State of New South Wales v Moore

The Expert Reports

1. Pursuant to s 7(4) of the Act, Dr Anthony Samuels and Dr Richard Furst each saw and assessed the defendant, and provided a report of their respective conclusions to the Court. Dr Furst additionally gave oral evidence, via an audio-visual link.
2. Dr Samuels is a Consultant Psychiatrist in Sydney. Dr Samuels saw the defendant on 23 September 2020 via Zoom. In making his recommendations, he relied on his assessment of the defendant and the extensive documentary record that was provided to him.
3. Dr Samuels noted that, at the time of the psychiatric assessment, the defendant was a 59 year old man, who was living with his elderly parents in NSW. He was released from custody on 7 September 2020. For the purpose of the assessment, the defendant had attended a regional Community Corrections office, where necessary technology was made available to him. He told Dr Samuels that he was very relieved to be out of custody, and planned to adhere to all requirements to make sure that he did not go back into custody.
4. In relation to the defendant's previous custodial sentence, the defendant told Dr Samuels that this was his first time in custody, and that he found the whole process difficult, and the sex offender programme challenging. He acknowledged breaching bail prior to going into custody, where he "went to a location where he was not permitted, he had a smart phone and he spoke to some young people." The defendant also discussed his offending history with Dr Samuels.
5. Dr Samuels took a history from the defendant. The defendant's family - his father, mother and sister - was described as an "integral part of his support network." The defendant described his mother as "stoic, unconditional love, resilient". He grew up in his family home and never wanted for anything. His parents were hardworking; his father worked two jobs.
6. The defendant told Dr Samuels that he had a good education and was never abused. He described himself as a "nerd" in high school. He had one girlfriend in high school, but they did not have a sexual relationship. He lost his virginity at 20 years of age to a female, when he was in a casual relationship. He started experimenting with "gay sex" around the age of 24, describing it as "anonymous, casual, secretive." He identified as bisexual and had no steady relationships. At 28 years of age, he identified as gay, and came out to his family. His longest relationship was for 12 months, with a 19 year old partner who lived with him, however, "when the money was gone, so was he." He had no serious relationships thereafter but would frequent "beats and parks," and described being attracted to "younger guys." He told Dr Samuels that people who went to those places were generally older.
7. In 2004, a home invasion occurred where the defendant was bashed severely. The defendant told Dr Samuels that it was a homophobic crime, and after it, he sold his house and moved to live with his parents.
8. The defendant's last paid job was in 2004, when he worked as a Sales Manager for a flooring company. He told Dr Samuels that "I came to the edge of a cliff and didn't go back to work," but that, prior to this, he had "always been in a collar and tie."
9. In 2009, he started a not for profit dog club. He had a dog and described being "joined at the hip" with his dog for 14 years. He was devastated when his dog died in 2014, and said that this loss made him "spiral in the wrong direction" leading to the offending behaviour. He described the dog as his best friend, being very important to him, and having kept him grounded.
10. In relation to the index offence, the defendant acknowledged that, in "those years" he was interested in boys aged 16-20, but his interest group now was those aged 30-40 years old. He had no interest in having a sexual relationship, telling Dr Samuels, "The equipment's not working, I've got urinary incontinence, I've put on weight." He said that he would like to go on anti-androgen medication, and that he would "be happy to remove desires or libido. I want to be at home, look after mum and Dad. I'm terrified of returning to custody." He told Dr Samuels that he does not masturbate.
11. In relation to the defendant's psychiatric history, Dr Samuels noted that the defendant was "put on the DSP" [disability support pension] in 2004. He saw a treating psychiatrist, Dr Slowiaczek, who diagnosed him with Bipolar Disorder. The defendant described severe depression, anxiety and Post-Traumatic Stress Disorder ("PTSD") after the home invasion. He had one voluntary admission to hospital for five days after he lost his house, lover, and business.
12. The defendant told Dr Samuels that he is now "under the care of" Mr Lee Knight and Dr Ellis, as well as his General Practitioner, Dr Babla. Dr Samuels noted that Mr Knight is from Community Forensic Services and Dr Ellis is a forensic psychiatrist. His current medications include quetiapine 400 mg, and venlafaxine 300mg. Dr Samuels noted that the defendant is "being worked up for anti-androgen medication and seems quite open to this." He had a gastric sleeve operation in 2015. He told Dr Samuels that he had testicular cancer in 1986 and had "a teratoma in his left testicle removed." Dr Samuels noted that "he has a significant mental health history, the question of a mood disorder has been raised, but the consensus seems to be that he has a Personality Disorder with Borderline Features."
13. The defendant stated that he had not used marijuana since he had moved back to his family home in 2004. He denied use of other drugs, and stated that there was no alcohol abuse in the family.
14. The defendant completed a High Intensity Sexual Offenders Programme ("HISOP") course in custody, describing it as "hard, tough, confronting." The defendant told Dr Samuels that it was hard to listen to other people's offending. He described it as intensive and, "I equipped myself as best I could. I did get a lot of side tasks to help me focus." He described being assaulted in transit on the way to court in 2016, and stated that there were several other assaults in gaol, with the worst being the hot water attack in October 2017. He spent eight weeks at Long Bay Hospital.
15. To Dr Samuels, he expressed being anxious because of the assessment. He described keeping close with his parents, and that he did not go anywhere without them. They were very protective. He described sleeping better now that he was home. Due to his gastric sleeve, he cannot eat "all that much". The defendant stated that he is not suicidal. He is often anxious, but his medication helps with this. He denied psychotic symptoms, but told Dr Samuels that he always hears a voice which he attributes to his conscience. This voice did not tell him to do bad things. The defendant noted that Mr Knight did not think he had Bipolar Disorder. He had longer periods of depression in the past, and he was depressed during the HISOP.
16. Dr Samuels described the defendant as a balding man wearing glasses, with a moustache and in casual attire. Dr Samuels stated that "his affect was reactive and his mood seemed to be euthymic." The defendant told Dr Samuels that he would be able to manage all of the requirements of an ESO, and did not want to breach any requirements. He told Dr Samuels that he would eventually like to get back to "a normal life" and "I understand the court sees me as a high risk offender." The defendant saw an article about him in a regional newspaper when he was released, which he described as a "shock" and: "That was confronting and of course Mum read the paper. I hadn't thought of myself as a serial offender. I accept my deviance and offending but also looking forward to having a long term relationship with Lee Knight and Dr Ellis. There are a lot of people I'm lucky to have contact with, my Mum loved him from the first time she met him."
17. Dr Samuels stated that the defendant is "an articulate man, well presented, slightly anxious". There was "no thought disorder, no psychotic symptoms and no evidence of mood elevation". He noted that the defendant had told him that he does not have any sexual fantasies, denies any deviant interest in boys under the age of 16 years, and is "open to the idea of having his libido reduced entirely by the use of anti-androgen medications."
18. Dr Samuels opined that the defendant: "certainly does meet criteria for a Paraphilic Disorder and there has been some debate in relation to whether or not he meets criteria for Paedophilia. In my opinion this is somewhat semantic as there is clear evidence that Mr Moore has had a sexual interest in boys who are at least under the age of 16, and there is evidence that he has offended against a child under the age of 13."
19. Dr Samuels believed that the defendant met the DSM-5 criteria for Paraphilia Not Otherwise Specified, a Bipolar Mood Disorder, and a Personality Disorder with antisocial and narcissistic features. He agreed with Mandy Lau that the defendant might not meet DSM-5 criteria for Paedophilic Disorder; however he believed that "paedophilic offending is a component of Mr Moore's overall sexual offending behaviour". Dr Samuels opined that the defendant's sexual interests were more clearly "hebephilic", with his target group being boys who are in early puberty. He concluded that the defendant met the criteria for paraphilic disorder which was "directed towards underage boys who have vulnerabilities" and he has "power over them physically and intellectually."
20. Dr Samuels noted that actuarial measures suggested that the defendant is in the well above average risk range for sexual recidivism. Using a "process of professional judgment" which included psychiatric assessment, review of his history and taking into account historical, dynamic and protective risk factors, Dr Samuels believed that the defendant "displays a pattern of sexual offending that without appropriate intervention places him at high risk of recidivism and committing a further sexual offence."
21. Dr Samuels stated that the fact that the defendant had completed the HISOP is positive; however, he noted that the defendant struggled with this, and had some difficulty accepting his sexual offending behaviour (including being shocked by an article that described him as a serial sex offender). He also pointed out the "positive aspects" as including the fact that the defendant: "has not had problems with community supervision in the past, he seems to be engaging well with Lee Knight, he seems open to the idea of having anti-androgen medication, he is very well supported by his elderly parents."
22. Dr Samuels believed that the defendant's mental illness was an additional risk factor, and that there may be a link between his offending behaviour and "mood cycling".
23. In relation to the defendant's participation in the examination, Dr Samuels noted that "he clearly has the intellectual capacity to manipulate vulnerable underage boys" and "superficially, he seems to acknowledge his offending, making reference to his 'deviance' but in terms of the specifics of his offending behaviour he presents as glib and superficial." Dr Samuels believed that the defendant's apparent acceptance of his sexual deviance "represents a remarkable change in only a few months since discharge from HISOP and it is far too early to be confident that established attitudinal change is really evident."
24. Dr Samuels believed that the main risk factor for the defendant would appear to be opportunity and the means to offend, "including access to the internet and mobile phones or being in localities frequented by vulnerable young males." He noted that "his family are his main support system and if this broke down this could heighten his risk". Non-compliance with prescribed psychotropic medication would also be an issue of concern. Substance misuse did not appear to be a significant risk issue. Dr Samuels noted that the fact the defendant had offended whilst on bail, as well as his previous criminal history, suggested problems with sexual and general regulation. Dr Samuels concluded that: "reducing his opportunity to make contact with potential victims and limiting his opportunity to initiate contact using the internet or mobile phone and knowing his whereabouts are strategies likely to reduce offending risk."
25. Dr Samuels observed that: "From a psychiatric perspective, restrictions pertaining to drugs and alcohol, non-association with males under the age of 18, access to weapons, access to internet and other electronic communications, pornographic, violent and/or classified material are all extremely important in regard to reducing the likelihood of Mr Moore committing a further serious sexual offence. In regard to medical intervention and treatment, close follow up with Mental Health Services, GP and Forensic Psychology are critical components of management. Addressing attitudes that may lead to offending, managing mood instability, ensuring adherence to prescribed medication may also reduce the risk of future serious sex offending"
26. Dr Samuels believed that an ESO that ensured access to care and restricted access to victims would substantially reduce his future offending risk, but a "high level of vigilance will be required to ensure that all requirements of the ESO are being adhered to." Dr Samuels recommended that the order be made for at least three years, with a review occurring at that time. He did not believe that the orders that could be imposed through the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) were comprehensive enough to manage the defendant's risk.
27. Dr Furst is a Consultant Forensic Psychiatrist in Sydney, who prepared a report for the Court dated 12 October 2020. In making his recommendations, Dr Furst relied on his assessment of the defendant, conducted on 24 September 2020, and the voluminous documentary material provided to him. Dr Furst addressed the defendant's psychiatric history, drug and alcohol history, medical and family history.
28. Dr Furst observed that, at the time of the psychiatric assessment, the defendant presented as a 59 year old male who was balding, with a receding hairline and a moustache. He described him as cooperative, "logical and lucid throughout the assessment period", with no indications of depression, anxiety or psychosis; apart from anxiety regarding the prospect of returning to custody. He believed that the defendant was of above-average intelligence.
29. Dr Furst noted that the defendant reported a history of depression, anxiety and mood instability between the ages of 26 years and 40 years. The defendant described having "good days" and "bad weeks", and periods of low mood and depression. His depression became more noticeable in his early 40s, when he starting seeing Dr Slowiaczek. He was initially diagnosed with depression and later with a borderline personality disorder, bipolar disorder, anxiety and a mild psychotic disorder. Dr Furst noted the various antidepressant, antipsychotic and mood-stabilising medications that the defendant was prescribed during that period.
30. The defendant smoked cannabis as a young adult, and throughout most of his life. He used methamphetamines in the early 1990s, and was prone to drinking excessively at times. Dr Furst stated that he did not appear to be drug dependent.
31. Dr Furst noted that the defendant had completed the HISOP. The defendant told him, "I tried very hard… I kept the paperwork to go through with Lee." The defendant told Dr Furst that the time he lost with his parents, whilst in custody, "kills him" and, since being subject to the ISO, he has been doing jobs and repairs around the house and wants to be his parent's carer over the coming years.
32. Dr Furst believed that the defendant met the criteria for the diagnosis of Persistent Depressive Disorder and Borderline Personality Disorder, according to DSM-5 definitions. Dr Furst stated that the correlation between the risk of committing a further serious offence and the presence of a chronic depressive disorder and the presence of a borderline personality disorder is not strong. However: "difficulty in forming and maintaining stable relationships, impulsivity and mood instability, features of borderline personality disorder/borderline personality traits, probably has some correlation with deviant sexual behaviour and related risk issues."
33. Dr Furst concluded that the defendant posed a significantly higher risk of committing a further serious offence compared to the average male sex offender. He noted the following historical/static risk factors as relevant in relation to the defendant's risk: "a previous history of sexual offences, sexual deviance, male victims, lack of any long-term intimate relationships, multiple prior sentencing dates for either sexual or non-sexual offences." He noted the following dynamic/variable risk factors as thought to be correlated with higher rates of sexual offending/re-offending: "attitudes condoning sexual violence/sexual offending against children, hypersexuality, intimacy deficits and lack of victim empathy".
34. Dr Furst assessed the defendant using the Static-99R actuarial assessment, and classified him as "Level IVb"; "an offender at well above average risk of re-offending compared with the typical offender." He concluded that the defendant could be managed in the community under an ESO, and that he would "likely benefit from the more intensive level of supervision and treatment available through an ESO." He believed the conditions imposed by the Court on 3 September 2020, were "appropriate" for the defendant's ongoing management. Dr Furst pointed to the management plan articulated in the Risk Management Report of Ms Ottaway. Additionally, he recommended ongoing psychological treatment through sessions with Mr Knight and ongoing psychiatric treatment under the care of Dr Ellis. Dr Furst supported the treatment of the defendant with anti-libidinal medication.
35. Dr Furst recommended that the defendant be subject to an ESO of three years duration. He did not believe that the reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW) would be sufficient to manage the identified risks, nor that the orders a court could impose under Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) would be sufficient.
36. In evidence before the Court, Dr Furst expressed the very firm view that the defendant poses an ongoing risk to the community, and will likely pose such a risk into the future. The doctor sees a clear link between the defendant's mental disorders and sexual offending. He said: "[…] if someone is prone to being depressed as this offender is, or has an unstable personality where they can't form long‑term relationships, then they have this cluster that psychologists or psychiatrists refer to as intimacy deficit and self‑soothing, or using sex as a means of controlling negative effects, the negative emotion. So the risk is more that, if someone is emotionally unstable, in simple terms, they're more likely to seek out sex, for example, that might be inappropriate and the borderline personality is a factor in terms of doing things which are impulsive or self‑destructive so that would be less inhibition towards acting on such drives or impulses."
37. Asked in cross-examination about the gap in the defendant's criminal record, Dr Furst did not accept that an absence of criminal convictions necessarily indicated an absence of offending conduct. Statistically and experientially with disordered individuals such as the defendant, such gaps may be better explained by an absence of detection of offending conduct. Dr Furst observed: "[…] for every sex offence that's detected, there's about 12 that aren't detected, that's on average (inaudible) around the world. So I'm not saying this offender has committed many other offences but that would be the most likely explanation".
38. Dr Furst considered that the defendant required ongoing treatment but was pessimistic as to the likely efficacy of some of it. He said: "[The defendant has completed] 11 months of treatment in the HISOP program in 2019 and 2020 so the answer is that he is engaging in the programs that are available to him including psychological programs and medications that is aimed at improving or modulating his clinical profile and ideally his risk. Of all the medications and treatments that have been listed, the one that is most effective is the one being prescribed by Dr Ellis, Cyproterone acetate. The evidence for all the other ones combined is minimal in being effective at reducing risk and some studies have negative results and positive results. Looking at prison inmates in the UK, they've had negative results as a result of the (inaudible) program. CUBIT has no effectiveness in reducing risk (inaudible) demonstrated as yet. And psychological individual therapy sounds good but doesn't really decrease risk either. Having said that, the Cyproterone acetate is an antilibidinal agent that reduces testosterone and the results have been quite impressive over many years in measures which reduce testosterone, not absolute, but it's very encouraging."
39. He did not regard the defendant's diagnosed conditions as likely to improve over time. The following evidence was given: "Q. […] Given his willingness to engage in that therapy and take the medication as far as we know, then obviously it's relevant in terms of the length of any extended supervision order. Are you able to say that that's encouraging or it's a wait and see approach or what's the best way for her Honour to interpret that material? A. I think we've waited and seen long enough with the offender in terms of the history available. There's many years now of data of his behaviour and his psychopathology. I would suggest that we have a fairly definite diagnosis of borderline personality and a depressive disorder of whichever variety the provisions want to categorise it as. There's risk of depression, there's emotional vulnerabilities and there's borderline personality and then there's troublesome ‑ troublesome sexual behaviour is probably my preferred term as opposed to paraphilia. But I can see some clinicians might diagnose a paraphilia and could be managed in terms of the measures that have been put forward. But I don't think these conditions are transient. What I'm saying is it's no longer a case of wait and see because it's got decades of history now so it's a long‑term need that has to be managed. The problems will not go away in the foreseeable future. […] The issue is that people have varying levels of motivations to comply and varying insights into their deficits and the greater the psychopathology, what I mean is, the more disturbed they are, the more disturbed and disordered as individuals they are, the greater risk there is for them going astray and not complying. So from a psychiatric point of view I feel much more comfortable when there's a network or a structure in place, like for a schizophrenia patient it would be Community Treatment Order and for a this kind of offender, it would be an ESO type order where treatment can be essentially mandated rather than relying on goodwill or good luck."
40. Although the defendant has family support, Dr Furst did not regard that feature as necessarily mitigating risk: "Q. Compared to, for example, if he was living in a halfway house or supported accommodation, it does provide him with a degree of familiarity and stability in terms of location, where he gets his food from, who he is living with and so forth. Do you not agree with that? A. I don't think it's relevant. Before he was organised enough to run a dog‑walking club, and I think he was at his parents or in the area when he offended in 2015. I don't think it changes anything."
41. The doctor was of the view that a period of three years under supervision was an appropriate period, with the prospect of a further supervised period beyond that being necessary.

Evidence for the State

1. The State's read and relied upon: 1. Affidavit of Ann-Marie Najjarin sworn 5 July 2020, annexing the transcript of proceedings concerning the breach of bail incident; the Risk Assessment Report of Mandy Lau dated 12 February 2020 and the supplementary report dated 22 May 2020; the Risk Management Report of Ms Ottaway dated 13 March 2020; and notifications to the defendant. Ms Najjarin also produced a quantity of documentary material as exhibit AN1; 2. Affidavit of Daniel Payton, affirmed 26 June 2020, annexing documentary material; 3. Affidavit of David Yang affirmed 23 October 2020, annexing Offender Integrated Management System ("OIMS") case notes; 4. Affidavit of Kelli Grabham affirmed 23 October 2020. 5. Affidavit of Ann-Marie Najjarin sworn 27 August 2020; annexing the HISOP Treatment Report.
2. Ms Grabham both prepared an affidavit for these proceedings, and gave oral evidence before the Court. In her affidavit, Ms Grabham, the High Risk Offender Applications and Operations Governance Officer in the ESO team within Corrective Services New South Wales ("NSWCS"), described the supervision that the defendant would be subject to under an ESO by the ESO team. She noted that the following would apply to the defendant: 1. Formulation and adjustment of a case plan created for the defendant, reviewed at two monthly intervals and using the plan as a guide to his monitoring and supervision; 2. Weekly face to face contact and communication with the defendant, conducted at his approved place of residence or other location, predominantly conducted unannounced in order to detect and mitigate risk associated behaviours exhibited by him; 3. Unannounced visits to the defendant while undertaking activities in the community; 4. Reporting by the defendant to the relevant office for the purpose of providing structured case management assistance; 5. Providing support and guidance to the defendant as he continues to adjust to life in the community (such as assistance in securing accommodation and suitable employment); 6. Ongoing assessment of the risk of re-offending posed by the defendant; 7. Liaising with the Electronic and External Monitoring Group ("EEMG"), which is located at Silverwater; 8. Consultation with key external stakeholders involved with the defendant's management, such as the Forensic Psychology Service ("FPS"), to ensure his compliance with directions regarding counselling and other treatment, and to monitor his progress and behaviour; and 9. Yearly reporting to the Attorney General on the defendant's progress under ESO supervision and his potential progression through the stages of monitoring.
3. Ms Grabham stated that the defendant's supervisor ("the DSO") would have weekly contact with relevant agencies to discuss "case management strategies applied to the offender, including his progress, behaviour, or difficulties encountered in supervising the offender and future supervision strategies." Ms Grabham opined that the "Proposed Conditions" filed on 9 July 2020 would give effect to the risk management plan. She noted that in the defendant's case, it was particularly important to have a general requirement to report to the DSO and follow all reasonable instructions given his risk factors, the breach of bail offence, his assessment as having a "well above average" risk of sexual offending, and his long-standing interest in young males.
4. In relation to electronic monitoring, Ms Grabham believed it would assist in determining if the defendant breaches conditions of his supervision, and could assist in identifying attendance at environments or locations that increase his risk of reoffending. Ms Grabham described the role a schedule of movements could have in assisting the defendant to plan and ensure proposed daily movements are approved by the ESO Team and the EEMG, and noted that, if the defendant provided a schedule of movements in advance, this would allow staff to assess locations and activities to consider whether they raise risks.
5. Ms Grabham supported the proposed conditions in relation to Accommodation (Proposed Conditions 9, 10, 11, 12, 13 and 14). She also supported the proposed conditions in relation to place and travel restrictions (Proposed Conditions 15, 16, 17, 18 and 20). She regarded proposed condition 16, requiring the defendant to surrender his passport, as providing an additional safeguard against the potential for the defendant to attempt to leave NSW. Ms Grabham noted that the ESO team are unable to supervise offenders who travel outside NSW.
6. Proposed Condition 19 is not pressed by the State.
7. In relation to employment, finance and education, Ms Grabham supported Proposed Condition 22, which ensures that the defendant has approval before starting any job, volunteer work or educational course, to ensure that a risk assessment is undertaken regarding relevant environments. Proposed Condition 23 requires the Defendant to provide information relating to his financial affairs if directed by his DSO; Ms Grabham referred to the importance of this condition given the defendant's history of using expensive gifts to facilitate contact with young boys. Ms Grabham also supported proposed condition 26, which prohibited the defendant from forming any corporation, partnership, or unincorporated association, or registering any business name without the approval of his DSO, for the same reason as proposed condition 22
8. In relation to drugs and alcohol, Ms Grabham supported the proposed conditions prohibiting the defendant from possessing or using alcohol, illegal drugs and prescription medicine other than as prescribed, requiring testing, and prohibiting him from entering any licenced premises without the approval of his DSO. Ms Grabham supported proposed conditions 31 to 36.
9. In her oral evidence before the Court Ms Grabham noted that, in relation to the condition requiring the defendant to provide 24 hours advance notice to his DSO of changes to his schedule, such changes could be quickly dealt with. Ms Grabham told the Court that, in her experience: "A DSO actually utilises their discretion in relation to that particular condition and it's very common that a DSO will allow a period of less than 24 hours to make amendments or variations to an offender's approved schedule. This can be on the basis of many different things, for example the same as what is on the schedule that we identified with medical appointments. It can also be in relation to wanting to attend job interviews, for example, or it may also be in relation to other forms of intervention where potentially someone has been on a wait list and there is now a vacancy and for them to attend, and they have a capacity to attend sooner rather than later. These types of things are quite frequently amended on an offender's schedule and quite often well and truly under the 24 hour rule, and it's quite frequent that a DSO will, as they build rapport with an offender and work through some of the goals that they wish to achieve on a case plan, that this can become quite frequent and acceptable."
10. Ms Grabham stated that a change or variation to a schedule could happen within a matter of minutes; if the defendant was to telephone the DSO and explain the change, the DSO could approve it over the phone, if during business hours. Even outside those hours changes to a schedule can be rapidly approved, as the ESO on-call manager has the capacity to make such decisions. This would apply in situations of urgency, such as if one of the defendant's parents had to attend an urgent medical appointment. The DSO would also use his or her discretion if an emergency arose, and the defendant did not contact his DSO. She confirmed that the notification of movements in advance can be flexibly applied and that changes can occur within a short period of time. Ms Grabham also stated that additional activities could be included in his schedule, such as attending appointments with job network providers or interviews, and increasing skills through training or programmes to assist in gaining employment. Ms Grabham agreed that the ISO Schedules involved approval for medical appointments and visits to community corrections. When asked in cross-examination whether she was aware if the defendant had attended a medical appointment with his parents, she responded "not to my knowledge, no."
11. In cross-examination, Ms Grabham was asked whether the defendant's ability to undertake a caring role of his parents was "perhaps a key element of his reintegration into the community." Ms Grabham stated that it was an element of his re-integration, but not the only element that needed to be taken into consideration. She noted that Stage 1 of the scheduling and electronic monitoring was more restrictive in relation to social activities and interventions but, as a defendant progresses, it became more of a priority to try to encourage a defendant to participate in appropriate social activities.
12. Ms Grabham agreed in cross-examination that no shopping activities were in the schedules required by the terms of the ISO, and prepared since the defendant's release from custody, and nor were activities such as refuelling a car, going for a walk, attending job interviews, or attending training for employment listed on the past schedules.

Evidence for the Defendant

1. The defendant read and relied upon: 1. Affidavit of Beryl Moore sworn 19 August 2020 2. Affidavit of Beryl Moore sworn 9 November 2020 3. Affidavit of Diane Elston affirmed 9 November 2020 4. Affidavit of Hollie Blake affirmed 11 November 2020.
2. The defendant also relied on OIMS Case Notes dated March 2016 to November 2020. A large volume of these notes was tendered to the Court. It is proposed to refer only to those highlighted in submissions to the Court.
3. In her affidavit of 19 August 2020, Mrs Beryl Moore, the defendant's mother, briefly detailed the relationship between the defendant and his sister, Alicia; noting that Alicia had been "very annoyed" at the defendant "the last few years" but had "come around now, and is willing to speak to him and she is doing a lot of work to help with planning his release from gaol and organising supports for him in the future." Mrs Moore noted that the defendant and his sister grew up in their family home, where Mrs Moore and her husband still live. She described her own relationship with the defendant as "very good," and stated, "We get on well with Bradley, except sometimes when Bradley has episodes connected with his mental health."
4. She stated that the defendant lived with her and her husband for the decade before he went to gaol, and that she particularly wanted him to return to live with them. She noted that he had established a life in their hometown, and had "lots of supports around him", referring to the various health professionals with whom he is in contact locally.
5. Mrs Moore described the support that the defendant could provide to her and her husband, including driving for them, gardening and running errands. No children visit the family home. Ms Moore stated that if the defendant was "behaving in a way that I thought was concerning I would talk to him about it." If she was still concerned, she would talk to her daughter or husband, and call the defendant's counsellor or doctor "if I thought they could help".
6. In her affidavit of 9 November 2020, Ms Moore stated that it had been "wonderful" having the defendant home. She noted that he had helped around the house; cleaning, gardening and fixing the roof. She was "very happy to have him home." She also noted that both her and her husband were "getting older and both have a number of health issues that require us to see a number of doctors." She had hoped that the defendant could take them to her appointments, but his "DSO" had said she would need to take herself. On the basis of what the defendant had told her, Mrs Moore was concerned that his DSO had refused reasonable requests, with the defendant refused permission to do things such as attend a chemist to collect medication. She stated that "he is always worried about breaching his conditions."
7. Mrs Moore is equally concerned that visits to the family home by her daughter have been and will be prevented from occurring by unreasonable decisions of the DSO. She gave an account of the defendant being refused permission for his sister to stay overnight at the family home.
8. In her affidavit of 9 November 2020, Diane Elston, senior solicitor at Legal Aid NSW, stated that Mr Knight, forensic psychiatric nurse, and Dr Ellis, psychiatrist, were treating the defendant on a private basis. A report of Dr Ellis dated 2 October was annexed to the affidavit (Annexure A).
9. Dr Ellis was of the opinion that, given the defendant's history of sexual offences against boys, "it is reasonable to conclude a diagnosis of paraphilia." He noted that "his unusual ideas about premonitions are likely related to schizotypal aspects of his personality rather than a grandiose delusion." Dr Ellis did not believe that the defendant appeared psychotic. He proposes to review the defendant and make recommendations about anti-libidinal treatment once hormone results and bone density investigations are completed.
10. A report of Mr Knight dated 7 November 2020 was also annexed to Ms Elston's affidavit (Annexure B). Mr Knight noted that the defendant had begun taking anti-libidinal medication as prescribed by Dr Ellis, on 9 November 2020. He has a treatment plan for the defendant including weekly consultations at Mr Knight's clinic. Mr Knight opined that the defendant "will likely benefit from ongoing, specialised, individualised offence specific cognitive behavioural therapy in addition to compliance with prescribed antilibidinal medication." He considered that the defendant should continue in treatment with him, and with Dr Ellis. He also recommended that the defendant take medication as prescribed.
11. Mr Knight gave oral evidence in Court. He believed that the defendant had some insight into his 2015 offending, and that he and the defendant could "work through it" in therapy. He confirmed the proposal for treatment for the defendant, including anti-libidinal medication prescribed by Dr Ellis.
12. A handwritten letter from the defendant was produced by Ms Hollie Blake, solicitor at Legal Aid NSW, in her affidavit of 11 November 2020. In his letter the defendant said that he had notified Centrelink of his intention to claim a carer's pension, and thereafter support and care for his parents. He described his time at home as "spent happily."
13. An OIMS case note dated 9 September 2020 recorded a conversation between the defendant's mother and his supervisor concerning a proposed visit from his sister. The supervisor recorded her advice to Mrs Moore that the visitor would need to be approved. There was some discussion as to approvals for Ms Moore in the future. The defendant's mother asked whether she would have to pick up the defendant's scripts, and was informed that this was an approved activity for the defendant as it was for a medical reason. Mrs Moore told the supervisor that she or her husband would collect the defendant's prescriptions, as they know the chemist well and it is easier for them to do it.
14. A later OIMS case note of 7 October 2020 noted that the defendant's sister had been spoken to via telephone about an overnight stay planned for 10 October 2020. Ms Moore advised the ESO Team officer that she would use the visits to her brother as an opportunity to stay at a friend's house overnight, rather than staying at the family home.

The Submissions of the Parties

1. Although the defendant's written submissions disputed the evidentiary basis for an ESO to be imposed on him, he did not maintain that position at the hearing, conceding that the criteria in s 5BA of the C(HRO) Act could be met. The dispute between the parties focused on the length of the order, whether 2 or 3 years was appropriate; and upon the conditions of the ESO.
2. The most significant divergence between the parties surrounded the scheduling conditions. The State relied on the evidence of Ms Grabham to establish that discretion exists with the DSO as to how the schedule operates and how electronic monitoring operates in relation to stages. The State submitted that it is inherent in the power exercised by the DSO that he or she could exercise discretion, and that there would be a "relaxation" over time in relation to the activities that are included within a schedule, and an "expansion" in terms of access to the community on a more general level "depending upon how things progress with electronic monitoring."
3. The defendant argued that less stringent supervision than proposed would be adequate to manage risk, and relied upon the evidence of Mrs Moore to submit that the implementation of the ISO had been needlessly restrictive, such that the defendant had been confined to a situation akin to home detention.

Determination

1. I have no hesitation in concluding that the defendant poses an unacceptable risk to the community of committing another serious offence if he is not kept under supervision. As the defendant's concession suggests, the weight of the evidence supports that finding to a high degree of probability, and the test in s 5B of the Act is met.
2. I also have no hesitation in concluding that the order should continue for 3 years rather than for the lesser period the defendant argued for. Again, the weight of the evidence points strongly to the longer period rather than the shorter. In particular, the expert evidence is that an order of 3 years duration is appropriate. Indeed, Dr Samuels in his report and Dr Furst in oral evidence referred to the possibility of an extension of the ESO at the conclusion of the 3 year period, the defendant's psychiatric conditions being enduring, and contributing to risk.
3. As to the proposed conditions, it is appropriate to impose all of those conditions sought by the State, and not disputed by the defendant. Each is indicated on the evidence, and necessary to manage the risk posed by the defendant of sexually offending against boys.
4. I also regard it as appropriate to impose the majority of the balance of the proposed conditions in the form sought or accepted as appropriate by the State, having concluded that the conditions are necessary to manage the risk posed by the defendant.
5. Proposed conditions 5 and 6 relate to a schedule of movements. The defendant submitted that the requirement for a schedule of movements to be completed in advance and complied with subsequently should be time limited, and amended, such that the DSO was not permitted to withhold approval of any activity or proposed change unreasonably.
6. I do not regard it as appropriate to impose a time limitation on the schedule condition. The length of time over which such a schedule is necessary will be dependent on the defendant's compliance during the currency of the order, and his response to supervision. That is not something that the Court can predict now. Those supervising the defendant will be in the best position to determine over time whether scheduling requirements should be relaxed, or abandoned altogether. Any time limit placed upon condition 5 by the Court would not be evidence based, and could undermine the protective efficacy of the order.
7. The defendant's supervisors will also be in the best position to assess whether approval for proposed activities and changes to schedules should be given or refused. In so saying, the Court expects supervising officers to administer the ESO in a responsible and reasonable manner; that should be axiomatic. I see no necessity to add words to condition 6 to direct the DSO to be reasonable. Ms Grabham's evidence was that supervisors have the capacity and authority to act with flexibility. She said that there were 3-monthly case management reviews, and an ongoing process of review of conditions. Flexibility is retained for suitable activities, and for eventualities that fall outside the scope of the 24-hour period contained in condition 6. Implicit in her evidence was that approval for appropriate activities would not be withheld without good reason, and that changes would be allowed if they were suitable.
8. Ms Grabham did not agree with the proposition put to her in cross-examination that the defendant had been effectively in "home detention" for the past 10 weeks. She believed that the current supervising team had made decisions in relation to the re-integration of the defendant into the community, and suggested that, in this instance, it may be that supervisors were taking "more of a step-down approach and a slower approach to his re-integration into the community."
9. Part of supervising an offender, she said, involves testing an individual as to how he or she handled re-integration, particularly after spending long periods of time in custody.
10. Although she accepted that past schedules did not contain activities such as going for a walk, nor was there any evidence, in OIMS notes or elsewhere, that the defendant had ever sought permission to do so by including this as an activity on his schedule, I was not persuaded by the hearsay evidence adduced by the defendant of conversations with supervisors in which permission for appropriate activities was said to have been withheld.
11. An example to illustrate the point is the evidence relating to the defendant's capacity to go to a chemist to fill a prescription, for himself or his parents. The defendant sought to establish that he had been prevented by his supervisors from so doing, relying on his mother's account of his account of what a supervisor had said on the matter. The contemporaneous record found in the OIMS notes gave a very different picture, of approval being given immediately for such activities, and Mrs Moore suggesting the contrary proposition, that it was preferable for the family for she or her husband to be responsible for chemist visits.
12. The Court is confident that those administering these orders are aware of the terms of the order, and their own statutory responsibilities as supervising officers. It is expected that supervisors will permit and encourage lawful, socially positive activities, without needing to be directed by a Court to do so.
13. Similarly, in disputing the wording of condition 7 the defendant asked the Court to amend the condition by adding words which, in my view, should not be required to be stated. Condition 7 prevents deviation from the schedule; the defendant wished a qualification to be added to account for situations of urgency or emergency. It should be plain that, if there was an emergency, or some other situation involving threat to life, health, or safety, a consequential deviation from the schedule would not be a breach of the condition.
14. For example, if a family member of the defendant had to be rushed to hospital for life saving treatment, and the defendant drove the vehicle taking his family member for medical assistance; it is highly unlikely that any DSO would initiate proceedings against the defendant or a breach of the order. If that course was taken, a defence of necessity would clearly be available.
15. It is not desirable - or even possible in all instances - to craft orders that address any and every possible life eventuality. The common sense and reasonableness of all concerned in administering the Court's orders is relied upon to ensure that they are effective tools for the protection of the community, and the rehabilitation of an offender.
16. The parties agreed to an amendment suggested by the defendant to conditions 13 and 14, and those amendments are appropriate.
17. Conditions 22, 26, 29, and 32 will be imposed as sought, noting what the Court has said at [92].
18. Conditions 24 and 25 are no longer sought by the State and will not be imposed.
19. There is an agreed amendment to proposed condition 27, which will be incorporated into the conditions imposed.
20. Although the defendant disputes the necessity for proposed condition 34, and it was not made in the short term as a condition of the ISO, this condition will be imposed. It does not prevent the defendant from engaging the services referred to, it simply requires him to have approval. Over the long term of the ESO, the supervising officer will be in the best position to determine whether approval (for what is not an unlawful activity) should be withheld for some reason directly connected with risk. What has been said at [92] equally applies to the practical implementation of this condition.
21. Proposed condition 42 will be imposed, for the reasons given in State of New South Wales v Moore, referring again to [92] above. Nothing in s 11 of the Act would prevent the supervising officers from accessing any computer or related equipment that is at the defendant's residential address. Due consideration should clearly be given to the privacy of the defendant's parents, and tact and discretion exercised.
22. Proposed condition 53 will be imposed, as necessary to mitigate risk by giving the defendant's supervisors adequate powers to encourage and compel him if necessary to undertake appropriate treatment. Condition 54 will be imposed as the defendant suggested, since the risk is connected with his psychiatric conditions, not other medical conditions that may exist, or which arise from time to time.
23. For these reasons, the orders sought by the State will be made.

orders

1. The Court orders that: 1. Pursuant to ss 5B and 9(1)(a) of the Act that the defendant be subject to an extended supervision order ("the extended supervision order'') for a period of three years; and 2. Pursuant to s 11 of the Act, direct that the defendant, for the period of the extended supervision order, comply with the conditions set out in the Schedule to these orders. 3. Access to the Supreme Court's file in respect of any document shall not be granted to a non-party without leave of a Judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

BRADLEY MOORE Departmental Supervising Officer (DSO) Corrective Services NSW (CSNSW) In these conditions: "CSNSW" means Corrective Services NSW. "Commissioner" means Commissioner for Corrective Services "Defendant" means Bradley Moore, the defendant in these proceedings and the subject of the order. "Digital Blueprint" has the same meaning as in the Weapons Prohibition Act 1998 (NSW) and means any type of digital (or electronic) reproduction of a technical drawing of the design of an object. "Electronic Identity" means each of the following: (a) an email address, (b) a user name or other identity allowing access to an instant messaging service, (c) a user name or other identity allowing access to a chat room or social media on the internet, (d) any other user name or other identity allowing access to the internet or an electronic communication service. "DSO" means Departmental Supervising Officer, that is, any Corrective Services Officer supervising the defendant under the order. "Material" includes: 1. any written or printed material; 2. any picture, painting or drawing; 3. any carving, sculpture, statue or figure; 4. any photograph, film, video recording or other object or thing from which an image may be reproduced; 5. any computer data or the computer record or system containing the data; and 6. any other material or object on which an image or representation is recorded or from which an image or representation may be reproduced. "NSWPF" means NSW Police Force. "Associate" includes, but is not limited to, being in company with, or to communicate by any means (including by post, facsimile, telephone, email or any other form of electronic communication). "Search" includes: 1. A garment search, being 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; and 2. A pat-down search, meaning a search of the defendant where the defendant's clothed body is touched.

Monitoring and Reporting

1. The defendant must accept the supervision of Corrective Services NSW (CSNSW) until the end of the Order.
2. The defendant must report to the Department Supervising Officer (DSO) or any other person supervising him as directed by the DSO.
3. The defendant must comply with any reasonable direction given by the DSO, or any other person supervising (including monitoring) him, for the administration of the ISO/ESO or any condition of the Order. Where a direction may conveniently be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service.

Electronic Monitoring

1. The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him.

Schedule of Movements

1. If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start.
2. If the defendant wants to change anything in his schedule of movements once it is approved by his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period.
3. The defendant must not deviate from his approved schedule of movements except in an emergency.
4. 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

1. The defendant must live at an address approved by his DSO and notify his DSO of any intention to change the defendant's address or living arrangements.
2. The defendant must be at his approved address between 9pm and 6am unless other arrangements are approved by his DSO.
3. 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.
4. The defendant must not spend the night anywhere other than his approved address without the approval of his DSO.
5. If the defendant is living alone, he must not permit any person to enter and remain, or to stay overnight, at his approved address without the prior approval of his DSO.
6. If the defendant is living with any co-residents, he must not invite any person to enter and remain, or to stay overnight, at his approved address (or room, if staying at supported accommodation) without the prior approval of his DSO. If any of his co-residents invite or permit someone, other than a health professional or tradesperson attending the residence to provide a service, ('the visitor') to enter, remain or to stay overnight at the approved address (or room, if staying at supported accommodation), the offender must inform his DSO as soon as possible of the identity of the visitor. The defendant must follow all directions from his DSO in relation to the visitor. Note: This condition does not apply to the defendant's co-residents, or prevent any co-resident from inviting any person to enter and remain, or stay overnight, at the approved address.

Part C: Place and travel restrictions

1. The defendant must not leave New South Wales without the approval of CSNSW.
2. The defendant must surrender any passports held by the defendant to the Commissioner of CSNSW.
3. The defendant must not go to a place if his DSO tells him he cannot go there.
4. Without limiting condition 17 above, the defendant must not go to any of the following without prior approval from his DSO: 1. Day-care centres, pre-schools and schools; 2. Amusement parlours, amusement parks and theme parks; 3. Cinemas; 4. Libraries and museums; 5. Camping grounds and caravan parks; 6. Children's playgrounds, parks, and areas with play equipment provided for the use of children; 7. Pools, playing fields and sporting facilities; 8. Concerts, theatre shows, movies, events and activities intended for the entertainment of children; or 9. Residences where the defendant knows that persons under 18 ordinarily reside; 10. Internet cafes or other businesses which provide public access to the internet either for payment or for no charge (other than employment agencies).
5. The defendant must not attend any place where alcohol or drugs are illegally sold.

Part D: Employment, finance and education

1. The defendant must not start any job, volunteer work or educational course without the approval of his DSO.
2. The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by his DSO.
3. The defendant must not form any corporation, partnership, unincorporated association or register any business names without prior approval of the DSO.

Part E: Drugs and alcohol

1. The defendant must not possess or use alcohol or illegal drugs, and he must not possess or use prescription medication other than as prescribed, otherwise than at the discretion of the DSO.
2. The defendant must submit to testing for drugs and alcohol as directed by his DSO.
3. The defendant must not enter any licensed premises without the approval of his DSO.
4. The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as directed by his DSO, and must not discharge himself from such programs and courses without prior approval of his DSO.

Association with Children

1. The defendant must not approach or have contact with anyone who he knows is under 18 unless his DSO tells him he can, and he is with someone who has been approved in writing by his DSO. This condition does not apply to incidental contact with persons who may be under 18 in the course of ordinary day to day activities.

Associations with Others (not children)

1. The defendant must not associate with people that his DSO tells him not to.
2. The defendant must not associate with any people who are consuming or under the influence of illegal drugs or alcohol, other than his parents.
3. The defendant must not engage the services of sex workers without prior approval from his DSO.
4. If the defendant starts a relationship with someone, he has to tell his DSO who may want to tell the person about his criminal history.
5. The defendant must obtain written permission from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service.

Part I: Access to the internet and other electronic communication

1. 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.
2. The DSO (or any other person requested by the DSO) may remotely inspect any internet account used by the defendant, including the defendant's email addresses, in monitoring compliance with this order.
3. 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.
4. The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO.
5. The defendant must provide a list of communication devices and data storage devices in the defendant's possession and advise the DSO of any change to the inventory immediately.

Part J: Search and seizure

1. If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to f below) is necessary: 1. for the safety and welfare of residents or staff or persons present at the defendant's approved address; 2. to monitor the defendant's compliance with this order; or 3. 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: 1. search and inspection of any part of, or any thing in, the defendant's approved address; 2. search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant; 3. 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 4. search and examination of his person.
2. For the purposes of the above condition: 1. a search of the defendant means a garment search or a pat-down search. 2. 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.
3. During a search carried out pursuant to condition 42 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: 1. the safety of residents or of staff at the defendant's approved address; 2. the welfare or safety of any member of the public or any other person; or 3. the defendant's compliance with this order; 4. or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence.
4. The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use.
5. 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 42 to 45 above.

Part L: Personal details and appearance

1. The defendant must not change his name from "Bradley Moore" or use any other name without the approval of his DSO.
2. The defendant must not use any alias, log-in name, or a name other than "Bradley Moore" or use any email address other than those known to the DSO under condition 37 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email.
3. The defendant must not change his appearance without the approval of his DSO.
4. The defendant must let CSNSW photograph him.
5. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details.

Part M: Medical intervention and treatment

1. The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults.
2. The defendant must attend and actively participate in all psychological and psychiatric assessments or counselling (or any combination of these) as directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction.
3. The defendant must take all medications that are prescribed to him by his healthcare practitioners.
4. If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify the DSO within 24 hours of ceasing to take the medication.
5. The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his DSO.
6. The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 November 2020