State of New South Wales v McQuilton

6 months parole; expiry of term; first supervision order January 2014

1. On 20 July 2012 the defendant was released on parole. After only six months his parole was revoked due to non-compliance with conditions, including those relating to him taking psychiatric medication. Psychiatrists in Justice Health had prescribed for him anti-depressant medication from about 2009 or 2010 and anti-psychotic medication from 2010 or 2011. According to the Breach of Parole Report the defendant was avoidant and passive-aggressive toward officers supervising his parole. He did not act upon treatment recommendations of Dr Sowden, a psychologist he was consulting in Albury. On about 10 January 2013 the defendant told Dr Sowden that he had been "having thoughts of hurting young females" and she expressed to the supervising officers a high level of concern that it was "only a matter of time until he re-offends".
2. On 12 January 2013 the defendant was returned to custody. On 31 October 2013 Michael Adams J granted an application by the plaintiff for an interim supervision order, to commence upon the defendant's release at the expiration of his head sentence on 4 November 2013. Adams J appointed two psychiatrists, Dr Andrew Ellis and Dr Samson Roberts, under s 7 of the Act to examine the defendant and to furnish reports. The interim supervision order was renewed and continued until R A Hulme J decided the question of extended supervision on a final basis.
3. On 24 January 2014, following a hearing in December 2013, R A Hulme J made a final ESO pursuant to s 9 of the Act for 2 years and 6 months: State of New South Wales v McQuilton [2014] NSWSC 11. The making of the order was not opposed. Although the plaintiff originally sought that it should continue for 5 years, the period of 2 years and 6 months was ultimately agreed between the parties and was accepted by his Honour as "an adequate and appropriate term" (at [56]).
4. On that application Dr Ellis gave evidence of a history received from the defendant that he had watched a great deal of pornography from the age of 14 and that this had escalated, in duration and content, up to between six and eight hours daily of violent pornographic material prior to the offence of 31 July 2008. Dr Ellis considered it highly likely the defendant was exhibiting "the prodrome of a psychotic disorder like schizophrenia". He diagnosed Sexual Sadism Disorder, Voyeuristic Disorder, Gambling Disorder and Alcohol Use Disorder.
5. As at December 2013 Dr Roberts diagnosed schizophrenia and noted the defendant had been on antidepressants since 2009 and on antipsychotic medication during 2013. He considered that the dosage of the latter should be increased and that there was potential for dramatic escalation of risk of further offending if the defendant did not comply with his medication regime.
6. Before R A Hulme J the defendant opposed a condition for electronic monitoring of his movements. Dr Ellis supported the utility of such a condition and Dr Roberts considered there was no strong argument either for or against it. His Honour stipulated conditions which required that the defendant wear a monitoring device as directed by his Departmental Supervising Officer ("DSO") from time to time. This gave Community Corrections flexibility to dispense with monitoring should it be found unnecessary. The conditions fixed by his Honour included that, if directed by his DSO, the defendant should provide a seven-day schedule, three days in advance, and adhere to it except in emergency or if he should give 24 hours' notice of change.
7. Both doctors supported some control over the defendant's access to pornographic material. His Honour imposed a condition that prohibited the defendant possessing or viewing pornography "that is Refused Content, Restricted Category 1 [or] Restricted Category 2" or any other pornography as directed by his DSO. He was not permitted to view any pornography online or to download pornography. He had to comply with any direction of his DSO regarding access to the Internet and to permit access to and inspection of any electronic device.

Psychiatric state when supervision order made on 24 January 2014

1. The report of Dr Ellis upon which R A Hulme J relied was based upon an examination of the defendant on 8 November 2013. The defendant told Dr Ellis that when he committed the offence in 2008 he had been very depressed and had been watching 6-8 hours per day of violent pornography. He said he had been fantasising about committing a rape and about sadistic sexual acts and acts of masochism. He had also been engaged in voyeurism, looking through the windows of people's homes. The defendant told Dr Ellis that during his release on parole for six months in the second half of 2012 he had again been watching violent pornography for 6-8 hours per day. It appears that his fantasies about sexual violence continued right up to when Dr Ellis interviewed him.
2. Dr Ellis thought the defendant exhibited "deviant sexual arousal" and said: The diagnosis of primary concern is the paraphilia disorder Sexual Sadism Disorder. He has experienced for years intense sexual arousal derived from images and fantasy of the physical and psychological suffering of others. He has regularly masturbated to these fantasies. His offending behaviour is directly linked to this pattern of sexual arousal. Deviant sexual arousal is consistently identified as the most prominent risk factor for sexual re-offence. [The defendant's] index offence indicates this pattern of arousal, as does his report of engaging in voyeurism. There is a direct nexus between his masturbatory fantasy and criminal action. His behaviour escalated from fantasy to planning and mental rehearsal, actual voyeuristic rehearsal to action. Serious physical coercion was employed. He is not diagnosed with antisocial personality disorder, however has displayed poor interpersonal function during incarceration and when on supervision. … Personality difficulties often lead to conflict within relationships, and subsequent distress and negative mood states associated with offending. He describes long-term relationship dysfunction. There is therefore a need continually to address personality function as part of any ongoing treatment process. He has shown a propensity to mental state instability, particularly a dysphoric mood with anger and anxiety, associated with likely persecutory delusions and hallucinations. While unstable mood states per se are not usually associated with sexual offence recidivism, in this case relapse to a dysphoric or psychotic mental state can be associated with a disinhibition of his sexually deviant urges, or relationship function and is therefore a treatment target to reduce the likelihood of repeat behaviour.

2 months' liberty from February 2014; 12 months imprisonment

1. On 30 December 2013, whilst R A Hulme J's decision was reserved, the defendant breached his interim supervision order. He removed the electronic monitor which had been fitted under the interim order and concealed it in vegetation in Hyde Park, Sydney. He was found at 5:30 pm in the grounds of an Eastern Suburbs school (not at the time attended by any pupils), having apparently consumed most of a bottle of bourbon. For this breach the defendant was charged and upon conviction sentenced to 45 days imprisonment. He served that term from 31 December 2013 to 13 February 2014.
2. Upon release on 13 February 2014 the defendant entered accommodation at Nunyara Community Offender Support Program ("COSP"), a centre for community-based offenders managed by Corrective Services. Over the next two months he sought employment but also engaged in gambling. He consulted with Community Corrections staff at Nunyara about counselling for gambling and about maintaining appointments with a psychiatrist, Dr Jacobson. He told the staff he was unwilling to engage socially in group settings, such as sporting clubs, while he was being electronically monitored. There is no evidence regarding his psychiatric symptoms during these two months however he later told Dr Furst that in this period: "I was so frustrated with the level of restriction … being called if I was 15 minutes late."
3. On 16 April 2014 the defendant breached R A Hulme J's ESO in three respects. He removed his electronic monitor, exceeded his curfew by failing to be in approved accommodation between 9:00 pm and 6:00 am and departed from his approved schedule without 24 hours' notice. When contacted by phone after removing the monitor the defendant refused a Community Corrections officer's direction to return to his accommodation saying "I'm not going back to gaol. It is not living on this order and I'm not doing it anymore. I've had enough". Police were notified. When they called his mobile number he said he had lost all his money gambling and would not be told how to live his life. The defendant subsequently told Dr Furst that when he cut the monitor off his ankle: "it was to express how frustrated I was living under their ridiculous conditions"
4. Later on the same day, the defendant approached a car that was stationary on a street in Bondi Junction, assaulted the driver, forced her out of the vehicle and drove off. In doing so he collided with another car. Late that evening he drove the stolen vehicle at high speed to escape a police pursuit. The next day he drove south to Batemans Bay and then via Canberra to Albury. He used a stolen credit card to purchase goods along the way. On 18 April 2014 he crashed the vehicle in Wodonga, Victoria. Shortly afterwards he presented himself at Wodonga police station and was arrested.
5. Upon his return to New South Wales the defendant pleaded guilty to three counts of breaching the ESO. He was sentenced to imprisonment for 3 months from 18 April 2014 expiring 17 July 2014. He also pleaded guilty to and was sentenced for the assault with intent to take a motor vehicle, the police pursuit and the dishonest use of the credit cards. The first of these offences was the most serious and attracted a term of 2 years commencing 18 July 2014. A non-parole period of 9 months was fixed. He was released to parole on 17 April 2015. In all he was in custody for 12 months as a result of this episode.

6 months' liberty from April 2015; 9 months' imprisonment

1. Upon his release on 17 April 2015 the defendant returned to Nunyara for 3 months, then from early July 2015 moved to his own accommodation. There is no evidence of his psychiatric state between 17 April 2015 and October 2015. However from early September 2015 the defendant repeatedly expressed frustration to Community Corrections at the requirement for scheduling of his movements and the closeness of monitoring. The discretion to relax these constraints, which was available to the DSO under the order, was not exercised.
2. On 10 October 2015 the defendant breached his ESO by gambling (placing a number of debts at the Broadway TAB), exceeding his 10:00 pm curfew (attending cinemas on Broadway, entering the grounds of Sydney TAFE at Ultimo) and tampering with his electronic monitoring equipment in an attempt to remove it. The defendant failed to respond to phone calls from Community Corrections officers at this time. He did however return to his residential address in Annandale to which police were dispatched by Departmental supervising staff. He was arrested there "without issue". His mobile phone had pornographic material on it downloaded from the internet in contravention of the supervision order. He was charged with six breaches for which he was sentenced to concurrent terms of 9 months with a non-parole period of 6 months. The severity of this was appealed to the District Court but the sentence was confirmed. Parole was not granted and he served the full-term to 18 July 2016.

2½ months' liberty from July 2016; 1 month imprisonment

1. After his release on 18 July 2016 the defendant did not return to the private accommodation where he had lived for three months in 2015, prior to his most recent imprisonment. Instead he returned to Nunyara. There is no evidence of his behaviour, attitudes or psychiatric state during the 2 ½ months that he remained at Nunyara. This is not surprising as such a brief period of conditional liberty, under supervision, at a Corrective Services halfway house would not afford any opportunity to establish a settled program of psychological counselling or psychiatric treatment, or to seek and find employment or make social contacts.
2. On 29 September 2016 a Community Corrections officer accompanied by police attended the residence of a girlfriend with whom the defendant was then in a relationship. He was approved to stay with her overnight. Examination of the browser history of the defendant's laptop computer, found at the residence, showed that he had gained access to a site named 'Pornhub' on four dates during September. He admitted that he had watched pornographic material on this site irregularly, sometimes alone and sometimes with the girlfriend. This was in breach of clause 26(c) of the ESO which prohibited him having access to the internet to view or to download pornography. A second breach was constituted by his use of a wi-fi internet connection at the residence without prior notification to his DSO that he was using an internet service and without providing details of it. For these two breaches he was sentenced to imprisonment for 1 month from 30 September 2016 to 29 October 2016.

2 weeks' liberty in November 2016; 3 months' imprisonment

1. Upon his release the defendant returned to Nunyara. On 6 November 2016 he contacted his DSO and arranged to change his scheduled activities for the purpose of meeting a female friend at a coffee shop on Elizabeth Street, Sydney. He was detected by means of the electric monitor at locations in Hyde Park and on Pitt Street. When contacted by phone regarding these deviations from the agreed schedule he said, "I will do what I want". There followed "extensive consultation" between Community Corrections staff and the defendant, followed by a warning with respect to this breach.
2. Notwithstanding the warning, on 16 November 2016 the defendant again departed from his schedule albeit in a respect that does not appear to have been very serious. He had contacted the DSO and received approval to meet his female friend in Darlinghurst, to go with her to Hyde Park and from there to the library at Malabar. Instead, upon meeting the friend they went to Coogee Beach. The defendant was contacted by phone and said he was on his way to Malabar. He did turn up there shortly afterwards and was met by police who had been notified by the DSO. He admitted to police that he had made a mistake by going to a location which was not approved. He said he was impulsive and not thinking about the consequences. He was arrested, to which he raised the protest, "What, for this? It's so minor". The defendant was charged with this breach, pleaded guilty and was sentenced to imprisonment for 3 months from 16 to November 2016 to 15 February 2017.

18 months' liberty from February 2017; stable conduct

1. The defendant moved into his own accommodation in Annandale when he was released on 15 February 2017. His mother organised this for him and stayed there for the first five weeks to assist him with settling in. He was gambling on a regular basis between February and May 2017 but was able to stop with assistance gained through Gamblers Anonymous meetings. It appears that he attended weekly meetings over an extended period during 2017. The defendant obtained employment from March 2017 and continued in work, with a sequence of employers in various jobs, until he was again imprisoned for a short term from 9 August 2018 for breach of his ESO.
2. In February 2017 the defendant met his current partner, to whom I will refer as 'MS'. They were initially introduced online, then met in person and established a relationship. MS became pregnant in June 2017 and they commenced living together from November 2017. Also during 2017 the defendant commenced playing and umpiring Australian Rules football. He took part in a tennis competition. Through these sporting activities he made positive social contacts with people around his own age.
3. The defendant visited his family in Albury over Easter 2017, accompanied by MS. The defendant and MS also went on holiday with family members to Port Macquarie during November 2017 and visited them in northern Victoria around Christmas 2017. An officer within Corrective Services' Extended Supervision Team reported on 1 February 2018 that with respect to all of these visits out of Sydney there were "no reported incidents or concerns raised".
4. In a report dated 19 January 2018 Dr Parker, a senior psychologist in the Serious Offenders Assessment Unit of Corrective Services, reviewed the defendant's significantly improved compliance with his ESO following his release from prison on 15 February 2017. He recorded that there was no evidence of the defendant using any illicit substances and that throughout his periods of supervision, first on parole and then under the order, he had never been detected consuming alcohol when not permitted. The drinking on 30 December 2013 (referred to at [16] above) was the only exception. Since then the defendant had been given permission to drink moderately on several occasions and had apparently complied.
5. As at 19 January 2018 Dr Parker drew the following conclusions: [40] Since orders were first imposed under the Act, the above dysfunctional patterns have seen [the defendant] resist supervision (to the point of absconding on two occasions), engage in reckless gambling, exhibit various counter-productive cognitions, and generally be quite difficult to deal with. It is important to note, that despite this worrying presentation, there is no indication he came close to actually committing any form of sexual offence. In combination with the fact that [the defendant] has no prior convictions, this raises the possibility that his sexual offending may have been an aberration, rather than the logical endpoint of his various problems. [42] [The defendant] has only one conviction for sexual offending. While he has displayed numerous difficulties throughout his order, he does not appear to have headed toward any form of sexual offending. The endpoint of his poor behaviour appears to have been reckless gambling and struggles against the restrictions of supervision.
6. Soon after Dr Parker's report, on 1 February 2018 the Unit Leader of the defendant's supervision team made an assessment of his conduct and recommended that no further order under the Act be sought. That recommendation was adopted by the High Risk Offender Clinical Committee on 23 February 2018. From 3 March 2018 he was no longer required to submit schedules of weekly movements. On 6 May 2018 his electronic monitoring equipment was removed.
7. A son was born to MS and the defendant on 7 March 2018. The defendant reported to Dr Furst (in December 2018) that he "continued to struggle with symptoms of depression and anxiety after the birth of [his son]" and found contact with MS's parents "very awkward". He said that from March to August 2018 he also continued to feel frustration at being under supervision and he experienced paranoid feelings. According to a Community Corrections assessment of 11 June 2018 the defendant reported strain under the responsibility of parenthood, including being the sole financial provider, and that he was seeing Dr Rachel Paisley, a psychiatrist, monthly. He continued to engage with Forensic Psychology Services. In mid-2018 he increased his consultations with that Service from once per month to fortnightly. He was counselled to avert gambling but the evidence does not make clear what else these consultations were directed to. There is no suggestion that he was uncooperative with the Service.
8. From late May until 2 August 2018 the defendant saw Dr Paisley on four occasions. He admitted to her that he had ceased taking his antipsychotic medication in March 2018 because it made him lethargic. By the time of these consultations his paranoid symptoms had worsened and there were some indications of auditory hallucinations. Subsequent information from the defendant has raised the possibility that he may have ceased his medication in early 2017 but this is uncertain. Dr Parker concluded in a report of 16 October 2018 that it was possible that: he was able to contain his symptoms without medication (or with reduced, or inconsistent dosing) until a number of stressors overwhelmed his ability to do this [in mid-2018].
9. It was Dr Paisley's intention to try to keep him on antidepressant and antipsychotic medication and consult with him every three weeks. She commenced trialling a change of medication to try to achieve compliance.

Breach charged in August 2018 - viewing pornography

1. From 16 May 2018 to 9 August 2018 the defendant was viewing pornography on the internet using his phone, in breach of the ESO. This was unknown to his DSO until early August 2018. The defendant later told Dr Furst that he watched this material as an escape from his depression, anxiety, paranoid thoughts and frustrations. From May to early August 2018 he was watching videos on the site called 'Pornhub' sometimes 4-5 times per week and sometimes more sporadically, for up to 2 hours at a time. Subsequent examination of his phone showed that the material viewed consisted of videos of sexual activity between consenting adults.
2. During this period of increased pornography watching it is clear from Dr Paisley's observations that the defendant's psychiatric symptoms were not effectively controlled by medication and that the combination of additional stressors (financial and familial responsibility) with elevated psychotic symptoms had rendered him "disorganised, amotivated, vague and cognitively overwhelmed [what was likely to be the product of thought disorder]".
3. The browser history of the defendant's phone showed that on 3 August he made a search of "how to overcome porn addiction". On 7 August 2018 he disclosed to a psychologist at Forensic Psychology Services that he had been watching pornography since May of that year. He made the disclosure because he recognised that his viewing of pornography was against the terms of the extended supervision order. He said that "knowing he was doing the wrong thing was getting to him".
4. The conditions of the order permitted the psychologist to pass the information on to officers responsible for enforcement. The defendant's admission of having watched pornography was relayed to a Corrective Services Officer who attended at the defendant's home with police on 9 August 2018. The defendant freely admitted his viewing of pornography in breach of the order and provided his phone for examination. As a result he was charged with one count of breaching the order between 16 May 2018 and 3 August 2018, to which he pleaded guilty. He was sentenced in the Local Court to 7 months imprisonment commencing 9 August 2018, with a non-parole period of 2 months which expired on 8 October 2018.

Disruption caused by 2 months custody 9 August-8 October 2018

1. The defendant was released on parole after two months. I have not seen the Justice Health records of the defendant for this period of custody. Dr Furst's report of 21 January 2019 contains a summary of the triage assessment made on his reception at Parklea Prison. This records the names and dosages of antidepressant and antipsychotic medication Dr Paisley had prescribed. The defendant's description of his symptoms, including paranoid feelings and "random voices", is noted. It is unclear whether Dr Paisley's prescriptions were filled and administered throughout his custody on this occasion.
2. It is the common experience of this Court that upon reception into the prison system an inmate's medication will be stopped until a Justice Health doctor has made an assessment. This often leads to interruption of the treatment of psychiatric disorders. It is common knowledge that taking patients on and off medication of the type prescribed for the defendant can have a highly deleterious effect on psychiatric health. A note made by the defendant's DSO on 25 September 2018 indicates that he was seen in prison by a psychiatrist on 27 August (18 days after admission), that he was scheduled for a review on 28 September and that as at the date of the note he was receiving oral psychiatric medication.
3. The outcomes of previous prosecutions for breaches made it highly likely the defendant would again be sentenced to imprisonment following the laying of the charge on 2 August 2018 for watching pornography. Imprisonment from early August 2018 was certain to disrupt the psychiatric treatment of the defendant that Dr Paisley had embarked upon, to disrupt the defendant's employment, to create an upheaval in his endeavours to provide for his partner and young child (for whom he is the sole provider) and generally to add enormously to the stress of life. The defendant had been actively seeking and co-operating in psychiatric care for two months up to early August 2018. Prosecution and imprisonment at this time almost certainly did not serve the interests of protecting the community through management of the defendant towards rehabilitation.
4. This episode provides an illustration of why outright prohibition on pornography should not be a condition of any further ESO for this defendant. It is apparent that when such a condition is in place and is breached, Corrective Services officers and police exercise their prosecutorial discretion very readily in favour of laying a charge. The proper purpose of prosecuting a breach is to enforce compliance with the conditions, by securing a penalty to deter the defendant from future breaches. Prosecution should not be seen as a means of securing preventive detention. The Act does not provide for or envisage intermittent preventive custody as a means of protecting the community.

3 months' liberty under close surveillance in late 2018

1. A risk management report prepared by the defendant's DSO on 4 October 2018 supported reinstatement of electronic monitoring upon his release to parole, "to assist in re-establishing stability in the community". Reintroduction of weekly schedules was proposed "if he is not able to achieve stability in the community". Having regard to the defendant's history, it is not apparent why it was thought that re-imposition of these measures would assist in re-establishing him post-release or in reducing the risk of him reoffending. Since 3 March 2018 he had not been required to submit or abide by weekly schedules of proposed movements. Monitoring had last been in force up to 6 May 2018. The report suggested that regression to a higher level of surveillance would "assist in determining if [the defendant] is attending his treatment interventions and other positive activities such as employment". There was no issue that until his life was interrupted by the prosecution and imprisonment for watching pornography in August 2018 the defendant had been regularly attending his psychiatrist and (to the best of his ability) going to work.
2. While the defendant had been contravening the supervision order by watching pornography, from May to August 2018, his movements, free of scheduling and electronic monitoring at that time, had not caused any concern with respect to risk of sexual (or other) offending. There was no rational connection between the pornography-watching breach for which he had most recently been imprisoned and the reintroduction of monitoring of his movements upon release. Further, it is apparent from Corrective Services case notes that prior to May 2018 monitoring had caused immense pressure and frustration for the defendant and friction with his DSO.
3. In these circumstances I asked Ms Koro to explain why the DSO's recommendation was adopted by reattachment of the electronic monitor upon the defendant's release to parole on 8 October 2018. She answered as follows: I think the decision was made looking at the bigger picture, the broader picture, in terms of … monitoring can be used as a tool to identify attendance at risk locations. The only instance of a "risk location" given by Ms Koro was the gambling venue on Broadway, which the defendant had attended 18 months earlier. The evidence does not disclose, so far as I can see, a single instance of him being at a location which could be thought to give rise to an elevated risk of the commission of a further sexual offence of the kind to which his ESO was directed.
4. Monitoring continued for the next three months. Case notes during this period record frequent contacts with the defendant, either by SMS text message or by voice calls, requiring him to recharge his electronic monitor, to reset the beacon, to confirm what lights were displayed on the device and so on. There is evidence that staff of the electronic monitoring contractor were not easy to understand over the phone. Whatever the cause, the defendant at times found it difficult to deal with questioning over the phone about what he was doing and about the status of the equipment. The decision to regress the defendant to this intrusive form of surveillance has not been adequately explained to the Court on this application.
5. Within two weeks of his release on parole on 8 October 2018, the defendant commenced employment-specific courses at the Sydney Safety Training Centre at Guildford. He obtained work with Veolia for about three weeks from 6 November 2018. After that he was employed as a parks and gardens labourer and was engaged more or less continuously through to 3 January 2019, at which time his employment was interrupted once again by imprisonment. The employer is willing to re-engage the defendant upon his next release.
6. Following numerous communications between the defendant and his DSO, as well as verification checks made with the defendant's mother, he was permitted to travel to Tangambalanga, Victoria (31 km south of Albury) to visit his family on 19-21 October 2018. He completed this trip, accompanied by MS and their son, without incident. The visit was for the purpose of preparations for his sister's wedding. He applied for permission to travel to the same locality again on 9-10 November 2018, for the wedding itself. Although this request was made on 26 October 2018 and was followed up numerous times by the defendant, who was evidently anxious to know whether he could go to his sister's wedding or not, permission was not granted by the DSO until 7 November, two days before he was to leave. No evidence was led to explain why the defendant's anxiety could not have been relieved by giving him a decision with a more reasonable period of notice before departure.
7. The ESO made by R A Hulme J on 24 January 2014 expired on 16 November 2018. Its original term of 2 years and 6 months would have expired on 23 July 2016 but by operation of s 10(2) of the Act the defendant's periods of additional imprisonment caused it to be extended by 2 years and 4 months. On 20 August 2018, whilst in prison, the defendant was notified by the Crown Solicitor's Office that consideration was being given to an application for a further ESO beyond the expiry of the then current one. In late October 2018 the defendant was served with the plaintiff's summons. On 15 November 2018 Wilson J made an interim order: State of New South Wales v Daniel Anthony McQuilton [2018] NSWSC 1752.
8. It is clear from Community Corrections case notes that from the date of the defendant's release to parole on 8 October 2018 he was increasingly anxious about the prospect of a further order being made. Two days after Wilson J made the interim order, on 17 November 2018 the defendant attended upon his DSO in an evidently stressed and exhausted state, accompanied by MS. He had received an electronic copy of her Honour's reasons and of the order, the terms of which were discussed with him.
9. The defendant said at that time he felt under considerable stress of meeting commitments, including trying to provide for his partner and child, making the trip to attend his sister's wedding in order not to disappoint his family, preparing himself for these proceedings, fulfilling his employment commitments and attempting not to infringe the supervision order. He said he was overwhelmed by all of this. He confirmed he was continuing to abide by his psychiatric medication regime. MS expressed her concern that the defendant's mental health was not improving and that she thought he should be treated as an inpatient for a week.
10. Over the ensuing four weeks the defendant made enquiries about admission to a mental health facility and on some days felt too unwell to attend work. However the crisis subsided. Then on 15 December 2018 his DSO required him to provide a weekly schedule "for his upcoming activities". On 19 December he was requested to provide schedules for the next two weeks. He was upset by this and asked his DSO by phone why schedules were required. All she could tell him was that it was "a higher management decision". It is clear from the records that the defendant was intensely frustrated by being regressed to schedules, over his protests, without reason being given.
11. Ms Koro gave evidence that the decision to reintroduce schedules arose out of the defendant's disclosure during November 2018 that, prior to Wilson J making the interim order on 15 November, he had downloaded two "dating apps" to his phone. Police and Corrective Services officers subsequently searched the phone on 26 November, by which time the defendant had deleted the apps. According to Ms Koro, schedules were reintroduced: to provide a bit more structure, but also from the police perspective I recall they had concerns the schedules would ensure that he wasn't meeting up late at night with women that were strangers to him placing them at potential risk or the community at potential risk. Now, I do understand that there is a curfew in place if the DSO feels necessary which could cover the late at night. But … being put back on schedules that would ensure we've got a lot more notice or time to review activities, approve activities. For example, if he requested permission to attend a licensed premises, then his officer would have time to review that location both … [G]etting back to the structure, it would ensure he was attending therapy appointments, [Forensic Psychology Services] … gambling anonymous counselling. It was only supposed to be a temporary measure …
12. The fact that the defendant temporarily had dating apps on his phone, which he had deleted without ever having used them to arrange a meeting with anyone, does not appear to me to be logically connected with the reintroduction of schedules. As with monitoring, it was well known to the defendant's DSO that schedules were a source of stress for him and caused friction in their relationship.
13. The defendant was granted permission to visit his family at Tangambalanga for two days over Christmas. Again his partner and child accompanied him. He returned to Sydney without incident. During this trip his movements were evidently closely watched and from time to time he was called on his mobile phone to ask why he had stopped in a town or at a petrol station. Back in Sydney, having returned to work, on 28 December 2018 the defendant complained to his DSO that the reintroduction of schedules was a backward step having the result that he "could not even go to the corner shops for bread and milk without seeking permission". He said that even if he should step outside his home to have a cigarette he "receives phone calls … from [the electronic monitoring contractor] to report his activity".
14. The defendant attended Darling Harbour on New Year's Eve after his curfew hour of 9:00 pm to watch the fireworks. He was contacted by phone and told to return home, which in due course he did. This activity did not have prior approval and resulted not only in a warning but also cancellation of approval which had previously been given for a social activity on the evening of 2 January 2019. The defendant was prompted to express to his DSO the view "that someone was trying to make his life hard in the [Extended Supervision Order Team] and tried to cover themselves and him being restricted [in participation] in activities does not help with reintegration and rehabilitation in the community". He was told that social activities currently scheduled for after 9:00 pm were now disallowed and, in future, activities proposed for later than that hour would not be approved.
15. There is no evidence that this decision was preceded by any evaluation of proposed or contemplated future evening social activities, from the point of view of risks to the community or benefits to the defendant's mental health and reintegration. Nor does there appear to have been any evaluation of whether the defendant's conduct in a public place on New Year's Eve justified this form of evening home detention in order to ameliorate a heightened risk of the commission of an offence. The discretionary power of the DSO, under Wilson J's interim order of 16 November 2018, was apparently exercised upon exclusively punitive considerations in a manner that would, self-evidently, impede the defendant's engagement in prosocial activities.
16. On 3 January 2019 the defendant attended the Community Corrections office at Blacktown for a scheduled interview. His usual DSO was not present and in her place was the Unit Leader, Ms Koro. She enquired "about his current mental health" and expressed concern regarding a recent assertion by the defendant that he thought Corrective Services and police were "bugging" his home. The defendant said he had seen Dr Paisley five weeks earlier (in fact it was on 13 December 2018, less than 3 weeks earlier) and Ms Koro directed him to contact her as a priority the following week.
17. Ms Koro's case note records that "one of the purposes of the interview was to conduct a search of [the defendant's] mobile telephone to ensure he is complying with conditions of the order". The conditions of Wilson J's interim order of 15 November 2018 prohibited the defendant from accessing the internet "to view or to download pornography". Halfway through the interview on 3 January 2019 Detective Broadie entered the room, evidently by pre-arrangement, and commenced to examine the defendant's phone. It was found that he had accessed the pornographic website 'Pornhub' on three occasions since 27 December 2018. It was subsequently ascertained that he had viewed pornographic material "sporadically, every few days using the websites Pornhub, XVideos and XHampster", over some weeks.
18. The defendant was arrested that evening and charged with breach of the interim supervision order in that he had watched pornographic material. It is apparent Ms Koro arranged for police to attend the interview to examine the phone in circumstances where her concerns were (1) that the defendant had attended the fireworks at Darling Harbour without prior approval and (2) that his psychiatric condition may be deteriorating. There is no evidence that he was exhibiting overtly sexual behaviour that might have been caused by him looking at pornography.
19. The visit to the fireworks was the defendant's only unauthorised movement since scheduling had been reintroduced three weeks earlier. It did not involve any criminal misconduct or threat thereof. As for Ms Koro's concern about the defendant's mental health, without having him attend a qualified psychiatrist to provide an updated assessment there does not appear to have been ground for alarm or urgent measures on the basis of a single statement by the defendant, which may or may not have signified paranoid delusion. His statement about "bugging" had been made in the context of strong complaint that his supervisors were "overreaching" by the manner in which his movements were restricted and he was kept under surveillance.
20. On 11 January the defendant pleaded guilty to this further charge of breaching his ESO and was sentenced to 9 months imprisonment commencing 3 January 2019 with a non-parole period of 3 months. The non-parole period will expire on 2 April 2019.
21. The decision to prosecute was taken following consultation between Corrective Services supervising officers and police. I would not impose, as a condition of the further ESO now sought by the plaintiff, a prohibition on pornography that could in future lead to prosecution and further imprisonment in circumstances such as this. The defendant's return to prison for another 3 months, after only 3 months liberty, in the circumstances I have described, appears to me inimical to his rehabilitation and to the protection of the community that would be secured thereby.

Net effect of enforcement of the supervision orders

1. Five years and 3 months have now elapsed from when the defendant completed his sentence for the only serious sex offence he has ever committed. In that period he has spent in total a further 2 years and 6½ months in prison. Of this, 9 months is attributable to the episode in which he stole a motor vehicle and absconded to Wodonga. The balance, 1 year and 9½ months, is entirely attributable to breaches of the orders. None of the offences for which he has been returned to prison since he completed his original sentence have involved criminal sexual misconduct or any threat thereof. The only violence he has exhibited in any of these matters has been the assault upon the driver from whom he stole a car, which involved relatively minor force and was non-sexual.
2. Apart from the car-stealing episode, all of the actions that have put the defendant back in custody have been punishable only by reason of him being subject to orders under the Act. But for the orders, it would not be an offence for the defendant to watch pornographic videos on the internet or to go to Coogee Beach. But for the orders he would not have an electronic monitor around his ankle for which he would commit an offence by removing it or tampering with it. The relevant conditions have been imposed because, as the case was presented to the judges of this Court who made the orders, the defendant could be at a greater risk of committing another sexual offence if his movements were not scheduled and monitored and if he were to watch pornography. In the event, without the risk of another sexual offence ever having been realised or imminently threatened, the defendant has been imprisoned repeatedly, solely for not keeping within constraints that are directed to unmeasurable and uncertain "risk factors".
3. The obverse of the defendant's periods in custody has been his brief and broken periods in the community. Since the completion of his sentence on 4 November 2013 the defendant has been at liberty for 2 months in late 2013, 2 months from February 2014, 6 months from April 2015, 2½ months from July 2016, 2 weeks in November 2016, 18 months from February 2017 to August 2018 and 2 months at the end of 2018. In between each brief period of conditional liberty under close supervision he has been in prison for terms of 1 to 12 months. I infer that the disruption to his life of repeatedly passing in and out of prison must have severely retarded his progress in treatment and stabilisation of his psychiatric symptoms. These frequent short terms would necessarily have set back the rehabilitation and reintegration into the community which he might otherwise have achieved.

Justification for a further extended supervision order

1. As to whether a further period of supervision should now be ordered, there is no contest about the statutory prerequisites for the Court to exercise its jurisdiction, as prescribed in pars (a), (b) and (c) of s 5B of the Act. The question is whether the Court is "satisfied to a high degree of probability that the [defendant] poses an unacceptable risk of committing another serious offence if not kept under supervision under [an] order" (par (d)).
2. The risk assessment report of Dr Parker dated 16 October 2018, to which I referred earlier, was prepared to assist consideration of whether the present application should be brought by the State. Dr Parker substantially repeated the opinions he had expressed on 19 January 2018 (quoted at [31] above). He updated those views with the following: [99] [The defendant] had a period of relative stability from May 2017 until shortly after the birth of his child in March 2018. He was cohabiting with his partner, working and involved in prosocial activities. At this point he faced financial stress and relationship difficulties associated with being a parent for the first time. [The defendant's] mental health then began to deteriorate and he started taking time off work, exacerbating his financial difficulties. His pornography use escalated, in breach of his [extended supervision order], as an escape mechanism. [100] If [the defendant] were to commit a further serious sexual offence, it is likely that current protective factors would break down first. Such a worst case scenario would involve his relationship ending, losing access to his child, and a withdrawal from employment and recreational activities. It is likely his mental health and compliance with medication would also deteriorate in the face of this collapse. At that point, a number of the implicit theories, mentioned earlier, might become active and fuel a further offence. Such a scenario may include a period of pornography and/or gambling, leading to sexual offence, if such activities fail to satisfy him.
3. Dr Furst administered standardised tests for depression and anxiety in late December 2018, prior to the defendant's most recent imprisonment. The defendant's responses were scored in the severe range for current depressive symptoms and in the moderate range for current anxiety symptoms. The doctor concluded that the defendant meets diagnostic criteria for schizophrenia, anxiety disorder, depressive disorder, sexual sadism disorder and gambling disorder. The doctor provided very little explanation of the basis for his diagnosis of sexual sadism disorder. With respect to the other diagnoses he said: The available clinical history and review of the available material … indicate [the defendant] has a … pattern of recurrent symptoms of depression, anxiety, paranoid thinking and hallucinations over the past 10-11 years. His psychotic symptoms in particular have been recurrent and appear to have increased when he discontinued antipsychotic medications. There is a family history of schizophrenia. Dr Paisley noted associated mental state features including [the defendant] being vague in his presentation and evidence of thought disorder, with his functional and effective impairment warranting the diagnosis of schizophrenia.
4. Dr Furst expressed the following opinion regarding the significance of the defendant watching pornography (emphasis added): His use of pornography, and probably sex generally, as a means of "escape", avoidance and/or self-soothing coupled with his depression, anxiety and limited capacity to cope under stress place [the defendant] at risk of engaging in [serious sex offending] again in the future. … The presence of sexual deviance [paraphilia], which is also a psychiatric condition, is probably the single most important risk factor to consider in relation to [the defendant's] future risk of sexual re-offending, especially if deviant/rape fantasies re-emerge in the future.
5. With due respect to Dr Furst, I see no evidence that the defendant "probably [uses] sex generally" as a means to cope with stress in his life. There is no evidence of him having had sexual relations with anyone other than his current partner over the past nearly two years. There is no evidence that his sexual relations with MS are anything other than normal for a long-term couple.
6. Dr Furst is of the view that "deviant sexual drive/arousal and fantasies consistent with a paraphilia were largely causal of his serious offending in July 2008". He considers that the defendant's use of pornography over a number of months in 2018 "is evidence of persistent sexual deviance and sexual preoccupation, which is also a significant risk factor to consider". Against this, it may be noted that in the periods May to August 2018 and December 2018 the frequency and duration of his pornographic viewing and the content (sexual activity between consenting adults) appears moderate relative to what he was watching more than 10 years ago when he committed the index offence.
7. Dr Furst recognised this difference but expressed concern that, having regard to the sort of material the defendant was watching in 2008, his interest in pornography might again "gravitate towards" violent depictions including bondage, sadism and masochism. In oral evidence Dr Furst acknowledged: [T]here is not a strong relationship between viewing pornography and going on to offend in a sexual manner in my understanding. … [T]he evidence … is still somewhat weak [as to] the relationship between viewing pornography and going on to offending.
8. Dr Furst expressed the opinion that difficulty complying with supervision requirements is "a factor that has been correlated with higher risk of sexual and violent reoffending". That correlation may well exist as a generality but in the particular circumstances of this case I do not accept that the defendant's past breaches signify anything more than that he has been undisciplined, disordered and difficult to manage. The fact that the breaches occurred does not to my mind throw any light upon whether he is likely to commit another serious sex offence if he is not supervised.
9. Dr Furst has recommended that anti-libidinal medication be administered to the defendant but he has refused consent. It is Dr Furst's view that the defendant is at "well above average risk of reoffending in a sexual manner compared to the typical adult male sex offender" and that "longer term management of his underlying sexual deviance [paraphilia] is also of paramount importance". For these reasons Dr Furst thinks the defendant should be continued under supervision to "implement the necessary treatments and manage the identified risks" for 3 years rather than the 18 months sought by the plaintiff.
10. Ms Jenny Howell, a forensic psychologist, provided reports dated 21 and 29 January 2019. She assessed that the defendant "does not hold specific antisocial views or thoughts of women in general". In consultation with Ms Howell the defendant said he accepted the diagnosis of chronic schizophrenia and was able to identify his own symptoms, including a belief that people are watching him and feelings of paranoia. Ms Howell is of the view that the defendant "has not yet developed a range of strategies to manage risk" of reoffending and concluded that if he "were to experience significant changes in his personal life or poor mental health this would likely increase his risk to reoffend". In Ms Howell's view the risk of the defendant committing a further serious sex offence can be managed under an extended supervision order and the proposed duration of 18 months would be sufficient.
11. I have concluded from all of the factual background combined with these professional opinions that there is an unacceptable risk of the defendant committing another serious offence if not kept under supervision for a further 18 months. I am satisfied of this to a high degree of probability. In reaching that conclusion I have considered the entire list of matters to be taken into account, in s 9(3) of the Act, to the extent that I find them applicable to the particular circumstances of this case, as discussed above. I am primarily influenced by consideration of the defendant's psychiatric diagnosis and the need for him to receive consistent and continuous treatment from an appropriate specialist outside the prison system and in the community. It appears to me that an extended supervision order is required mainly to enable Community Corrections officers to maintain contact with the defendant and verify that he receives ongoing psychiatric advice and takes such medication as may be prescribed.
12. A further aspect of the defendant's situation which calls for an extended supervision order is that he should have psychological counselling to maintain his abstinence from gambling and to address what appears to be a form of addiction to pornography. Conditions to address these aspects will need to be formulated in a way that permits the defendant to watch pornography to an extent that is considered reasonable by a psychologist who can assist him with this problem. Outright prohibition of pornography viewing, without counselling to reduce his preoccupation, will not meet the needs of the case and will frustrate the secondary object of rehabilitation.
13. In my view an ESO is necessary to provide structure within which the underlying psychiatric and psychological sources of the risk of reoffending can be dealt with. The conditions regarding the defendant's movements will have to be much more liberal than those that have been incorporated in previous interim and final supervision orders, having regard to the negative results arising from the way monitoring and scheduling have been imposed in the past. As Ms Howell said: [P]roblems with supervision decrease the likelihood that other risk factors will be appropriately managed or controlled which can lead to feelings of negativity and interpersonal conflict.
14. Provided that the conditions are reasonably liberal I consider that an ESO for a further 18 months is not only necessary to avoid an otherwise unacceptable risk of offending but should provide constructive benefit to the defendant. I have taken into account that the defendant already has significant "protective factors" in his favour. In this respect Dr Furst recognised: He is now in an apparently committed de facto relationship, has a young son, is seeing a psychiatrist, is taking medication and is employed … .
15. In addition, the defendant's partner, MS, has sworn an affidavit in these proceedings demonstrating her ongoing support, including with respect to his endeavours to address "psychological issues". The defendant's mother has already given him strong support, including assistance to find accommodation, help with rent and with the cost of medical consultations and involvement of the defendant in family holidays and events. She has also sworn an affidavit deposing that this support will continue.

Proposed conditions for scheduling of movements/electronic monitoring

1. The conditions sought by the plaintiff with respect to scheduling of movements and electronic monitoring are to the following effect: 1. Condition 4: the defendant would be required to wear electronic monitoring equipment as and when directed by his DSO. 2. Conditions 3 and 5-8: the defendant would be required to "follow all reasonable directions by his DSO or any other person supervising him" and, if directed, provide a weekly schedule of movements three days before the commencement of each week and adhere to it unless variations should be approved pursuant to request made on 24 hours' notice.
2. Other proposed conditions would impose significant constraints upon the defendant's freedom of movement. Under Conditions 9-11 he would only be permitted to live at an address approved by his DSO and would be under curfew from 9:00 pm to 6:00 am. Condition 12 would prevent him spending the night anywhere other than at his approved address. Conditions 13 and 14 would prohibit travel interstate (except with prior approval) or overseas. Condition 15 would empower the DSO to nominate any particular place which he could not attend. Under Condition 17 he would not be permitted to commence a job or undertake volunteer work or an educational course without approval of his DSO. Condition 48 would require the defendant to attend any psychological or psychiatric health practitioners as directed by his DSO.
3. In support of Conditions 3-5 (scheduling of movements and electronic monitoring) the plaintiff submits that they are drafted in a manner which would give the DSO a discretion so that monitoring and/or scheduling could be dispensed with should the defendant's stability and consistency of behaviour justify this. Evidence was given that it is usual to exercise the discretionary powers under such conditions in favour of both scheduling and electronic monitoring in the first instance and then to work through stages of dispensing with these constraints in response to demonstrated compliance over a reasonable duration.
4. The evidence shows that since December 2013 the defendant has committed relatively few departures from his submitted schedules of movements and has only tampered with or failed to wear his electronic monitor on a few occasions. However, for nearly every breach of these conditions he has been prosecuted and imprisoned, notwithstanding that, apart from the car stealing episode in April 2014, the breaches have not been precursors to offences against the general criminal law. Each breach of this type has involved an impetuous and disordered reaction of the defendant rather than a serious attempt to evade supervision for any criminal purpose.
5. On the evidence before this Court the sentence of 9 months' imprisonment for his departures from schedule on 10 October 2015 appears severe. No harm was done to anyone. The defendant tampered with his monitor but he then returned to his residential address. Similarly, on 16 November 2016, the diversion to Coogee Beach was apparently spontaneous and, at worst, undisciplined. The defendant arrived at the Malabar library where he had said he would go, albeit late. This event could have been the subject of a warning but it was decided to prosecute and the resulting 3 months imprisonment was, again, severe.
6. I intend no criticism of the Magistrates who imposed the penalties. I do not know how the overall picture was presented on each occasion. I greatly doubt that in dealing with these summary offences in busy lists the presiding Magistrates would have had the time or the assistance from legal representatives that would be necessary to see each infringement in light of the defendant's psychiatric symptoms and his stressed reaction to the close surveillance he has been under. I also doubt that the sentencing Magistrates would have been given sufficient detail of the defendant's history to appreciate how intermittent short terms of imprisonment would defeat his psychiatric treatment in the community and magnify his difficulties of coping with life.
7. I am not willing to impose conditions that would, for a further 18 months, confer discretions for the DSO to require with electronic monitoring and adherence to a schedule of movements. The Court must make its own judgment with respect to the balance between allowing the defendant his liberty and sufficient opportunity to improve himself and protecting the community against the risk of reoffending. It is unacceptable, both in justice to the defendant and from the point of view of the community's interest in his management, that his progress should be repeatedly interrupted by terms of imprisonment for no more significant cause than that he outstayed his curfew on Broadway or diverted to Coogee Beach en route to Malabar. Discretions in the DSO to impose movement restrictions that lead to such results cannot be justified.
8. In the plaintiff's written submissions on the present application (at par 74) it is claimed that benefit from "the intense level of supervision on the defendant" under the order made by R A Hulme J on 24 January 2014 has been manifested: in regulating or prohibiting the defendant from acting out on his fantasies; particularly given the defendant had significant periods in custody between 2014 and 2018 which prevented his ability to continue to watch pornography to the same degree as prior to the index offence. The Court is to assess the defendant's risk absent supervision. Arguably the [extended supervision order] has been protective to date in monitoring the defendant's mental health and his rape fantasies and removing him from the community (by lawful custody) when his [order] has been breached.
9. This is in effect an argument that the efficacy of the previous order may be evaluated (and a further order may be justified) by viewing supervision orders under the Act as instruments for achieving preventive detention. I reject that proposition. The offence created by s 12, of breaching a supervision order, is in my view intended only to provide a means of enforcement of the conditions of an order. Upon prosecution under s 12 a central purpose of punishment is to deter the defendant, specifically, against breach of the order that binds him. Prosecution and the imposition of a sentence must be directed, not exclusively but in large measure, to bringing the person who is subject to the order into compliance with its terms for the future. The supervision order in conjunction with the power to prosecute for breach is not to be viewed as a mechanism for securing preventive detention of persons who have served their sentences for past serious sex offences.
10. In my view sufficient control can be exercised over the defendant's movements, for the legitimate purposes of supervision under the Act, by conditions such as some of those summarised at [84] above. In particular, Condition 2 as sought by the plaintiff will enable the DSO to require the defendant to report to him or her on a regular basis. Under Condition 48 he may be required to attend psychological or psychiatric counselling. Contact with the defendant under these conditions can be used constructively rather than restrictively by the personnel of Community Corrections to assist the plaintiff to plan pro-social activities.
11. One powerful reason for limiting the period of a further order to 18 months and for relaxing the conditions is to alleviate the strain that any supervision regime imposes upon the defendant's partner and his mother. These two people are likely to provide very important support to the defendant through his psychological difficulties and towards establishing a normal life in the community. MS gave this evidence on affidavit: [Our son] and I need Daniel fully back in our lives, and if an ESO is imposed on Daniel this will burden our little family as I know from my experience with the past ESO and the current ISO that the restrictions it imposes will place extra strain and struggle in our day to day lives. We simply want the choice and control to be able to live a normal life. Daniel has told me words to the effect "I just want to work, to play sport and to watch sport, and be able to look after my family and take you and [our son] places wherever and whenever I like". He has also told me "I would love to be able to visit my family in Albury/Wodonga on a regular basis". …
12. The affidavit of the defendant's mother includes the following: From my previous experience of Daniel being under an ESO, I know that the ESO conditions impact not solely on Daniel, but also on his partner [and his son] and on me and the rest of Daniel's extended family. For example, I know that Daniel has to get permission before he can take [his partner and son] out and he has to get permission to visit me and the rest of his family in Albury/Wodonga. Daniel has also told me words the effect "Being on an ESO means that I have not been able to make friends easily" Daniel … has said words to the effect "The ESO has put me under an extreme amount of stress" he has also said to me words the effect "I try to comply with all the conditions of the ESO but it is hard".
13. The interests of the community will be served by a minimally intrusive supervision order that will enable MS and the defendant's mother to play their part in stabilising him. I accept the following evidence of Dr Furst with respect to the impact of scheduling and electronic monitoring in the defendant's case: The main negative of this is it causes a lot of stress and anxiety from day-to-day and hour-to-hour wearing an anklet, and receiving phone calls and so on, if not meeting schedules. So from a psychological and maybe psychiatric point of view it is not a very helpful measure, but from a control measure and risk measure point of view it is a helpful measure. [W]ith [the defendant], I do not think it's of great benefit … he's already more or less attending appointments and doing things as he should be from day-to-day, as far as I can tell. It's just he is doing other activities which are not allowed on top of that. It's not [that] he is moving around to the wrong places. [I]n terms of him trying to have a normal married life, family life, it doesn't make it very easy to have this kind of bracelet … .

Proposed restriction on watching pornography

1. The plaintiff seeks conditions of the extended supervision order to deny the defendant access to material that would be "Refused Classification" under the National Classification Code (Condition 39) and would deny access to pornography over the internet or downloading it from the internet (Condition 41). Condition 40 would prevent the defendant from possessing or viewing pornographic material, in any form, that is classified as X18+, Category 2 Restricted or Category 1 under the National Classification Code.
2. Conditions of this stringency are not supported by the expert psychiatric evidence. Dr Furst's concern is that through watching pornography persistently the defendant might "gravitate towards" violent, sadistic material of the kind that he appears to have been interested in immediately before the 2008 offence. This concern could be addressed by him being permitted to watch pornography provided that he consults with a psychological therapist who would endeavour to address his apparent addiction and counsel him away from harmful content.
3. On this subject Ms Howell said: [I]t's my view that if [it] were part of his condition[s] that he doesn't have to ask to view it and is able to view it for a shorter period of time, then that would be, in a way, a protective factor rather than a risk factor, in my mind. And if it were in the mainstream of pornography. … Dr Furst and I were talking about the possibility of resolving that in some way, about making it available to him in a controlled way. But at the same time it would be my view that he should do some work, therapeutic work, in relation to developing more prosocial coping mechanisms to manage stress and to help him change from [viewing pornographic depictions of] the more serious sexual acts … .
4. Dr Furst would prefer a regime under which the DSO could approve in advance particular material or websites to which the defendant would be permitted access. I consider it would be preferable not to involve the DSO in this issue but to leave it to the guidance of a psychologist, consultation with whom would be a pre-requisite to the defendant viewing pornography on the internet. Ms Howell gave evidence that highly qualified psychologists specialised in this kind of addiction are available. I have formulated Conditions 41 and 42 along these lines.
5. A further reason for not making a condition which would prohibit pornography watching is that, given the prosecutions that have followed breaches of such a condition in the orders made to date and given the sentences which have followed, this has proved to be an unacceptably blunt measure for reducing the risk of reoffending. In August 2018 and again in January 2019 prosecutions and terms of imprisonment for breaches of a condition in these terms in the previous ESO and in Wilson J's interim order took place when, on the evidence before me, there was no indication that the likelihood of reoffending had increased as a result of his exposure to pornography. The resulting sentences derailed the defendant's psychiatric treatment and his endeavours to stabilise, to reintegrate and to rehabilitate himself. The condition has been significantly counter-productive to protecting the community through rehabilitation, without any demonstrated enhancement of protection in any other way.

Other proposed conditions

1. The conditions I will order are set out in the schedule attached to these reasons. The numbering follows that in the plaintiff's summons. My reasons for deleting Condition 4, for electronic monitoring, have been stated earlier in these reasons. I have deleted Conditions 5, 6 and 7 which would have provided for the DSO to require that the defendant adhere to schedules of his movements. In place of those conditions I have inserted others which allow for the DSO to require that schedules of intended movements and activities be provided, but do not make adherence to the schedules mandatory. The purpose of this is to enable the DSO to require from the defendant a program of his intentions, thereby affording an opportunity for directions to be given that specified activities or attendances at particular locations should not take place. The ability of the DSO to require such a program will enable him or her to assist the defendant to maintain structure in his life.
2. With respect to Condition 10, I have extended the defendant's curfew to 10:00 pm and provided that this is to be observed if so directed by the DSO, who of course may dispense with it. Condition 14 has been adjusted to enable the defendant to travel to northern Victoria to visit his family without requiring prior approval. I have made a number of other adjustments to the conditions as sought by the plaintiff with a view to liberalising the constraints upon the defendant and encouraging his progress towards independent living.
3. I have not included Conditions 36-38 and 40 as sought by the plaintiff. These would provide sweeping powers of search and seizure that I do not consider justifiable. My reasons for this conclusion are substantially the same as those I gave for a similar decision in State of New South Wales v BG (Final) [2019] NSWSC 200 at [74]-[79].

Conclusion

1. This case has drawn attention to the following considerations relevant to the administration of supervision orders made under the Crimes (High Risk Offenders) Act, each of which has contributed to my formulation of the relief to be granted: 1. Common form conditions sought by the State in these applications confer upon DSOs discretionary power to require that the offender submit weekly schedules of movements and adhere to them, under electronic monitoring (which may also be imposed at the DSO's discretion). The decision whether to require adherence to schedules should take into account that this will result in the offender being exposed to prosecution under s 12 and imprisonment for up to 5 years for any departure, even by an act or omission not otherwise criminal and not involving any increase in risk of offending. 2. If the DSO decides to impose schedules, with or without monitoring, according to the pre-determined criteria of an administrative protocol this will in some cases result in restrictions on offenders' movements where the circumstances do not warrant such rigidity. There will be created the hazard of prosecution and imprisonment, for minor aberrations, out of proportion to any benefit that could be gained from scheduling of movements. 3. Many conditions routinely sought by the State in these applications impose extensive prohibitions, for example against consuming alcohol, attending licensed premises, watching pornography. Taking into account that s 12 provides for a penalty of up to 5 years imprisonment for breach, these prohibitions effectively criminalise for the offender acts which are otherwise lawful, with severe consequences. In that context the conditions sought should be tailored to the individual offender and limited to what is really necessary for effective minimisation of the risk of reoffending. 4. The conditions for which the State usually applies in common form include a power of search in extraordinarily wide terms. There are cases where it is not apparent that such a power will be necessary or even useful for effective enforcement of the order and it should not be sought merely out of abundant caution. 5. Corrective Services officers and police have a discretion with respect to prosecuting for any breach of an ESO. The decision to lay a charge cannot properly be made for the purpose of securing imprisonment as a means of reducing the risk of further offending. The proper purpose of a prosecution for breach of conditions is only to bring the offender before a Magistrate for the imposition of such penalty as may be thought to deter him from future breaches. Prosecutions for breaches are not to be used to convert ESOs into a form of intermittent extended detention order. 6. In exercising the discretion to lay a charge for breach of conditions there should be taken into account the likelihood that imprisonment will disrupt the offender's rehabilitation (and treatment, if there is a psychiatric diagnosis). If a charge is laid, submissions on penalty should fairly bring to the attention of the court full details of the offender's history under the ESO, to enable consideration of the potentially adverse impact of imprisonment upon rehabilitation and treatment. 7. The Act's primary objective is ensuring "the safety and protection of the community". Section 3(2) prescribes the further objective of encouraging offenders to undertake rehabilitation. The two are not inconsistent. Exercise of Corrective Services' discretions in such a way as to foster rehabilitation will contribute to protection of the community.

Orders

1. The orders of the Court will be: 1. Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 the defendant is to be under supervision in the community for a period of 18 months commencing when the defendant's current custody expires. 2. Pursuant to s 11 of the Act during the period of the said extended supervision order the defendant is to comply with the conditions in the schedule to these reasons (subject to revision of the numbering to accommodate deletions).

Schedule Part A: Reporting and Monitoring Obligations Monitoring and Reporting

1. Corrective Services NSW (CSNSW) will administer the Order.
2. The defendant must report to the Department Supervising Officer (DSO) or any other person supervising him as directed by the DSO, upon reasonable notice being given.
3. The defendant must follow all reasonable directions by his DSO or any other person supervising him. Electronic Monitoring
4. N/A. Schedule of Movements
5. If directed by his DSO by no later than Thursday of any week, the defendant must provide to his DSO a schedule of his intended movements and activities for the week commencing on the following Monday. The DSO may require, again on reasonable notice, successive schedules for subsequent periods of seven days. The defendant must provide a schedule by no later than noon on the Monday following the direction and it must be completed honestly as to his intentions.
6. It will not be a breach of these conditions if the defendant departs from a schedule submitted by him but he must notify his DSO if he intends to depart from it in any significant respect, either as to the nature of any movement or activity or as to its timing. Such notification must be given by the defendant as soon as reasonably practicable.
7. The defendant must make himself reasonably available by phone or in person to discuss any such schedule of his movements and activities and to receive any counselling, advice or direction (under Condition 3 or Condition 16) from his DSO.
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. Part B: Accommodation
9. The defendant must reside at an address approved by his DSO.
10. If directed by his DSO, the defendant is required to be at his approved address between 10:00 pm and 6:00 am.
11. The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.
12. The defendant must not spend the night anywhere other than his approved address without the approval of his DSO.
13. [Not pressed by the plaintiff]. Part C: Place and travel restrictions
14. The defendant must not leave New South Wales without the approval of the Commissioner of Corrective Services NSW, with the exception that he may be within the State of Victoria within 30 km of Albury if he is with members of his family or en route to or from a visit to members of his family and provided he has given his DSO at least 48 hours' notice of his intention to make such a visit.
15. The defendant must surrender any passports held by him to the Commissioner.
16. The defendant must not go to a place if his DSO tells him he cannot go there.
17. The defendant must not attend any place used solely or mainly for the provision of sexual services or sexually explicitly entertainment without the approval of his DSO. Part D: Employment, finance and education
18. [Not pressed by the plaintiff].
19. The defendant must not start any volunteer work without the approval of his DSO and must give his DSO 3 days' notice of his intention to commence any employment or any educational course.
20. The defendant must provide any information relating to his financial affairs, including income and expenditure, if so directed by his DSO. Part E: Drugs and alcohol
21. The defendant must not possess or use illegal drugs or prescription medication other than prescribed.
22. 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).
23. The defendant must submit to testing for drugs and alcohol as directed by his DSO.
24. The defendant must not go to any licensed premises, excluding restaurants and cafes, but including hotels, bars, license clubs and racecourses, without the prior approval of his DSO.
25. The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as directed on reasonable notice by his DSO, provided that the direction does not interfere with any employment obligations of the defendant. Part F: Non-association Associations with Others (not children)
26. The defendant must not associate with people that his DSO tells him not to.
27. The defendant must not associate with any people who he knows are consuming or under the influence of illegal drugs.
28. The defendant must not engage the services of sex workers or download or use any Internet dating application without prior approval of his DSO.
29. If the defendant starts a sexual relationship with someone, he must inform his DSO who may tell the person about his criminal history.
30. The defendant must obtain permission from his DSO prior to utilising any internet or mobile based social networking service. Part G: Gambling 31 The defendant must not gamble without the prior approval of his DSO. Part H: Access to the internet and other electronic communication
31. The defendant must give his DSO a list of all devices, services and applications he uses to access, or communicate using, the internet. This includes phones, tablet devices, data storage devices or computers. He must also provide 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.
32. In monitoring compliance with this order, 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.
33. 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.
34. The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO. Part I: Search and seizure
35. N/A.
36. N/A.
37. N/A.
38. The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use.
39. N/A. Part J: Access to pornographic, violent and classified material
40. Before viewing any pornographic images or videos, in hard copy or electronic copy or on film or online, the defendant must consult with a psychologist of Forensic Psychology Services, or some other qualified psychologist, concerning his use and viewing of pornography. Such viewing must be limited to the extent recommended by the psychologist consulted.
41. If the defendant proceeds to view pornography following such a consultation, he must return for further consultations with the same or another psychologist at intervals of no longer than four weeks and continue to adhere to the recommendations of whichever psychologist he consults with respect to his use of pornography.
42. N/A Part K: Personal details and appearance
43. The defendant must not change his name from "Daniel Anthony McQuilton" or use any other name without the approval of his DSO.
44. The defendant must use the name "Daniel Anthony McQuilton" for any username or log-in name. He must not use any email address other than those known to the DSO under Condition 32 on any internet site (including social networking sites), online communication application or third party sites or applications that require the user to have a user identification name or log-in email.
45. The defendant must not change his appearance without the prior approval of his DSO.
46. The defendant must permit Corrective Services NSW to photograph him.
47. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide his DSO with such details. Part L: Medical intervention and treatment
48. The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults within 72 hours of the first consultation with that practitioner.
49. The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment as directed by his DSO.
50. The defendant must take all psychiatric medications that are prescribed for him by his healthcare practitioners in accordance with their directions. The defendant must disclose these prescriptions to the DSO within 72 hours of the prescriptions being made.
51. The defendant must notify the DSO within 24 hours of failing to take such medication as directed, either on a temporary or permanent basis.
52. The defendant must give each of his healthcare providers authority to notify his DSO if the defendant: (a) fails to attend any appointment which the healthcare provider considers (and has informed the defendant) is important in the interests of his psychiatric care (subject to rescheduling of any such appointment if the healthcare provider considers this can occur within a reasonable time without detriment to his psychiatric care) or (b) fails to adhere to any regime of prescribed medication to a an extent that the healthcare provider considers significantly adverse to his psychiatric care.
53. Other than as provided in Condition 53, the defendant may maintain the same level of confidentiality for his communications with healthcare providers as would generally be the case between patient and doctor.

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: 15 March 2019