State of New South Wales v Matthews AKA Hackett

Judgment (8 paragraphs)

[1]

Judgment

HIS HONOUR: The State of New South Wales filed its summons for orders under the Crimes (High Risk Offenders) Act 2006 (NSW) ("the High Risk Offenders Act") on 22 May 2019. The summons is before the Court today for a preliminary hearing. The State seeks an order under s 7(4) of the Act for the appointment of psychiatric experts to examine and report upon the defendant. It also seeks an interim supervision order on conditions.

[2]

Defendant's present status

At the date of commencement of the proceedings the defendant was on parole under a sentence of 12 months imprisonment commencing 22 July 2018 for an offence against s 17(1) of the Child Protection (Offenders Registration) Act 2000 (NSW) ("The Offenders Registration Act"). That is an offence of failing to notify his change of address as required by s 11 of that Act. The defendant was subject to the reporting requirements of the Offenders Registration Act because since 2014 he has been a registerable person and his name has been recorded on the register maintained under the Act.
The defendant's current sentence will expire on 21 July 2019. He has been on parole in relation to the above mentioned sentence since 21 November 2018. By force of the definition in s 5(2)(f) of the High Risk Offenders Act, the offence of failure to report for which the defendant is currently serving his sentence is "an offence of a sexual nature." Accordingly, the defendant comes within the definition of a "supervised offender" within s 5I of the High Risk Offenders Act.

Resolution of issues concerning conditions

The first area of dispute in relation to the conditions proposed by the State is the proposed requirement that the defendant should submit schedules of movements and adhere to such schedules, and wear an electronic monitoring device as directed by his Departmental Supervising Officer ("DSO"). Schedules and electronic monitoring are sought in order to ensure compliance with directions from the DSO about places where the defendant should and should not go and also to monitor compliance with existing constraints upon his movements. One such constraint arises from orders made in the Local Court at Campbelltown on 4 February 2019 pursuant to the Offenders Registration Act.
Campbelltown Local Court ordered that the defendant should not loiter or remain near premises frequented by children or where children are known to be, including public transport, parks, playgrounds, sporting facilities and so on. It was ordered that he not loiter or remain near public toilet facilities. Further conditions were that he should not be in the vicinity of any public swimming pool or of any public library facilities. A condition was fixed that he should not attend or be in the vicinity of bushland where there is public access.
On 7 May 2019 he was directed that in addition to the conditions of his parole order he should not frequent or attend 389 Bourke Street, Surry Hills, or have any contact with any occupants at this address. It appears that this address had been brought to the attention of his Community Corrections officer as a place where drugs are likely to be sold.
The defendant has never previously been subject to electronic monitoring under any form of court order. I do not consider that this would have any protective effect in relation to offences of the kind that he is alleged to have committed in the past. Electronic monitoring and scheduling would not have served any purpose to deter or prevent, for example, the offences of 2004, the events of which commenced on a public road. Such monitoring and scheduling would have been of no utility in relation to the offending of 2014, which commenced in a caravan park.
The Court's concern with respect to imposing scheduling and monitoring is that whilst, it would not appear likely to contribute to any material reduction in risk of reoffending, based on the past conduct of the defendant, would give rise to restrictions on movement which would readily be infringed, exposing the defendant to prosecution under the High Risk Offenders Act and risk of further imprisonment. In effect, the constraints imposed by scheduling and monitoring would criminalise actions and movements which may of themselves be entirely innocent. The Court is reluctant to create this situation unless it is shown that scheduling and monitoring, which may lead to prosecution from departures from a schedule, is likely materially to contribute to reducing opportunities or situations which otherwise might lead to the defendant committing further offences.
The prospect of the defendant breaching scheduled constraints upon his movements, being prosecuted for breach and returned to prison, would be destructive of attempts to achieve reintegration and rehabilitation. If this prospect is raised without discernible, concrete likelihood of improved protection of the community, then it is not warranted. In this case I do not consider that cll 4 to 7, as proposed by the State, prescribing scheduling and monitoring are warranted.
The next area of dispute about conditions concerns curfew and inspection of the defendant's residential premises. He will be required under the conditions that I will fix to live at an address approved by his DSO. The State submits that he should be under a curfew to remain there between 11.30pm in the evening and 6.00am in the morning and that he should allow his DSO or any other person to visit him at that address and enter the premises. The primary purpose of these conditions is submitted by the State to afford his supervising officer scope to verify that he is residing where he is required to reside.
I accept that it is important that he should adhere to the condition about living at an address that is approved and I accept that the DSO should have the opportunity to verify that he is living there. A curfew between 11.30pm and 6.00am in the morning would not be justified on any ground independent of giving the DSO the opportunity to verify his residence. There is nothing in the defendant's criminal history to indicate that being out at night, or casually sleeping over at another address or location, is of itself associated with his commission of offences.
In lieu of these requirements proposed by the State, I will impose a condition in the following terms, which I consider meets the proper requirements of the State and of Corrective Services: The defendant must meet with his DSO, or any person whom the DSO may delegate, at his approved residence at any time reasonably nominated by the DSO upon at least eight hours' notice, and must permit such inspection of the premises as may be reasonably necessary to enable the DSO to verify that the defendant is in fact residing at the address.
The State did not resist this condition except to the extent of it requiring eight hours' notice. I fix eight hours on the basis that I do not think it warranted that the DSO should have the power to attend and inspect the premises without the defendant being present. It may be excessively hopeful to expect that the defendant might find employment, but if he should, he may well need eight hours to get from wherever he is working back to his residence to facilitate inspection. The State's principal objection to the requirement of notice is that it is thought the defendant might use it as a time within which to create a false impression within his property of residing there and that he might by that means cover up the fact that he was actually living at another location. I consider that that submission attributes to the defendant a degree of deviousness and inventiveness with respect to misrepresenting the location of his address which has not been exhibited by him to date and which I find no reason to assume.
On a related topic, the State seeks conditions that the defendant should not spend the night anywhere other than the approved address without prior approval from his DSO and that he should promptly notify his DSO of any visitors entering and remaining. I do not consider that these conditions are warranted. They are excessively restrictive and could well give rise to inadvertent infringements which would expose the defendant to prosecution for breach in circumstances where no useful purpose protective of the community would be served.
Provided that the defendant is resident at the relevant place, should spend a night or nights somewhere else whilst still maintaining that residence it is not apparent how that would likely contribute to increased risk of offending, taking into account the nature of his serious offending in the past. Similarly, it is not apparent why notification to the DSO of visitors or the obtaining of approval for visitors would assist in achieving the protective purpose of these conditions.
With respect to place and travel restrictions, the State's proposed cl 17(c) would prohibit the defendant from attending cinemas. The defendant proposes that there be an exception for him attending sessions of movies classified MA and above. This is put forward on the basis that it would be reasonable to expect that children of a young age who might be vulnerable to misconduct by the defendant would not be present at such movie sessions. I consider the defendant's proposed exemption is reasonable. The State has countered that cinemas are in public places, often in shopping complexes and the like where young children may be about. But cinemas are only one of countless facilities in the city environment where children may be encountered. The restriction imposed upon any attendance at cinemas without an exception such as the defendant has proposed would, in my view, be unreasonably restrictive.
Clause 18 as proposed by the State would prohibit the defendant from attending any place used solely or mainly for the sale or display of sexually explicit material or for providing sexual services or sexually explicit entertainment. This would, on the State's proposal, be subject to DSO approval. In propounding this condition the State has submitted that the defendant has in the past expressed his desire to attend what are referred to as gay sex clubs and there to engage in sexual activity with other men, in conjunction with the use of drugs either on the premises or elsewhere.
I consider the clause as drawn is unnecessarily wide. I see no reason to prohibit him attending places used for the sale or display of sexually explicit material. But with respect to premises used for the provision of sexual services or sexually explicit entertainment, I do not think it unreasonable that the defendant should be subject to constraint, that he should only attend such premises as approved by the DSO and on occasions, or at least categories of occasions, approved by the DSO. It is reasonable on the part of the State to take the position that his expressed desire to frequent such locations appears to increase the likelihood of him consuming methylamphetamine in the context of an intent to engage in sexual activity. This is precisely the combination that heightens to a maximum the risk of the defendant committing offences against innocent persons without their consent. Provided cl 18 is reduced to a narrower prohibition along the lines that I have suggested, I would consider it appropriate.
The State seeks a condition that the defendant must provide information relating to his financial affairs, including income and expenditure, as directed by his DSO. I do not see that this is necessary or even useful. The defendant's financial circumstances are likely to be fairly minimal, in view of his lack of any employment history and his fairly recent release from prison. The argument is advanced that significant expenditure or receipt of funds might be an indication to the DSO of illegal activity. That seems to me to be highly unlikely in circumstances where anything the defendant might do concerning money would likely be transacted in cash. This appears to be significantly invasive conditions carrying the risk of a breach which would expose the defendant to prosecution without serving any useful protective purpose so far as the community is concerned.
The defendant agrees that he should be subject to a condition that he not possess or use illegal drugs. He agrees also that he should be required to submit to testing for drugs as directed by his DSO. However, he contends that this should take place only at the DSO's office. The State submits this is inadequate as it eliminates the possibility of random testing. I propose to impose a condition as sought by the State but adding to it this provision: "For this purpose the DSO may attend at the defendant's residence without notice and require a saliva sample to be provided."
A requirement that the defendant supply a random saliva sample is not particularly intrusive. It is not likely to lead to any embarrassment or humiliation. It is quite rational that the State should require the ability to undertake random testing in view of the defendant's demonstrated tendency to revert to drug use and the extensive medical reporting that indicates his doing so is highly detrimental to the management of his mental health and strongly associated with the risk of criminal behaviour.
The State seeks a further condition that the defendant should not purchase, possess or have access to material that is classified as, or would be classified as, refused classification or X18, without prior approval. I do not consider that this condition is warranted. There is no indication in the background material, so far as I can ascertain, that suggests that he has a proclivity to view pornographic material in a way that exacerbates the risk of him committing sexual offences. It is true that he apparently used pornographic images in an attempt to excite the 15 year old boy in the toilet at the caravan park when the offences of 2014 were committed. But a total prohibition on him viewing such material seems remote from the circumstances of that offence and unduly broad.
The other conditions proposed by the State, having been the subject of discussion between counsel for the parties and a measure of adjustment and agreement, are not opposed by the defendant. An interim supervision order will be made on terms which take into account these reasons when the order is settled There will be appended to the order a set of conditions reflecting the rulings that I have made.

Corrective Services NSW (CSNSW) Part A: Reporting and Monitoring Obligations Monitoring and Reporting

Corrective Services NSW (CSNSW) will administer this Extended Supervision Order ("Order") until the end of the Order.
The defendant must report to the Department Supervising Officer ("DSO") or any other person supervising him as directed by the DSO.
The defendant must comply with any reasonable direction given by his DSO, or their delegate from CSNSW, for the purposes of enforcing the Order or any conditions of the Order. Where a direction may conveniently be given in writing (or is required to be given in writing), it may be given electronically including by SMS or other messaging service.
The defendant must truthfully answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing. Part B: Accommodation
The defendant must live at an address or addresses approved by his DSO.
The defendant must meet with his DSO, or any person whom the DSO may delegate, at his approved residence, at any time reasonably nominated by his DSO, upon at least 8 hours' notice, and must permit such inspection of premises as may be reasonably necessary to enable the DSO to verify that the defendant is in fact residing at the address. Part C: Place and travel restrictions
The defendant must not leave New South Wales without the approval of the Commissioner of Corrective Services ("the Commissioner").
The defendant must surrender any passports held by the defendant to the Commissioner.
The defendant must comply with any reasonable direction from his DSO not to go to a particular place.
Without limiting condition 9 above, the defendant must not go to the following places, without prior approval by his DSO: a. Day-care centres, pre-schools and schools; b. Amusement parlours, amusement parks and theme parks c. Cinemas (except for attending sessions of movies classified MA and above); d. Libraries and museums; e. Camping grounds and caravan parks; f. Children's playgrounds, parks, and areas with play equipment provided for the use of children; g. Pools, playing fields and sporting facilities; h. Concerts, theatre shows, children's events and children's entertainment venues; or i. Residences where the defendant knows that persons under 18 ordinarily reside (except as provided in condition 18(c)) j. Internet cafes or other businesses which provide public access to the internet either for payment or for no charge (other than employment agencies).
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 D: Employment, finance and education
If the defendant is unemployed, the defendant must make himself available for employment, education, training or participation in a personal development program as directed by the DSO.
The defendant must not start any job, volunteer work or educational course without the approval of his DSO. Part E: Drugs and alcohol
The defendant must not consume alcohol unless given prior approval by his DSO and only in the manner approved. Approval may be given in a general sense and for consumption to a particular blood/alcohol level or approval may be given in relation to a particular event.
The defendant must not possess or use illegal drugs, and he must not possess or use prescription medication other than as prescribed.
The defendant must submit to testing for drugs and alcohol as directed by his DSO. The DSO may attend the defendant's residence without notice and require a saliva sample to be provided.
The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as directed on reasonable notice by his DSO, and must not discharge himself from such programs and courses without prior approval of his DSO, provided that if the cost associated with such programs, courses or treatment is not met by Medicare or by other Commonwealth or State funding, including by CSNSW, then any cost which the defendant is required to bear is reasonably within his means. Part F: Non-association Association with Children
The defendant must not approach or have contact with any person who he knows is under 18, other than: a. incidental contact in a public place in the course of the duties of the person or b. with the written permission of his DSO and in accordance with any conditions reasonably determined by the DSO, including that the contact takes place in the presence of another person who has been approved in writing by the DSO. c. a family member who is under the age of 18 years, but only in the presence of an adult over 18 years. Associations with Others (not children)
The defendant must not associate with people that his DSO tells him not to.
The defendant must not associate with any people who he knows or ought reasonably to know are consuming or under the influence of illegal drugs.
If the defendant starts an intimate relationship with someone, he has to tell his DSO who may want to tell the person about his criminal history. Part G: Access to the internet and other electronic communication
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.
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.
The defendant must obey any reasonable directions by his DSO about the use of phones, tablet devices, data storage devices, computers and other devices, including any reasonable directions relating to his access to the internet.
The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO.
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. Part H: Search and seizure
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.
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.
During a search carried out pursuant to condition 28 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.
The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use.
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 27 and 29 above. Part J: Personal details and appearance
The defendant must not change his name from "Kain Alexie Hackett" or use any other name without the approval of his DSO.
The defendant must not use any alias, log-in name, or a name other than "Kain Alexie Hackett" or use any email address other than those known to the DSO under condition 22 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email.
If the defendant significantly changes his appearance, he must notify his DSO within three days.
The defendant must let CSNSW photograph him at the commencement of this order and subsequently, if requested by the DSO on reasonable notice in the event of significant changes to his appearance.
If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details. Part K: Medical intervention and treatment
The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults.
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.
The defendant must take all mental health medications that are prescribed to him by his healthcare practitioners, except so far as his health practitioners advise him that it is not necessary to do so.
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.
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.
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: 24 June 2019

At a glance

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Judgment (8 paragraphs)

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Legislation Cited (4)

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