NSWNSWSC

State of New South Wales v McCarthy

[2017] NSWSC 24

Supreme Court of NSW|2017-01-30|Before: Davies J, Hall J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2017-01-30

Before

Davies J, Hall J

Source

Original judgment source is linked above.

Judgment (29 paragraphs)

[1]

Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2009/296449

[2]

Judgment

On 16 December 2009 Hall J ordered that the Defendant be made subject to an Extended Supervision Order under the Crimes (Serious Sex Offenders) Act 2006 (NSW) for a period of five years: State of NSW v McCarthy [2009] NSWSC 1407.
Since the imposition of the ESO the Defendant has spent several periods in custody during which time both the conditions and the terms of the ESO have been suspended pursuant to s 10(1A) and (2) of the Act which is now known as the Crimes (High Risk Offenders) Act 2006 (NSW). The Defendant was released from the last custodial period on 25 January 2017. The ESO is currently due to expire on 18 February 2020. The Plaintiff seeks a variation to the conditions of the ESO in the terms annexed to the Notice of Motion filed 13 January 2016.
This judgment should be read in conjunction with the judgment of Hall J but for ease of reference the terms of the ESO put in place by Hall J are Annexure "A" to this judgment.
The variations sought by the Plaintiff are as follows: (a) The omission of conditions 4 and 26. Those omissions are not opposed by the Defendant; (b) An amendment to paragraph 13 as follows: Without limiting paragraph 12 above, the defendant must not contact or communicate by any means with, or attempt to contact or communicate by any means with, the victims of the sexual offences for which the defendant was convicted and sentenced on 28 August 1987, 17 December 1992, and 23 March 2005 and 27 July 2011, and the victims of the three offences under s. 85ZE(1)(b) of the Crimes Act 1914 (Cth) (use carriage service in offensive manner) for which the defendant was convicted and sentenced on 3 May 2004, and the victim of the offence under s. 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (stalk or intimidate intending to cause fear) for which the defendant was convicted and sentenced on 11 February 2016. The Defendant does not oppose that variation; (c) The substitution of "18 years" for "16 years" in paragraphs 14 and 15. The Defendant does not oppose that variation; (d) The addition of paragraphs 42 and 48 as follows: 42. The defendant must give his DSO [Department Supervising Officer] 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. … 48. The defendant must not carry on his person, at any time he has left his residence, any knife, or other cutting instrument, unless permission has been granted in advance by the DSO. The Defendant does not oppose the inclusion of the those paragraphs. (e) The addition of paragraphs 43 to 47 as follows: 43. If the DSO reasonably believes 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 any thing in, the defendant's approved address; e. search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant; f. search and inspection of any part of, or any thing 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. 44. 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. 45. During a search carried out pursuant to condition 43 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. 46. The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use. 47. 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 [43] to [46] above. The Defendant opposes the breadth of the powers in those conditions.

[3]

Convictions prior to the ESO

The offences for which the Defendant was convicted prior to the making of the ESO by Hall J are conveniently summarised by Fagan J in State of New South Wales v McCarthy [2015] NSWSC 1780 at [9]: The defendant was born on 16 October 1968. He was 41 years old when the application for the extended supervision order was determined by Hall J. His Honour noted that by that time, during the 23 years from when he had attained 18 years of age, the defendant had spent only two years in the community and the remainder in custody. A brief summary of his criminal history is as follows: 1 February 1987, aged 18 years: the defendant broke into the home of an 85 year old woman who lived next door to him and his family. He confronted her wearing a mask and stocking over his face, attempted to have sexual intercourse with her three times, bound and gagged her and threatened to cut her throat with a knife. He was arrested that day and spent one month in custody on remand. Then he was on bail for five months until sentenced in late August 1987. He was given an effective term of 5 years (allowing for concurrence of sentences for individual offences) from 28 August 1987 to 27 August 1992. He was released on parole after less than two and a half years on 10 December 1989. 27 November 1990, aged 22 years: the defendant induced a 17 year old girl to accompany him in a van on the pretext that he was taking her to a home where she would act as a babysitter. He stopped the van and subjected the young girl to a series of violent sexual assaults including three instances of penile vaginal penetration, two of forced fellatio and one of anal intercourse. He was arrested on 4 December 1990. The defendant was remanded in custody until sentence was passed, initially in the District Court. His sentence was increased in the Court of Criminal Appeal to a total effective penalty (allowing for concurrence of sentences for individual offences) of 10 years comprising a non-parole period of 7 years and 6 months and an additional term of 2 years and 6 months. The defendant's parole under the term of imprisonment for the offences of 1 February 1987 was revoked. He served the balance of the term (slightly over two years) in the period from his arrest on 4 December 1990 up to 16 December 1992. The sentences for the offences of 27 November 1990 were therefore ordered to date from 17 December 1992. Evidently he was not considered suitable for parole in relation to those matters and served out the whole of his head sentence of 10 years. His disciplinary record whilst in custody may have been a factor in the refusal to release him on parole. He was repeatedly disciplined for abusive language, assaults, not complying with routine, damaging property and so on. He was released on expiry of the 10 year head sentence, on 16 December 2002. 15 May 2003 and 5 June 2003, aged 34 years: on 15 May 2003 the defendant committed an offence of using a telephone service to call two women and claim that he had abducted the daughter of one of them and committed a number of sexual offences on her and otherwise harmed her. On 5 June 2003 he used a telephone service to call a female music teacher and threaten that he was going to rape her. He was sentenced to cumulative fixed terms of 12 months on each of these two charges and a term of 9 months with a non-parole period of one month (also cumulative) on another charge - effectively 2 years and one month before being eligible for parole. These sentences were imposed on 19 August 2004 and commenced on 5 November 2003. The non-parole period expired on 4 December 2005 and the head sentence expired on 4 August 2006. August and September 2003, aged 34 years: 7 counts of sexual intercourse with a female aged between 10 and 16 years, committed while awaiting sentence for the May/June 2003 offences. These are the offences referred to at [4] above, for which his sentence was close to expiry when the proceedings for an extended supervision order were instituted. The defendant was arrested on these charges on 26 September 2003 and remanded in custody. It appears that an aggregate sentence was imposed for the offences of August and September 2003, namely 4 years with a non-parole period of 3 years. These terms were ordered to commence on 24 October 2005, effecting a slight overlap with the sentences for the May and June 2003 offences. The head sentence for the offences of August and September 2003 was to run from 24 October 2005 to 23 October 2009.

[4]

Conduct since imposition of the ESO

On 16 December 2009 the Defendant became subject to the ESO with the conditions stipulated by Hall J.
On 15 January 2010 the Defendant was charged with a breach of his ESO in that he had contact with two children aged four and 11 years whilst they were in the care of their mother. Since the mother had not been previously approved by the supervising officer, that was a breach of condition 14.
On 12 January 2010 the Defendant was found in possession of a length of rope. He demonstrated that he knew how to make a noose and joked about grabbing someone with it. He then said that it was for making a clothesline.
In 16 January 2010 a search of the Defendant's room located two SIM cards and two knives. The Defendant said that he needed the knives for work. A decision was made permitting him to take one of the knives for work but not the other. The Defendant also said "these can be used as a weapon [referring to his hands, a chair and a table] and if I want, I can get a gun."
On 14 February 2010 the Defendant was charged with a further breach of his ESO between 12 and 14 February 2010 in that he had formed a sexual relationship with a woman whom he had met at a railway station.
On 16 February 2010 the Defendant was charged with failing to comply with his reporting requirements related to the Child Protection Register in respect of details of mobile telephones. The Defendant had acquired two additional mobile phones without reporting the details as required.
On 9 August 2010 the Defendant was sentenced as follows: (a) Breach of the ESO on 15 January 2010 by having contact with the children: five months and 29 days imprisonment commencing 14 February 2010; (b) Breach of the ESO on 14 February 2010 in failing to notify of a sexual relationship: eight months and 15 days imprisonment commencing 14 March 2010 with a non-parole period of six months and 11 days; (c) Breach of the Child Protection Register reporting requirements: convicted with no penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
On 14 December 2010 he was committed for trial to the District Court in respect of two historical sex charges that were committed on 9 October 1990 where he was identified from DNA as part of a cold case project. He was convicted of threatening to inflict actual bodily harm by means of a knife with intent to have sexual intercourse and having sexual intercourse without consent knowing the victim was not consenting. An offence of robbery committed at the same time was taken into account on a Form 1. He was sentenced on 25 July 2011 to a period of imprisonment for five years commencing 25 November 2010 and expiring 24 November 2015 with a non-parole period of three years expiring 24 November 2013.
By reason of the sentences for the breaches of the ESO and the sentence for the historical sex offences the Defendant was continuously in custody from 15 February 2010 until 15 April 2015 when he was released to parole. The ESO then recommenced.
On 9 August 2015 the Defendant made a series of phone calls to an adult woman who had visited Providential Homes where the Defendant had been undertaking volunteer work. The last of the calls was answered. The Defendant then made a number of threats including that the victim would be kidnapped. During the call the Defendant gave several personal details of the victim and said that he had been following her for four weeks.
On 24 August 2015 the Defendant contacted the ESO monitoring team. He told them that he had done something bad and needed to hand himself in. In a second call to them he told them that he had used someone else's phone and rung a random number and made threats to kidnap the unknown male who answered the call. He said he was having a difficult time in the community due to being a schizophrenic and had not been taking his medication. It is not known if this phone call was, in fact, made.
On 27 August 2015 the Defendant was arrested. He was charged with an offence of stalk or intimidate intending to cause fear contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) and using a carriage service to menace, harass, or offend contrary to s 474.17(1) of the Criminal Code (Cth). The Criminal Code charge was later withdrawn.
On 26 November 2015 he was also charged with two counts of breach of the ESO. One charge related to the commission of the stalk/intimidate offence and the other was for failing to notify his DSO of an intimate partner. The intimate partner was an employee of Providential Homes who had been supervising the Defendant's volunteer work there.
On 11 February 2016 he was sentenced on the stalk/intimidate count for 16 months imprisonment commencing 26 August 2015 and expiring 25 December 2016 with a non-parole period of 12 months concluding on 25 August 2016. The sentence for the failure to comply with the ESO by committing the stalk/intimidate offence was made wholly concurrent while the sentence for the other failure to comply commenced on 26 September 2015 for 16 months with a non-parole period of 12 months concluding on 25 September 2016. The effective overall sentence was one of 17 months concluding 25 January 2017 with a non-parole period of 13 months concluding on 25 September 2016.
On 12 September 2016 the Defendant's parole was revoked because of problems with accommodation for the Defendant with the result that he remained in custody until released on 25 January 2017.

[5]

Legal principles

In Wilde v State of New South Wales [2015] NSWCA 28 the Court of Appeal dealt with the issue of the appropriateness of conditions in an ESO. The Court there said: [53] Care always needs to be taken with use of language which is different from the statutory text. Section 11 does not require that there must be a specific demonstrated link to the past offending which is the basis of the order made under the Act. Rather, the court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order. [54] As the cases to which we have referred correctly state, it is not appropriate for the court under s 11 to impose conditions on a person directed to general future criminal conduct. But the condition does not have to have a 'demonstrated' link to the past offending in the sense submitted by the appellant. Conditions C(19) and E(30) provide a good example of conditions that may be appropriate notwithstanding that the past sex offences did not involve conduct of the type constrained by such conditions. Here, the appellant's serious sex offences had no connection with any association with an Outlaw Motorcycle Gang. Nonetheless, for the reasons we explain below, at [69]-[70], there was no error in his Honour imposing conditions prohibiting the appellant's association with such groups.
The Court also said in relation to the purpose and objects of the Act: [49] The statutory objects listed in s 3 are twofold: the safety and protection of the community and encouraging high risk offenders to undertake rehabilitation. However, it is apparent from the language of s 3 that the listed objects do not exhaustively delineate the scope and purposes of the Act. This is apparent, in particular, from the language of subs (2), which refers to encouraging rehabilitation as being "another object of this Act". Thus, whilst s 3(2) specifies that an object of the Act is to encourage offenders to undertake rehabilitation, the scope and purpose of the Act is such that it would be permissible for the court, if it considered it appropriate, to impose a condition directed to facilitating rehabilitation, even if that did not require the offender personally to "undertake" rehabilitative steps as is envisioned in the statutory object in s 3(2). It may be appropriate in a particular case to impose conditions that may reduce risk factors relevant to the particular type of offending to which the order made under s 11 relates.

[10]

Submissions

The relevance of the search and seizure conditions related to three things being mobile telephones, drugs and weapons. In that regard the Plaintiff drew attention to the fact that when the Defendant was searched on 16 January 2010 two SIM cards were found. Further, in the case note reports of the Department of Corrective Services for 27 June 2015 reference is made to the fact that the Defendant was observed to have purchased a SIM card a day or so earlier. At first he repeatedly denied that he had made such a purchase but when he was told he had been seen he then said that he purchased it for another resident at the premises where he was living.
I have also referred above at [11] to the acquisition by the Defendant of additional mobile phones without disclosing, for some time, that he had them. The Plaintiff submitted that those incidents demonstrate that condition 27A was of limited usefulness in the absence of a search provision. A search provision would not only assist in that regard in minimising the risk of future offending but it would also enable the Plaintiff's DSO to monitor the making and maintenance of clandestine relationships prohibited by the conditions. The Plaintiff submitted that previous searches of the Defendant were only possible because of the conditions attached to the Defendant's residence at the Community Offender Support Program (COSP). The Defendant was no longer living at the COSP and the DSO would be unable to conduct a search if the officer reasonably believed such a search was necessary.
The Plaintiff drew attention to the information in Professor Greenberg's report of 19 October 2015 that the Defendant admitted to having used heroin intravenously whilst in prison recently on at least a dozen occasions. Condition 20(c) prohibits the Defendant from possessing or consuming illicit drugs. The Plaintiff submitted that the search provisions were necessary from the point of view of weapons by reason of the knives that were found on the Defendant in the January 2010 search.
The Defendant submitted that condition 27A is sufficiently wide to address the risk of further offending and could be amended to cover other mobile type devices such as tablets which did not exist when the conditions were put in place in 2009. The Defendant drew attention to the fact that he disclosed the use of the phone of another person in August 2015 and in any event that the opportunistic use of another person's phone would not be prevented by the search provisions.
The Defendant submitted that such a wide ranging search and seizure power as is contained in condition 43 which is outside the scope of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) is not necessary for the purposes of the Act. The Defendant submitted that that Act gave quite sufficient power to a police officer who suspected on reasonable grounds that an offence had been or was about to be committed and that a search was warranted in those circumstances for something in the form of a weapon. The Defendant drew attention to the difference between what a police officer was required to believe or suspect under the Law Enforcement (Powers and Responsibilities) Act and the wording in clause 43. In relation to the matter of drugs the Defendant submitted that condition 20 already permitted drug and alcohol testing if it was suspected that the Defendant had consumed alcohol or illicit drugs.
The Defendant submitted that there was no definition of "serious offence" as referred to in condition 43(c) and in that regard the reference was too vague and was not connected to the risk which was sought to be mitigated. The Defendant submitted that condition 43 gave an unacceptably wide power with limited safeguards and that it was a significant curtailment of his right to liberty in circumstances where his liberty is already significantly curtailed. The Defendant submitted that the offending which involved knives happened many years ago and was not a feature of what occurred in 2015.

[11]

Determination

In my opinion, the inclusion of the search and seizure provisions in conditions 43 - 47 are appropriate because they address the risk of future offending of the type which was the basis of the order and of the subsequent offending in the manner discussed hereafter.
The use of telephones to satisfy the Defendant's diagnosed disorders appears clearly from some of the offences for which the Defendant has been convicted. Whilst some of those offences involving the telephone have not involved the commission of serious sexual offences as defined in the Act the unresolved nature of the Defendant's conditions means, as the psychiatrists have said, that he is at moderately high risk of committing further serious sexual offences. It is not disputed that condition 27A was and is an appropriate condition to impose on the Defendant. It is not disputed that condition 42 is an appropriate condition to impose upon the Defendant. Those conditions are appropriate because they attempt to address the risk of further offending of the type which was the basis of the order. Conditions 43-47 assist in the enforceability of those accepted conditions.
Mr Samuel Ardasinski, a senior psychologist in the Serious Offenders Assessment Unit, prepared two reports in 2016 on 29 July and 22 December assessing the Defendant's current risk. These reports addressed the proposed amended conditions of the ESO.
In his executive summary in respect of his report of 29 July 2016 Mr Ardasinski comments that the Defendant has found the conditions placed on his liberty overly restricted and suggested that they were more onerous than living in prison. He noted in the report the Defendant's sense of grievance about the restrictions in his ESO, and Mr Ardasinski commented that it is possible he committed the 2015 offence (stalk/intimidate) in an effort to assert his power and dominance over somebody because he felt helpless due to his ESO. When discussing the proposed condition 48 he said that it was likely to have the effect of making the Defendant feel further victimised and aggrieved at the restrictions on his liberty which was counterproductive to having an effective supervisory relationship built with the ESO team. He made further reference to that matter elsewhere in the report.
However, in relation to the proposed conditions concerning search and seizure Mr Ardasinski said this: Given Mr McCarthy's capacity for deceit and obfuscation, as evidenced by his commencement and continuation of an intimate relationship unbeknownst to his supervising officer in 2015, there would seem to be a legitimate rationale for a measured approach to searching him when his supervising officer may have reason to do so, and seizing any item which could be seen to be contributing to an increased risk. This would likely not be seen as contributing further to Mr McCarthy's perception of his ESO conditions as punitive, since he had similar conditions as part of his rules for living in the Campbelltown COSP in 2009-2010. Furthermore, if Mr McCarthy is found to be in possession of multiple mobile phones, this can be examined in relation to effective risk management, so as to potentially avoid further illegal behaviour using phones registered in someone else's name.
He further concluded (at paragraph 53) that a review of the Defendant's ESO conditions was warranted and that the only one that Mr Ardasinski could see might have some moderating effect on the Defendant's behaviours would be the condition permitting search and seizure because it may have the possible impact of alerting his supervising officer to additional mobile phones or correspondence which might alert them to the existence of undeclared relationships in the future.
The Defendant's reliance on the right of a police officer to search under the Law Enforcement Act does not come to grips with the risks that are sought to be mitigated in relation to possession of multiple mobile phones, SIM cards or other similar devices. It is precisely because a police officer would, in the ordinary course, have no right to search for a mobile phone that the search power sought here is needed. Further, it may be accepted that a police officer could search for weapons or drugs if he or she satisfied the provisions of that Act but it is entirely impractical that the DSO should have to involve the police at least in the first instance. The ESO scheme is based on the relationship between the DSO and the supervised person.
In relation to the Defendant's submission about the opportunistic use of someone else's phone, it may be accepted that such an occurrence is possible and has in fact occurred in the present matter. However, the fact that the proposed condition will not prevent every transgression is no reason to reject it if it is likely to assist in detecting many or most transgressions.
There is one further matter to be taken into account in deciding whether the search and seizure conditions are appropriate. When the Defendant was last at liberty he resided at a COSP. It was a condition of his residence there that on reasonable suspicion he was able to be searched. His residential arrangements are now different and no condition attaches to his present residence that permits searches to be carried out.
Although this would not have been a factor to be taken into consideration if there had been no matters of significance found in the searches carried out in 2015, such was not the case. As was noted earlier in a search carried out on 16 January 2010 he was found with two SIM cards and two knives. There was the further occasion referred to at [33] above where he was observed to have purchased a SIM card but denied it when confronted. Further, his use of a phone on 9 August 2015 that led to the charging of the offence of stalk or intimidate again pointed to the gap in enforcement of other conditions where he was no longer living at the COSP.
I am satisfied that the search and seizure conditions are warranted and appropriate to address, and attempt to minimise, the risk of further offending. I do not consider that the terms of condition 43 are too wide. When the matter was argued the Plaintiff's proposed condition 43c referred to a "serious offence" without any definition of what that meant (see [4] above). The Defendant drew attention to the fact that a link between "serious offence" and the definition in the Act was no longer apparent because condition 4, which made the link, was being omitted. Further, the definition of "serious offence" in s 4 of the Act might be thought to include "serious violence offence" which was not relevant in the present matter.
Accordingly, the Plaintiff has both amended condition 43c so that it makes reference to a "serious sex offence" and has included a definition related to the definition in s 5(1) of the Act. The Plaintiff did not, however, make a similar amendment in condition 45. The conditions which will be imposed by this judgment will make such an amendment.
The conditions of the ESO should be varied as set out in Annexure B to this judgment.

[18]

Internet and pornography 16(a) The defendant must not possess child pornography and must not access, or attempt to access, child pornography by any means. (b) Without limiting sub-paragraph (a), the defendant must not access the internet to view or to download child pornography. 17. The defendant must comply with any direction made by the Departmental supervising officer regarding access to the internet by him, and without limitation the Departmental supervising officer may direct the defendant to use on any computer a parental lock or other device or software that may restrict access to or permit access only to certain web sites. 18. The defendant must not attempt to or access the internet by the use of any computer available in any internet cafe or internet kiosk or other public area without the prior approval of the Departmental supervising officer. 19. If and as directed by the Departmental supervising officer, the defendant must: (a) permit the Departmental supervising officer, and any computer technician employed or engaged by or on behalf of the Department to assist or advise the Departmental supervising officer, to access and inspect any computer owned by the defendant, including the temporary removal of the computer from his place of residence for the purpose of inspection; (b) take all available steps to permit the Departmental supervising officer and the computer technician to have access to and inspect any computer used by but not owned by the defendant; (c) provide the Departmental supervising officer and the computer technician with any requested assistance to enable them to access and inspect any computer owned or used by the defendant, including providing them with any required passwords; (d) permit the Departmental supervising officer and the computer technician to make copies of any files or materials on any computer owned by the defendant that the Departmental supervising officer reasonably believes may be relevant to the management of the defendant's risk of re-offending.

[21]

[22]

Treatment obligations 28. The defendant must undergo a comprehensive assessment (and further assessments from time to time) including medical examination, pathological investigations, psychometric testing and radiological imaging to be conducted and/or arranged by the Community Forensic Mental Health Service (CFMHS) or the Area Mental Health Service (AMHS), to determine what is required for treatment, including control, of the defendant's psychiatric condition, and potential for sex offending. 29. The defendant must accept psychological and psychiatric assessment and treatment as may be arranged or provided by an AMHS (or CFMHS or Justice Health), including counselling, psychological therapy, and must take any psychiatric medication if and as prescribed. 30. Without limiting paragraphs 28 and 29 above, the defendant must accept sex drive reduction medical treatment or any other therapy, including anti-libidinal treatment, if prescribed by a medical practitioner, as may be provided by CFMHS, Justice Health, an AMHS or any medical practitioner (excluding anti-libidinal medication). 31. [blank] 32. The defendant must attend medical consultations, physical examinations, pathology testing, and medical imaging as may be directed by the Area Health Service, CFMHS or Justice Health at such frequencies, venues and times as directed by his treating clinicians. 33. If directed by his Departmental supervising officer, the defendant must accept such psychological intervention by psychologists employed by the Department as may be offered to him, and must participate in all such rehabilitation treatment and programs as may be directed by the Departmental supervising officer. 34. The defendant must consent to the disclosure of confidential medical information as between the general practitioner and any treating psychologist and/or psychiatrist and the Departmental supervising officer. 35. The defendant must forthwith disclose to the Departmental supervising officer the identity of any other medical or mental health practitioner that he consults.

[24]

Review 40. At the expiration of 6 months from 21 October 2009 (and at the end of each six monthly period thereafter, if the defendant is still then subject to electronic monitoring), the continued need for the defendant to wear the electronic monitoring equipment will be reviewed by the Commissioner. 41. At the expiration of 12 months from 21 October 2009 or such shorter period as the Commissioner of Corrective Services may advise {and at the end of each 12 month period thereafter), the conditions the subject of the defendant's risk management plan, as contained within the schedule to the orders made by the Court at the final hearing, will be reviewed by the Commissioner with a view to possible adjustment of such plan and/or consideration by the State of an application to the court to vary the conditions if considered appropriate For the purpose of the review, the Commissioner may consult with (either jointly or separately) any treating psychiatrist or psychologist and the defendant. For the purpose of this condition, the Commissioner may act through an authorised officer. ANNEXURE B: EXTENDED SUPERVISION ORDER: Conditions Applicable To Rodney Raymond McCarthy Oversight For the purpose of these conditions, the Departmental supervising officer is the person authorised from time to time by the Commissioner of Corrective Services to manage and supervise the defendant pursuant to the extended supervision order. The Department is the Department of Justice and Attorney General ("the Department"). Corrective Services NSW is a division of the Department. The Community Compliance Group ("the CCG") and Probation and Parole are each part of Corrective Services NSW. Reporting and monitoring

For the duration of the supervision order, the defendant must accept the supervision of the CCG for so long as the CCG is involved in the supervision of the defendant and, for any period that the supervision of the defendant is transferred from the CCG to Probation and Parole, the defendant must accept the supervision of Probation and Parole.
The defendant must report personally once a week to the Departmental supervising officer or otherwise as directed by that officer.
The defendant must comply with any reasonable direction given by the Departmental supervising officer or any other Departmental officer who may from time to time be involved in the supervision of the defendant.
[omitted]
The defendant must wear such electronic monitoring equipment as may from time to time be directed by the Departmental supervising officer and must comply with all instructions given by a CCG Officer in relation to the operation of such equipment. The defendant must not tamper with or remove, or attempt to remove, such equipment.
If directed by the Departmental supervising officer, the defendant must inform the Departmental supervising officer of his proposed daily movements 48 hours in advance (or for a lesser period if directed by the Departmental supervising officer) by providing a schedule in writing (or as otherwise directed by that officer) and must obtain prior approval from that officer for any proposed change. Accommodation
For the duration of the supervision order the defendant must reside at such accommodation as is approved in advance by the Departmental supervising officer. Note It is envisaged that initially the defendant will reside at a Community Offenders Support Program (COSP) centre for a period of up to six months.
The defendant must accept visits at his approved accommodation, including visits without prior notice, by the Departmental Supervising Officer or any other departmental officer.
If directed by his Departmental supervising officer, the defendant must be at his approved address between the hours of 9pm and 6am the following morning, unless either these specified hours are varied by the Departmental supervising officer or the defendant's presence at another place during the specified hours has been approved in advance by the Departmental supervising officer.
The defendant must not leave the State of New South Wales without the written permission of the Commissioner of Corrective Services ("the Commissioner") or his delegate. Restrictions on employment and other activities Employment
The defendant must not undertake employment other than that which has been approved by the Departmental supervising officer. Non-association generally
The defendant must not contact or associate with any persons specified by the Departmental supervising officer.
Without limiting paragraph 12 above, the defendant must not contact or communicate by any means with, or attempt to contact or communicate by any means with, the victims of the sexual offences for which the defendant was convicted and sentenced on 28 August 1987, 17 December 1992, 23 March 2005 and 27 July 2011, the victims of the three offences under s. 85ZE(1)(b) of the Crimes Act 1914 (Cth) (use carriage service in offensive manner) for which the defendant was convicted and sentenced on 3 May 2004, and the victim of the offence under s.13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (stalk or intimidate intending to cause fear) for which the defendant was convicted and sentenced on 11 February 2016. Non-association with children
The defendant must not approach or have any contact with children under the age of 18 years unless in the presence of an appropriate adult (being a person previously approved by the Departmental supervising officer for the purpose of this condition).
The defendant must not attend any schools, pre-schools, day care centres, amusement parlours, children's playground, or area in a park where children are present, caravan parks or houses where children aged under 18 years ordinarily reside, and any such further place as the Departmental supervising officer may direct, unless the defendant is accompanied by a person approved in advance by the Departmental supervising officer. Internet and pornography 16(a) The defendant must not possess child pornography and must not access, or attempt to access, child pornography by any means. (b) Without limiting sub-paragraph (a), the defendant must not access the internet to view or to download child pornography.
The defendant must comply with any direction made by the Departmental supervising officer regarding access to the internet by him, and without limitation the Departmental supervising officer may direct the defendant to use on any computer a parental lock or other device or software that may restrict access to or permit access only to certain web sites.
The defendant must not attempt to or access the internet by the use of any computer available in any internet cafe or internet kiosk or other public area without the prior approval of the Departmental supervising officer.
If and as directed by the Departmental supervising officer, the defendant must: (a) permit the Departmental supervising officer, and any computer technician employed or engaged by or on behalf of the Department to assist or advise the Departmental supervising officer, to access and inspect any computer owned by the defendant, including the temporary removal of the computer from his place of residence for the purpose of inspection; (b) take all available steps to permit the Departmental supervising officer and the computer technician to have access to and inspect any computer used by but not owned by the defendant; (c) provide the Departmental supervising officer and the computer technician with any requested assistance to enable them to access and inspect any computer owned or used by the defendant, including providing them with any required passwords; (d) permit the Departmental supervising officer and the computer technician to make copies of any files or materials on any computer owned by the defendant that the Departmental supervising officer reasonably believes may be relevant to the management of the defendant's risk of re-offending.

[27]

Further matters 25. Should the defendant propose to enter into a relationship with a woman ("the other person"), which the defendant anticipates or hopes will develop into an ongoing relationship involving sexual or intimate contact, he must notify the Departmental supervising officer at the earliest opportunity. The Department supervising officer may disclose the defendant's offence history to such other person if the officer is satisfied that to do so is necessary or desirable in the interests of the safety of the other person or any children of, related to, or in the care of that other person. 26. [omitted] 27. The defendant must not threaten harm to his departmental supervising officer or any other Departmental officer and must not engage in any inappropriate sexualised behaviour or language towards his Departmental supervising officer or any other Departmental officer. 27A. If and as directed by the Departmental supervising officer, the defendant must: (a) permit the Departmental supervising officer to access and inspect any telephone (including any SIM Card) owned by the defendant and any records relating to such telephone (including any SIM Card); (b) allow the Departmental supervising officer to make copies of any records relating to any telephone (including any SIM Card) owned by the defendant that the Departmental supervising officer reasonably believes may be relevant to the management of the defendant's risk of re-offending. (c) provide the Departmental supervising officer with any requested assistance to enable him or her to access and inspect any telephone and SIM card owned or used by the defendant, including providing him or her with any required passwords; and (d) take all available steps to permit the Departmental supervising officer to have access to and inspect any telephone used by but not owned by the defendant. Treatment obligations 28. The defendant must undergo a comprehensive assessment (and further assessments from time to time) including medical examination, pathological investigations, psychometric testing and radiological imaging to be conducted and/or arranged by the Community Forensic Mental Health Service (CFMHS) or the Area Mental Health Service (AMHS), to determine what is required for treatment, including control, of the defendant's psychiatric condition, and potential for sex offending. 29. The defendant must accept psychological and psychiatric assessment and treatment as may be arranged or provided by an AMHS (or CFMHS or Justice Health), including counselling, psychological therapy, and must take any psychiatric medication if and as prescribed. 30. Without limiting paragraphs 28 and 29 above, the defendant must accept sex drive reduction medical treatment or any other therapy, including anti-libidinal treatment, if prescribed by a medical practitioner, as may be provided by CFMHS, Justice Health, an AMHS or any medical practitioner (excluding anti-libidinal medication). 31. [blank] 32. The defendant must attend medical consultations, physical examinations, pathology testing, and medical imaging as may be directed by the Area Health Service, CFMHS or Justice Health at such frequencies, venues and times as directed by his treating clinicians. 33. If directed by his Departmental supervising officer, the defendant must accept such psychological intervention by psychologists employed by the Department as may be offered to him, and must participate in all such rehabilitation treatment and programs as may be directed by the Departmental supervising officer. 34. The defendant must consent to the disclosure of confidential medical information as between the general practitioner and any treating psychologist and/or psychiatrist and the Departmental supervising officer. 35. The defendant must forthwith disclose to the Departmental supervising officer the identity of any other medical or mental health practitioner that he consults.

[28]

Disclosure of information 36. The defendant must waive his right to the confidentiality of all information disclosed by him during treatment to his treating doctors, including any psychiatrist or other specialist, and any psychologist. 37. The defendant must consent to his Departmental supervising officer and other departmental officers involved in his supervision (including from the CCG) accessing all relevant information regarding the defendant's progress while subject to supervision, which may include confidential medical information disclosed in the course of his treatment. 38. The defendant must agree to the sharing of all information between his Departmental supervising officer, other Departmental officers (including from the CCG), officers from Justice Health/CFMHS, the defendant's general practitioner and any treating psychologist or psychiatrist 39. The defendant must agree that, if the Departmental supervising officer considers it appropriate to do so, the Departmental supervising officer may provide to any prospective or actual employer of the defendant information relating to the defendant's criminal history and may notify such prospective or actual employer that the defendant is subject to a supervision order and of the terms of the order. Review 40. At the expiration of 6 months from 21 October 2009 (and at the end of each six monthly period thereafter, if the defendant is still then subject to electronic monitoring), the continued need for the defendant to wear the electronic monitoring equipment will be reviewed by the Commissioner. 41. At the expiration of 12 months from 21 October 2009 or such shorter period as the Commissioner of Corrective Services may advise {and at the end of each 12 month period thereafter), the conditions the subject of the defendant's risk management plan, as contained within the schedule to the orders made by the Court at the final hearing, will be reviewed by the Commissioner with a view to possible adjustment of such plan and/or consideration by the State of an application to the court to vary the conditions if considered appropriate For the purpose of the review, the Commissioner may consult with (either jointly or separately) any treating psychiatrist or psychologist and the defendant. For the purpose of this condition, the Commissioner may act through an authorised officer. Additional conditions 42. 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. 43. If the DSO reasonably believes 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 sex offence; then the DSO may direct, and the defendant must submit to: d. search and inspection of any part of, or any thing in, the defendant's approved address; e. search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant; f. search and inspection of any part of, or any thing 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. NOTE: "Serious sex offence" means a serious sex offence as defined in s. 5(1) of the Crimes (High Risk Offenders) Act 2006. 44. 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. 45. During a search carried out pursuant to condition 43 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 sex offence. 46. The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use. 47. 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 [43] to [46] above. 48. The defendant must not carry on his person, at any time he has left his residence, any knife, or other cutting instrument, unless permission has been granted in advance by the DSO.

State of New South Wales v McCarthy - [2017] NSWSC 24 - NSWSC 2017 case summary — Zoe