State of New South Wales v Matthews - [2019] NSWSC 1360 - NSWSC 2019 case summary — Zoe

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State of New South Wales v Matthews

[2019] NSWSC 1360

Supreme Court of NSW|2019-10-03|Before: Cavanagh J, Fagan J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2019-10-03

Before

Cavanagh J, Fagan J

Source

Original judgment source is linked above.

Judgment (31 paragraphs)

[1]

Judgment

By summons filed on 22 May 2019, the plaintiff, the State of New South Wales ("the State") brings proceedings against the defendant, Darren Matthews (aka Kain Hackett) ("the defendant") pursuant to the Crimes (High Risk Offenders) Act 2006 ("the Act").
As set out in the summons, the State originally sought both interim and final relief.
There was a preliminary hearing on 21 June 2019 at which time Fagan J made orders: State of New South Wales v Matthews AKA Hackett (Preliminary) [2019] NSWSC 770 ("Hackett Preliminary"). It was then listed for final hearing on 3 October 2019.
On 21 June 2019, Fagan J made orders under s 7(4) of the Act for the appointment of psychiatric experts to examine and report upon the defendant. He also made an interim supervision order ("ISO") on the conditions set out in the decision. On the preliminary hearing, the defendant did not dispute that he should be subject to an ISO or that he should be psychiatrically examined.
Pursuant to the orders made on 21 June 2019 the defendant was examined by Dr Kerri Eagle on 16 August 2019. Dr Eagle provided a report dated 28 August 2019 (Exhibit 7). Dr Eagle also gave oral evidence. Pursuant to the earlier orders the defendant was also examined by Dr Emma Collins on 12 August 2019. Dr Collins provided a report dated 28 August 2019 (Exhibit 6). Dr Collins also gave oral evidence.
The defendant did not dispute that he should be subject to an extended supervision order ("ESO"). The focus of the hearing was on the conditions of the ESO.

[2]

The Legislation

As set out in s 3 of the Act, the primary object of the 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 the protection of the community. Another object of the Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation. In making any orders under the Act, I would have regard to the objects of the Act.
As set out in s 5B of the Act the Court may make an order for the supervision in the community of a person (an ESO) if: 1. 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 2. the person is a supervised offender (within the meaning of section 5I), and 3. an application for the order is made in accordance with section 5I, and 4. the 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.
It was agreed between the parties that the requirements of s 5B(a), (b) and (c) are satisfied. As the defendant did not contest the making of an ESO it must be that he accepts that the Court should be satisfied to a high degree of probability that he poses an unacceptable risk of committing a serious offence if he is not kept under supervision under the ESO. However, it is necessary that the Court be satisfied independently of any concession by the parties.
Being satisfied to a high degree of probability means something beyond more probably than not. The existence of the risk that is, the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof although not to the criminal standard of beyond reasonable doubt: see Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21].
The meaning of "an unacceptable risk" in s 5B(d) and the principles which are to be applied were summarised by Hoeben CJ at CL in State of New South Wales v Holschier (No. 2) [2018] NSWSC 1921 at [23] and [24] as follows: "23. As to the meaning of the phrase "an unacceptable risk", the case law establishes the following: (a) What the court must find to be unacceptable is the "risk" of the offender "committing a serious [sex] offence if he or she is not kept under supervision" (see Lynn v State of New South Wales [2016] NSWCA 57; 91 NSWLR 636 at [51] (Beazley P)). (b) The word "unacceptable" - which means, relevantly, "so far from a required standard, norm, expectation etc as not to be allowed" - is one that "requires context in which, or parameters against which, the unacceptable risk can be measured" (see Lynn at [50]). (c) While the HRO Act does not specify "the precise parameters or standard or norm against which that determination (i.e. the determination whether an offender poses an unacceptable risk) is to be made", this "must be so" because "[a] determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made" (see Lynn at [51]). (d) The determination whether an offender poses an unacceptable risk has to be understood in the context of the objects or purposes of the Act; in particular, its purpose in ensuring the safety and protection of the community (see Lynn at [55]). (e) The right of an offender to his or her personal liberty at the expiry of a sentence of imprisonment is not relevant to the determination whether an offender poses an unacceptable risk (Lynn at [44], [55]-[58], [128], [148]). Nevertheless, as their Honours held, the intrusion on a subject's liberty and privacy are undoubtedly matters which the Court may take into account in its discretion to make an ESO. 24. The "unacceptable risk" inquiry is not discretionary, but it does involve an evaluative balancing exercise. It involves consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate: New South Wales v Simcock [2016] NSWSC 1805 at [71]."
An ESO may not be made unless the Court is satisfied within the meaning of s 5B(d) that the offender poses an unacceptable risk as referred to in that section. Of course, even if such a finding is made, the Court still has a discretion in the making of an ESO.
In determining whether or not to make an ESO, the safety of the community must be the paramount consideration of the Court: s 9(2).
In considering whether or not to make an ESO, I must have regard to the factors set out in s 9(3) of the Act.
As I have already observed, the unacceptable risk enquiry is not discretionary. I must consider both the likelihood of the risk eventuating and the gravity of the risk that may eventuate: State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71].
On the final hearing, the State relied upon the expert reports of Dr Kerri Eagle, Forensic Psychiatrist, dated 28 August 2019 and Dr Emma Collins, Forensic Psychologist, dated 28 August 2019, both of whom gave oral evidence. In addition, the State read the following affidavits: 1. Affidavit of Sarah Najjar affirmed 21 May 2019; 2. Affidavit of Sarah Najjar affirmed 5 June 2019; 3. Affidavit of Sarah Najjar affirmed 2 September 2019; 4. Affidavit of Kelli Grabham affirmed 6 September 2019; and 5. Affidavit of Kelli Grabham affirmed 24 September 2019.
The defendant read the following affidavits: 1. Affidavit of Hayley Le sworn 20 June 2019; 2. Affidavit of Sue Matthews affirmed 12 September 2019; and 3. Affidavit of Shirley Dawn Evans affirmed 13 September 2019.
It is not necessary that I merely summarise all of this evidence as the defendant does not dispute that he should be subject to an ESO. The defendant, however, disputes some of the conditions that the State seeks.
However there is some critical evidence which is relevant to the issues of unacceptable risk, whether to make an ESO, as well as the conditions which should be imposed. As submitted by the State, there is a considerable overlap in the evidence on these issues.

[4]

The defendant's criminal history: s 9(3)(h), (h1)

He has an extensive criminal record during the period 1992 to 2001. He was convicted of attempted steal, common assault, entering enclosed lands and mid-range PCA offences.
More significantly, in 2005 he was convicted of aggravated sexual assault in company, detain in company, occasioning actual bodily harm and robbery in company. He was sentenced to eight years in custody with a non-parole period of six years. He was released on parole on 7 June 2011.
As described in Hackett Preliminary, those latter offences were committed on 29 August 2004 and involved quite appalling depravity and cruelty. He and another man abducted an 18 year old boy, forced him into the boot of a car, drove to a secluded location, threatened the victim with a knife and attempted to force him to perform oral intercourse. The sentencing judge accepted that he played a lesser role in these offences. However, he also observed that the treatment to which the victim was subjected was not only humiliating and degrading but must have caused him to have a real fear for his own safety. The sentencing judge found that the conduct was appalling but that the applicant was a follower, not a leader. He considered that, at that time, the prospects of rehabilitation were reasonably good.
In 2014 he was sentenced to a further 12 months imprisonment following a conviction for behaving in an offensive manner near a public school and grooming a child for unlawful sexual activity, as well as stalking and intimidating and inciting a person under 16 years to commit an act of indecency.
In 2016 and 2017 he was convicted of further offences relating to passive indecency. Most recently in June 2019, whilst still on parole, he was charged with stalk/intimidating and intending to cause fear or physical and mental harm. The charge arises out of his repeated attendance at unit complex in Surry Hills. According to the Police fact sheet, which has been admitted into evidence and to which I am entitled to have regard, the charge relates to appearances of the defendant outside the door of a victim in a unit complex, on one occasion naked, and communications and unwanted communications from the defendant to the victim.
Consistent with his substance abuse disorder, the defendant has been convicted of offences relating to possession of prohibited drugs in 2014 and again in 2019. He was sentenced to an 18 months community corrections order consequent upon those offences.

[10]

The Risk Management report dated 24 April 2019: s 9(3)(d1)

Mr Mark Corcoran, the Community Corrections Officer for the ESO team prepared a risk management report which was read and endorsed by Kelli Grabham. The report was prepared to satisfy the requirements of s 9(3)(d1) of the Act. As noted in the report, it was considered crucial that the defendant engage with relapse prevention and the Forensic Psychology Service ("FPS") as is consistent with the views of all of those who have considered and examined the defendant in that they consider that ongoing and appropriate treatment is most important to both reducing the risk and improving the defendant's medical conditions and disorders. Mr Corcoran developed a risk management plan having regard to the risk factors identified in the risk assessment report and his interviews with the defendant. The plan involves weekly face-to-face interviews with the intention of directing him away from his chaotic lifestyle and preventing a decline of his mental health or return to drug use. The goal is to encourage the development and maintenance of a stable and sustainable lifestyle. During these interviews, cognitive behavioural intervention would be undertaken in the form of practice guides for intervention modules, the defendant would be monitored for signs of relapse into substance abuse during interviews and field visits. He would be monitored for signs of emotional and coping difficulties and mental health deterioration. Should concerns arise, he should be directed to undergo assessment by mental health services. Further, third party contacts would be made on a weekly basis, particularly with mental health medication prescribers, his mother, the FPS therapist and the substance abuse counsellor. Should issues arise with respect to his accommodation, referral to Nunyara Community Offender Support Programme would be considered. Mr Corcoran also refers to monitoring schedules and curfews. As I will refer to later, there was additional evidence on these topics during the final hearing. Further, as noted by Mr Corcoran, the monitoring and schedules would neither prevent any high risk situations or offending behaviours whilst engaging in an approved activity or in his home.

[13]

The Conditions

The focus of the parties' submissions was on the dispute between them as to some of the conditions. The conditions will be annexed to this judgment. It is important to emphasise that many of the risk factors are the subject of conditions which are agreed.
It is only necessary to decide on the conditions in dispute which are as follows: "Electronic Monitoring 4. The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him. Schedule of Movements 5. If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start. 6. If the defendant wants to change anything in his schedule of movements once it is approved by his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period. 7. The defendant must not deviate from his approved schedule of movements except in an emergency. It will not be a breach of Condition 7 if there is a reasonable explanation for the reason for the deviation either being disclosed by the defendant himself or on enquiry by the DSO or those supervising the defendant. 8. The defendant must truthfully answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing. … 15. The defendant must not without prior approval of his DSO attend any place used solely or mainly for providing sexual services or sexually explicit entertainment. The DSO will not withhold approval unless the DSO or those involved in supervising the defendant consider that the defendant attending any such place elevates his risk factors. … Part G: Access to the internet and other electronic communication 26. The defendant must give his DSO a list of all devices, services and applications he uses to communicate with or to access the internet. This includes phones, tablet devices, data storage devices or computers. This includes the details of telephone numbers, service provider account numbers, email addresses or other user names and relevant passwords and codes, used by the defendant and the nature and details of the internet connection, as directed. 27. The DSO (or any other person requested by the DSO) may remotely inspect any internet account used by the defendant, including the defendant's email addresses, in monitoring compliance with this order. 28. The defendant must obey any reasonable directions by his DSO about the use of phone, tablet devices, data storage devices, computers and other devices, including any reasonable directions relating to his access to the internet. 29. The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO. 30. The defendant must provide a list of communication devices and data storage devices in the defendant's possession and advise the DSO of any change to the inventory immediately. … 38. If the defendant significantly changes his appearance, he must notify his DSO within three days."

[15]

Electronic Monitoring

The State seeks a condition that the defendant wears electronic monitoring as referred to in Condition 4. The State emphasises that Condition 4 only requires the defendant to wear electronic monitoring as directed by the DSO or any other person supervising him. Ms Grabham states in her affidavit of 24 September 2019 that electronic monitoring compliments the scheduling conditions to assist in determining if the defendant is conforming to the schedule of movements that he must provide to the DSO each week. It assists in the supervision by identifying where a person deviates from the proposed schedule, such as by failing to attend appointments, or where a person attends a location from which he is prohibited from attending. She refers to an example of a person being in an exclusion zone and being contacted by the DSO who identifies that the person is travelling through an exclusion zone. She refers to when a person has not complied with the scheduled activity and would be contacted by the DSO discussing non-attendance due to safety concerns.
It may be that electronic monitoring would serve these functions. However, both Dr Eagle and Dr Collins stated in their oral evidence that electronic monitoring would not act as a deterrent to the defendant. Further they emphasised the impulsive nature of his behaviour. Unlike perhaps some form of scheduling which might provide a purpose to the defendant and assist in his rehabilitation, electronic monitoring would not benefit the defendant at all (both Dr Collins and Dr Eagle said). Of course, in determining whether to make an ESO, the safety of the community must be the paramount consideration but I must also have regard to the objects of the legislation as set out in s 3. An object of the Act is to encourage high risk sex offenders and high risk violence offenders to undertake rehabilitation. Electronic monitoring would serve no purpose in this regard.
Both Dr Eagle and Dr Collins were questioned about electronic monitoring. Dr Collins was uncertain as to whether she would support it. She said that she held no firm opinion about it. Dr Eagle did not suggest that the use of electronic monitoring would reduce the risk in circumstances in which the defendant suffers from schizophrenia, had an intellectual disability and tended to react impulsively. At its highest, Dr Eagle said it would be worth giving it a trial. However, she also stated that having regard to the intellectual disability and mental illness from which the defendant suffered, it would have no deterrent effect.
Electronic monitoring was not imposed as a condition of the ISO. In my view, the oral evidence given on the final hearing tends to support that decision. The evidence confirmed that it is unlikely to result in any reduction in risk of the defendant reoffending. Further, the limitation expressed in the risk management report prepared by Mr Cocoran was to the effect that electronic monitoring would not prevent any high risk re-offending at an approved place or in the defendant's home. It is more likely to have negative consequences for the defendant and expose him to the likelihood that he will breach the condition, albeit innocently.
The defendant suffers from a mental illness, schizophrenia. The evidence adduced by the State tends not to support the proposition that electronic monitoring will reduce the risk of reoffending or, in any way, increase the safety of the community. I am particularly conscious of the defendant's mental illness and am concerned that electronic monitoring would impose an intolerable burden on him, with a real risk of re-offending in terms of breaching the condition, albeit innocently, which might expose him to criminal sanction.
I do not propose to include Condition 4 as part of the conditions of supervision.

[16]

Schedule of Movements

The defendant opposed any order which required the defendant to prepare a schedule of movements. The defendant submitted that it was possible that he was being set up to fail in the sense that with his mental illness he would be incapable of complying with the orders for weekly scheduling. There is some support for that submission, that is, Dr Collins opined that in view of his mental illness, he would struggle to plan ahead. The defendant proposed in the alternative that the process of preparing a weekly plan be undertaken as part of his medical intervention and treatment referred to in Part J of the Conditions. Specifically, the defendant proposed that Condition 45 be amended so as to make the process of preparing some form of schedule part of his treatment and health plan undertaken with his health professionals.
The State submitted that the Court would impose Conditions 5, 6, 7 and 8 as set out in MFI 3 and extracted in this judgment.
The conditions sought by the State would require the defendant to provide a weekly plan three days before it is due to start with the assistance of his DSO. He must tell his DSO about the change 24 hours in advance and must not deviate from his approved schedule of movements except in an emergency. However, as set out in proposed Condition 7, if he does deviate from his approved schedule of movements he would not necessarily be in breach if there is a reasonable explanation for the deviation either being disclosed by the defendant himself or on enquiry by the DSO or those supervising the defendant. The intent is that the defendant would not be in breach if he does deviate provided there is a reasonable explanation for the deviation. What is reasonable is not specified. Nor does the second part of the proposed Condition 7 deal with any failure to actually provide a weekly plan as directed.
As emerged during the evidence of Ms Grabham, the State's proposed Condition 7 is different from what is known as "a dry schedule". The State's proposed Condition 7 requires a detailed and specific schedule of movements which must be prepared by the defendant with the assistance of his DSO. A dry schedule imposes a somewhat less onerous condition on the defendant. With a dry schedule the defendant is not required to precisely identify his plan movements for each day. In her affidavit of 24 September 2019 as well as her oral evidence, Kelli Grabham explained the dry scheduling. Further, at least as far as Ms Grabham is concerned, deviation from a dry schedule will not be considered a breach of conditions.
A somewhat less onerous or dry schedule of movements was identified by the State in its supplementary submissions filed for the purposes of the final hearing. The State's proposed Conditions, should the Court not accept proposed Conditions 6, 7 and 8 as proposed by the State, would be as follows: 5. If directed by his DSO, the defendant is to provide an honest summary of his anticipated movements each week (or over successive weeks), limited to places he intends to travel to, the purposes and means of his travel to those places, and the dates of travel. Such a summary is to be provided on or before the Friday prior to each week (or as otherwise agreed between the defendant and his DSO). 6. If the defendant departs from any summary provided to his DSO in accordance with condition 5, the defendant must notify his DSO of his change of plans before doing so, or if that is not possible, as soon as is reasonably practicable afterwards.
This proposed condition requires the defendant to provide an honest summary of his anticipated movements, limited to places he intends to travel to, the purposes and means of his travel to those places and the dates of travel. It also allows the defendant to depart from his summary and give notice to his DSO beforehand or if this is not possible, as soon as reasonably practicable afterwards.
In his supplementary submissions provided on 8 October 2019, the defendant reiterated that he opposed the imposition of any schedule of movements but if this position was not accepted, proposed alternative conditions as follows: 4. If directed by his DSO, the defendant is to provide an honest summary of his anticipated movements each week (or over successive weeks), limited to places he intends to travel to, the purposes and means of his travel to those places, and the dates of travel, but unconfined by any travel route or timetable. If so directed, such a summary is to be provided on, or before the Friday prior to each week (or as otherwise agreed between the defendant and his DSO). 5. The defendant must not deviate from his summary of anticipated movements except in an emergency, or unless as specified in paragraph 6 below. 6. It will not be a breach of this condition if the defendant departs from the summary but notifies his DSO of his change of plans before doing so, or as soon as is reasonably practicable afterwards. 7. The defendant must truthfully answer questions from his DSO, or any person supervising him, about where he is, where he is going and what he is doing.
The defendant's proposed alternative conditions are similar to the State's alternative conditions and are in the nature of a "dry schedule".
In paragraph 27 of her affidavit, Ms Grabham states that a dry schedule affords a person the opportunity to set their own prosocial activities and attend at their own pace, essentially making the person solely responsible for attending and engaging in activities and interventions. Ms Grabham says that dry schedules are usually for persons who have already demonstrated ongoing stability prior to the ISO supervision period and whose identified risk factors have been largely tested in the community prior to the imposition of the condition.
In Hackett Preliminary, Fagan J did not impose either electronic monitoring or scheduling conditions as part of the ISO. However, in the State's supplementary submissions the State acknowledged that the type of less onerous conditions to which I have referred would be appropriate on the basis that it would assist in addressing issues relevant to the defendant's identified risk factors in relation to future commission of serious sexual offences: see Wilde v State of New South Wales [2015] NSWCA 28 at [45].
Specifically, the State urges the imposition of some form of a scheduling condition having regard to both the written and oral evidence of Dr Eagle and Dr Collins, which was not available at the time of the preliminary hearing, as well as the defendant's conduct between the preliminary and final hearing, specifically that in June 2019 he had been charged with stalking/intimidating and intending to cause fear or physical or mental harm as a result of his repeated attendance at a unit complex. As the State submits, scheduling will enable both monitoring of him by the DSO and the DSO to consider in advance whether places to which he proposes to go involve a high level of risk and would assist the defendant to avoid high risk scenarios.
It is also important that a condition not be imposed upon the defendant with which he is unlikely to be capable of complying. The defendant suffers from schizophrenia and intellectual disability. The State's proposed scheduling conditions (rather than the somewhat less onerous dry scheduling condition) would, as the defendant submitted, likely set the defendant up to fail. The evidence of Dr Collins and Dr Eagle does not suggest that he would be capable of actually undertaking the task required of him on a consistent basis.
As has been emphasised in both the written and oral evidence of Dr Eagle and Dr Collins, the defendant has a chaotic lifestyle. Further, he reacts impulsively, particularly with respect to sexual conduct. Periods of psychosis are linked to his use of methamphetamine. It is most important that the defendant's schizophrenia and drug use disorder be treated and managed. Dr Eagle identified his mental health and chaotic lifestyle as the primary risk factors. She agreed that if he complies with the condition relating to his treatment, it would go a long way towards reducing the risk. The parties have agreed on conditions requiring the defendant to attend psychological assessment therapy support and treatment as directed by his DSO. He is required to take all mental health medications that are prescribed to him. He must notify the DSO within 24 hours of ceasing to take medication. He must consent to his health care practitioners sharing information as to the course of his treatment and overall progress. It is clear, that with this particular defendant, Conditions 41 and 46 relating to medical treatment intervention and treatment are particularly important.
The defendant submitted that, in effect, he could prepare a weekly schedule of movements with his health care professional. That is, the defendant submitted there was no need for any additional condition relating to the preparation of a schedule of movements. I should emphasise that the parties are agreed on Part C of the conditions which impose restrictions on the defendant in respect of places he can go. The only dispute between the parties on the Part C conditions relates to proposed Condition 15 which I will address next.
It was raised during the oral evidence of Dr Eagle and Dr Collins that a less onerous, limited form of condition may be of some benefit to the defendant in the sense that it will give him some purpose, require him to think about what he might be doing for the week and attempt to engage in some form of planning. Dr Eagle said that it would have a therapeutic benefit and it may serve to reduce the risk of re-offending in that way.
I am mindful that a purpose of the Act is to encourage rehabilitation and, on the evidence before me, anything that provides some structure and purpose in the defendant's life might reduce his chaotic lifestyle and reduce the impulsivity of his actions (thereby generally reducing the risk). In this regard it seems to me that both purposes of the Act may be served in imposing a form of dry scheduling on the defendant.
The defendant submits that he suffers from periods of homelessness and thus it will be difficult for him to either prepare or comply with any schedule of movements. However, he is currently living in the ISC and he may be encouraged to stay in the ISC. Further, the less onerous schedule proposed by the State would at least require him to engage in some form of planning and development of some form of structure.
I am also mindful of the evidence of the defendant's mother contained in her affidavit affirmed on 12 September 2019 and the defendant's friend, Shirley Evans, contained in her affidavit affirmed 13 September 2019. Ms Evans says he has a car and a driver's licence and that she will keep supporting the defendant and doing everything she can to make sure he keeps up with his treatment and supervision. These witnesses were not required for cross-examination. They have offered to support and help the defendant in ensuring that he does not breach any future conditions and stays out of prison. In these circumstances, I do not consider the imposition of the form of dry schedule would be setting him up to fail, as the defendant submitted. Further I am also mindful of the evidence of Dr Eagle that the most important thing is that the defendant continue to be appropriately treated for his mental health and related disorders and that a possible return to prison would have no deterrent effect on the defendant.
In the State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36], Adams J analysed the task in which the Court is engaged in imposing conditions having regard to s 11 of the Act as follows: "36 Section 11 of the Act permits the imposition only of such conditions as it "considers appropriate", including those specified in the section. As Johnson J observed in State of New South Wales v Tillman [2008] NSWSC 1293 at [68], the Court is to strike a "balance between relevant considerations" which included the matters to which the Court has had regard in determining whether to make an extended supervision order. Amongst the other considerations are the ordinary rights of the subject to go about his or her lawful activities free from officious and unnecessary restrictions and the fact that breaches of the conditions incur criminal penalties. Ultimately, the purpose of conditions is to mitigate the risk of the defendant's committing further sexual offences. For this reason, it is obvious that there need not be a link between the condition and the circumstances of the offences that have triggered the order or the way in which they were committed. The conditions must address identified risk factors but these must be considered in a realistic way and not treated as some statutory scheme. In the nature of things, there can be no bright line: the relevant factors are inherently incommensurable. The condition must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice. (See Wilde v State of New South Wales [2015] NSWCA 28, in which the authorities are usefully collected.)" See also State of New South Wales v Grooms (Final) [2019] NSWSC 353 at [78] ("Grooms (Final)").
In my view, the State's proposed schedule of movements 5, 6, 7 and 8 would be unjustifiably onerous (see Wilde v State of New South Wales [2015] NSWCA 28. As was emphasised by Fullerton J in Grooms (Final) at [84] an assessment of appropriate conditions can only be made in the context of the evidence adduced in the particular proceedings informing the protective purposes of a defendant's extended supervision and the allied purpose of promoting that person's rehabilitation as provided for in s 3(2) of the Act.
For the reasons I have identified, I am thus satisfied that the form of dry scheduling would be appropriate. There is little difference between the State's proposed conditions as set out in the State's supplementary submissions and the alternative conditions set out in the defendant's supplementary submissions. The defendant's conditions ensure that the summaries to be provided only as so directed by the DSO on or before the Friday prior to each week are proposed to include the defendant's proposed conditions.

[17]

Proposed Condition 15

The State seeks the imposition of proposed Condition 15 in the terms set out earlier. The defendant opposes the imposition of proposed Condition 15 or any variation thereof. The State emphasises that the condition is not intended to operate as an absolute preclusion from the defendant attending any place used for providing sexual services or sexually explicit entertainment, but rather that the defendant must not attend without prior approval of his DSO. The State emphasises that the second part of the proposed condition requires the DSO not to withhold approval unless the DSO considers that the defendant attending any such place elevates his risk factors.
The State submitted that the intent of any condition would be not to preclude the defendant from using such services or attending a place where sexually explicit entertainment is provided at all but to prevent him going to such places three or four times a week. Dr Collins said that it would increase the risk if he was prohibited from going to locations where he could access such services.
In my view, there are two fundamental problems with Condition 15 being: 1. It has not been established that such a condition would in any way reduce the risk factors in respect of the defendant. Further, having regard to his lifestyle, lack of companionship, likely lack of employment in the future, any preclusion on him satisfying what might be considered normal sexual urges in a single 45 year old man is likely to increase rather than reduce the risk; 2. As was demonstrated during cross-examination of Ms Grabham on behalf of the defendant with reference to the OIMS notes, being the notes of the DSO supervising the defendant during his ISO, the approach of the DSO to this particular activity to date has been very much to generally preclude attendance at such facilities or places.
In undertaking the balancing exercise between ensuring that the conditions have the effect of reducing the risk and also not imposing too onerous conditions on the defendant, it is relevant to have regard to the conduct of the DSO in relation to the practical application of such a condition. See also Grooms (Final) at [91]; State of New South Wales v Keith Farringdon [2018] NSWSC 874 at [46].
The DSO is expected to undertake his or her supervision in a common-sense way but it is apparent in this matter from the OIMS notes that the DSO has not always responded to a request with reference to the question of whether the defendant's attendance would elevate his risk factors.
There is no evidence that the defendant is likely to attend such places three or four times a week. There was some reference to the DSO being concerned about the defendant accessing the services too frequently, but the origins of such concerns are uncertain. No evidence emerged during the oral evidence of Dr Eagle and Dr Collins to the effect that attendance at such places, even once or twice a week, would necessarily elevate the defendant's risk factors. In the circumstances, I am not satisfied that the imposition of such a condition would reduce the risk to the community or increase the safety to the community. It could have a counter-productive effect. I am thus not prepared to include Condition 15 in the schedule of conditions.

[18]

Access to the Internet and other electronic communications

By way of summary, Conditions 26, 27, 28, 29 and 30 impose obligations on the defendant to provide his DSO with a list of all devices, services and applications he uses to access the Internet. This includes details of telephone numbers, server provider account numbers, email addresses and other names and passwords. The DSO may remotely inspect any Internet account and the defendant must obey reasonable directions given by the DSO about use of phones and other such devices. In 2016 he was convicted of failing to report with respect to his use of a new mobile phone.
According to Mr Samuel Ardasinski, a senior psychologist with the Serious Offenders Assessment Unit, the defendant's most likely scenario for further sexual offending would be while using methamphetamine ice, attendance at a public toilet or some similar amenities block and masturbating to gain sexual gratification. If an underage or otherwise vulnerable male might enter, the defendant may commit some other form of hands-on indecent acts or expose the victim to material on his mobile phone in order to groom them into sexual conduct. The use of a mobile phone is thus suggested as a potential means of re-offending.
The defendant originally submitted that most of Conditions 26 to 30 are already in place as a result of the Child Protection Offender Prohibition order and his Offender Registration requirements. In the defendant's supplementary submissions filed on 8 October 2019, the defendant conceded that the Child Protection Offender Register reporting obligations are suspended during the term of an ESO in accordance with the Offenders Registration Act (s 15) (see State of NSW v Steven Single [2019] NSWSC 176 at [22] - [23] for the effect of s 15(1)(d) of the Offenders Registration Act. The concession by the defendant makes some of the submissions made on the hearing redundant. The defendant still submits that I should have regard to the fact that the Child Protection Prohibition order remains current and the defendant must continue to comply with that order.
On one view, Conditions 26 to 30 are either standard or pro forma type which the State might regularly seek in respect of sex offenders, and it might be considered that such conditions are either unnecessary or too onerous in respect of the defendant. However, I must have regard to the defendant's earlier non-compliance with respect to the use of a new mobile phone. Further, having regard to the nature of the defendant's mental illness and disorders and intellectual disability, it might be unlikely that this defendant would have a range of electronic devices available to him. It seems to me that Conditions 26 to 38 serve a purpose in reducing the risk and allowing the DSO to monitor and control the use of electronic devices in circumstances in which the conditions are unlikely to be very onerous for the defendant. This is particularly so in circumstances in which, on the evidence tendered by him, he now has available to him the support of a good friend and his mother, at least, in respect of ensuring compliance with the conditions.
Conditions 26 to 30 should be included.

[21]

ADDENDUM On the delivery of judgment on 10 October 2019, I invited the parties to consider the judgment in detail and the conditions imposed and contact my Associate if there were any technical issues arising from the judgment. On 11 October 2019, the State, with the consent of the defendant, raised a number of issues. In accordance with Rule 36.17 UCPR I propose to accede to the request made by the State to amend the judgment as follows: 1. Commencement date of the ESO The State submits that the ESO should commence on the date the order is made, rather than the date when the defendant's ISO expired. The defendant does not necessarily agree to the State's interpretation of the legislation, but does not oppose the amendment. I will thus amend Order 1 as follows: (1) Pursuant to ss 5B and 9(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant be under supervision in the community for a period of 2 years commencing on 10 October 2019. 2. Conditions 5 and 6 As set out in the judgment, I adopted the defendant's proposed wording in respect of the Schedule of Movements conditions. The State submits that there was an ambiguity on the basis that Condition 6 is a stand-alone condition. I accept this. The opening words of Condition 6 are intended to refer to Condition 5. Rather than joining the two Conditions as suggested by the State, it seems to me that it would be simpler to refer to Condition 5 as follows: 5. The defendant must not deviate from his summary of anticipated movements except in an emergency, or unless as specified in paragraph 6 below. 6. It will not be a breach of Condition 5 if the defendant departs from the summary but notifies his DSO of his change of plans before doing so, or as soon as is reasonably practicable afterwards. 3. Cross-references in the Schedule of Conditions I agree that there are two accidental cross-referencing errors and the schedule of conditions will be amended accordingly. 4. Order restricting access to Court file I omitted to make Order 4 as sought in the amended summons, restricting access to the Court's file. The orders will be amended accordingly.

[29]

H. Search and seizure 29 If the DSO forms a reasonable opinion that a search (of the type referred to in sub-paragraphs (d) to (f) below) is necessary: (a) for the safety and welfare of residents or staff or persons present at the defendant's approved address; (b) to monitor the defendant's compliance with this order; or (c) 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: (d) search and inspection of any part of, or anything in, the defendant's approved address; (e) search and inspection of any part of, or anything in, any vehicle owned, hired by or under the control of the defendant; (f) search and inspection of any part of, or anything in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or (g) search and examination of his person. 30 For the purposes of the above condition: (a) a search of the defendant means a garment search or a pat-down search. (b) to the extent practicable a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO. NOTE: "Garment search" means 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. "Pat-down search" means a search of a person where the person's clothed body is touched. 31 During a search carried out pursuant to condition 29 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise: (a) the safety of residents or of staff at the defendant's approved address; (b) the welfare or safety of any member of the public or any other person; or (c) the defendant's compliance with this order; or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence. 32 The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use. 33 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 conditions 29 and 32 above.

[31]

J. Medical intervention and treatment 39 The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults. 40 The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment as directed by his DSO unless the defendant provides a reasonable excuse to his DSO for non-attendance. 41 The defendant must take all mental health medications that are prescribed to him by his healthcare practitioners, except so far as his healthcare practitioners advise him that it is not necessary to do so. 42 If the defendant knowingly ceases to take mental health or anti-libidinal medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify the DSO within 24 hours of ceasing to take the medication. 43 The defendant must agree to his healthcare practitioners sharing information with the DSO as to the fact of his attendance at appointments and his overall progress in therapy or counselling including the practitioner's general opinion as to the development of his insight into offending risk factors and attitudes to reduce his risk of offending. NOTE: It is understood that a relationship of trust and confidentiality with healthcare practitioners is fundamental to the defendant's engagement with and treatment by healthcare practitioners. 44 The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW. 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: 11 October 2019

State of New South Wales v Matthews

At a glance

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Judgment (31 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (11)

Cited By (6)