State of New South Wales v Hayter

Supreme Court of NSW|2020-07-13|Before: Campbell J, Buddin J

Solicitors: Crown Solicitor (Plaintiff) Legal Aid Commission (Defendant) File Number(s): 2020/168215

Judgment

By Amended Summons filed on 8 July 2020, the State of New South Wales (the State) is seeking a second Extended Supervision Order (ESO) against the defendant, Mr Hayter under the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW). All references to legislative provisions in this judgment, unless otherwise specified, are references to that legislation.
As contemplated by s 7(3) I conducted a preliminary hearing into the application on 13 July 2020. While reserving his rights to contest the State's application for the ESO at the final hearing, Mr Hayter, through his counsel, Mr El-Choufani concedes that the material placed before the Court by the State as annexures to the affidavit of Briony O'Loughlin would, if proved at the final hearing, justify the making of an ESO.

Issues

Before me the substantial dispute was as to the appropriateness of a number of the conditions proposed by the State under s 11. My reasons will focus on that part of the argument.
It is to be borne in mind that proceedings under the Act are civil proceedings which are to be conducted in accordance with the law including the rules of evidence relating to civil proceedings: s 21. For this reason given Mr Hayter's concession, I think it unnecessary for me to provide comprehensive reasons for deciding that Mr Hayter's concession is properly made before acting upon it. However, in exercising the Court's powers under the Act on the basis of the concession, in my judgment it is apposite to bear in mind the observations of French J (as the Chief Justice then was) in Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323, [1999] FCA 557 at [11]: It is well-established that in making a consent order or indeed in accepting undertakings, the Court must have regard to the limits of its power. The parties cannot, by consent, confer power on the Court to make orders which the Court lacks power to make … The question whether a consent order is to be made, is not concluded by a finding that it is formally within the power of the Court. In the exercise of its power the Court is not merely giving effect to the wishes of the parties, it is exercising a public function and must have regard to the public interest in doing so … It is important therefore that the Court itself addresses and is satisfied of the basis upon which its order is to be made and in particular where the order sets aside the decision of an official decision-maker or a tribunal.
The present case is not is not a case for judicial review. However, the State's application invokes the Court's jurisdiction in an important public law area empowering the Court to impose very significant constraints on the liberty of a citizen to protect the community rather than as punishment for an offence of which he has been convicted.

Mr Hayter's concession

The Court has discretionary power to make an ESO if the conditions set out in s 5B are satisfied. Section 5B(a) is satisfied because Mr Hayter is an offender who has served the sentence of imprisonment for a serious offence, being a person above the age of 18 years and having served a sentence of imprisonment for a serious sex offence contrary to s 61M of the Crimes Act 1900 (NSW) of aggravated indecent assault on a person under 16 years of age. He was sentenced by Delaney DCJ to a term of imprisonment of 3 years and 3 months with a non-parole period of 2 years. His offending involved Mr Hayter fondling the genitals of a 12 year old boy in a park near Parramatta. The victim was alone in the park when approached by Mr Hayter and the indecent assault was preceded by acts of grooming involving praise of the victim's football skills, compliments about his appearance and the promise of $20. This is the index offence.
Under s 5B(b) Mr Hayter is a supervised offender. Principally because, currently, he is taken to be an offender serving a sentence of imprisonment for an offence under s 12, as he is serving the balance of a sentence of imprisonment on release on parole for the offence of failing to comply with the requirements of the existing ESO. Mr Hayter was convicted in the Waverley Local Court on 30 October 2019 on three charges of failing to comply with the requirements of his ESO, each of which related to the possession and use of a mobile phone, contrary to a written direction given by his Department Supervising Officer (DSO) and contacting a person whom he had been directed not to contact in accordance with a written direction. He was arrested for these matters on 3 April 2019 and remanded in custody. For each offence he was sentenced to a term of imprisonment of 16 months duration with a non-parole period of 11 months, each sentence to be served concurrently. He was released to his parole on 8 April 2020 and the additional term expires on 2 August 2020. It is perhaps convenient to point out here that Mr Hayter has been convicted of 24 offences contrary to s 12 of contravening Buddin J's ESO and sentenced to terms of imprisonment on 13 occasions for terms of between 15 days, and his current sentence, of 16 months. The first two breaches occurred on 19 and 21 July 2009 respectively within 3 weeks of Buddin J making the ESO.
The present application was commenced by the filing of the original Summons on 5 June 2020 and the application has otherwise been made in accordance with s 5I in conformity with s 5B(c).
The final condition anterior to the exercise of the court's power to make an ESO under s 9 is found in s 5B(d): The Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order. As I have already indicated, Mr Hayter has reserved his position to contest the satisfaction of this condition at the final hearing. For present purposes in accordance with s 10A, he accepts that the matters alleged in the supporting documentation if proved would justify the making of an ESO, including a finding to the necessary high degree of probability that he poses an unacceptable risk within the meaning of s 5B(d).
Although logically anterior to and separate from the s 9 question about whether to make an ESO, the determination of unacceptable risk within s5B(d) is very substantially informed by the s 9(2) and (3) considerations. Section 9(2) establishes the paramount consideration of the safety of the community. Section 9(3) establishes a series of mandatory considerations most of which are concerned with the magnitude of the risk, its susceptibility to management and only as a secondary consideration the prospect of rehabilitation (s 3(2)).

Section 9(3) factors

I propose only to touch upon these considerations rather than deeply analyse the extensive material that has been provided in support of the application for final relief. Obviously, the opinions of the s 7(4) court appointed experts are not yet available and accordingly, s 9(3)(b) is not in play.
I do not propose to deal with each consideration in the order in which they appear in the Act. I will attempt to provide a brief narrative by adopting what seems to me to be a more logical order for present purposes. Referring to s 9(3)(i), Mr Hayter is an Indigenous man born in 1963 and now 56 years of age. There is a credible history that he himself was the victim of child sexual abuse at the hands of an older boy.
Turning to his criminal history and the pattern of offending for the purpose of s 9(3)(h), his record commences in his 18th year with a trespass offence on 30 January 1981 and the malicious killing of a goat on 26 May 1982. For each of these matters he was fined with short sentences of imprisonment with hard labour in default. His child sex offending commences on 6 May 1984. Between then and 29 June 2004, when the index offending was committed Mr Hayter committed a series of over 20 offences on male children in three States. I accept the argument from Mr El-Choufani that the offending exhibited a certain pattern involving: offences against young boys who were strangers; offending that was undertaken more or less opportunistically, often occurring in public places but with an increasing degree of sophistication and grooming of the victims; and that the ages of the victims varied from 7 to 15 years.
In sentencing Mr Hayter for the index offence, his Honour Judge Delaney remarked that it was "obvious from the history of previous offending that [the index offence] is not an uncharacteristic aberration on the part of the offender" (O'Loughlin Affidavit Tab 18, p.514). His Honour found "a continuing attitude of disobedience for which both (sic) retribution, deterrence and protection of society requires a significant penalty" (O'Loughlin Affidavit Tab 18, p.514) (s 9(h)(1)).
In anticipation of the expiration of the sentence for the index offence Hislop J made a Continuing Detention Order (CDO) for a period of 6 months from 16 October 2007: State of New South Wales v Hayter [2007] NSWSC 1146. His Honour made a further CDO for a period of 12 months commencing on 6 May 2008: State of New South Wales v Hayter [2008] NSWSC 394.
In anticipation of the completion of the second CDO, an application was made by the State for an ESO by a summons filed on 25 March 2009. An ISO was made by Buddin J on 24 April 2009 to run for 28 days from Mr Hayter's release after the expiration of the second CDO on 5 May 2009. In accordance with the Court's power under the Act, the ISO was subsequently renewed twice until Buddin J made the currently suspended ESO on 1 July 2009.
For the purpose of s 9(3)(c), it is not in issue that Professor Greenberg, one of the Court appointed independent experts for the previous proceedings, diagnosed Mr Hayter with both Paedophilic Disorder and Hebephilic Disorder. The expert regarded the Paedophilic Disorder as severe and observed, "there is no cure for a Paedophilic or Hebephilic Disorder" (O'Loughlin Affidavit; Tab 49, p.694). Professor Greenberg also noted that Paedophilia is a chronic and lifelong condition, the significance of which may diminish as Mr Hayter's sex drive gradually decreases with age (O'Loughlin Affidavit, Tab 49, p.693-694). Professor Greenberg regarded Mr Hayter as having "poor insight into the ingrained chronicity of his Paedophilic and Hebphilic Disorder" (O'Loughlin Affidavit, Tab 49, p.696). Other psychiatrists who have treated Mr Hayter in the community during the currency of the ESO, Dr Andrew Ellis and Dr Jeremy O'Dea agree with Professor Greenberg's diagnosis and prognosis. As Mr J K Edwards of Counsel, who appears for the State, points out, the ongoing disorders are reflected in some of the conduct which has resulted in convictions for contravening the requirements of the ESO. For instance, Mr Hayter's eighth and ninth ESO breaches, for which he was arrested on 14 February 2013 included using Facebook contrary to a written direction from his DSO to befriend 10 young males notwithstanding he knew them to be under the age of 16.
A number of risk assessment reports have been obtained over the years in relation to Mr Hayter. These are relevant for s 9(3)(d). Recently reports were prepared by Mr Luke Brabant on 12 January 2018 and by Ms Mandy Lau on 4 February 2019. Ms Lau prepared a supplementary report on 21 February 2020. Both psychologists concluded that the risk of Mr Hayter committing further sexual offences, including serious sex offences could appropriately be described as "high". These conclusions were based upon a review of the available material, an extensive interview with Mr Hayter and the administration of statistical/actuarial and other assessment tools. The limitations of these "tools" are well known. Among these are the considerations that they not predictive and have a very significant weighting for historical offending. Ms Lau's various tests produced results indicating that Mr Hayter was within the medium-high risk category; "well above average risk level" (O'Loughlin Affidavit, Tab 2, p.21). He exhibited a high loading of criminogenic needs relative to other male sex offenders with similar scores. Mr Brabant's results were generally consistent with Ms Lau's.
The State's application is also supported by a Risk Management Report by Terry O'Brien, a Community Corrections Officer, dated 6 March 2020. Notwithstanding what can only be regarded as a most problematic history of non-compliance during the years that the ESO has been in force, it is Mr O'Brien's view that the risk that Mr Hayter presents is capable of being managed in the community subject to his compliance with a strict suite of conditions such as those now put forward by the State. The management strategy includes geographical restrictions, electronic monitoring, schedules of activity and movement, field visits, non-association requirements, non-contact with children requirements, referral for psychological treatment and drug and alcohol services. Mr O'Brien notes that "Mr Hayter's ongoing return to custody has hindered each opportunity for [Mr Hayter] to successfully reintegrate back into the community and … highlighted a continual effort by Mr Hayter not to comply with the [ESO]" (O'Loughlin Affidavit, Tab 4, p.40).
The relevant breaches of the ESO include deviations from the schedule of movements, drug use, associating occasionally with other convicted sex offenders, accessing pornographic material, and non-compliance with directions relating to appropriate phone use. These matters include the Facebook matters I have referred to.
Having said this, notwithstanding the consideration that Mr Hayter continues to engage in behaviours of concern with regard to the risk he presents, he has not committed a child sex offence since the index offence, which suggests that he is capable of being managed in the community.
For the purpose of ss 9(3)(e1),(e2) and (f) there is a long history of non-compliance which might be taken to cause concern about the likelihood that Mr Hayter will comply with the obligations of a further ESO. Although I stress and repeat he has not otherwise reoffended while at conditional liberty under the ESO imposed by Buddin J.
For the purpose of s 9(3)(e) Mr Hayter has participated in various treatment programs over the years going back to 1986 at the Cooma Correctional Centre and again in 1990 while in custody in Queensland. It may be inferred that a significant reason for the imposition of the CDOs by Hislop J related to the need for Mr Hayter to complete the CUBIT Program for sex offenders while in custody. From that point of view, it does appear that Mr Hayter was an involved participant in that course and while in the program disclosed other uncharged acts. However, psychiatric and psychological assessments, including those by Ms Lau, Mr Brabant and Dr Samuels have questioned the benefit that Mr Hayter has in fact derived from the program and his interviews with these professionals have generally suggested a concerning lack of insight into the reasons for his offending or the development of protective measures to guard against further offending in the future. He has submitted to treatment while subject to the ESO, including consulting clinicians to whom he's been referred and complying with prescriptions for anti-libidinal drugs.
For the purpose of s 9(3)(g) there is no suggestion that he has not complied with obligations under child protection legislation, which may be applicable to him while at liberty.
Other factors which need to be borne in mind are that in recent years Mr Hayter has reported suffering psychotic symptoms including auditory hallucinations involving command hallucinations telling him to harm a cell mate at one time. These symptoms have been treated with Olanzapine. There is also the suggestion that he suffers from an anti-social personality disorder. These matters also are relevant to the question of unacceptable risk, whether an order would be made in due course and the conditions which should be imposed.

Section 10A conclusion

The question which arises under s 10A(b) is whether these matters, taken at their highest, if proved to the high standard imposed by s 5B(d) would justify the making of an ESO. Clearly, without in any way denigrating from Mr Hayter's right to contest these matters at the final hearing, the answer can only be in the affirmative.
It follows I am empowered to make an ISO. The power is discretionary, but having regard to Mr Hayter's appropriate attitude, and the consideration that the concession made on his behalf was justified, I am affirmatively of the view that such an order should be made.

Conditions

This brings me to the matter which was the subject of the contest before me which is, which of the proposed conditions are appropriate under s 11.
The Schedule of Conditions of Supervision attached to the Amended Summons proposes 56 conditions falling into 11 categories which according to the headings under which they are organised are: reporting and monitoring obligations; accommodation; place and travel restrictions; employment, finance and education; drugs and alcohol; non-association; access to the internet and other electronic communication; search and seizure; access to pornographic, violent and classified material; personal details and appearance; and medical intervention and treatment.
8 of the 56 were put in issue by Mr Hayter. Of that 8, 7 remain in issue.
In approaching these issues, I bear in mind that the appropriateness of the conditions with which a person subject to an ISO must comply will depend at least in part upon balancing the need for protection of the community with Mr Hayter's right to be at liberty, including by reference to the rehabilitative object of the Act. Moreover, there is a danger that looking at contested conditions in isolation detracts attention from the whole of the regime proposed. There is a danger of "not seeing the wood for the trees". The whole suite of conditions is intended to work as a single scheme to protect the community and promote Mr Hayter's rehabilitation and his re-integration into the community as a pro-social member. Apparently disparate conditions may in fact operate in a complementary way, promoting the objects of the legislation. Bearing these considerations in mind I turn to consider the matters in dispute.

Condition 11

The State proposes the following condition: 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.
Mr Hayter proposes the following: 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 but the DSO may only attend and enter the premises: (a) If the DSO believes on reasonable grounds that it is necessary to ensure compliance with the order or the safety of the community having regard to the rights of other occupants to the premises to peace and privacy; and (b) No more than twice within 24 hours.
The concern of the State is that there have been instances referred to in the OIMS Case Notes where Mr Hayter has befriended vulnerable young adult males and either proposed to bring, or in fact brought them back to his home. In one case, the young man was a sex worker and in another he had significant mental health issues.
Condition 11 appears in Part B - Accommodation and the proposed condition permits, not exclusively, checks for compliance with other conditions as well as what might be described as "pastoral visits". Mr El-Choufani has submitted that Mr Hayter's proposal still permits regular routine checks because they are reasonably necessary to ensure compliance with the order. But it should be borne in mind that there was no evidence of any further offending or that Mr Hayter has attempted to bring underage males back to his accommodation. Moreover, Mr El-Choufani argued that Mr Hayter, himself is in many ways a vulnerable individual, having regard to his emerging mental health issues. Mr Hayter is currently living in shared accommodation and the rights of his housemates need to be considered. Mr El-Choufani submitted that conditioning the exercise of the power upon the formation of a belief on reasonable grounds guards against the arbitrary exercise of power.
In my judgment, subject to some adjustment to protect the rights of other occupants, the condition proposed by the Crown is justified. It is hardly likely that the power will be exercised arbitrarily. Spot checks at various hours as well as routine visits are likely to be important compliance checks, not just as to compliance with the accommodation conditions, but with other conditions in terms of the activities in which Mr Hayter is entitled to engage. It seems to me that it is unlikely that there would be checks "at all hours" in the absence of a belief based on reasonable grounds that some specific concern in relation to non-compliance had arisen. Further, the requirement that there be no more than two checks in any 24 hour period would rather signal the coast was clear in the event that Mr Hayter attempted to avoid detection of some particular act of non-compliance. Given his record, I regard that possibility as real as it is undesirable.
I will permit the following condition 11: 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, but in the exercise of this power, the DSO shall have regard to the rights of other occupants of the premises to peace and privacy.

Condition 17

Proposed condition 17 is couched in the following terms: The defendant must not attend any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment, without the prior approval of a DSO (which approval may not be unreasonably withheld).
Mr Hayter proposes the following: The defendant must not without prior approval of his DSO attend any place used solely or mainly for providing sexual services or sexually explicitly entertainment. The DSO must not withhold approval unless the DSO reasonably believes the defendant's attendance at such place is associated with a risk that the defendant will commit a serious offence.
Mr Edwards submits that the condition is necessary and therefore appropriate because of the difficulties with sexual self-regulation that have been identified in the material supporting the application.
Mr El-Choufani submits that the evidence does not establish that Mr Hayter's attendance at such a place increases his risk. The condition should be linked to an assessment of his risk of committing a serious offence.
Ms Lau formed the view that sexual self-regulation appeared to remain a significant risk area for Mr Hayter. This suggested sexual pre-occupation and difficulties in managing sexual deviancy. During his involvement with the CUBIT program Mr Hayter acknowledged there were occasions when he used illicit substances and pornography to cope with feelings of loneliness which may result in breaches of his ESO.
I am not persuaded that Ms Lau's report provides a strong basis for the condition proposed. On the other hand, the appropriateness of a condition of that general nature is not contested. The real issue is the reasons for which a prior request might be refused by the DSO. In my judgment conditioning the right of refusal upon a belief that Mr Hayter's particular attendance is associated with a risk that he will commit a serious offence deprives the condition of any practical effect. If one looks at the matter broadly as part of an overall suite of conditions, the condition proposed by the State is in my opinion appropriate. In deciding whether to withhold approval, the DSO will be required to have regard to the normative standards which inform the Act and its operation, including that the order is imposed to ensure community safety. I regard Condition 17 as it stands as appropriate.

Condition 21

Condition 21 is proposed in the following terms: The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by a DSO.
Mr El-Choufani submits that the condition is unnecessary, has no connection to the risk presented by Mr Hayter, and should be refused.
Mr Edwards argues that the condition is not onerous. It remains "dormant" unless and until the DSO requests it. He submits that monitoring the defendant's financial affairs, especially his expenditure, provides an indirect means of ascertaining whether the defendant is engaging in risky or problematic conduct having regard to the nature of the unacceptable risk.
For his past offending Mr Hayter has engaged in grooming activities, which included the offer of money to victims such as in the case of the index offence. He has also used cash to purchase undeclared mobile phones and SIM cars which have resulted in breaches of his current ESO.
There is no evidence of Mr Hayter's financial affairs but given his long history of incarceration and his current unemployment I infer that his affairs are likely to be simple. If purchases are generally made in cash, they may be difficult to trace. It would be otherwise, of course, for purchases, even small ones, made by tapping a debit or credit card. However, it is to be hoped that during the currency of any ESO which may be imposed, Mr Hayter will find remunerative work. If this occurs, Mr Hayter will have greater disposable income which may lead to more problematic expenditure given his poor history of compliance with the existing order.
Details of expenditure may indicate non-compliance with the order or other offending behaviour. The capacity of the DSO to check on these matters will operate as a restraint upon any temptation on the part of Mr Hayter to engage in anti-social behaviour. I would, however, change the terms of Condition 21 so it reads as follows: The defendant must provide information relating to his financial affairs, including his income and expenditure, if directed by a DSO. The DSO is not to require such information any more frequently than once every three months unless he or she believes on reasonable grounds that the defendant has expended money in a way connected with the potential materialisation of the risk of committing a serious offence.

Condition 27

Condition 27 is proposed in the following terms: Without limiting Condition 26 the defendant must not: 1. Associate with any people who he knows are consuming or under the influence of illegal drugs; 2. Associate with any person held in custody without prior approval of a DSO. Condition 26 empowers the DSO to prohibit association with a specified person subject to reasonable belief in the necessity for such a condition.
Mr Hayter proposed that the condition be removed.
The State submits that Mr Hayter has a long history of illegal drug use (cannabis) and that has resulted in a number of breaches of the current ESO for which he has been sentenced to terms of imprisonment. The risk is that Mr Hayter will himself resume the illegal drug use which may be a significant risk factor for re-offending.
Mr El-Choufani submits that the condition is vague and unnecessary and refers to other conditions such as electronic monitoring, the provision of a schedule of movements and condition 26 as providing adequate protection to the community. I acknowledge that the consumption of illegal drugs, including cannabis, may lead to intoxication and associated disinhibition which would be a risk factor for further offending. Association with persons who are actually consuming or under the influence of an illegal drug may lead Mr Hayter to use the drug himself which, as I say is a risk factor. Provided the condition is clearly understood in its grammatical sense, that he is not to associate with people in the act of consuming, or then under the influence of, illegal drugs, I see no difficulty with its appropriateness.
As developed in oral submissions, Mr El-Choufani's argument was that there was uncertainty about the meaning of custody in sub-paragraph (b) of the condition. In my judgment, its ordinary grammatical meaning is held in custody in a correctional centre. Provided that the condition is understood in that way, it is in my judgment appropriate. It would obviously be inappropriate and relevant to the possible materialisation of a risk of re-offending if Mr Hayter was allowed uncontrolled association by way of visitation with any person still in custody for like offending.
I will allow condition 27 as proposed.

Condition 29

Condition 29 is proposed in the following terms: The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary.
Mr Edwards submits that the purpose of proposed Condition 29 is to protect children with whom the defendant may indirectly have contact. This may occur if the defendant forms any type of ongoing relationship, even platonic, social or employment in nature, with the parent of young children. Proposed condition 25, which requires non-association with children, empowers the DSO to permit that contact, inter alia, in the presence of an approved adult. Although proposed Condition 29 is in the group of conditions regulating associations with "others (not children)" it is submitted that disclosure to such a parent should be permitted.
Mr Edwards also submits that the power of disclosure is constrained by the expression "reasonably necessary". Disclosure to a person who had "no need to know" of Mr Hayter's history could hardly be "reasonably necessary". Moreover, there is no evidence that under the current ESO, the DSO has ever abused this power by disclosing the information to a person who had no need to know or by failing to discuss the matter with Mr Hayter before disclosure was made.
Mr El-Choufani submits that the potential ramifications of proposed condition 29 are significant. The capacity of the DSO to insist upon disclosure should be constrained. He suggests a condition in the following terms: The defendant must agree to a DSO disclosing his criminal history to another person, but only if it is relevant to his risk of committing a serious sex offence and if it is reasonably necessary considering the potential impact the disclosure might have on the defendant's rehabilitation. The DSO will notify the defendant of the intended disclosure and the defendant must permit it.
Mr El-Choufani submitted that Mr Hayter was concerned that disclosure would cruel any nascent pro-social relationship and expose him to personal risk from vigilantes. In its operation the condition has the potential to operate adversely to the objects of the Act once the albeit less important purpose of rehabilitation is taken into account.
There is validity in both sides of the argument and I would impose the following condition: The defendant must agree to a DSO disclosing his criminal history to another person, if the disclosure is reasonably necessary. Disclosure under this condition is only reasonably necessary if the DSO believes on reasonable grounds that the disclosure is necessary to ameliorate a probability of a materialisation of the defendant's risk of further sexual offending such as to a parent of children under the age of 16 with whom the defendant is in the process of forming a relationship, be it intimate, social, platonic or employment. For the purpose of this condition, a probability includes a less than 50% chance.

Condition 44

Condition 44 is proposed in the following terms: Unless approved by a DSO, the defendant must not purchase, possess, access, obtain, view, participate in or listen 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 with respect to concerns related to risk of committing a serious offence.
Mr Edwards submitted that the condition as proposed was necessary to regulate Mr Hayter's access to pornography. It was not to the point that there is no demonstrable link between Mr Hayter viewing pornography and his past sex offending: Wilde v State of New South Wales [2015] NSWCA 28 at [53] and [72] - [73]. The question is whether the condition addresses the risk of future sexual offending. Ms Lau pointed out (O'Loughlin Affidavit, Tab 2, p.14 at [27] - [28]) that Mr Hayter's use of pornography while subject to the ESO has been problematic. In 2013 he was detected to have accessed over 3,000 images of naked young boys/adults. In 2016 he was detected to have accessed videos of male children posing in swimwear and underwear. "Departmental records" of the images detected in 2013 were evaluated by police as borderline adult pornography/child pornography. Many of the males depicted in images viewed "appeared quite young in appearance". During supervision, Mr Hayter has been detected to have multiple applications on his mobile phone that are designed to erase the usage history, or hide the contents, of electronic devices. These applications were detected as recently as 2017. Reliance is also placed, again, on what Ms Lau has described as Mr Hayter's difficulty with sexual self-regulation. Given his attempts to conceal matters from his DSO, Mr Edward's submits the condition is necessary to manage the risk of future offending.
Mr El-Choufani acknowledges the appropriateness of some measure of control, but submits that prior approval by a DSO is unnecessary. He proposes two conditions as follows: Condition 44 If the defendant purchases, possesses, accesses, obtains, views or listens to adult pornographic material, he must tell his DSO within 24 hours and truthfully answer any questions from his DSO concerning that material. Condition 44A If the DSO believes it is reasonably necessary, the DSO may direct the defendant to attend a psychologist, psychiatrist or other treatment provider concerning his use and viewing of adult pornographic material. The defendant must attend as directed and he must comply with any recommendation from the psychiatrist, psychologist or treatment provider concerning his use and viewing of adult pornographic material.
Mr El-Choufani relies upon State of New South Wales v BG (Final) [2019] NSWSC 200 at [80] - [81] (Fagan J). In BG, as the case title makes clear, Fagan J was dealing with a final application. The psychiatric and psychological expert evidence did not posit a connection between the offender viewing pornography and his risk of future sexual offending. Although the restriction on liberty may be slight, his Honour considered it is significant that breach of such a condition exposes the person subject to the order to prosecution and, if convicted, a penalty of imprisonment of up to five years duration. In the circumstances, his Honour disallowed the proposed condition: see also the decision of Fagan J in State of New South Wales v McQuilton (Final) [2019] NSWSC 265 at [100].
Mr El-Choufani also pointed out that the condition was not one expressly imposed by Buddin J for the current ESO. I interpolate that doubtless thinking about appropriate conditions has developed over the last 11 years of experience with the administration of the Act. Rather, the "prohibition" without prior approval had been imposed by written direction, which has led to breaches of the direction for which he has been imprisoned. This experience, perhaps accounts for Mr Hayter's behaviour in covering his tracks.
It is accurate that Mr Hayter has been given a number of written directions controlling the use of his mobile phone over the years including relating to the use of pornography. A breach of that direction in relation to pornography in April 2017 resulted in a sentence of 4 months imprisonment. He received a similar sentence for what was alleged to be telephone calls and text messages written in breach of a written direction from his DSO. He was also charged in 2017 with deleting material from his phone, contrary to a written direction. The current sentence apparently also relates to contravention of written directions issued concerning mobile phone use which have also resulted in a sentence of 16 months imprisonment with a non-parole period of 11 months.
Like the matters of BG and McQuilton, there is little evidence in the present case to connect the viewing of adult pornography with either past offending, which might indirectly inform the assessment of the risk of future offending, or directly with the risk of future offending. The "problem" relates to attempts from Mr Hayter to conceal the use of his mobile device for viewing pornography and the concern that his DSO has that he may be accessing material which is borderline child pornography, which is not only illegal but given his history of offending of great concern.
Given that there is an acceptance of a need for some degree of regulation, although Mr El-Choufani wishes to put the emphasis on rehabilitation, I am of the view that some condition should be imposed. I am not of the view that Mr El-Choufani's proposed condition 44A is necessary given the powers already existing to require Mr Hayter to undertake any necessary counselling which would cover inappropriate use of pornography. A form of condition 44 along the following lines, in my view, manages the risk such as it may be on the present evidence: 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 with explicit sexual content, he must tell his DSO within 24 hours and truthfully answer any questions from his DSO concerning that material. He is not to delete the material from any computer or mobile electronic device he is permitted to use before he has informed his DSO in accordance with this condition and he is to make the relevant electronic device available for inspection if required.

Condition 50

The parties agree that the proposed Condition 50 may be replaced with one in the following terms: The defendant must notify a DSO of the identity and address of any psychologist, psychiatrist or general practitioner that he consults.

Condition 55

Condition 55 is proposed in the following terms: 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.
Mr Hayter proposes the following: 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 and CSNSW (but not including a police officer).
It is important to appreciate the context of this condition. Condition 55 appears in Part K of the conditions concerned with medical intervention and treatment. Condition 54 requires Mr Hayter to agree to his treatment service providers and healthcare practitioners sharing information derived by them in the course of providing treatment to Mr Hayter amongst themselves and with the DSO. It is this information that is the subject of Condition 55 which permits the DSO, without limitation, to share that information with the New South Wales Police Force. Mr Hayter objects to this condition as inappropriate. Mr Edwards points out that the sharing of information is not inappropriate because the NSWPF are involved in the administration of the Extended Supervision Order Scheme. Designated police officers are involved in regular Extended Supervision Team Meetings to review the progress of offenders subject to the regime, and, of course, are involved in the investigation of breaches and their prosecution when detected. The CSNSW is not a law enforcement agency and it is necessary that in appropriate cases information should be provided, or passed on, to police.
I agree with Mr El-Choufani that there should not be an unlimited authority for the DSO to pass on information in this category to the police. By and large an individual's healthcare information ought to be treated sensitively and with every proper regard to the individual's privacy. Exceptions must be made in respect of persons subject to an ESO. But the width of the exception ought to be as narrowly drawn as the consideration of community safety will permit. Police have a legitimate involvement in the administration of ESOs, but their capacity to receive sensitive healthcare information should be restricted to their area of legitimate crime prevention and law enforcement responsibilities. In my view Condition 55 should read: 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. Healthcare information is only to be shared with NSWPF to the extent necessary to prevent offending by the defendant, facilitate the investigation of any breach of the ESO, and as evidence for the prosecution of the defendant for any offence including under s 12 of the Act.

Orders

For the reasons given my orders are: 1. Under s 10A Crimes (High Risk Offenders) Act 2006 (NSW) the Court makes an order for the interim supervision of the defendant for a period of 28 days commencing on the 27 August 2020 at the expiration of the Extended Supervision Order made by Buddin J on 1 July 2009; 2. Under s 11 of the Act direct that the defendant is subject to the conditions set out in the Schedule hereto; 3. Under s 7(4) of the Act, the Court makes an order: 1. Appointing two qualified psychiatrists or two registered psychologists, or one qualified psychiatrist and one registered psychologist to conduct separate psychiatric or psychological examinations of the defendant and to furnish reports to the Court on the results of those examinations by 27 August 2020; and 2. Directing the defendant to attend those examinations. 1. The parties are to confer and agree upon the identity of the experts to be appointed pursuant to Order 3. In default of agreement, the parties have liberty to apply on short notice for an order nominating the experts to be appointed. 2. The summons is stood over on a date to be fixed by the parties as arranged with the Associate to Justice Bellew. 3. Access to the Court's file is permitted on the application of a non-party only by leave of a Judge of the Court and with prior notice to the parties to allow them an opportunity to be heard in respect of the application for access. 4. Liberty reserved for the parties to apply in respect of errors or omissions of expression in the terms of the conditions imposed within seven days, upon the expiration of which period these orders may be entered.

SCHEDULE OF CONDITIONS OF SUPERVISION WARREN GRAEME HAYTER Departmental Supervising Officer (DSO) Corrective Services NSW (CSNSW) In these conditions: "CSNSW" means Corrective Services NSW. "Commissioner" means Commissioner for Corrective Services "Defendant" means WARREN GRAEME HAYTER, the defendant in these proceedings and the subject of the order. "DSO" means Departmental Supervising Officer, that is, any Corrective Services Officer supervising the defendant under the order. "Material" includes:

any written or printed material;
any picture, painting or drawing;
any carving, sculpture, statue or figure;
any photograph, film, video recording or other object or thing from which an image may be reproduced;
any computer data or the computer record or system containing the data; and
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, to be in company with, or to communicate by any means (including by post, facsimile, telephone, email or any other form of electronic communication). "Search" includes:
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
A pat-down search, meaning a search of the defendant where the defendant's clothed body is touched.

Part A: Reporting and Monitoring Obligations Monitoring and Reporting

The defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions of a DSO.
Where a direction may conveniently be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service.
The defendant must truthfully answer questions from a DSO, or any other person supervising him, about where he is, where he is going, who he is with, what he is doing and the nature of his associations. Electronic Monitoring
The defendant must wear electronic monitoring equipment as directed by a DSO and must not tamper with, or remove, the equipment. Schedule of Movements
If directed, 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.
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
The defendant must not deviate from his approved schedule of movements except in an emergency or if there is a reasonable explanation for the deviation which is provided to his DSO or any person supervising him as soon as possible and, in any case, no later than 24 hours after the deviation.

Part B: Accommodation

The defendant must live at an address approved by a DSO and notify a DSO of any intention to change the defendant's address or living arrangements.
The defendant must be at his approved address between 9pm and 6am unless other arrangements are approved by a DSO.
The defendant must comply with rules or by-laws (or both) of any approved accommodation for the defendant.
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, but in the exercise of this power, the DSO shall have regard to the rights of other occupants of the premises to peace and privacy.
The defendant must not spend the night anywhere other than his approved address or any alternative approved addresses (if relevant) without the approval of a DSO.
The defendant must promptly notify a DSO of any visitor entering and remaining at his approved address and must not permit any person to stay overnight, at his approved address (other than persons who ordinarily reside at his approved address), without the prior approval of a DSO unless that visitor is an "approved visitor". For the purpose of this condition, the DSO may give or withdraw pre-approval from time to time for a list of "approved visitors" who may enter and remain at the defendant's approved address without a requirement for him to notify his DSO.

Part C: Place and travel restrictions

The defendant must surrender any passports held by him to the Commissioner, must not be in possession of any passports, and must not attempt to apply for any passports.
The defendant must not frequent or visit any place or district specified by a DSO if the DSO reasonably believes that the defendant's attendance at such a place or district is associated with a risk that the defendant will commit a serious offence.
Without limiting condition 15 above, the defendant must not go to any of the following without the prior approval of a DSO:
Day-care centres, pre-schools and schools;
Amusement parlours, amusement parks and theme parks;
Cinemas;
Libraries and museums;
Camping grounds and caravan parks;
Children's playgrounds, parks, and areas with play equipment provided for the use of children;
Pools, playing fields and sporting facilities;
Concerts, theatre shows, movies, events and activities intended for the entertainment of children;
Residences where the defendant knows that persons aged under 18 years ordinarily reside; and
Internet cafes or other businesses which provide devices for public access to the internet either for payment or for no charge (other than employment agencies).
The defendant must not attend any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment, without the prior approval of a DSO (which approval may not be unreasonably withheld).

Part D: Employment, finance and education

The defendant must take all reasonable steps to participate in interventions as recommended by a DSO, including the development of a case management plan which may include employment, education, training or participation in personal development programs.
The defendant must not start on his own initiative any job, volunteer work or educational course without the approval of a DSO.
The defendant must notify a DSO of any intention to change his employment if practicable before the change occurs or otherwise at his or her next interview with a DSO.
The defendant must provide information relating to his financial affairs, including his income and expenditure, if directed by a DSO. The DSO is not to require such information any more frequently than once every three months unless he or she believes on reasonable grounds that the defendant has expended money in a way connected with the potential materialisation of the risk of committing a serious offence.

Part E: Drugs and alcohol

The defendant must not use prohibited drugs, or abuse drugs unlawfully obtained.
The defendant must submit to drug and alcohol testing.
The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as reasonably directed by a DSO, and must not discharge himself from such programs and courses without prior approval of a DSO.

Part F: Non-association Association with Children

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)
The defendant must not associate with any person or persons specified by a DSO if the DSO reasonably believes the defendant's association with such a person or persons is associated with a risk of the defendant committing a serious offence.
Without limiting condition 26, the defendant must not:
associate with any people who he knows are consuming or under the influence of illegal drugs.
associate with any person held in custody without prior approval of a DSO.
The defendant must not engage the services of sex workers, without the prior approval of a DSO.
The defendant must agree to a DSO disclosing his criminal history to another person, if the disclosure is reasonably necessary. Disclosure under this condition is only reasonably necessary if the DSO believes on reasonable grounds that the disclosure is necessary to ameliorate a probability of a materialisation of the defendant's risk of further sexual offending such as to a parent of children under the age of 16 with whom the defendant is in the process of forming a relationship, be it intimate, social, platonic or employment. For the purpose of this condition, a probability includes a less than 50% chance.
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

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).
The defendant must not use any electronic identity (which includes an email address, a user name or other identity allowing access to an instant messaging service, chat room or social media, or a user name or identity allowing access to the internet or an electronic communication service) other than an electronic identity 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.
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.
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.
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.
The defendant must not use any coded or encrypted messaging application or service.
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.
Unless granted prior approval by a DSO or in accordance with a direction or requirement from a job service provider,the defendant must not access, join and/or connect to any social networking service or application including, but not limited to, use of internet-based email, instant messaging services, online community services, and multi player video. The defendant is otherwise permitted to use mobile network message service only.
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.
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.
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

If the DSO reasonably believes that one of the actions referred to in sub=paragraphs (d)-(h) is necessary:
for the safety and welfare of residents or staff or persons present at the defendant's approved address;
to monitor the defendant's compliance with this order; or
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:
search of any part of the defendant's approved address;
search of any part of any vehicle owned, hired by or under the control of the defendant;
search of any part of any storage facility, including a garage, locker or commercial facility, owned, hired by or under the control of the defendant;
search of the defendant's person; and
search and seizure of any thing or object found during one of the searches referred to in sub-paragraphs (d)-(g) (including any computer, electronic device or communication device).
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 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 with explicit sexual content, he must tell his DSO within 24 hours and truthfully answer any questions from his DSO concerning that material. He is not to delete the material from any computer or mobile electronic device he is permitted to use before he has informed his DSO in accordance with this condition and he is to make the relevant electronic device available for inspection if required.

Part J: Personal details and appearance

The defendant must not change his name from "Warren Graeme Hayter" or use any other name without notifying a DSO.
The defendant must not significantly change his appearance without the approval of a DSO.
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.
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

The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend unless he provides a reasonable excuse to his DSO for non-attendance.
The defendant must notify a DSO of the identity and address of any psychologist, psychiatrist or general practitioner that he consults.
The defendant must attend, upon the direction of a DSO, any therapy sessions, disengagement services, support and treatment programs the subject of the direction, including for the purposes of a Mental Health Care Plan or Community Treatment Order.
The defendant must take medications that are prescribed to him by his healthcare practitioners only in the manner prescribed.
The defendant must notify a DSO immediately if he ceases to take or declines to commence taking any medication as referred to in condition 52.
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.
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. Healthcare information is only to be shared with NSWPF to the extent necessary to prevent offending by the defendant, facilitate the investigation of any breach of the ESO, and as evidence for the prosecution of the defendant for any offence including under s 12 of the Act.
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: 20 July 2020

Crimes Act 1900(NSW)s 61M

Crimes (High Risk Offenders) Act 2006(NSW)ss 5B, 7(3), 7(4), 9(2), 9(3), 10(1A)(b), 10(2), 10A, 11, 12, 21

At a glance

Court

Decision date

Before

Source

Judgment (29 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (8)

Cited By (1)