but in May 2005 a jury found the defendant to be fit. However, when the trial was listed to commence around a year later, a psychiatrist, Dr Lucire, questioned the defendant's fitness to plead. [3] Dr Lucire doubted the defendant's ability to follow the evidence in the trial and provide instructions. These concerns arose from the defendant's drug induced akathisia (inability to stay still) and other impairments arising from his long-standing mental health issues. Judge Murrell SC (as her Honour then was) directed a further inquiry into the defendant's fitness. Several psychiatrists and doctors were called to give evidence in the judge alone inquiry. On 29 May 2006 her Honour delivered a judgment in which she concluded that the defendant had feigned or exaggerated his symptoms and that he did not suffer, at least to any significant extent, from drug-induced akathisia or other mental impairments or side-effects. Her Honour found that the defendant was fit to plead and be tried.
3. On 30 May 2006, the defendant pleaded guilty to the following six offences as described in the remarks on sentence delivered on 8 September 2006: [4] 1. Cause RD to take a stupefying drug (benzodiazepines) with intent to sexually assault her daughter, LD (s 38 Crimes Act 1900 (NSW)). 2. Cause LD to take a stupefying drug (benzodiazepines) with intent to sexually assault her (s 38 Crimes Act). 3. Aggravated attempt to have sexual intercourse with LD (place penis into mouth) without her consent, knowing that she was not consenting - she being under 16 years old (s 61J(2)(d) Crimes Act). 4. Aggravated attempt to have sexual intercourse with LD (rub penis on vagina) without her consent, knowing that she was not consenting - she being under 16 years old (s 61J(2)(d) Crimes Act). 5. Aggravated indecent assault on LD (licking breast) - she being under 16 years old (s 61M(3)(b) Crimes Act 1900 (NSW) (Repealed)). 6. Aggravated sexual intercourse with LD (licking vagina with some penetration) without her consent, knowing that she was not consenting - she being under 16 years old (s 61J(2)(d) Crimes Act).
4. The facts (adopting the pseudonyms used by Judge Murrell which were not redacted on Caselaw) were that in early April 2004, the defendant met RD through a telephone chatline. On 19 May 2004 the two met at RD's house. LD, RD's 13-year-old daughter, was also present. The defendant brought three tubs of custard which he encouraged LD to consume. He also encouraged RD to consume alcohol. RD soon felt lightheaded and her next memory was waking up in the hospital. LD also began to feel dizzy and tired. The defendant asked to accompany LD to her bedroom. He pushed LD onto her bed, held her down and began to play with her breasts, hair and legs. He threatened LD, saying that if she did not comply with his wishes he would kill her and hurt her mother. LD screamed and tried to escape but the defendant covered her mouth and held her down. The offending continued in the mother's bedroom where the defendant removed LD's clothing and tried to make her perform oral sex on him and rub his testicles. When she refused, he forced her to do so. The defendant played with LD's vagina and rubbed his penis against it. He spread her legs and licked her vagina. Throughout the offending, the defendant told LD to shut up or he would "cut her 'effin' throat" and kill her.
5. As these events were occurring, LD's older sister telephoned the household. LD managed to alert her sister of the sexual assault and the defendant fled. The sister rang 000 and LD's brother-in-law rushed to the house where he found RD and LD in drug induced states. Medical examinations showed that both RD and LD had benzodiazepine - which can cause memory loss, muscle weakness, impaired alertness and walking difficulties - in their systems. Two and a half weeks prior to the offences, the defendant attempted to obtain benzodiazepines through a nurse he met on a chatline.
6. The sentencing Judge canvassed the defendant's mental health issues and found that he exhibited symptoms of paranoia, obsessive/compulsive traits and occasional signs of depression. While her Honour accepted that the defendant suffered from a chronic paranoid schizophrenic disorder and antisocial personality traits, she rejected the proposition that he was delusional and psychotic during the offending. The sentencing Judge concluded that evidence suggested the "offences were not planned at the last minute" and that "before going to RD's home, the [defendant] had determined to bring benzodiazepines, was aware of the likely effects of those drugs on the victims and had considered how he would administer the drugs surreptitiously to the victims".
7. Her Honour took into account the defendant's tumultuous life which was marked by frequent relocations, unemployment, short-lived relationships and a history of mental health issues. While he did not "inspire sympathy", her Honour acknowledged that the defendant was a tormented individual affected by varying kinds of mental and psychological illnesses.

Sentences imposed for the May 2004 offences.

1. Individual sentences ranging from two years (count 5) to eight years and ten months (count 1) were imposed for the six individual sentences and there was a partial accumulation between those sentences. The total effective sentence for the six counts was 10 years imprisonment with a non-parole period of six years.
2. The earliest release date on those sentences (that is, the expiration of the last expiring non-parole period) was 7 August 2009. The total sentence would not expire until 7 June 2014.
3. It seems (based on an attempt to divine the cumbersome "bail report" and Corrective Services custody records) that he was not released from custody until 28 August 2015 (after he was found not guilty in relation to unrelated allegations of sexual assault). This was confirmed by counsel before submissions commenced.

Some relevant comments made by the sentencing Judge

1. For the purpose of ss 9(3)(h1) and 17(4)(h1) of the Act, I have considered various comments made in the sentencing judgment. Her Honour was "not confident" about the defendant's prospects of rehabilitation, was concerned that he may re-offend and expressed the opinion that much would turn on "the successful diagnosis and treatment of the offender's mental condition". Her Honour concluded by saying: "To the extent that the offender's conduct is a reflection of antisocial personality traits, it may not respond to treatment, although it may respond to very strict supervision."

The defendant's criminal history in New South Wales and Tasmania until 2022

1. The defendant has an extensive criminal history.
2. Before the May 2004 offences, he had been convicted of several relatively minor offences, including driving offences, dishonesty and property offences, breaches of apprehended violence orders and some minor offences of violence. He was charged with an offence of "peep and pry" in 1997. This charge was withdrawn and dismissed and I have disregarded it. Some of his offences were disposed of under ss 32-33 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (Repealed). On 26 May 1999 he was sentenced to 3 months imprisonment for two offences of wilful and obscene exposure near a public place or school.
3. While in custody for the 2004 offences, the defendant was charged with offences of sexual intercourse without consent and aggravated sexual assault of a woman he met through a telephone dating service. These offences were alleged to have occurred in 2002 but there was an extensive delay due to ongoing questions over his fitness, the intervening lengthy sentence for the 2004 offences and the delay in his release. According to the bail report, he was found "not guilty by verdict" on 28 August 2015.
4. After the acquittal, the defendant was released into the community. He was subject to a forensic community treatment order with which he remained compliant for some time. It seems there were no recorded convictions or offences between the date of his release in August 2015 until offences committed in Tasmania in 2018.
5. In 2017 the defendant moved to Tasmania and was placed on the Tasmanian Child Protection Register. On 12 September 2019 the defendant was sentenced to 12 months imprisonment for breaching the reporting conditions under the Child Protection Register. The offences occurred in 2018 and involved him failing to notify police that he was using a dating site. He sent harassing emails to two women he met on that site.
6. On 28 November 2019 the defendant was convicted for possessing child exploitation material after he was found with 43 images which constituted child pornography. He was also convicted for breaching his reporting conditions under the Child Protection Register after he failed to notify police about three email accounts he had created. He was fined, sentenced to 9 months imprisonment and a forfeiture order was made over his telephone and laptop.
7. On 24 August 2021 the defendant was placed on a community protection order for three years under the Community Protection (Offender Reporting) Act 2005 (Tas) which applied across Australia. On 9 December 2020 he was convicted of several counts of failing to comply with the conditions of that order. The breaches involved him failing to report his email address and new 'phone number, sending harassing emails to police and his lawyer, purchasing a 'phone with internet connection and accessing YouTube. He was sentenced to 6 months imprisonment with an additional suspended term of 18 months and placed on an 18-month community corrections order.

Recent offending, alleged offending and incarceration in New South Wales

1. In June 2022 the Defendant committed further offences of contravening the community protection order and failing to comply with reporting obligations under the Child Protection Register. When he was still living in Tasmania, he met a woman through an online dating site. On 17 June he moved back to NSW and resided with that woman and her four-year-old daughter for three days, before relocating to his mother's house. He failed to disclose his movements to police and did not report the breach of conditions to the Register for several days. He was convicted in the Local Court on 16 February 2023 and sentenced to 16 months imprisonment with a non-parole period of eight months. He was released to parole on 22 February 2023 and the additional term (or parole period) was set to expire on 22 October 2023.
2. The defendant allegedly breached his parole by committing offences on 3 and 29 June 2023. His parole was revoked and he served the balance of parole in custody. His sentence has now expired. However, he remains in custody, bail refused, for offences of stalking, harassing and intimidating, [5] assaulting a community corrections officer, using a carriage service to menace, harass and offend and having custody of a knife in a public place. The offences include an allegation that the defendant threatened and harassed a community corrections officer after he was informed that his temporary residence was not considered to be suitable. He allegedly yelled at the community corrections officer and sent him lengthy text messages. He was arrested at the police station on 29 June 2023 where he was also allegedly found to be in possession of a knife. According to JusticeLink records the defendant pleaded not guilty to these charges on 19 December 2023. The matter was listed for hearing on 24 June 2024.
3. I interpolate to say that the NSW bail report includes charges of sexual intercourse without consent and indecent assault in 2000. The report suggests the Director of Public Prosecutions withdrew the indecent assault charge and that the defendant was found not guilty of the sexual intercourse without consent in 2003. Given the passage of time and the acquittal, I have given this charge very little weight although counsel for the State is correct to submit that an acquittal per se does not deprive a charge of some relevance to the assessment of risk. [6]

The defendant's psychiatric history, identification of his conditions and the opinions of the court appointed experts

1. The defendant has an extensive and complex psychiatric history. It is summarised in the submissions of the parties and detailed extensively in the reports of Dr Elliott and Dr Smith. The defendant has been subject to the scrutiny of the criminal justice and penal systems, and under the care of mental health professionals, since (at least) the early to mid-1990s. Many diagnoses have been made over the years and contradictory opinions have been reached by many mental health experts.
2. There is evidence of quite extensive contact with a psychiatrist (Dr George B Foster) in around 1991 and there are reports from Dr Foster from 2001 and 2002. He told the psychiatrist in their first consultation that he had been diagnosed with schizophrenia "five years earlier", that is in the mid to late 1980s. Later reports (for example by Dr Samuels in 2003) confirmed the history of an early diagnosis of schizophrenia. Dr Foster diagnosed the defendant with "paranoid schizophrenia" more than once and noted a history of "auditory and visual hallucinations" as well as some bizarre notions concerning "alien beings named Trojans". The most recent diagnosis by Dr Foster was in a report dated 4 March 2003.
3. There was also evidence of an admission to a "unit in Victoria with a diagnosis of psychosis" in 2003 and 2004 "but he absconded". He has been treated with antidepressant medication and antipsychotics over many years and his history of compliance with the medication regime is inconsistent.
4. During the criminal proceedings for his most serious offence, that is between 2004 and 2006, he was described by Dr Allnut as a "complex diagnostic challenge". He was found to be fit to stand trial, but questions were raised about that finding and a further fitness hearing was conducted. There is a suggestion of malingering or exaggeration of symptoms in some of the reports and findings.
5. However, Dr Bruce Westmore provided several reports and felt the defendant was unfit to be tried and that his persecutory thoughts as to the legal process were delusional. Conversely, Dr Wong was "unimpressed" with the diagnosis of schizophrenia and thought that the defendant's "outrageously abusive, offensive and utterly unacceptable" outbursts were not manifestations of a psychotic illness. Dr Wong thought the defendant was a "highly clever, manipulative and deceptive person" with a "very severe case of antisocial personality disorder".
6. The descriptions of attempting to interview the defendant described in some of the earlier reports - see for example a report of Dr Michael Giuffrida in 2007 - echoed the reports provided by the court appointed psychiatrists prepared for the present hearing. The defendant is difficult to interview and insistent on providing his account and history without interruption. Despite those difficulties, Dr Giuffrida was of the view that the defendant's primary condition was schizophrenia. Similar opinions were expressed by Dr Andy McClure in 2011 and Dr Anna Farrar in 2012, although the latter described the condition(s) as "schizoaffective disorder and antisocial personality disorder." The reports are replete with references to the defendant's irritability, history of delusional and persecutory beliefs, possibly feigned or exaggerated symptoms as well as the complicated interplay between his traits of paranoia, narcissism and personality disorder and his schizophrenic illness.
7. The inconsistent clinical presentation and diagnoses continued to more recent times. Between 2009 and 2015 there are "multiple determinations" of the Mental Health Review Tribunal. The thrust of the determinations was that the defendant had a psychotic illness. In March 2016 a team leader from Bankstown Lidcombe Mental Health Service noted the defendant was compliant with a community treatment order, including attending for depot injections of antipsychotic medications, even though he disputed the diagnosis.
8. Most recently, during the defendant's incarceration since the alleged breach of parole, Dr Ellis (as indicated earlier, the acting state-wide director of forensic mental health for Justice Health) has provided updates as to the defendant's forensic status and current treatment in custody:

• On 8 January 2024, Dr Ellis advised the CSO that the defendant was in the Mental Health Screening Unit, had been diagnosed with a "delusional disorder" and had been prescribed antipsychotic medication. At that time, the defendant was not taking the recommended medication, there was a need for ongoing review and there was a possibility that he would be transferred to a psychiatric hospital for treatment as a correctional patient.
• A report of 25 January 2024 indicated he remained in the Mental Health Screening Unit and there was no change to the diagnosis. He remained "effectively non-compliant" with the oral antipsychotic medication which he took very "infrequently".
• Finally, a letter of 26 February 2024 noted that the defendant had been "referred to Long Bay Hospital" and was waiting for a placement there. He had improved in compliance with the medication regime, but this was said to remain "intermittent". He was assessed with "ongoing delusions [and] poor insight" and required a higher level of "mental health services in the prison setting."
• As I noted earlier, by the second day of the hearing, the defendant had finally been transferred to Long Bay Hospital, but Dr Hearps needed more time to make a proper assessment of his situation, diagnosis and needs.
• Dr Ellis also gave evidence this morning and I have already referred briefly to that evidence. Dr Ellis is not the treating psychiatrist but reported that the defendant is currently compliant but not consenting to treatment.

The court appointed experts

1. Dr Smith and Dr Elliott were largely in agreement as to the defendant's diagnoses and the risk that he will commit a serious sexual offence if not detained or supervised. However, they expressed some differing opinions as to the primary risk factors arising from his complicated mental health presentation, and had different views concerning the best way of managing the risk.
2. Dr Elliott concluded that the defendant has a "severe personality disorder" manifesting in "narcissistic and antisocial traits" with the "predominant characteristic [falling] under the category of a paranoid personality disorder". The doctor also considered that the defendant has an additional chronic psychotic illness. He preferred to categorise it as a "schizoaffective disorder" which is a chronic psychotic illness with an additional abnormal mood component. His preference for this diagnosis stemmed from an absence of certain features generally associated with schizophrenia. Dr Elliott also diagnosed the defendant with an obsessive-compulsive disorder ("OCD") although he was suspicious that some of the features of this disorder may have been exaggerated "to avoid an additional diagnosis of a chronic psychotic illness, and possibly for more obscure reasons".
3. Dr Smith, who was subjected to a verbal tirade of abuse during his consultation with the defendant, was satisfied that the primary diagnosis was "treatment resistant schizophrenia/schizoaffective disorder". He placed substantial reliance on the fact that the defendant had responded well to antipsychotic medication in the past when he either voluntarily complied with, or was compelled to comply with, a regime of such medication. Dr Smith also noted that the defendant's thought processes were "notably disorganised" which was not something that was apparent in the consultation with Dr Elliott. I noted that the interviews took place on the same day and sequentially and wondered, out loud during the concurrent evidence, whether that may have impacted on the defendant's presentation in the interview and, in turn, the diagnoses. Dr Elliott thought it might, but Dr Smith seemed to disagree saying "my view is … he has a chronic schizophrenic illness".
4. Dr Smith also diagnosed the defendant with an antisocial personality disorder with "borderline features". However, he said there were "limitations in this diagnosis". He was of the view that the defendant has been "more settled and has not exhibited wider spread antisocial [behaviour]" when medicated for the psychosis. Further possible diagnoses contemplated by Dr Smith were a substance or alcohol use disorder, complex trauma and OCD. Based on the defendant's history, and in particular the 2004 offences, Dr Smith said that "paraphilia" or "paedophilia" were "strongly suggested".
5. Dr Smith said that all these conditions involved a "lifelong diagnosis" but their "impact may vary".

The psychiatrists' opinions as to the risk of the defendant committing a serious sexual offence.

1. Dr Smith and Dr Elliott both concluded that the defendant posed a risk of committing a serious sexual offence. Based on the application of statistical tools, each assessed the risk to be a "well above average" risk compared to other sexual offenders. Dr Elliott emphasised the dangers of making such assessments and said, "[i]t is impossible to accurately predict an individual's risk for general or sexual recidivist offending."
2. The psychiatrists provided different opinions as to the management of risk and whether it could be managed in the community with the imposition of an ESO.

Assessment of risk and findings for the purpose of ss 5B(d) and 5C(d)

1. There are many sources of information tendered on the application which inform the question of whether the Court would be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence if he is not detained or if he is not subject to an ESO.

The nature and content of the legal test

1. It is unnecessary to repeat the many judicial statements as to the content and operation of this legal test. In approaching the task in the present case, I am guided by the judgments of the Court of Appeal in cases such as Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21] and Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 ("Lynn") at [49]-[61]. The expression "high degree of probability" indicates something beyond more probable than not, but that expression qualifies the state of the judge's satisfaction rather than the degree of risk involved. Further, an "unacceptable risk" may arise not only because of the probability or statistical chance of the risk manifesting itself, but also because of the consequences of that outcome. This is sometimes referred to as the "calculus of risk". See, for example, New South Wales v Kamm (Final) [2016] NSWSC 1 at [41] and [43] (upheld on appeal in Kamm v State of New South Wales (No 4) (2017) 95 NSWLR 179; [2017] NSWCA 189) and, in a different context, AB (A Pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46 at [56]-[57]. The impact of an order on the defendant is not a matter to be considered in addressing the question posed by ss 5B and 5C: Lynn at [148]. That is relevant to the exercise of the discretion whether to make an order, while always keeping in mind the paramount objective of the Act, but "it would subvert the language of the statute" to take in account the defendant's interests in personal liberty and privacy in assessing whether there is an unacceptable risk": Lynn at [148].
2. Since the amendment of the Act in 2017, in deciding whether to make a CDO, it is no longer appropriate to consider whether suitable or adequate supervision can be provided by a supervision order: see, for example, State of New South Wales v Sturgeon (No. 2) [2019] NSWSC 883 ("Sturgeon") at [24]-[25].

Previous offences and compliance

1. The 2004 offences establishes the magnitude of the potential risk in terms of the possible seriousness of the kind of offending against which the community must be protected. Even if the likelihood (statistical or otherwise) is small, the overall risk may be unacceptable. Those offences were particularly troubling even though they took place a long time ago.
2. The 2019 Tasmanian offence of possession of child exploitation material suggests the defendant's sexual interest in children remains, irrespective of just how serious the material was relative to other forms of child pornography.
3. The defendant's chequered history of compliance with court orders and supervision orders, along with the history of losing self-control and declining to take medication are matters that must be factored into the assessment of risk.
4. Against that, it is almost two decades since the most serious offending and without understating the seriousness of the individual items on his criminal record since his release from custody in 2015, most of the defendant's offending since then has been of a much less serious kind and largely constituted by breaching reporting obligations and the like. A significant exception to that is the offences involving child pornography.

Risk assessments

1. I have already referred to the opinions and risk assessments undertaken by the court appointed expert psychiatrists.
2. I have also considered a risk assessment report dated 19 July 2023 prepared by a senior psychologist with the Serious Offenders Assessment Unit within Corrective Services. The author of that report reached the same conclusion as Dr Smith and Dr Elliott, that is, the defendant falls in the "[well above average risk range]" for sexual offenders relative to other male sexual offenders. Both that report and a subsequent risk management report identified several risk factors. These included the history of non-compliance, the defendant's unresolved psychiatric issues and patchy record of taking prescribed medication, as well as the history of alleged sexual offending (contact and non-contact) for which the defendant has been charged and, on occasion, convicted.
3. There are a number of other similar reports prepared in the past, including those relevant to parole and supervision orders in both Tasmania and New South Wales. The conclusions reached over time are consistent with the reports I have mentioned.

Loss of control and lack of inhibition

1. There are many examples within the evidence of the defendant losing his self-control and subjecting any number of people with tirades of personal and outrageous abuse. It seems nobody is immune from such outbursts and the State, in its written submissions, refers to examples of "[t]hreatening, derogatory [and] abusive comments" directed to nurses, doctors, judicial officers, Corrective Services staff and previous complainants. The comments are, at times, of an extreme kind and include death threats and quite outlandish and obscene abuse.
2. An example was an outburst during the consultation with Dr Smith. The psychiatrist recorded, as best he could, the following outpouring of grievance: "[extremely angry shouting] you are clearly not fair, just and impartial! you are thinking 'I am going to fuck him up', I know what you are up to, it is written all over you. Why would you come here if you are educated, having sympathy? You are going to retaliate, keep me in jail for ten years. well guess what go and do it! what you think you are doing to heaven? You are going to burn in hell! Psychiatrists have the highest suicides rates, why don't you go and investigate that? You are thinking you are going to screw me over? Go ahead, I'd love it! you are the terrorist, the IRA, they are the people who should have a CVO [sic] or ESO on them, go and interview them - go on moron [During this, Mr Farzad stood up and sat down multiple times, seeking to leave, buzzing on the door]. You have no idea how I am feeling! You are working for these criminals! This judge, you work for them! When you die God will judge you! I'm a 56-year-old man, I've got arthritis, I just go to the library … you make me sick; I want to throw up on your face, you make me sick, you are a sick man! You're loving it! [at this stage came close to the screen, screaming with his face almost touching the screen] YOU WANT TO DESTROY ME! ADMIT IT YOU PIECE OF SHIT! YOU ARE FUCKING MENTAL YOURSELF! HOW MANY PEOPLE HAVE SAID THAT TO YOU? TERRORIST! LISTEN TO THIS ASSWIPE [moved away from the screen and continued pacing and trying to leave the room, spoke in a quieter voice] In Parklea, why is it that they have people there, severely mental unwell, old, you pieces of shit want them there! Instead of helping! you're scum, you look like a poofter homosexual faggot, I bet you take it up the ass [louder again] MOTHERFUCKER IRA SCUM CAN'T WRITE FAST ENOUGH DON'T HAVE A SECRETARY YOU HOMOSEXUAL FAGGOT [speaks in odd 'camp' tone of voice at this stage] CAN'T EVEN SPEAK ENGLISH YOU WANT TO DESTROY ME! DO IT! DO IT! YOU WANT TO DESTROY ME! IF YOU WERE HERE, I'D SHIT ON YOUR FACE YOU CRIMINAL! WHEN YOU READ THE STUFF YOU HAD ON ME, THE JUDGE AND THE ATTONREY GENERAL CALLED YOU AND SAID TO WRITE WHATVER YOU HAVE TO. DIDN'T HE? ADMIT IT! YOU ARE A PEIUCE OF SHIT! ADMIT IT! TELL ME WHY THEY HAVE THE HIGHEST SUICIDE RATE. TELL ME! ASSHOLE PIECE OF SHIT. INAPPROPRIATE! [referencing my initial guidance that the question was inappropriate] MY ASS IN YOUR FACE IS INAPPROPRIOATE."
3. This was by no means an isolated event and the material is littered with examples of the defendant resorting to quite violent language when he does not get what he wants. The behaviour continued even after this hearing commenced. As recently as this morning, more material was put to me, as I think I have already mentioned, demonstrating that, at least based on hearsay evidence, the defendant has recently made two death threats towards his current treating psychiatrist. On 10 March 2024, the defendant allegedly told a custodial officer that "when he gets out his boys will hold the doctor and kill her", a threat thought to be directed towards (or about) his psychiatrist. He allegedly told another gaoler on 27 February 2024 that if he was sent to Long Bay Hospital he would "do whatever he can to kill the [d]octor".
4. I asked counsel for the State whether any of the threats, abuse or intimidatory remarks recorded in the evidence had manifested itself in conduct seemingly directed towards carrying out the threats. With admirable and customary candour, Mr Aitken indicated, generally, that the answer was no and could only point to the possession of a knife on his most recent arrest.
5. While only so much weight can be given to these outbursts, which have never manifested in the threats being carried out, they do have some bearing on the assessment of risk because they indicate that, at times, the defendant acts irrationally and without any apparent understanding of the impact of his behaviour on others. This lack of inhibition is, according to Dr Smith, of particular concern when the defendant is not taking his medication.

Conclusion and finding

1. Based on the whole of the evidence, applying the binding authorities concerning the correct approach, I am satisfied to a "high degree of probability" that the defendant poses an "unacceptable risk" of committing a serious sexual offence if not subject to an order under the Act.
2. In reaching that conclusion, I have taken into account the cogent and thoughtful submissions made by Ms Kennedy and, in particular, I have treated the risk assessment tools with a "high degree of caution" and have taken into account the ambiguity surrounding the defendant's circumstances generally and particularly his psychiatric/psychological diagnosis or diagnoses.
3. Having made that finding, it is necessary to consider whether or not to exercise the discretion to make an order for continued detention or an order for extended supervision [or neither]. [7]

Continued detention or extended supervision?

1. The State's primary position is that there should be a CDO. It initially sought such an order for two years, but the amended summons reduced the term of the proposed detention order to one year. The State's position receives support in the opinions of Dr Smith. He was of the opinion that the defendant could not be managed with a supervision order because he would not comply with the conditions, at least while he remains untreated without appropriate antipsychotic medication. Dr Smith said he was: "… loathe to recommend a continuing detention order, because it means a mentally ill person stays in an environment injurious to their mental health."
2. Even so, given the defendant's history of non-compliance and "current presentation", that he is "unlikely to be compliant" and that "making suggestions on community restrictions is almost pointless". He recommended "a short continuing detention order while [the defendant] is properly treated and assessed."
3. The defendant's position was that, if I reached the conclusion (to "a high degree of probability") that there was an unacceptable risk, an ESO should be made rather than a CDO. This position received support from Dr Elliott who said in his report: "I do consider that [the defendant's] risk of sexual recidivism would be considerably lowered by an ESO and could be managed. The order would provide the strict supervision required to detect any attempts to access potential victims via online routes and compel him to reside in known accommodation, avoid high risk areas and adhere to a known schedule."
4. Dr Elliott declined to make any recommendation as to the length of a CDO because he was "not convinced his risk cannot be managed under an ESO".
5. Ms Kennedy also placed reliance on Dr Smith's "extreme reluctance" to recommend a CDO. I have already noted Dr Smith's comment that a CDO would confine a mentally ill person to an environment "injurious" to their mental health. Dr Smith also made the following observation, about what he called the "moral imperative", in the context of his opinion, that the defendant needs to be treated with anti-psychotic medication: "It is a sign of a humane society; he is unwell, he is in need of treatment, whatever [be] his status with respect to the criminal justice system."
6. Both doctors expressed the opinion that the defendant would benefit from anti-psychotic medication. Dr Smith's view was that it was imperative that he receive it because his risk profile was considerably higher when he was disinhibited as a result of a lack of any pharmaceutical treatment of his psychosis. Dr Elliott was not so strident in his opinion because, in his view, the more significant risk factor was the defendant's personality disorder. Dr Smith's reluctant preference for ongoing detention was based on the hope - that is my word - that he would receive antipsychotic medication before he was released.
7. As best as I can tell, there seems to be nothing this Court can do to ensure that this occurs.
8. Without infringing on the jurisdiction of the psychiatric and medical staff in Corrective Services and Justice Health - and certainly without criticism of people who are, I have no doubt, overworked and encumbered with many people within the prison system who have mental health problems - I found the information from those organisations to be somewhat perplexing. Based on the views expressed by the psychiatrists, the transfer to Long Bay Hospital appeared to be overdue. No doubt this has to do with the abundance of inmates with mental health problems currently held within Corrective Services institutions and also the defendant's extremely complex presentation. At times, it seems he presents not so much as a mentally ill patient but just as an offensive, aggressive and nasty man.
9. There are, at least, two positive signs. First, the defendant's compliance with medication has been better over the recent weeks. Second, there is - as Dr Smith acknowledges - some history of compliance and, when that has occurred, periods of non-offending. The best example of that is from his release in 2015 until his first series of offences in Tasmania. During that period - which seems, without being precise, to have been a period of something like three years - and despite contesting the diagnosis of his mental illness, the defendant complied with his medication regime and stayed out of trouble.
10. The issue of his accommodation has also been a vexed one. Until quite recently, the defendant - despite his protestations to the contrary - has been uncooperative with attempts to find accommodation. He has made some cheeky and unrealistic demands and refused to consider taking up accommodation in various options presented to him. However, in the course of the second day of the hearing he volunteered that he would live anywhere. Ideally, accommodation will be arranged by those who administer the ERS, and this will be facilitated by the defendant now indicating that he will accept temporary accommodation in a COSP facility or similar. The evidence of Mr Gaffney and the affidavit of Ms Collins suggests that, with good will on both sides (and that includes the defendant himself), suitable accommodation will be able to be arranged if the defendant is released on an ESO. Having said that, I note that the COSP is now seemingly unavailable, because of the unresolved mental health issues.
11. The availability of stable accommodation is one of the conditions that Dr Elliott thought to be critical to ensuring that the defendant can be safely released on an ESO. The defendant should understand - and I am confident that he does understand - that co-operation with this process is critical to him being released from custody sooner rather than later. Without pre-empting, or fettering, the decision of the magistrate either at the final hearing or on a bail application, I simply cannot imagine a decision being made to grant him bail while the accommodation options remain unclear. I repeat Dr Ellis's strong view was that appropriate, stable accommodation was a very important factor mitigating risk in the defendant's case
12. I have applied the legislation in its current form and have not ruled out a CDO on the basis that adequate protection might be afforded by the drafting of the conditions of an ESO: cf Sturgeon referred to above. Indeed, throughout the course of today, and in the period leading up to today as I read the reports and reviewed the volumes of evidence, I was in two minds as to whether a detention order of some duration, as recommended by Dr Smith, should be imposed.
13. I have given paramount consideration to the protection of the community. Superficially, the continued detention of the defendant may be seen to offer the greatest protection to the community. The simple and superficial analysis is he cannot commit offences if he remains detained. However, with the question marks raised by Dr Smith over the defendant's psychiatric treatment in the custodial setting, I have concluded that greater protection will be afforded to the community if the defendant is released on relatively strict, but not unduly burdensome, conditions, with appropriate supervision and a compulsion to accept appropriate psychiatric treatment, including taking medication as prescribed.
14. I have taken into account the matters required by the Act and have attempted to articulate the manner in which I have done so in the foregoing reasons, although I have resisted the urge to set them out in the form of a checklist.
15. In conclusion, and in the exercise of the discretion provided to me, I am satisfied that an ESO should be made.

Length of the order

1. There has been debate about the length of the order. The doctors seem to think these are lifelong conditions and urged for something like a five‑year order. My inclination and intention, and I have not heard from counsel again today, is to make the order of three years duration. Noting, of course, that there is no prohibition on the State seeking a further order at the conclusion of that three-year period.
2. During a break shortly after the remarks in the last paragraph, I realised the amended summons sought only an ESO of two years duration, despite the opinions of the doctors. In the circumstances, I decided it was unfair (and possibly a denial of procedural fairness) to make the order for a period longer than that sought by the State.
3. Accordingly, I advised the parties that I would reduce the length of the order to two years.

The conditions of the ESO

1. Most of the conditions proposed by the State are in relatively standard form. Counsel for the defendant, while resisting the making of the order, accepts that most of the conditions are appropriate. The evidence, including the opinions of the psychiatrists, suggests the defendant will find many of the conditions to be irksome, to put it mildly. Dr Elliott put it more clearly: the defendant is likely to be "bitterly opposed to an ESO and/or the conditions" under consideration. This includes any requirement that he takes antipsychotic medication on the advice of his doctor or under a mental health plan or similar.
2. While I accept Dr Elliott's opinion on this issue, I also accept the joint opinion of the psychiatrists that stringent conditions must be attached to the ESO to ensure the ongoing protection of the community.
3. Most of the conditions proposed by the State are not opposed. I can see no reason not to include them and I will do so.
4. However, the parties were in conflict over several conditions. Some of the disputes were resolved between the parties. I will now set out the areas of dispute, indicate where that dispute was resolved co-operatively and where it was not, and explain and announce my determination.
5. In deciding on the appropriate conditions, I have applied what the Court of Appeal said in Wilde v State of New South Wales [2015] NSWCA 28; (2015) 249 A Crim R 65 at [54]. In particular: " …. it is not appropriate for the court under s 11 to impose conditions on a person directed to general future criminal conduct. But the condition does not have to have a 'demonstrated' link to the past offending in the sense submitted by the appellant."
6. The Court held that even though the offender's sexual offences were not connected with so-called "outlaw motorcycle gangs", there was no error in making conditions that forbade the defendant from associating with such groups.
7. I have also considered and applied what was said by R A Hulme J in State of New South Wales v Green (Final) [2013] NSWSC 1003 at [37] which referred to the secondary object of the act concerning rehabilitation and the importance of conditions not being unduly onerous or punitive. To similar effect is the approach taken by Fullerton J in State of New South Wales v Bugmy [2017] NSWSC 855 where her Honour at [89] eschewed conditions that were unduly onerous or punitive or those that were "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 under an extended supervision order."
8. Because of this defendant's complex needs, there is a delicate balance to be struck. It is not the community interest that he be placed on condition that he will inevitably breach.

Condition four

1. The defendant opposed condition four, which is pressed by the State. It is in the following form: "The defendant must not engage in any threatening, intimidating or abusive behaviour towards CSNSW or electronic monitoring staff involved in his supervision that would cause the staff member to fear for their safety and/or interfere with or impede supervision."
2. Based on the defendant's history of abusive behaviour directed towards those in a position of authority over him, both Dr Elliott and Dr Smith thought it was virtually inevitable that a condition along these lines would be breached. They believed that only compliance with his medication would result in him controlling this sought of behaviour.
3. Under examination by Ms Kennedy, Dr Elliott expressed the view that such a condition would not have any "moderating or controlling [impact on the defendant's] behaviour". Through that examination, Ms Kennedy made the point that more extreme versions of such conduct is already capable of being dealt with by the criminal law.
4. I have taken into account the views expressed by Ms Slattery-McDonald in her most recent affidavit (Ex J). There is some force in what she says about the boundaries that such a condition would set.
5. I accept the implications behind Ms Kennedy's cross-examination. The introduction of such a condition is simply more likely to result in a breach of the ESO, with penal consequences. The criminal law already provides for serious consequences if the behaviour is sufficiently serious and engaged in with the appropriate criminal intent. An ESO should not set the defendant up to fail. If the defendant commits a crime otherwise punishable by imprisonment, he will no doubt be charged, convicted and face the consequences of his actions. I can see no protective benefit to the community in adding a further layer and sanction through the conditions of the ESO. I do not propose to include condition four as currently drafted, or at all, in the conditions of the extended supervision order.

Conditions six to eight

1. Conditions six through eight concern the schedule of movements to be provided by the defendant.
2. The defendant seeks a modification to condition six, which as proposed by the State was in the following terms: "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."
3. Ms Kennedy proposed an amended condition, which she described as "dry scheduling", which is in much less onerous terms, or at least it provides clear boundaries to that condition. That condition is in these terms: "If directed by his DSO, the defendant is to provide an honest summary of his anticipated movements each week (or over successive weeks), limited to places he intends to travel to, the purposes 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)."
4. Dr Smith's view was that the defendant would be unable to comply with a condition requiring him to provide a schedule of his movements and that this type of condition would compound his grievances towards law enforcement authorities. Dr Elliott said that a condition requiring a schedule of the defendant's movements was "appropriate" and believed the defendant had the intellectual capacity to adhere to the original condition. However, he also thought the Defendant would react negatively to the onerous nature of the condition and that this would reinforce his grievances towards authorities. Dr Elliott thought that the offender would be able to comply to "dry scheduling" with less likelihood of such a condition creating conflict with those supervising him. He was of the view the condition proposed by the defendant was sufficient to mitigate the defendant's risk.
5. Ms Kennedy submitted that a condition requiring electronic monitoring (which is not opposed) along with the other strictures of the ESO was sufficient for the protection of the community. Further, she argued that the condition she proposed was more conducive to the defendant co-operating with those supervising him and, ultimately, making positive progress toward rehabilitation. I agree with and accept her submissions and I will impose what I think will become condition five in the terms proposed by the Defendant.
6. Condition seven (to become condition six) concerns changes to the schedule of movements. The State seeks the following condition: "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 seeks that the condition be amended as follows: "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, or if that is not possible, as soon as is reasonably practicable afterwards."
8. Dr Elliott thought the proposed amended condition was unclear and that there was ambiguity to it and it was likely to create conflict. He recommended that it should set out in a "clear" and "unambiguous" way when and how the defendant can deviate from his schedule of movements. Dr Smith maintained that the defendant would not be able to comply with this condition. I agree with what Dr Elliott thought about that, particularly given some of the defendant's personality traits including his OCD and, at times, manipulative behaviour.
9. In view of the relaxation of condition 5, there is no undue burden in requiring the defendant to provide 24 hours' notice of any change to his proposed movements. Further, the ambiguity in the condition is likely to foster conflict and potential manipulation. Condition 6 will be in the terms of condition seven as proposed by the State.
10. The next condition, which is condition eight in the summons - and it would become condition seven - was also opposed and that was that: "The defendant must not deviate from his approved schedule of movements except in an emergency."
11. This condition is pressed by the State and opposed by the defendant. The complaint about this condition is the ambiguity around the word "emergency". Dr Elliott said the word "emergency" was ambiguous and recommended that the condition be clear as to what emergencies would allow the defendant to deviate from his schedule. Dr Smith's view remained that the defendant would not be able to comply with this condition.
12. I am unable to accept that the condition as drafted is undesirably ambiguous. I think it is reasonably clear and, provided it is administered sensibly by those with the responsibility to do so, it should not create any undue burden. It is always open to a defendant to seek a variation if there is unreasonable administration of the terms and conditions: Manna v State of New South Wales [2021] NSWSC 1220. I propose to leave that condition in the terms proposed by the state.

Condition nine (now eight)

1. The defendant opposes proposed condition nine which provides: "In addition to and without limiting any of the other conditions, the defendant must not go within 1km of Sydney and Bankstown Airports and Sydney Cove Passenger Terminal, or any point of departure for an international destination, except for the purpose of reporting to a DSO as directed, attending upon a Community Corrections office in accordance with his approved schedule or as directed, or attending upon other government services in accordance with his approved schedule or as directed".
2. The State presses this condition and proposes the following amendment: "In addition to and without limiting any of the other conditions, the defendant must not go within 1km of Sydney and Bankstown Airports or any point of departure for an international destination, or attend the Sydney Cove Passenger Terminal, except for the purpose of reporting to a DSO as directed, attending upon a Community Corrections office in accordance with his approved schedule or as directed, or attending upon other government services in accordance with his approved schedule or as directed."
3. Dr Elliott had no issue with a condition requiring the defendant to not go within 1km of Sydney, Bankstown Airport or any point of international departure and had no objection with the proposed amended condition which allowed him to enter the city. He stated that if the defendant had already surrendered his passport and was subjected to electronic monitoring this condition would be unnecessary. Furthermore, he did not have concerns about the defendant attending an international point of departure because other conditions in his ESO restricted his ability to attend these areas. Dr Smith agreed that since there was no history of the defendant grooming women in airports or other public places, this was a condition that could be omitted.
4. Ultimately, in my assessment, that condition, while seemingly common, is an unnecessary one. There is no real evidence that the defendant poses an international flight risk. There are other conditions controlling his behaviour, not least of which is a requirement that he not leave New South Wales and be subject to electronic monitoring. In the circumstances, I do not propose to make that condition that he not go to those places of international departure. So, that condition will not be part of the ESO.

Condition 11 (now condition nine)

1. The defendant opposes condition 11 which provides: "The defendant must be at his approved address between 12AM and 6AM unless other arrangements are approved by a DSO."
2. This condition is pressed by the State. The State's position is that there was a greater vulnerability to potential victims of the defendant's potential criminal conduct during the early hours of the morning. Both Drs Elliott and Smith, as I understand it, indicated that such a condition was not necessary because there were no specific issues with the defendant's behaviour at night. They agreed that the management of his movement at night could be covered by the scheduling conditions.
3. I am not inclined to make that curfew condition part of the conditions of the ESO. So that condition will be refused, if that is the right word.

Condition 12 (now condition nine)

1. The defendant opposes condition 12 which states: "The defendant must comply with rules or by-laws (or both) of any approved accommodation for the defendant."
2. This condition is pressed by the State. Neither Dr Elliott nor Dr Smith said that this condition was a necessary condition for the defendant.
3. I accept Ms Kennedy's submission that such a condition has all sorts of potential complications. It is often included to ensure that people who are going to COSP-style accommodation comply with the strictures of that sort of group accommodation, but in this case, at the moment at least such a placement does not seem likely. As Ms Kennedy says, if there are any problems in relation to such bylaws, be it with COSP or even a strata unit, the result would be, the defendant may be evicted and that, in turn, could lead to a breach of the ESO. I am not inclined to make that a condition of the ESO.

Conditions 23 and 24 (now conditions 19 and 20)

1. The defendant indicated its opposition to conditions 23 and 24 which related to the defendant disclosing details of his financial affairs to the State and not using prohibited drugs. The conditions were not pressed by the State and will not form part of the ESO.

Condition 25 (now condition 19)

1. The next area of controversy related to condition 25, which would prohibit the defendant from possessing or consuming alcohol without the prior approval of the DSO and from possessing or consuming drugs unlawfully obtained. Notwithstanding the opposition to those conditions, the State pressed them.
2. Both doctors spoke of the disinhibiting effects of both drugs and alcohol.
3. Dr Elliott accepted that alcohol and drugs were not significant risk factors for the defendant. However, if he drank an excessive amount of alcohol or used illicit substances in such a way as to counteract the effect of his medication, there would be an increase in the risk of reoffending. He believed that while consumption of illicit drugs is already a criminal offence, it was still appropriate to have a condition prohibiting illicit drugs use, because of the general impact that illicit drugs have on violent and sexual reoffending. Dr Elliot also posited that the alcohol prohibition condition might potentially involve a limitation on how much alcohol the defendant could consume within a 24-hour period and should also subject him to alcohol testing to manage his alcohol consumption. He believed these recommendations would be better than prohibiting or restricting the applicant's alcohol use.
4. Dr Smith said that it was important to ensure the defendant does not have access to any drugs, prescribed or illicit, that could be used in an offence. He stated that this condition was necessary for the defendant as it prevented him from relapsing into cannabis use and worsening his psychotic symptoms. Dr Smith stated that even though alcohol has not been an issue for the defendant since the 1990s, his alcohol use should still be limited because of his "high level of ambient risk". Because alcohol is disinhibiting and substantially effects a person's judgment, Dr Smith's opinion was that it would be preferable to remove the risk of alcohol altogether by prohibiting the defendant from using it. However, he agreed that allowing the defendant to use a small amount of specific alcohol for activities such as cooking would be a practical alternative.
5. The condition proposed includes a caveat on the prohibition of alcohol use, being that prior approval of the DSO can be obtained.
6. I am satisfied that, at least in the early stages of the ESO, this condition is appropriate, even though I accept the force of Ms Kennedy's submissions that they did not appear to be a part of the subject offending. However, it is notoriously true that predatory behaviour is often preceded by attempts to influence the proposed victim with drugs and alcohol and at least one of the offences - the critical 2004 offending - involved the administration of benzodiazepine to sedate the victims.
7. I propose to keep those conditions in place certainly in the expectation that the alcohol condition will be administered appropriately and not unduly restrictively by the DSO. The condition will be as proposed, namely: "The defendant must not: a. Possess or consume alcohol without the prior approval of a DSO. b. Possess or use prohibited drugs or drugs unlawfully obtained."

Condition 31 (now condition 25)

1. The next condition is somewhat related and concerns the defendant not associating with people he knows are consuming or under the influence of alcohol or consuming drugs. The defendant proposes a limitation on that while striking out of the first part of it, which is not associating with people he knows are consuming or under the influence of alcohol. A very basic example provided by Ms Kennedy concerns the defendant being at his parents' retirement home and them having a glass of wine.
2. I am satisfied that the defendant's submission is made good, particularly considering that alcohol has not been a particular issue for him. I would not impose sub-condition (a) but would impose both (b) and (c). Those two sub-conditions are not, in fact, opposed. Accordingly, with the deletion indicated by strike out, condition 25 will be: "Without limiting condition [24], 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. a. associate with any people who he knows are consuming or under the influence of illegal drugs. b. associate with any person held in custody without prior approval of a DSO."

Conditions 37, 47, 50, 61 (now conditions 31, 41, 44, 55)

1. Conditions 37, 47, 50, and 61 were subject to dispute, then negotiation, and ultimately agreement. They will be included in the form ultimately agreed upon.

Final orders and recommendation

1. Accordingly, I will make the following orders: 1. An order pursuant to s 17(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), that the defendant be subject to an extended supervision order for a period of two years from the date of the order and pursuant to s 11 I direct that the defendant comply with the conditions set out in the attached Schedule. 2. I decline to make a continuing detention order. 3. I formally revoke the interim detention order made by Dhanji J.
2. After discussions with counsel for both sides I made the following recommendations: 1. I strongly urge the Mental Health Review Tribunal to consider a forensic community treatment order. 2. I recommend that the Mental Health Review Tribunal have the reports of Dr Elliott and Dr Smith and that this judgment be provided to the Tribunal. Schedule of Conditions - Farzad - updated (222922)

Endnotes

1. This judgment was delivered ex tempore but significant portions were based on notes prepared in advance of the final day of the hearing. In delivering the judgment, the writer at times simply summarised what would be in the final version. It has been revised for formal publication but not in a way that its content, meaning or reasoning was changed in any way.
2. OIMS case note dated 15 February 2024; Ex F, annexure F, p 70.
3. I am using the expressions "fitness", "fitness to plead" and "fitness to stand trial" interchangeably and there is no relevant distinction for present purposes.
4. R v Arthur Fairwell [2006] NSWDC 18.
5. As recorded, but noting the Defendant disputed the terms of the charge in the course of the hearing.
6. These charges have been mentioned more than once in the course of the judgment and, as I have said, the bail report is somewhat confusing.
7. The words in square brackets were added afterwards. By that stage of delivering these reasons, it was quite late in the day and I had already indicated to the parties that an order under the Act would be made. In reality, there was no sensible ground upon which to exercise the discretion in such a way that no order would be made.

Amendments 19 March 2024 - Fixed paragraph number and case title 21 March 2024 - Updated catchwords 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: 21 March 2024