State of New South Wales v Hyde

Supreme Court of NSW|2022-07-11|Before: Ierace J, Schmidt AJ, Bellew J

Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2022/59540

Judgment

HIS HONOUR: By a summons filed on 1 March 2022, the State of New South Wales ("the plaintiff") sought final orders pursuant to s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act") that the defendant, Mathew Hyde, be subject to an extended supervision order ("an ESO") for a period of three years and, pursuant to s 11 of the Act, that he be directed to comply with certain conditions that are set out in a schedule to the summons ("the summons conditions").
On 5 May 2022, Schmidt AJ made preliminary orders that were sought in the summons, which included an interim supervision order ("ISO") for a period of 28 days, which commenced on 19 May 2022: State of New South Wales v Hyde (Preliminary) [2022] NSWSC 540. On 14 June 2022, Bellew J renewed the ISO for a period of 28 days commencing from midnight on 16 June 2022, which extended the order to 14 July 2022.
On 28 June 2022, the defendant was sentenced at the Nowra Local Court for a count of carry out sexual act with another without consent, contrary to s 61KE(a) of the Crimes Act 1900 (NSW). He was sentenced to a term of imprisonment of 9 months to commence on 28 June 2022, with a non-parole period of 5 months. He is to be released to parole on 27 November 2022. Accordingly, if the orders sought by the plaintiff are made, then pursuant to s 10(1) of the Act, they will not operate until the defendant is released from custody.

The defendant's background

The defendant is 35 years of age. He is a First Nations man, his people being the Kamilaroi. He was born and raised on Kamilaroi land, in Quirindi, Blandford and Scone. He is the eldest of his parents' four children. His parents separated when he was aged 7 or 8 and his father had another six children subsequently so that in his extended family, he has nine siblings. He initially lived with his father and some of his siblings, however those siblings eventually left the household, prompting the defendant to leave also and reside with his mother in Sydney. The defendant reported that significant domestic violence was perpetrated by his father against his stepmother, and he witnessed his mother stab his stepfather. His stepfather assaulted the defendant when he was a child.
The defendant left home when aged 12 and thereafter lived occasionally with his grandmother and, at other times, on the street. During that time, he attended school sporadically with a history of frequent truanting, until he was in Year 10. It is unnecessary for the purposes of the determination of this application to canvass his personal background in any greater detail.

The defendant's criminal offending

The defendant's criminal history comprises a range of offences, including sexual offences, assault offences, domestic violence related offences, property offences, breaches of bail, contraventions of apprehended domestic violence orders and weapons related offences. His first criminal conviction was in 2006 for offences of goods in custody and possessing ammunition without holding a licence, both committed in October 2004 when he was aged 18 years. For each offence he received a two-year bond with supervision.
His first sentence of imprisonment was imposed in April 2007 for a count of assault occasioning actual bodily harm that was committed in February 2006. He received a sentence of 12 months, with a non-parole period of 6 months. The sentencing magistrate found that he had deliberately burned a two year old child with a cigarette lighter.
In June 2007, the defendant was convicted of breaching an apprehended domestic violence order ("ADVO"), two counts of stalk or intimidate with intent to cause fear, one count of assault and one count of intimidating a police officer in the execution of their duty. For the first count, he received a sentence of imprisonment for 10 months and for each of the other counts he received lesser sentences of imprisonment to be served concurrently, or bonds. The facts were that he had threatened to kill his partner's son if she left him, which prompted the ADVO. The next day, he made a claim to her that he had access to a gun and threatened to kill her and the people with whom she was staying. When subsequently searched by police, he threatened one of the officers.
In August 2008, the defendant was convicted of assault occasioning actual bodily harm and two counts of common assault, for which he was sentenced to concurrent terms of imprisonment of 12 months, 6 months and 8 months respectively. The victim of all three offences was his girlfriend at the time.
In July 2010, the defendant was convicted of two counts of assault occasioning actual bodily harm, three firearms offences and a count of destroying or damaging property. The victim of all of those offences was a female flatmate who had an intellectual disability. The assaults involved him deliberately shooting her with an air rifle and burning her with a cigarette lighter. He received concurrent sentences of imprisonment for 18 months and 12 months respectively, with a n overall non-parole period of 1 year and 1 month. Lesser concurrent sentences were handed down for the other offences.
In 2012, the defendant was convicted of a count of assault occasioning actual bodily harm, the victim being a former partner who was aged 17 (the defendant was then aged 25). The offence was committed on 30 December 2011. He dragged the victim into a reserve and hit her to the face numerous times. A witness heard her screaming for help and called the police. He received a sentence of 6 months imprisonment. Later that year, he received another sentence of 6 months imprisonment for a subsequent breach of an ADVO in respect of the same victim.
The defendant was arrested on the date of the offence and conditionally released on bail. On 18 January 2012, he was arrested and charged with possession of a knife, for which he was refused bail. In the following weeks, the defendant repeatedly contacted the victim of the assault by telephone from prison in breach of the ADVO. In one call, he asked her to "change" her account and threatened to "knock" or otherwise harm her if she did not do so. In February 2013, he was convicted of two counts of doing an act with intent to influence a witness, nine counts of contravening an ADVO and one count of threatening a person with intent to influence a witness. He received concurrent sentences of imprisonment, the longest being a term of 3 years with a non-parole period of 18 months.

The index offences

The index offences, for the purposes of this application, are a constellation of sexual and non-sexual offences that were committed by the defendant four months after the expiration of the earlier sentences. The agreed facts on the first three counts ("the State offences") were as follows:

Count 1: Indecent assault

The defendant, while on a bicycle, approached a woman walking along a footpath late at night and put his hand under her skirt between her legs and over the clothing covering her vagina. The defendant told her to "Come to the park". She told him she was calling the police, which she did, while he rode away.

Count 2: Common assault

About three hours after that encounter, which was in the early hours of the following day, the defendant approached another woman as she walked from a hotel to a taxi rank with friends, where she left them and continued on foot to a motel where she was staying. The defendant, still on the bicycle, approached and slapped her with an open palm to her buttocks, causing her to stumble forward. He rode past, turned and rode directly towards her. As he drew nearer, they recognised each other; they knew each other from the area where he had grown up. He apologised and rode off.

Count 3: Sexual intercourse without consent

A few minutes later, another woman left the same hotel with friends and also proceeded to the taxi rank where she left her friends and walked on, talking to her boyfriend on a phone as she did so. While walking near a football ground, the defendant approached her from behind on the bicycle. He grabbed her in a bear hug, threw her face-down onto the ground, sat on her and threatened to stab her if she did not turn off her phone. He put his hand inside her pants between her bottom and underpants, kissed the side of her neck and inserted two fingers in her anus. He then rolled her onto her back. The complainant repeatedly asked him to release her. The defendant got off the victim and walked around for a short time with his hands on his head. She started to walk away. The defendant got on his bike and initially rode towards her. She ran away, met up with her boyfriend and contacted police. The defendant was arrested the following afternoon, on 21 September 2015.
A statement of facts was tendered at the sentence hearing in relation to three Commonwealth offences, which were charged following an examination of the contents of the defendant's mobile phone after his arrest. It revealed that in August and September 2015, over 3,000 SMS and MMS messages were exchanged between the defendant and a 15 year old girl. In some of the messages, the girl told the defendant her age.

Commonwealth offence 1: Using a carriage service to solicit child pornography material: s 474.19(1) of the Criminal Code (Cth)

The defendant sent the girl pornographic material, including a video of him masturbating, and received images of the girl depicting her naked, and close-up images of her genitalia. The defendant asked the girl for images of her 8 year old sister while naked, which she declined to supply.

Commonwealth offence 2: Using a carriage service to procure a person under the age of 16 years for sexual activity: s 474.26(1) of the Criminal Code (Cth)

In the course of his text exchanges with the girl, the defendant repeatedly referred to his intention to have sexual intercourse with her and encouraged her to have sexual intercourse with another male and send him images of her doing so.

Commonwealth offence 3: Using a carriage service to transmit indecent communication to a person under the age of 16 years: s 474.27A(1) of the Criminal Code (Cth)

The evidence relied upon was the same as that upon which the other two charges were based.

The sentence for the index offences

The defendant was sentenced by Buscombe DCJ ("the sentencing judge") on 5 July 2017. The objective seriousness of the State offences was assessed as below mid-range for count 1, "towards the lower end of the range" for count 2 and "just below the mid-range level" for count 3. The sentencing judge noted that the Pre-Sentence Report referred to the defendant telling the author that he would have killed the victim of count 3 if she had not begged for her life.
In relation to the Commonwealth offences, the sentencing judge said: "Each offence involved the sending of a large number of messages by the offender as well as phone conversations. The messages were very sexually explicit and in some respects detailing an intention to force the 15 year old child into certain sexual practices. The images and videos sent to the child were very sexually explicit. The child concerned was 15 years of age so almost 16. The offender used his real name. The facts do not indicate whether the offender or the victim initiated contact. No actual meeting had been arranged between them, although the offender on numerous occasions expressed a desire to meet with the victim. It has to be said that the child victim adopted a non-oppositional approach to the content of the messages in that a number of her responses exhibited sexual explicitness. The offences are serious and children must be protected from adult sexual predators. The volume of messages and their explicitness make it clear that the offences are clearly serious. On balance I assess the objective seriousness of the three offences as being a little below the mid-range."
The sentencing judge canvassed the evidence as to the defendant's subjective case, accepting a diagnosis by a forensic psychiatrist retained by the defence of a borderline personality disorder, an anti-social personality disorder and a polysubstance use disorder. In relation to the latter, it is apparent from the sentencing judge's remarks on sentence that he accepted that the defendant was under the influence of methylamphetamine at the time of the offences, observing that it did not mitigate his offending behaviour. The sentencing judge also addressed the issue of remorse, noting that there was some "limited evidence" of it, based on the defendant entering early pleas of guilty and the contents of the Pre-Sentence Report and a psychiatric report. His Honour found that the defendant's prospects of rehabilitation were "guarded, bordering on poor". The sentencing judge found that the defendant was "almost institutionalised within the gaol system" and made a finding of special circumstances.
In relation to the Commonwealth offences, the defendant was sentenced to a term of 3 years and 2 months imprisonment for each of the first and second offences and to a term of 2 years imprisonment for the third offence. An overall non-parole period of 2 years and 1 month was fixed.
For the State offences, the sentencing judge imposed an aggregate sentence of 5 years 8 months with a non-parole period of 3 years 6 months, to commence on 20 September 2016 and expire on 19 May 2022. The overall sentence was 6 years 8 months with a non-parole period of 4 years 6 months, so that he became eligible for consideration for parole on 19 March 2020.

The defendant's record in custody

The defendant has 34 entries on his record for disciplinary matters. Nineteen of these entries were recorded during his incarceration for the index offences.
On 28 June 2022, following a contested hearing, the defendant was convicted of the offence of carry out sexual act with another without consent, contrary to s 61KE(a) of the Crimes Act. The victim was a female prison officer who observed the defendant staring at her on two consecutive days in May 2021. On the second day, he stared at her for about an hour and then shortly afterwards she observed him standing in the doorway of his cell stroking his penis, which was erect, while continuing to stare at her. As noted, the Magistrate imposed a sentence of 9 months' imprisonment commencing on 28 June 2022, with a non-parole period of 5 months that will expire on 27 November 2022.
The defendant has lodged an appeal against conviction and sentence. He was returned to custody, appeal bail having been refused. I note a reference in the material to the defendant claiming he was urinating at the time, rather than engaging in a sexual act. However, I will take the matter into account on the basis that he engaged in a sexual act, as proved.

The defendant's progress in the community

The defendant was released to parole on 14 December 2021 and for the first 16 weeks resided in the Integration Support Centre ("the ISC").
As is apparent from the Risk Assessment Report, considered below, the defendant generally fared well in the community until the date of that report, being the first six weeks. However, some entries in the Offender Integrated Management System ("OIMS") notes in mid to late January suggest a degree of obstinacy. For example, an OIMS entry reports the defendant telling a supervision team staff person on 21 January that if he was not allowed to live where he wanted, he would "just go back to gaol". Four days later, he said "I'm moving to Muswellbrook with or without approval".
On 4 April 2022, the defendant refused two directions by his parole officer. The circumstances were that the defendant's allocation of residency at the ISC had expired and Housing NSW had made an offer of accommodation that the defendant refused to accept, because his partner would be unable to reside with him at that location. On 4 April 2022, his parole officer directed the defendant to accept the offer, which he refused to do. Instead, he said he would go to the Housing NSW offices and seek alternative accommodation. He was told that there were no alternative places, directed to not leave the ISC and advised that if he did, it would constitute a breach of his parole order. He disregarded the direction and left the ISC for about an hour. He was evicted from the ISC the following day, rendering him homeless. He maintained his refusal to accept the offer of accommodation by Housing NSW. This prompted a Breach of Parole Report, which found that his response to supervision had been "unsatisfactory". Community Corrections recommended that his parole be revoked, although an order for revocation was not made.
An OIMS entry made on 18 May 2022 refers to the defendant threatening to "commit an offence serious enough to see him [stamped] never to be released" if his partner was informed of the State offences committed in September 2015, of which she was unaware, and it caused the end of their relationship.
On 28 June 2022, the defendant was returned to custody following his sentence for the May 2021 offence.

Relevant provisions of the Act

The Act relevantly provides as follows: "Part 1A Supervision and detention of high risk offenders … 5B Making of extended supervision orders - unacceptable risk The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if - (a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and (b) the person is a supervised offender (within the meaning of section 5I), and (c) an application for the order is made in accordance with section 5I, and (d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order."
The defendant does not dispute that the statutory preconditions are established, leaving s 5B(d) in contention. I note that the Court must be independently satisfied that the statutory preconditions are met. I am so satisfied, for the following reasons.
In relation to s 5B(a), the term "serious offence" is defined in the Act as follows: "4 Definitions (1) In this Act: … serious offence means: (a) a serious sex offence, or (b) a serious violence offence. … serious sex offence - see section 5(1)."
The term "serious sex offence" is defined in s 5(1) of the Act to include an offence contrary to s 474.26 of the Criminal Code. Accordingly, s 5B(a) is satisfied by the index Commonwealth offence of using a carriage service to procure a person under the age of 16 years for sexual activity.
In relation to s 5B(b) of the Act, the term "supervised offender" is defined in s 5I: "5I Application for extended supervision order (1) An application for an extended supervision order may be made only in respect of a supervised offender. (2) A supervised offender is an offender who, when the application for the order is made, is in custody or under supervision (referred to in this Part as the offender's current custody or supervision) - (a) while serving a sentence of imprisonment - (i) … or … (b) under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order. (3) A person is taken to be serving a sentence of imprisonment whether the sentence is being served by way of full-time detention or intensive correction in the community (whether or not subject to a home detention condition) and whether the offender is in custody or on release on parole."
Section 5B(b) is thus satisfied. As to s 5B(c), the balance of s 5I is also satisfied.
I return to consider s 5B(d) and note that the meaning of "a high degree of probability that the offender poses an unacceptable risk" is qualified by s 5D of the Act: "5D Determination of risk For the purposes of this Part, the Supreme Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence."
I also note that, pursuant to s 5B, the power to make an ESO is discretionary; the Court may make an order for an ESO if the four prerequisites are satisfied.
Pursuant to s 6(3) of the Act, an application for an ESO must be supported by documentation that (a) addresses each of the matters referred to in s 9(3) of the Act; and (b) includes a report prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner that assesses the likelihood of the offender committing a serious offence. Consequent upon other orders made by Schmidt AJ, the defendant has been examined by a forensic psychologist, Jenny Howell, and a forensic and clinical psychologist, Dr Michael Davis. Both have produced reports that were tendered unopposed on the application. Accordingly, I note that the latter requirement was complied with.
The Act stipulates objects and a paramount consideration to be taken into account when determining an application: "3 Objects of Act (1) The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community. (2) Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation. … 9 Determination of application for extended supervision order (1) The Supreme Court may determine an application for an extended supervision order - (a) by making an extended supervision order, or (b) by dismissing the application. (2) In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court. (2A) (Repealed) (3) In determining whether or not to make an extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant - (a) (Repealed) (b) the reports received from the persons appointed under section 7 (4) to conduct examinations of the offender, and the level of the offender's participation in any such examination, (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, (e1) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time, (e2) the likelihood that the offender will comply with the obligations of an extended supervision order, (f) without limiting paragraph (e2), the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order, (g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004, (h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will commit a further serious offence. (4) In determining whether or not to make an extended supervision order in respect of an offender, the Supreme Court is not to consider any intention of the offender to leave New South Wales (whether permanently or temporarily)."

Sections 9(3)(b), (c) and (d1) of the Act: forensic reports and evidence

Reports have been prepared pursuant to s 7(4) of the Act which are relevant to all matters identified in s 9(3) except for ss 9(3)(h) and (h1), which I have already canvassed.

Ms Howell's report

In her report dated 16 June 2022, Ms Howell stated that she interviewed the defendant face to face for two and a half hours on 6 June 2022. Her report set out a history of the defendant's drug and alcohol use, to the effect that he started drinking alcohol at the age of 12, taking primarily spirits to school in his drink bottle. He drank daily until age 14 or 15. In September 2015, he started using methylamphetamine, initially sparingly. He claimed not to have used any drugs or alcohol over the last two years, explaining that over that time he has received monthly injections of Buvidal, which is a drug that decreases the effects of opioid dependency.
It is apparent that the defendant was less than forthright with Ms Howell about the Commonwealth index offences: "[The defendant] said that three months later Police found one photograph of a 14-year-old girl naked on his mobile phone. He states that she informed him she was 19 years of age."
Ms Howell administered the Static-99R to assess the defendant's static risk factors for sexual reoffending. She described the Static-99R as having "moderate accuracy" in ranking offenders according to their relative risk. The results placed him in the "Above Average Risk Level … for being charged with, or convicted of, a further sexual offence". Compared to other male sex offenders, his score falls in the "99th percentile".
Ms Howell assessed the defendant's dynamic factors for sexual recidivism with the STABLE-2007 actuarial measurements. His score fell within the "high-risk category". Curiously, Ms Howell states that by combining both actuarial tools the defendant's overall risk is assessed as being in the "medium risk category" for sexual reoffending.
Ms Howell also administered a test known as the Violence Risk Appraisal Guide - Revised ("VRAG-R") which is designed to assess a probability outcome of an individual's risk for violence, including sexual violence, over time. The defendant's score placed him in the ninth level out of nine categories.
Ms Howell was requested to provide an opinion as to whether the defendant satisfied diagnostic criteria for "any psychiatric or psychological condition". In her response, she noted that the defendant is currently receiving treatment for a post-traumatic stress disorder ("PTSD") and that he has been diagnosed with "Depression Anxiety and Stress". Ms Howell expressly rejected a diagnosis of a personality disorder. Although she acknowledged receipt of the material that forms the basis of the plaintiff's application, she did not mention in her report the past diagnoses of a borderline personality disorder, anti-social personality disorder or a polysubstance use disorder. One would expect acknowledgement of them having been made. Nor does she disclose any awareness of the paucity of the defendant's explanation of the Commonwealth index offences.
Ms Howell concluded that, in her opinion, the defendant's risk of reoffending can be "effectively addressed" by an ESO and that three years would be an appropriate length.

Dr Davis' report

In his report, Dr Davis stated that he assessed the defendant via a video link (which was the only available means at the time, due to pandemic restrictions) on 10 June 2022, for period of about four and a half hours.
The drug and alcohol history taken by Dr Davis indicated that the defendant had engaged in the consumption of alcohol from the age of "10 or 11", becoming worse when he was aged about 14. The defendant said, however, that in the last six months he had only had "four beers". He first used cannabis when aged 12. He used it daily from the age of 14. He said that in 2012, when he was aged 25 or 26, he was using half an ounce a day. He last used cannabis in 2017 He started using amphetamines when aged 14 and always did so intravenously. He last used amphetamines in 2014. He used methylamphetamine intravenously, last doing so "just before I went to gaol … for 2015". He first used heroin in 2006, in prison, and became addicted to Fentanyl. He also used Oxycontin in around 2008 or 2009 and would take buprenorphine "pretty much every day" when he went back into prison in 2015. He confirmed the monthly injections of Buvidal, which is a form of buprenorphine, over the past two years.
Dr Davis questioned the defendant about the reference in the Pre-Sentence Report for the index offences to him having said that he would have killed the sexual assault victim if she had not begged for her life: "When asked about this during our assessment interview, [the defendant] claimed that 'I've spoken to that many psychologists, I don't know if I've told the truth or they have.' He also noted that 'she didn't say anything.' In regard to whether he had any plans to kill this victim, he stated 'no. I had no intentions to... I just wanted to go back to gaol... wanted to hurt someone... I hate what I did, but I can't do anything about it... I didn't want to hurt her, I wanted to get back at police, it's nothing to do with those three girls.'"
In relation to the Commonwealth offences, as with Ms Howell, the defendant claimed that the victim had not told him that she was aged 15. In his report, Dr Davis noted that the material with which he was retained included a text from the defendant to the girl in which he acknowledged that he knew she was aged 15.
Mr Davis diagnosed the defendant as meeting the criteria for "Opioid Use Disorder (on maintenance therapy)" and considered that when he was previously using drugs and abusing alcohol he would have qualified for diagnoses of "Cannabis Use Disorder" and "Alcohol Use Disorder". He assessed the defendant as meeting the criteria for "Borderline Personality Disorder" and "Antisocial Personality Disorder". He rejected a diagnosis of PTSD.
Mr Davis completed the Hare Psychopathy Checklist-Revised, or PCL-R in respect of the defendant. The PCL-R is a well-known checklist that is designed to identify traits of psychopathy. Dr Davis noted that, generally speaking, higher scores on the PCL-R are suggestive of an increased risk for re-offending. He assessed the defendant as having "many, though not all" of the features of psychopathy and as being in the upper end of the high range.
Mr Davis administered a standardised offender classification scale, known as the Level of Service/Risk, Need, Responsivity ("the LS/RNR"), which he considered has a moderate degree of predictive validity for assessing the person's prospects of general criminal conduct. It assesses both static and dynamic risk factors. The defendant's total score was in the "high" range of risk and need. Dr Davis elaborated: "Three areas were considered to be particularly problematic (i.e., a high or very high need). These were criminal history, education/employment, and antisocial pattern. A further four areas were considered to be of medium need: leisure/recreation, companions, alcohol/drug problem, and pro-criminal attitude/orientation. The remaining area was considered to currently be of very low need (family/marital). The latter was also considered to be an area of partial strength. It is illustrative to note that much, albeit not all, of [the defendant's] elevated score on the LS/RNR comes from static historical risk items that largely reflect behaviours from his past. Indeed, he has somewhat fewer dynamic factors based on his current presentation. Nonetheless, his total score is considerably higher than the average for offenders in the community and slightly higher than the average for inmates. In any event, the identified areas of need constitute treatment and management targets that may assist in reducing his risk of all forms of recidivism."
Mr Davis also administered a range of assessment tools to gauge the defendant's risk of sexual and non-sexual violent offending: the Static-99, the Risk for Sexual Violence Protocol, or the RSVP, the VRAG-R, and the Historical, Clinical and Risk Management guidelines, or the HCR-20. He concluded, in relation to the level of risk of sexual recidivism: "It is my admittedly conservative opinion that the configuration of risk factors indicates that [the defendant] currently poses a moderate-to-high risk for sexual recidivism. I note that only one of [the defendant]'s previous sexual offences has reached the magnitude of a 'serious sexual offence' under the Crimes (High Risk Offenders) Act 2006. However, his last contact offence, which involved digitally penetrating the victim's anus with his fingers and threatening to stab her arguably had the potential to reach this magnitude. Accordingly, it is my opinion that any future sexual offending has the potential to reach the magnitude of a 'serious sexual offence' under the Act."
As to the level of risk of the defendant committing a serious violent offence, Dr Davis concluded: "It is my opinion that [the defendant] currently poses a high risk for violence (i.e., considerably higher than that of the average violent offender). The most likely scenario for future offending would appear to be verbal violence in the form of threats. [The defendant] has a lengthy history of physically violent offending primarily committed against intimate partners. While there is nothing to suggest that he has been violent to his current intimate partner, the large number of prior offences is still concerning. However, it should be stressed that none of [the defendant's] previous violent offences have ever reached the magnitude of a 'serious violence offence' under the Crimes (High Risk Offenders) Act 2006, although some of the offence descriptions, particularly one for which he was never charged, arguably had the potential to reach the level of a serious violence offence. Accordingly, it is my admittedly conservative opinion that [the defendant] currently poses a moderate risk for committing a serious violence offence under the Act (i.e., comparable to that of the average violent offender)."
Mr Davis had regard to a set of structured professional guidelines that are designed to assess the risk of intimate partner violence. Mr Davis assessed the defendant as posing "a high risk for intimate partner violence, at least in the long-term". The defendant is presently in a relationship. Dr Davis noted that there is no suggestion that the defendant has acted violently towards his current partner.
Mr Davis was asked to provide an opinion as to whether the risk of the defendant committing a serious sex offence or serious violence offence could be managed in the community, either without any order being imposed or under an ESO. He responded that it was "an admittedly difficult question" and did not answer it directly, although he did observe that: "… any future sexual or violent offending, should it occur, is statistically less likely to be for a serious sex or violence offence than it is for a lesser charge." As to the length of an ESO that would be appropriate for the defendant, Dr Davis said: "… I have found when re-assessing offenders subject to comparable orders in other jurisdictions, that a period of two-to-three years in the wider community has been enough to demonstrate behavioural change that would warrant a further reduction in risk. However, this is highly dependent upon the status of recognised risk factors at the time, so I unfortunately cannot be more precise than this. Nonetheless, the three year order being sought would potentially provide [the defendant] with enough time to demonstrate the behavioural stability necessary to further reduce his risks for sexual and violent recidivism."

The Risk Assessment Report

A Risk Assessment Report by Dr Richard Parker, Senior Psychologist with the Serious Offenders Assessment Unit, was tendered. The report is dated 6 January 2022.
Dr Parker noted that the defendant, aged 35, has spent only two years living in the community since his first admission to adult custody when he was aged 20. His longest single period in the community as an adult was 261 days, with an average period of 102 days between periods of incarceration.
Dr Parker applied the Level of Service Inventory-Revised, or LSI-R, Static-99R, STABLE-2007 and VRAG-R guides and tools and arrived at a similar assessment of the defendant's recidivism risk as did Ms Howell and Dr Davis. The defendant was placed in the "99th percentile" on the Static-99R, he was in the "high risk category" on the STABLE-2007 and he was in the ninth level on the VRAG-R assessment.

The Risk Management Report

As to the type of material identified in s 9(3)(d1) of the Act concerning the extent to which the defendant can reasonably and practicably be managed in the community, the plaintiff tendered a Risk Management Report prepared by Shantelle Robinson, a Community Corrections Officer with the Metropolitan Extended Supervision Team of Corrective Services. The report is dated 27 January 2022.
The defendant was released to parole on 14 December 2021, subject to a parole order which was due to expire on 19 May 2022. At the time of the report, the defendant was residing at the ISC with the intention of relocating to the Upper Hunter area. His partner resided in the Taree area and visited him "once or twice per week". He appeared to be engaging well with his supervising team and was in receipt of alcohol and other drug services, where he received his monthly Bivudal injection. He was also complying well with an obligation to submit a weekly schedule and wear electronic monitoring equipment.
The defendant has not completed any offence targeted programs. He was referred to the High Intensity Sex Offender Program ("HISOP") in 2017, but was unable to participate due to his classification and the minimal balance of his sentence.
In broad terms, the report was positive about the defendant's performance in the community in the short period between his release and the report, being about six weeks.

Determination

I am satisfied by the reports of Dr Davis and Dr Parker to a high degree of probability that the defendant posed an unacceptable risk of committing another serious offence, if not kept under supervision. In so finding, I have placed less weight on the report by Ms Howell because of the concerns I have expressed. As to the discretion to not make an ESO that is implicit in the terms of s 5B of the Act, I note that the defendant does not contest the appropriateness of an ESO, and I do not consider that the circumstances warrant the discretion being exercised.
I am of the view that the ESO should be for a period of three years, as sought by the plaintiff, given the long-standing nature of the defendant's offending and his minimal exposure to therapeutic programs and treatment, albeit through no fault of his own. I note that an ESO of that length is not opposed.

Conditions of the ESO

When making preliminary orders, Schmidt AJ imposed conditions to the ISO ("the interim conditions") that to a significant extent constituted a continuation of the defendant's conditions of parole. In so determining, her Honour was particularly mindful that they were conditions to an interim order and that the Court making final orders would have the benefit of the experts' reports that she had ordered: State of New South Wales v Hyde (Preliminary), at [121]-[124].
The defendant sought a continuation of the interim conditions, with a few variations, rather than the summons conditions. The defendant submitted that he had largely complied with the interim conditions and thus they had served the defendant and the community well. Since the evidence before the Court was substantially the same as it was before Schmidt AJ, there was no need to change the conditions.
The plaintiff opposed that course, submitting that there were substantive differences in the evidence before this Court. It had the benefit of the two forensic reports that were ordered following the preliminary hearing, the updated evidence as to how the defendant fared in the community and the fact of his conviction for the May 2021 offence. In addition, the plaintiff submitted that the interim conditions lacked sufficient detail and clarity. For example, the second interim condition obliges the defendant to submit to the supervision, guidance and reasonable directions of the Departmental Supervising Officer ("the DSO") on each of 13 issues, such as not associating with "specified people", not visiting or frequenting "specified places or areas" or "complying with a curfew". The interim conditions provide little information as to what the defendant may or may not do, instead relegating each of the listed issues to a later determination by the DSO.
I accept the plaintiff's submissions and find that the draft conditions that are annexed to the summons are an appropriate starting point for crafting conditions to accompany the ESO. Some of those conditions that were initially disputed have been agreed by the parties in fresh terms and to my satisfaction, leaving only a few for the Court's determination.

Conditions 5, 6 and 7: Schedule of movements

The defendant seeks a softening of proposed conditions that would require him to submit a schedule of weekly movements three days prior to its commencement and to not vary it without prior approval sought 24 hours in advance unless a DSO approves a shorter period. The defendant submits that instead, the Friday before the week commences, the defendant should be obliged to provide a list of places he intends to go to in the forthcoming week and the dates of that travel. A change to that schedule should not be disapproved "except where reasonably necessary to address a risk of the commission of a serious offence or compliance with another condition in this ESO". The defendant submits that the defendant did not vary his movements without permission while he was on parole.
The plaintiff opposes the amendments on the basis that they are essential in their proposed form. The plaintiff notes an OIMS entry to the effect that the defendant was electronically monitored to have gone 150m off his agreed course while fishing off a breakwater. The OIMS entry records that the defendant was angered by what he viewed as an unreasonable criticism for shifting his fishing position. The defendant counters that this breach demonstrates the unreasonableness of the manner in which the scheduling condition was supervised.
There are applications for an ESO where it is appropriate to relax scheduling conditions. However, the defendant has had little time in the community over the last 15 years and little therapy or treatment. He has been diagnosed with serious personality disorders and assessed as posing a significant risk of committing sexual and non-sexual violent offences. I am also conscious of his conviction for the May 2021 offence. In those circumstances, it is appropriate for him initially to be subject to the scheduling conditions as sought by the plaintiff when he is ultimately returned to the community. I will amend the relevant scheduling condition (condition 5) to terms that encourage the DSO to review the need for it after six months if the defendant has complied with it, so that the need to specify the dates and times of movements that are approved is removed. The amendment will allow it to be reintroduced, if required.

Condition 8: Place of accommodation

The defendant seeks an amendment to the accommodation condition that would have the effect of obliging the DSO to give "preference" to the defendant residing with this mother or otherwise in the Muswellbrook/Hunter region. The defendant submits that it would provide recognition to the defendant that his reasonable preferences on such a significant matter as where he resides are being taken seriously. The plaintiff opposes the condition on the basis that it may give rise to disappointment if the defendant's preferences cannot be reasonably met.
I will redraft the condition to oblige the DSO to "prioritise" the defendant being accommodated with his mother or in the Muswellbrook/Hunter region, cognisant of how little time the defendant has had in the community and the observations by Dr Davis that his family connections are a positive influence in his life and that he should be assisted to rebuild them.
I am also conscious that the Muswellbrook/Hunter region is Kamilaroi country. Dr Davis stated: "… [the defendant] has a strong burgeoning interest in Aboriginal art and it would be most advantageous for this to be pursued. [The defendant] has a poor sense of identity and harnessing this interest in Aboriginal art may assist in the development of a more pro-social identity."
I will add the following to condition 8: "Where reasonably possible, the DSO must prioritise the defendant residing with his mother or elsewhere in the Muswellbrook/Hunter region."

Condition 9: A curfew

The defendant seeks a curfew condition that does not specify the times during which he is subject to a curfew, whereas the plaintiff's preferred drafting states the times of the curfew as 10pm to 6am "unless other arrangements are approved by a DSO". I accept that a curfew condition that is attached to a three-year ESO may be unnecessarily harsh. I will amend condition 9 so that a curfew is optional, with times to be set by the DSO: "If required, the defendant must be at his approved address between hours to be specified by a DSO, unless the DSO approves other arrangements."

Condition 31: Disclosure of criminal history

The parties agreed to an amendment to the summons conditions that would allow an opportunity to the defendant to disclose his criminal history to a person that the DSO determined should be so advised, rather than it necessarily being done by the DSO. I have added a provision that, as a first option, this be done by the defendant in a reasonable period of time, to be set by the DSO. If the defendant does not do so, the DSO will inform the person.

Orders

I make the following orders: (1) Order pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act") that the defendant be subject to an extended supervision order ("the extended supervision order") for a period of 3 years from the date when the defendant's current custody expires, pursuant to s 10(1) of the Act; (2) Pursuant to s 11 of the Act, direct that the defendant, for the period of the extended supervision order, comply with the conditions set out in the Schedule attached to this judgment; (3) Access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a Judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

Hyde - Schedule of Conditions (179283, pdf) 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: 22 July 2022

At a glance

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Judgment (28 paragraphs)

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Legislation Cited (2)

Cases Cited (1)