State of New South Wales v Newton

Supreme Court of NSW|2022-02-07|Before: Walton J

Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid New South Wales (Defendant) File Number(s): 2021/00355364

JUDGMENT

By a summons filed 14 December 2021, the State of New South Wales ("the State") sought a continuing detention order ("CDO") for a period of one year with an extended supervision order ("ESO") for a further five-year period with respect to Kevin Newton ("the defendant"), pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act").
At the preliminary hearing, the State sought the following interim and interlocutory relief: 1. an order pursuant to s 15(4) of Act, appointing two qualified psychiatrists, or two registered psychologists, or one qualified psychiatrist and one registered psychologist, or two qualified psychiatrists and two registered psychologists, to conduct separate psychiatric or psychological examinations of the defendant and to furnish reports to the Court; 2. a direction that the defendant to attend those examinations; 3. an interim detention order ("IDO") for a period of 28 days, pursuant to ss 18A and 18C of the Act (and a warrant for the committal of the defendant to a correctional centre for the duration of that order pursuant to s 20(1) of the Act); and 4. in the alternative to (3), an interim supervision order ("ISO") for a period of 28 days, and a direction that the defendant comply with the conditions set out in the Schedule to the summons pursuant to s s10A and 11 of the Act.

Evidence before the Court

The State relied on the following evidence: 1. affidavits of Johanna Fisher affirmed on 13 December 2021 (with exhibit JF-1), 16 December 2021,11 January 2022 (with exhibit JF‑3), 20 January 2022 and 2 February 2022, respectively.
The defendant relied on the following evidence: 1. affidavit of Vincent Cataldi sworn on 27 January 2022l; and 2. OIMS Case note from 3 February 2022.
The following reports were also before the Court: 1. Risk Assessment Report ("RAR") prepared by Dr Richard Parker (who co-authored it with Ms Cherice Cieplucha) of the Risk Management Programs of the Serious Offenders Assessment Unit, dated 9 November 2021. 2. Risk Management Report ("RMR") prepared by Mr Mick Glover and Ms Kelli Grabham of the Extended Supervision Order team, dated 8 December 2021. 3. Custody-based Intensive Treatment Report ("CUBIT") authored by Ms Tamara Sweller, dated 20 June 2016.
At the outset of proceedings Mr Dalla-Pozza who appeared for the State conceded: 1. That the submissions made in relation to accommodation being a reason to support the Court making an IDO are no longer relied upon due to an offer being made to the defendant to live in COSP accommodation from 23 February 2022. 2. The acknowledgement by Dr Parker in his RAR that there are limited therapeutic benefits, if any, for imposing a IDO.

THE POSITION OF THE PARTIES

The State submitted that the matters alleged in the supporting documentation would, if proved, justify the making of a CDO or an ESO.
It was contended by the State that outcome is justified because the Court would: 1. Upon the basis that the preconditions in s 5C and s 5B are satisfied, the Court can be satisfied that the relevant matters alleged in the material filed by the State would, if proved, justify the making of either a CDO or ESO: s 18A(b). 2. The State submitted that the material before the Court supported a finding to a high degree of probability that the defendant posed an unacceptable risk of committing a serious offence if not kept under detention pursuant to a CDO. If so satisfied, the Court should make an IDO and order that two experts be appointed to assess the defendant and report back to the Court (assuming the Court also accepts that the defendant's current custody will expire before these proceedings are finally determined).
The defendant accepted that the statutory preconditions in s 5B were met in this case.
Specifically, the defendant also conceded, for the purposes of the preliminary hearing, that the defendant posed an unacceptable risk of committing another serious offence if he was not kept under supervision. The defendant did not therefore oppose, at the preliminary hearing, the making of an ISO or an order for the assessment by two suitably qualified experts, however, opposed the making of a CDO on a final interim basis.
The defendant however, raised that the condition under s 5C(d), relating to unacceptable risk, had not been met.
The parties accepted, therefore, that subject to the Court's review in considering the relevant provisions, the issue before the Court in these proceedings was whether the Court could be satisfied, if proven, to a high degree of probability that the defendant poses an unacceptable risk of committing anther serious offence if not kept in detention.

PRELIMINARY HEARING AND INTERIM RELIEF: PRINCIPLES

As mentioned, the defendant contended that the condition under s 5C(d) of the Act relating to unacceptable risk had not been met.
Sections 10A and 18A of the Act set out the requirements for an application to be made for an ISO and IDO.
Section 10A of the Act empowers the Court to make an ISO in proceedings for an ESO, and is in the following terms: 10A Interim supervision order The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, it appears to the Court - (a) that the offender's current custody or supervision will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.
Similarly, the Court may make an IDO in proceedings for an ESO under s 18A, that is in the following terms: 18A Interim detention order The Supreme Court may make an order for the interim detention of an offender if, in proceedings on an application for a continuing detention order, it appears to the Court - (a) that the offender's current custody (if any) will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order or continuing detention order.
Principles in relation to the making of interim orders and preliminary hearings were outlined in State of New South Wales v Mustapha ("Mustapha") [2022] NSWSC 87. Whilst the decision in Mustapha was in relation to the Terrorism (High Risk Offenders) Act 2017 (NSW) ("THRO Act"), the principles are applicable in the present matter and, in any event, the discussion therein traversed many aspects of the Act. In particular, the discussion makes clear that the provisions of s 50(2) of the THRO Act are not found in the Act.
In Mustapha, the Court referenced the decision of the NSW Court of Appeal in Attorney General for New South Wales v Tillman [2007] NSWCA 119 ("Tillman"), which discussed the principles in relation to the power to grant interim relief in a preliminary hearing under the then Crimes (Serious Sex Offenders) Act 2006 (NSW) which later became the Act. That discussion is extracted below (at [46]-[47]): 46 The judgment in Tillman concerned a preliminary hearing under the then Crimes (Serious Sex Offenders) Act 2006 (NSW) ("CSSO Act") which later became the CHRO Act. Section 27 of the CSSO Act stated that the Act did not affect the right of any party to proceedings under the Act to call witnesses and give evidence or cross examine witnesses. It was found in Tillman at [39] that the powers to make interim orders are capable of exercise from time to time in the light of the situation then prevailing and that s 27 would have effective work to do in that respect where the defendant resisted the making of the interim order, even though the formal requirements of the Act were satisfied. Thus, the defendant may call evidence at a preliminary hearing particularly having regard to the counterpart provision to s 27 in s 50(1) of the Act. 47 Whilst the Court of Appeal in Tillman at [98] found that, in determining whether the power to grant an interim order is enlivened, the Court is not involved in weighing the supportive documentation or predicting the ultimate result, that judgment was given with respect to the CSSO Act. Neither the CSSO Act or the CHRO Act has a counterpart provision to s 50(2) of the Act which provides for a document, report or other information to be admissible in proceedings under the Act, despite any Act or law to the contrary. According to s 50(2), no rule of evidence is affected with respect to the relevance or probative value of the document or report or other information once it is admitted into evidence.
Further, the Court in Mustapha outlined the principles in relation to a preliminary hearing (at [55]-[56]): 55 If, following a preliminary hearing, the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a CDO or ESO, the Court must make orders appointing two qualified psychiatrists or two registered psychologists or a combination of both to conduct separate psychiatric or psychological examinations (as the case requires) of an eligible offender (as will be discussed below, there is no dispute that the defendant is an eligible offender within the meaning of that expression in s 7 of the Act) and to furnish reports to the Court on the results of those examinations and to direct the eligible offender to attend those examinations (see ss 24(5) and 38(5) of the Act). If the Court is not so satisfied, it must dismiss the application (ss 24(7) and 38(7)). 56 The Court may make an IDO if it appears to the Court first, that the offender's "current custody or supervision" will expire before the proceedings are determined; and secondly, it appears to the Court that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO or CDO (s 41). The Court may similarly make an ISO if it appears to the Court that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO (s 27).
The counterpart provisions of the Act referrable to the extract from Mustapha above at [55], vis-à-vis, the appointment of psychiatrist and psychologists in the case of an application for a CDO are s 15(4) and for an ESO s 7(4). The counterpart provisions of the Act to the provision of the THRO referred to in Mustapha (at [56]) are s 10A and 18A of the Act set out earlier.
The Court in Mustapha commenced a further discussion as to the principles at a preliminary hearing made reference to Tillman. That is extracted below (at [57]-[65]): 57 It is useful to commence a discussion of the principles applicable to preliminary hearings by revisiting Tillman. 58 That matter concerned an appeal from a determination to refuse an IDO under s 16(1) of the CSSO Act. The primary judge instead made an ISO for a 28 day period. The defendant was, at the time, serving the final week of a lengthy sentence of fulltime imprisonment for a serious sex offence. 59 The Court of Appeal's attention was directed to s 16 of the CSSO Act which provision was set out in [22] of Tillman as follows: (1) If, in proceedings on an application for a continuing detention order, it appears to the Supreme Court: (a) that the offender's current custody will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order, the Supreme Court may make an order for the interim detention of the offender. (2) An order under this section commences on the day fixed in the order in that regard (or, if no such day is fixed, as soon as it is made) and expires at the end of such period (not exceeding 28 days from the day on which it commences) as is specified in the order. (3) An order under this section may be renewed from time to time, but not so as to provide for the detention of the offender under such an order for periods totalling more than 3 months. 60 The provisions of s 16(1) have as their counterparts s 18A of the CHRO Act and s 27 of the Act (see also s 41 of the Act). 61 The Court of Appeal found that the powers conferred by s 16(1) entailed a discretion enabling the Court to refuse to make an order in a proper case, even if the provisions of, inter alia, s 16(1)(b) were satisfied (at [32]). 62 Section 27 of the CSSO Act provided as at the time of the hearing of Tillman as follows: 27 Hearings This Act does not affect the right of any party to proceedings under this Act: to appear, either personally or by the party's legal representative, or to call witnesses and give evidence, or to cross-examine witnesses, or to make submissions to the Court on any matter connected with the proceedings. 63 The counterpart of this provision is s 27 of the CHRO Act and s 54 of the Act. 64 The Court of Appeal observed, with respect to s 27, as follows (at [39]): Section 27 states that the Act does not affect the right of any party to proceedings under the Act to call witnesses and give evidence, or to cross-examine witnesses. One would have thought such a provision unnecessary as regards the making of final orders. And the powers to make interim orders are capable of exercise from time to time, obviously, in light of the situation then prevailing. Accordingly, for s 27 to have effective work to do, it would appear to be directed at the situation of an offender seeking to resist the making of an interim order where otherwise paras (a) and (b) of ss 8 and 16 are formally satisfied. There is no reason why, for instance, an offender could not seek to establish that the matters alleged in the supporting documentation were incapable of proof. At the very least the provision reinforces the conclusion that "may" imports a judicial discretion. (emphasis added) 65 The defendant submitted that provisions such as s 27(b) of the CHRO Act (such that the legislation does not affect the right to call witnesses and give evidence) and s 50(1) of the Act must mean that a defendant may have a defence case in a preliminary hearing. However, as emphasised above, the Court of Appeal was, in this passage of Tillman, directing attention to a defendant resisting an application where the provisions of, by extrapolation, s 27(b) (or s 41) of the Act are satisfied. Further, the Court gave an illustration representing the limited scope for challenges in such circumstances by providing, as an instance, circumstances where an offender sought to establish that the matters alleged in the supporting documentation were "incapable of proof". The Court observed that the provisions of s 27 of the CSSO Act reinforced a notion that there remained a judicial discretion under s 16(1) of that Act notwithstanding that the formal provisions of s 16 had been satisfied. It follows, by parity of reasoning, that that conclusion would be applicable to s 18A of the CHRO Act and ss 27 and 41 of the Act.
The Court in Mustapha referenced the decision of Davies J in State of New South Wales v Haidar [2020] NSWSC 38, in discussing that it was open for a defendant to produce evidence which was addressed to the exercise of the Court's discretion to refuse to make an ISO. That discussion is extracted below (at [67]-[69]): 67 Haidar concerned a preliminary hearing under the Act. Davies J accepted a submission of the State, based on Tillman, that it was open for a defendant to produce evidence which was addressed to the exercise of the Court's discretion to refuse to make an ISO (at [14]). 68 It may be further observed that his Honour, in Haidar, stated: (1) In adopting the principles stated in Golding at [17] and Sturgeon per Garling J at [7], that it was not for the Court to weigh up the documentation, resolve any conflict, inconsistencies or uncertainties that appeared in the documentation to predict the ultimate result or to consider what evidence the defendant might call at the final hearing. (2) Similar to the approach of the Court of Appeal in Tillman at [39], his Honour referred to material in the supporting documentation which was incapable of proof such as the defendant's observations of the bombing of a building in Lebanon when he was, without doubt, in Australia at the time (at [61]). His Honour found that strong evidence would be needed for the Court to reach a different conclusion from that of the Commonwealth (in the material before the Court) as to whether Hezbollah was an organisation that supported terrorist acts or violent extremism (in considering whether the defendant was a convicted NSW terrorism activity offender (at [58]). 69 No different approach was taken with respect of opinion evidence of an expert as the characteristics of an organisation entitled AMAL (at [77]) or to her reliance upon the inadmissible evidence of another expert, Dr Shanahan (at [83] and [86]).
The Court in Mustapha also made reference the decision of RA Hulme in State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041 and the decision of Garling J in State of New South Wales v Sturgeon [2019] NSWSC 559, in relation to the task of the Court at a preliminary hearing stage. That discussion is extracted below (at [70]-[74]): 70 In Golding, RA Hulme J stated (at [17]-[19]): 17 A final matter to note from the case law concerns the task being performed at the preliminary hearing stage. It is not for the Court to weigh up the documentation, or to predict the ultimate result, or to consider what evidence the defendant might call at the final hearing: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98]. It is a task that has been described as being akin to applying a prima facie case test, taking the plaintiff's case at its highest: see, for example, State of New South Wales v Brookes [2008] NSWSC 150 at [13] (Fullerton J); State of New South Wales v Manners [2008] NSWSC 1242 at [8] (Johnson J). 18 The test in s 10A ("the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order") was adopted as part of the provision for making an interim supervision order in s 27 of the Terrorism (High Risk Offenders) Act 2017 (NSW). In State of New South Wales v Elomar (No 2) [2018] NSWSC 1034, Rothman J (at [7]) rejected a submission that "'prima facie' proof is required of the matters alleged" and explained that "matters alleged" referred to the facts sought to be established by the plaintiff, not the conclusion to be drawn from them. Thus, he said (at [9]) that "it is necessary for the State of New South Wales to allege certain facts, which, if proved, would lead to a conclusion that would justify the making of an ESO". 19 There does not appear to be controversy about this. What the Court is required to do is to proceed upon the assumption that the facts alleged in the supporting documentation are proved and to consider whether those facts would justify the making of an ESO. 71 The defendant contended that Golding had relied on Tillman at [39] and that portions of Tillman had established that provisions such as s 50 of the Act meant that the defendant may have a defence case. As I have discussed, [39] was not expressed in such absolute terms. 72 It was also submitted that Golding relied on Tillman at [98], but that that passage of Tillman was concerned only with the CHRO Act which did not have the equivalent of s 50(2) of the Act. I will refer to the issues raised by s 50(2) but it may be observed at this juncture that the Court of Appeal stated in Tillman that the "threshold question" (being whether the supporting documentation would, if proved, justify the making of "either category of final order") was to be resolved without considering what evidence might be called by the offender at the final hearing and without taking into account any evidence called by the defendant at the interim hearing, save as to discretionary matters. 73 Later, in Sturgeon, Garling J stated (at [6], [7] and [13]): 6 The Court, in undertaking this exercise, is not involved in weighing up the documentation or resolving any conflicts, inconsistencies or uncertainties which appear in the documentation. It is no part of the Court's function to predict the ultimate result, or assess the likelihood of the ultimate result. If on the matters alleged in the supporting documentation it is open to the Court at a final hearing to make a CDO or and ESO, then a conclusion that the Court would be justified in making the order, is inevitable. The issue is to be resolved without considering what evidence might be called by the defendant at a final hearing, and without taking into account any evidence which may be called by a defendant at an interim hearing, because such evidence would not cast light upon what is alleged in the supporting documentation: Attorney‑General of NSW v Tillman [2007] NSWCA 119 at [98]. 7 Once the Court reaches the requisite state of satisfaction at a preliminary hearing, there remains a discretion that enables the Court to refuse to make an order for an interim detention order ("IDO") or an interim supervision order ("ISO"): Tillman at [32]. In addressing this discretionary exercise, it is open to a defendant to adduce evidence which addresses the exercise of the Court's discretion. However, having regard to the nature of the HRO Act as protective legislation, and the stated primary object in s 3 of the HRO Act, "… to ensure the safety and protection of the community …", it is difficult to see that the discretion to decline to make an IDO or ISO would arise other than in an exceptional case. … 13 It follows that there is no place at a preliminary hearing for the undertaking of any challenge, by cross-examination or otherwise, of any person who has stated facts, including expert opinions, in the documentation supporting the State's application, or else who has written reports of the kind referred to, or who has undertaken any of the assessments referred to. Nor is there any place to tender any contradictory material. These are matters reserved for determination at a final hearing. 74 The defendant contended that the reasoning in Sturgeon was not dispositive of the issues in the matter because there is no indication the defendant was prepared to challenge the supporting documentation or to produce contradictory material. The difficulty with that submission is that was precisely the subject matter to which his Honour was directing his attention.
It has been held that the Court looks at the allegations and documentation through the lens of the plaintiff's case and looks then "at their highest when deciding whether the test articulated in s 27(b) of the Act has been made good in all the circumstances of the case" State of New South Wales v Cheema (Preliminary) [2020] NSWSC 876 (at [100]) and State of New South Wales v Elzamtur [2019] NSWSC 186 (at [4]). Both of these authorities concerned applications under the THRO Act but are nonetheless applicable in this case.
The evaluations required in a preliminary were summarised in Mustapha (at [83]-[89]) as follows: 83 The plaintiff is not required to prove the allegations it makes: State of NSW v Thurston [2017] NSWSC 1760 at [19]. 84 The task of the Court at a preliminary hearing has been described, as noted above, as akin to a prima facie case test: State of NSW v Love (Preliminary) [2019] NSWSC 1660 at [31] (per Walton J); State of NSW v Manners [2008] NSWSC 1242 at [8]-[9] (per Johnson J) and State of NSW v Reay [2014] NSWSC 1362 at [29] (per Button J). 85 A preferable formulation is for the Court to proceed on the assumption that the asserted facts are proved and then to consider whether, on that assumed basis, it is satisfied as to unacceptable risk: State of NSW v McGee (Preliminary) [2019] NSWSC 53 at [10] (per Fullerton J). 86 In State of NSW v Sancar [2016] NSWSC 867, Garling J said this about the nature of the task before the Court (at [74]): This Court is engaged in an evaluative task. This evaluative task requires the Court to take into account all of the material that has been placed before it, and to assume that the facts disclosed in that material will be proved at a final hearing. This includes the expert opinions of Mr Ardasinski. Having done so, the Court must then ask itself whether it is satisfied to a high degree of probability that Mr Sancar poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision. 87 The Court is, however, not absolved of consideration of the evidence put before it in support of the application. Some analysis is required, particularly where there is conflict in the evidence. In State of NSW v Hampton [2018] NSWSC 360, Lonergan J said at [40]: Whilst it is not my task to predict decision-making at final hearing or to weigh in detail the evidence and make formal findings about that evidence, I consider it necessary to provide some analysis of what seems to be conclusions by Dr Parker that are contradicted or not supported by other material tendered in support of the application. 88 Sections 27(b) and 41(b) of the Act require attention to be given to "the matters alleged in the supporting documentation". A "matter alleged" should have some proper foundation and could not include matters of rumour, possibilities unfounded in fact or wholly unsupported speculation: State of NSW v Alam [2020] NSWSC 295 at [159]; Cheema per Johnson J at [103]; the "matters alleged" refer to the facts sought to be established by the plaintiff, not the conclusion to be drawn from them: Golding at [18]. 89 In State of NSW v Lynn [2013] NSWSC 1346, Beech-Jones J considered a predecessor provisions at [17]: Subsection 10B(b) does not require the Court to analyse the material in the supporting documentation in terms of assessing whether or not the Court accepts the opinions given by the authors' various reports. Instead it requires a narrower inquiry as to whether what is alleged in that support documentation would, if proved, justify the making of the high risk violent offender extended supervision order. The test for whether an order will ultimately be made is that specified in s 5E(2), namely, satisfaction "to a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence if he or she is not kept under supervision". See also Naaman per Campbell J at [37].
In relation to discretion of the Court to refuse to make an interim order, the Court outlined (at [90]): Once the requisite state of satisfaction is reached at a preliminary hearing, there remains a discretion that enables the Court to refuse to make an interim order. In addressing this discretionary exercise, it is open to a defendant to adduce evidence which addresses the exercise of the Court's discretion: Tillman at [32] and [98]. (See also Haidar per Davies J at [14]).
Further, the Court in Mustapha observed in relation to the focus of the enquiry at the preliminary stage (at [91]): It should also be observed that risk avoidance is the focus of the enquiry at the preliminary stage: State of NSW v Barez (Preliminary) [2019] NSWSC 1589 at [35] per Fullerton J; Attorney General for NSW v Winter [2007] NSWSC 611 at [7]; Sturgeon at [47]. The Court will be best placed to assess the defendant's risk upon receipt of the expert opinions ordered pursuant to ss 24(5) or 38(5) of the Act.

Objectives

Before turning to the preliminary requirements that must be satisfied before bringing an application for an ESO an CDO, I will first look to the objects of the Act.
The primary objective of the Act is outlined in s 3(1) of the Act and is in the following terms: 3 Objects of Act (1) The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community.
Further, in s 17(2) and s 9(2) it outlines that the safety of the community "must be the paramount consideration" when determining a CDO or an ESO application: s 17(2) and s 9(2), respectively, of the Act.

Preconditions

Section 5B of the Act provides for a number of preliminary requirements that must be satisfied before an application for an ESO can be made. The provision is extracted below: 5B Making of extended supervision orders - unacceptable risk The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if - (a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and (b) the person is a supervised offender (within the meaning of section 5I), and (c) an application for the order is made in accordance with section 5I, and (d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.
A "supervised offender" is defined in s 5I(2) and is in the following terms: 5I Application for extended supervision order (2) A supervised offender is an offender who, when the application for the order is made, is in custody or under supervision (referred to in this Part as the offender's current custody or supervision) - (a) while serving a sentence of imprisonment - (i) for a serious offence, or (ii) for an offence of a sexual nature, or (iii) for an offence under section 12, or (iv) for another offence (whether under a law of this State or another Australian jurisdiction) that is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraph (i), (ii) or (iii), or (b) under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order.
Similar preconditions under s 5C must be satisfied before an application for a CDO may be granted. That section provides: 5C Making of continuing detention orders - unacceptable risk The Supreme Court may make an order for the continued detention of a person (a continuing detention order) if - (a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and (b) the person is a detained offender or supervised offender (within the meaning of section 13B), and (c) an application for the order is made in accordance with section 13B, and (d) the Supreme Court is satisfied to a high degree of probability that the person poses an unacceptable risk of committing another serious offence if not kept in detention under the order.
A "serious offence" is defined in s 4(1) to include both a "serious violence offence" and a "serious sex offence".
The index offence is a "serious offence" within the definition in s 4(1) and s 5(1)(b5), because it involved a "serious sex offence", namely, contravention of s 474.26(1) of the Criminal Code 1995 (Cth), being to use a carriage service to procure a person under 16 for sexual activity.
The application for a CDO has been made within 9 months of the expiry of the defendant's total sentence: s 13B(3)(a).
The first three requirements of s 5C (and s 5B) are satisfied in this matter because: 1. he is currently serving a sentence of imprisonment for the index offence; 2. the defendant meets the requirement of a "detained offender" because he is in custody serving a sentence concurrently or consecutively, or partly concurrently and partly consecutively, with the sentence for the index offence: s 13B(2)(a)(i) s 5I(2)(a)(i); 3. the application is made in accordance with ss 13B and 5I. It is made in respect of a detained offender (or, for the purpose of s 5B, a supervised offender), while he is in custody and is not made more than 9 months before the end of his total sentence: ss 13B(1)(a), (2)(a)(i), (3)(a) and (5); ss 5I(1), 5I(2)(a)(i) and 6(1)).

Relevant Principles: Unacceptable Risk

In making a CDO, the Court needs to be satisfied to a "high degree of probability" that the person poses an unacceptable risk of committing another serious offence if not kept in detention under the order. A similar threshold requirement exists in relation to the making of an ESO, namely, the Court needs to be satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.
The phrase "unacceptable risk" (which is a phrase common to both ss 5B and 5C) is not defined in the Act. Its meaning is to be determined as a matter of statutory construction, having regard to its context and the objectives of the Act, including its purpose in ensuring the safety or protection of the community: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 ("Lynn") at [49]-[61].
In particular, as noted by Beazley P in Lynn (at [50]), the word "unacceptable" is contextual, requiring parameters to be identified against which the conduct can be measured, even though precisely what those parameters are is not made evident in the Act. A risk that is present to a sufficient degree that the safety and protection of the community cannot be ensured unless an order is made will satisfy the test (see: Lynn at [44], [55]-[58], [128], [148]).
In the determination of risk, the Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence under s 5D of the Act.
The relevant principles in relation to "unacceptable risk" were discussed State of New South Wales v Love (Preliminary) [2019] NSWSC 1660 ("Love"). The Court outlined at [20]-[21] the threshold requirement and unacceptable risk, that is extracted below: 20 The threshold requirement for making a CDO requires the Court to be satisfied to a high degree of probability that the person poses an unacceptable risk of committing another serious offence if not kept in detention under the order. Similarly, the threshold requirement for making an ESO requires the Court to be satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order. The risk is not a general one, but a risk of committing another serious offence. 21 The Court is not required to determine that the risk of an offender committing a serious offence is more likely that not in order to determine that there is an unacceptable risk of the person committing such an offence: s 5D of the Act.
Further, the Court in Love adopted the statement of principles in State of New South Wales v Dillon (Final) [2018] NSWSC 1626 as being relevant to an IDO or ISO. The Court emphasised two observations in relation to those principles that is extracted below (at [22]-[24]): 22 As to the relevant principles, I adopt the statement of principles in State of New South Wales v Dillon (Final) [2018] NSWSC 1626 at [34] as being relevant to an IDO or ISO. By way of emphasis or elaboration, two observations may be made. 23 First, there may be instances when a person is held to pose an unacceptable risk even if the likelihood of them committing a further serious offence is low, such as when a low risk of recidivism is balanced against the likely consequences to a victim if particular offending occurs (cf State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41] and [43] (per Harrison J)). 24 Secondly, I accept the passage of the judgment of N Adams J in State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 at [127]-[128], adopting the observations of Harrison J in State of New South Wales v Pacey [2015] NSWSC 1983 and Wilson J in State of New South Wales v Simcock (Final) [2016] NSWSC 1805, as follows: [127] In considering the question of whether the defendant poses an "unacceptable risk" of committing a "serious sex offence" if he is not kept under supervision, I give the words "unacceptable risk their ordinary meaning. I also have regard to the observations of Harrison J concerning the question of "unacceptable risk" in State of New South Wales v Pacey at [43] as follows: "It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable." [128] Similarly, Wilson J observed in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71]) that, "Unacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate.

The State Submissions

In relation to unacceptable risk, the State submitted that the Court should be satisfied, to the requisite standard on materials before the Court, if proven, that the defendant posed an "unacceptable risk" of committing a serious offence if not kept in detention. Reliance in this respect was placed on the RAR and the risks identified therein. Those submissions are summarised below: 1. The defendant's past behaviour, namely, a history of responding poorly to supervision and of breaching parole indicates that he will not comply with the conditions of an ESO. The defendant has been assessed as being at a high level of risk of reoffending, some of which potential offending, at least, may well fit within the statutory definition of "serious offences". It was therefore submitted that, at this stage, supervision, on its own, pursuant to an ESO will not suffice to prevent the defendant from re-offending. 2. In relation to the defendant's association with anti-social influences, it was submitted, that supervision under an ESO will not suffice to reduce the defendant's risk to an acceptable level at this juncture. Reliance was placed on Dr Parker's suggestion that there are indications, at present, that the defendant intends to continue to associate with persons he wishes to, irrespective of any ESO. 3. In relation to unacceptable risk it was submitted that much of the offending the defendant has previously committed is serious as it has involved underaged victims. That, together with the likelihood of the offending recurring (given the frequency with which it occurred and the assessed statistical likelihood of his recidivism) makes the nature of the risk "unacceptable" for the purposes of s 5B(d) and 5C(d). 4. It was submitted that the defendant's detention is necessary. This is so at least until such time as the defendant is better equipped to live in the community than he is at present. It was submitted that this justifies the making of a CDO followed by a period of supervision on an ESO. 5. The defendant has spent only 2.8 years as an adult in the community compared with 18 years in custody. This suggests that he is presently ill equipped to manage his risks of reoffending in the community. Hence, a gradual transition for the defendant to live in the community is required. It is submitted that the making of a CDO should be the first step in that gradual transition and the only way to protect the community. 6. It was submitted that the making of a CDO would provide "containment benefits" as identified by Dr Parker in the RAR. This is so at least in the short term; until such time as the defendant has been better able to demonstrate that he is better prepared to live in the community without offending. 7. It was accepted by the State that the proposed conditions of the ISO, when taken as a whole, provide a more detailed supervision and enforcement regime than the defendant's previous parole conditions and it is more likely that a breach of the conditions could be identified and appropriate action be taken. However, it was submitted that the past breaches are nevertheless significant. 8. As mentioned, it was conceded by the State that the issues raised in the RAR of Dr Parker regarding accommodation is no longer relied upon due to an offer being made to the defendant to live in COSP accommodation from 23 February 2022.
In the alternative, the State submitted that were the Court not to make a CDO and ESO should be made. It was submitted that, given the defendant's assessed level of risk, his criminogenic matters and the amount of time, as an adult, he has spent in custody, that the defendant will require support to transition back to the community. Without that support, it is submitted, the defendant continues to pose an "unacceptable risk".

The Defendant's Submissions

The defendant submitted that the defendant's risk can be managed by an ESO rather than a CDO. Those submissions are summarised below: 1. The RAR noted that the defendant had not, at that time, completed the High Intensity Sex Offenders Program ("HISOP"). The executive summary of the RAR specifically noted that a CDO may provide an opportunity for the defendant to complete that program, however this has already occurred in December 2021. 2. There is no therapeutic gain by imposing a CDO, as there appears to be no other program or opportunity in custody that would be directed at reducing the defendant's criminogenic needs. 3. It was submitted that the defendant has made inroads in self-awareness of his risk factors, has strategies towards reducing his own risk, planned coping mechanisms and the support of friends on his release in addition to the structure that would be provided by the ESO team. 4. The defendant has not previously been the subject of an ESO, and its heightened degree of oversight and intensive supervision/support. This intensive support and supervision reduce the risk of the defendant committing a "serious offence" upon his return to the community. 5. It was submitted that available mechanisms are capable of reducing the risk that the defendant poses in the community. 6. The regime of an ISO, as proposed by the State, is significantly more onerous than the parole conditions the defendant has been subject to in the past.

The Defendant's Background

The defendant is currently 38 years of age. He is the eldest of five children (four of whom are his half-siblings).
The defendant has a complex background characterised by family dysfunction, drug use and trauma. He spent much of his youth in foster care and refuges for the homeless. As a young person, he lived on the street and commenced working as a prostitute when he was aged between 12-14 years of age.
The defendant left high school in year 9 and completed years 10 and 11 whilst in custody. There is some suggestion in the available materials that he may have been developmentally delayed at school.
The defendant reported engaging in self-harm behaviours from around the age of 14. He was reported as displaying symptoms of a schizoid personality disorder in 2001 and has also displayed symptoms consistent with a diagnosis of major depression. He has been diagnosed with a Cluster B Personality Disorder but has not otherwise been diagnosed with any psychiatric illness.
The defendant has worked in a variety of positions, including as a storeman, forklift driver and for a data systems company. He was in receipt of a disability support pension prior to his incarceration.
On 31 July 2017, the defendant was observed to have "active problems" with schizophrenia (not psychotic) and major depression and was prescribed citalopram and quetiapine as at that date.

The Index Offending

On 19 June 2017, a police officer, who had assumed the identity of a 14-year-old boy, contacted the defendant. The assumed identity asked the defendant for advice regarding having sex with older men. The defendant gave the assumed identity his phone number and an email which he falsely represented belonged to "Anthony", a fictitious person. The defendant also represented that "Anthony" would be interested in exchanging money for sex. "Anthony" and the assumed identity arranged to meet at Petersham Train Station at a certain time on 24 August 2017. The defendant attended there at that time and, when he did, was arrested.
When police approached him, the defendant is attributed as having said "you know why I'm here, just arrest me". He also told police that he had known it was them all along and that he wanted to go to gaol. He also admitted to having a sexual interest in boys aged 14 and over.
The defendant pleaded guilty in the Local Court and, on 5 November 2018, was sentenced by Norton DCJ.
His Honour in terms of the objective seriousness of the offending found that the offending was below mid range for offending of this type: The seriousness of this offence is reflected in the maximum sentence. That maximum is a helpful benchmark. The offence, whilst grave, is not so serious as to fall in the worst category requiring the maximum. … This is a serious offence but it is below midrange for offences of this type. The offender has pleaded guilty and it is not suggested that he did not cooperate with law enforcement agencies in the investigation of the offence.
After applying a discount of 25%, by reason of the guilty plea, his Honour imposed a sentence of 3 years and 9 months which was backdated until 24 May 2018. That sentence expires on 23 February 2022. The defendant became eligible for parole on 24 February 2021 but, has been refused parole and will serve out his sentence in custody.

CONSIDERATIONS

The Court in assessing an application for an ISO and an IDO, must have regard to mandatory considerations outlined in ss 9(3) and 17(4) of the Act.
Those considerations are considered below.

Criminal History

The defendant has a record of offending which commenced in 1998 and consists of driving offences, possession of knives and implements and implements to steal conveyances as well as stealing as other property offences.
In 1999, in the Melbourne Children's Court the defendant was sentenced for an offence involving unlawful and injurious imprisonment including an indecent act with a child under 16. At the time the defendant was aged 15 years, and the victim was aged 12 years. No conviction was recorded for this offence and the defendant was sentenced to youth supervision order for 12 months.
On 10 November 2009, the defendant was sentenced, after pleading guilty, to three counts of sexual intercourse with a child aged between 14 and 16 years contrary to s 66C(3) of the Crimes Act 1900 (NSW). He was sentenced to a total effective sentence of 7 years and 6 months imprisonment (which commenced on 9 November 2008 and expired on 8 May 2016) with an additional term of 4 years (which expired on 8 May 2020). The defendant was released to parole on these matters on 1 December 2016.

Risk Assessment Report

The defendant participated in a 90 minute interview with Dr Parker for the purposes of the RAR on 5 November 2021.
Dr Parker noted that, at interview, the defendant was polite, but presented with strong negative affect. Dr Parker could not detect evidence of psychosis or intellectual disability.
Dr Parker in his report used a number of instruments to assess risk, namely, LSI-R, Static-99R, STABLE-2007, and violence risk appraisal guide-revised (VRAG-R).
Dr Parker assessed the defendant and noted that he fell within the medium/ high range of the LSI-R; the 99th percentile in the Static-99R; high risk category in the STABLE 2007; well above average risk when Static-99R and STABLE-2007 are combined and; equal to or higher than the score of at least 94% in the VRAG-R.
Dr Parker identified the following criminogenic needs for the defendant, namely, sexual attitudes, anti-social associates, sexual preoccupation and problem solving.
Dr Parker suggested that the defendant is at a high risk of sexual recidivism and suggested that he has a high density of criminogenic needs.
Dr Parker stated that it is difficult to know whether the defendant would comply with the conditions of an ESO. He stated, however, that the defendant's history of self-harm, would likely see the defendant "cycle in and out of hospital" and would likely preclude him from most supported accommodation options. He concluded that the defendant's "negative attitude towards supervising staff would likely result in him defying conditions of his order".
In relation to the defendant's integration into the community, Dr Parker made the following observation (at par 94): Whilst he is currently undertaking the HISOP program (having previously completed the same program several years previously) he does not appear to have made any substantial gains in his basic presentation. He appears ill-equipped for life in the community, but is unlikely to progress whilst in custody. His accommodation prospects are highly limited because his self-harm has precluded him from the supported accommodation facilities run by CSNSW.
Dr Parker gave the following opinion in relation to whether a CDO should be imposed: Mr Newton should be able to complete HISPO within his existing sentence. If he fails to complete this program by the end of his sentence, a Continuing Detention Order (CDO) may provide this opportunity. Given the lack of progress in changing his criminogenic needs, it is unlikely there would be an therapeutic gains from such an order. However, the Court may consider imposing a CDO for its containment benefits.

Risk Management Report

The defendant also participated in an interview for the purposes of a RMR with Mr Glover and Ms Grabham of the Extended Supervisions Order team.
The defendant was able to identify "isolation", "mental health" and "poor coping" as his risk factors. However, in the opinion of the authors, the defendant "was unable to explain how these factors led to the commission of his serious index [sexual] offences and did not appear motivated to discuss his actual risk factors".
The RMR proposed the following risk management plan: 1. weekly contact with a Community Corrections Officer together with unannounced home visits on a monthly basis; 2. supporting the defendant to engage a private psychologist specialising in Dialectic Behaviour Therapy (it is noted that the defendant expressed a wish to the authors of the RMR to engage in this form of therapy); 3. scrutiny of the defendant's association with others to ensure that he engages with pro-social people and to detect any indication of inappropriate relationships; 4. Practice Guide for Intervention Exercises (focussed on addressing the defendant's identified risk factors of "interpersonal relationships, managing environments and prosocial lifestyle"); and 5. review of the defendant's case plan every 2 months.
Further, the RMR proposed conditions for the defendant if he was released into the community whilst subject to an ESO. These included: 1. Electronic monitoring - the authors opined that this measure would allow any concerning patterns in the defendant's behaviour that may be related to his identified risk factors to be identified. Further, in the opinion of the authors, electronic monitoring would allow for exclusion zones to be established around high risk areas. 2. A schedule of movements - the authors opined that this would assist the defendant to plan his week and develop a pro-social routine. 3. Accommodation - the authors opined that these conditions would assist the ESO Team's ability to verify that the defendant is living at suitable accommodation (at the "approved address"), to enable home visits to be conducted (at that address) and to enable Community Corrections to make appropriate enquiries as to the nature of the defendant's associations. 4. Alcohol and drugs - the authors noted that, although substance abuse is not a particular identified risk factor in the defendant's case, illicit substances and alcohol have disinhibitory effects on. The authors noted that the ability to test for alcohol and illicit substances would be required in order to monitor the defendant's compliance with these conditions. 5. Place and travel restrictions - the authors noted that, due to the nature of the defendant's offending, conditions prohibiting him from attending any residence where he knows persons under the age of 18 years reside, or attending locations frequented by young adolescent males, would "appear prudent". 6. Employment and education - these are said to provide the ESO Team with an ability to monitor the activities the defendant is partaking in and his progress whilst undertaking such activities. 7. Association with children - the authors consider these conditions to be "prudent" given the defendant's history of offending. 8. Association with others (not children) - the authors noted that the defendant will have unavoidable contact with others when attending FPS, however, the authors considered these conditions to be essential to enable the defendant to develop pro-social contacts. 9. Access to the internet and electronic communications - the authors of the report considered that these conditions are necessary to monitor the defendant's contact with associates as well as with potential victims. 10. Search and seizure - the authors of the report considered these conditions to be necessary to enable the effective monitoring of the defendant's compliance with the conditions of his order, particularly those regarding his usage of the internet. 11. Medical intervention and treatment - the Report noted that the defendant "would appear to benefit from frequent, ongoing contact with community health providers".

Treatment and Rehabilitation Programs

The defendant has previously participated in the CUBIT program between 14 October 2015 and 3 June 2016. A report authored by Ms Tamara Sweller, dated 20 June 2016, was provided to the Court.
In her report, Ms Sweller noted the defendant's history of engaging in deliberate self-harm. In particular, the defendant reported engaging in self-harm when he first entered the CUBIT program by cutting himself with a razor and using hot water to burn himself.
The author also noted that that the defendant presented as ambivalent to the treatment process. She attributed this to his lack of emotional regulation and his fragile sense of self. She noted that the defendant had expressed a desire to make changes in his attitudes, however, when he was overwhelmed, felt inadequate, hopeless or worthless, he tended to engage in self-defeating behaviours or was dismissive of his need for treatment. At times, the defendant expressed frustration with his treatment
Ms Sweller assessed the defendant and noted that he was in the "high risk category" in the STATIC 99-R, a "high level" of stable dynamic needs on the STABLE 2007. When taking into account both static and dynamic risk factors, the defendant's composite risk assessment placed him in the "very high" risk category.
Ms Sweller identified five risk factors the defendant, namely, general self-regulation, intimacy deficits, significant social influences, sexual self-regulation and cooperation with supervision.
In June 2021, the defendant completed the RUSH program (Real Understanding of Self-Help). However, his overall response to supervision was said to be mixed, and reference is made to his difficulties with emotional regulation contributing to his ambivalent response to the HISOP program in 2016.
The defendant has also completed the HISOP Program (the new version of the CUBIT program) on the 20 December 2021.

Compliance

The defendant has a history of non-compliance with parole orders and was on parole at the time the index offence was committed. I commence this discussion by first turning to the submissions of the parties in this respect.
It was submitted by the State that this consideration is of particular importance to the questions of whether, in the first instance, the Court should impose a CDO as opposed to an ESO (in the event that the Court is satisfied of the existence of an unacceptable risk). The State accepted that, when taken as a whole, the proposed conditions of the ISO provide a more detailed supervision and enforcement regime than the defendant's previous parole conditions.
Further, on a general level, it was accepted by the State that this regime means that it is more likely that any breach by the defendant of the conditions attached to any ISO could be identified and appropriate action taken as a result. However, it was submitted that the defendant's prior breaches of parole are nevertheless significant and that the specific breaches committed by the defendant of his parole were of conditions similar to, or substantially the same effect as, certain conditions that have been sought as part of any ISO.
It was submitted by defendant that the level of supervisions and support on parole is vastly different to that proposed on an ESO. The regime of an ISO, as proposed by the State, is significantly more onerous than the parole conditions the defendant has been subject to in the past. Specific reference was made to the availability of electronic monitoring and scheduling under an ISO, which were not applied to the defendant on the last occasion he was released from custody on parole. It was submitted that these are further onerous conditions that mitigate any perceived risk that the defendant poses to a level that is no longer unacceptable, hence warranting an ISO as opposed to an IDO.
As identified above, the State placed significance on the defendant's prior breaches of parole in advancing the submission that the defendant will breach the conditions under the proposed ISO. Reliance was placed on specific breaches of parole conditions which were said to have the same or similar to those proposed in the ISO, those prior breaches of parole are discussed below.
It was accepted by both parties that the defendant had breached three parole conditions in the past which required the defendant to obey all reasonable directions of the Community Corrections Officer (parole condition 4), undergo psychiatric assessment and psychological assessment and counselling (parole condition 16) and not to associate with any person/persons specified by the Community Corrections Officer (parole condition 12). Those prior breaches are summarised below: 1. The breach of parole report dated 9 August 2017 ("the August report"), alleged that the defendant refused to seek treatment and support from a mental health professional and further declined to engage with any other crisis mental health service. Additionally, it was noted that the defendant admitted to providing an inaccurate report of his mental health condition when attending an appointment with his psychiatrist. This amounted to a breach of condition 16 of his parole conditions, which required the defendant to undergo psychiatric and psychological assessment and counselling. 2. The breach of parole report dated 24 March 2017 ("the March report") alleged that the defendant breached parole conditions 4 and 12 (which required him to submit to supervision, to obey reasonable directions and not to associate with persons specified by his supervising officer). In particular, it was alleged that the defendant had been seen in the company of a known convicted child sex offender (who was also a resident at the COSP where the defendant was residing).
Condition 16 of the parole conditions and proposed condition 50, are extracted below: 2016 Parole order 16 The offender must if so directed by the Officer, undergo psychological assessment and counselling (including Forensic Psychology Services) and psychiatric assessment and counselling. Further, the offender must authorise in writing that his treating health services provider make available to the Officer, a report on his medical and/or other conditions at all reasonable times. Proposed Condition 50 The defendant must undergo ongoing psychological or psychiatric assessment 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, including for the purposes of a Mental Health Care Plan or Community Treatment Order.
For the purposes of comparison, I also set out further comparable parole and proposed ISO Conditions (relating to the defendant's breaches of parole: 2016 Parole Conditions 4 The offender must, until the order ceases to have effect or for a period of 3 years from the date of release (whichever is the lesser), submit to the supervision and guidance of the Community Corrections Officer assigned to the supervision of the offender for the time being and obey all reasonable directions of that Officer 12 The offender is not to associate with any person or persons specified by the Officer. Proposed Conditions 1 The defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions of a DSO. 27 The defendant must not associate with any person or persons specified by a DSO.
It was submitted by the State that, given the similarities between those parole conditions and the proposed ISO conditions, that the breaches of parole evince a risk that the defendant may breach the counterpart proposed ISO conditions.
It was submitted by the defendant that when looking to the prior breaches of parole, that the defendant was attending his weekly meeting with his parole officer, fortnightly sessions with a psychologist, and was abstinent from drugs and alcohol. This submission was supported by the August report, under the heading "Response to Supervision", it outlined the defendant "has attended fortnightly appointments with a psychologist from Forensic Psychological Services".
Further, it was submitted, that at that time of those breaches the defendant was struggling with his mental health and negative thinking.
Whilst it is accepted that the prior breaches of parole conditions are similar in effect and nature of three of the conditions in the proposed conditions sought by the State might, as a matter of logic, indicate a risk of non-compliance with the counterpart provisions of the proposed ISO, I do not consider it follows that a conclusion may properly be reached that the supervision afforded by the conditions proposed by the State under the ISO when considered as a whole will be insufficient to mitigate the requisite risks in 5B of the Act. The considerations required by s 10A of the Act, require the Court to look at the proposed arrangement or conditions as whole rather than looking at particular considerations in isolation. In doing so, it is evident that the proposed conditions for the ISO (which are not opposed by the defendant) as a whole sought by the State create a significantly more effective and stronger regime to manage the risks posed by the defendant than was present under parole conditions at the time of the breaches of parole. Further, as was identified by the defendant, his attendance upon conditions of parole needs to be viewed in the light that during parole he was attending weekly meetings with his parole officers and sessions with his psychologist.
Further, as was identified by the defendant the proposed ISO conditions provide further support and oversight relating to the defendant's mental health through providing a framework for his ongoing medication intake, and monitoring his attendance at psychological or psychiatric practitioners, as well as providing a mechanism for referrals for further treatment initiatives. This is of significance in this case due to the prior breaches of parole being linked to the defendant's mental health and negative thinking at that time.
This conclusion may be demonstrated by a closer analysis of the conditions proposed with the ISO compared with those applying on parole.
A table was provided to the Court which showed the comparison between the proposed ISO conditions and the parole conditions imposed by the State Parole Authority in 2016, "State of NSW v Newton - comparison of parole and ESO conditions" ("Comparison Table").
As earlier identified, the defendant placed significant reliance on the ability for an ISO to impose electronic monitoring and scheduling which was not in place under the Parole Conditions in 2016.
Proposed ISO condition 4 imposes the condition for electronic monitoring and is in the following terms: Electronic Monitoring 4 The defendant must wear electronic monitoring equipment as directed by a DSO and must not tamper with, or remove, the equipment.
Further, conditions 5, 6, and 7 impose the conditions relating to scheduling and are in the following terms: Schedule of Movements 5 If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start. 6 If the defendant wants to change anything in his schedule of movements once it is approved by a DSO, he must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period. 7 The defendant must not deviate from his approved schedule of movements except in an emergency.
The inclusion of electronic monitoring and scheduling considerably contributes to a greater enforcement regime under an ISO than was present under parole conditions in 2016. These are further conditions, in my view, significantly mitigate any perceived risk that the defendant poses when taken with other conditions.
In addition to the inclusion of electronic monitoring and scheduling, the proposed conditions also include conditions limiting access to the internet and other communication, search and seizure powers, access to pornographic, violent and classified material and personal details and appearance. These conditions were not part of his previous parole order.
Under the proposed conditions of "Access to the internet and other electronic communication" under Part G, the defendant, inter alia, must obey any reasonable direction by a DSO about communication, internet access and use of electronic devices, including, but not limited to, approval of devices used, method of communication, access to the internet and restrictions on deleting information. Part G of the proposed conditions is extracted below: Part G: Access to the internet and other electronic communication 32 The defendant must obey any reasonable direction by a DSO about communication, internet access and use of electronic devices (including, but not limited to, approval of devices used, method of communication, access to the internet and restrictions on deleting information). 33 The defendant must not use any alias, electronic identity, log-in name, name other than "KEVIN JOHN NEWTON" or any email address without prior approval of a DSO. The defendant must give a DSO a list of all devices, services and applications he uses to communicate with or to access the internet and advise a DSO of any change to the list immediately. This includes phones, tablet devices, data storage devices or computers. 34 The defendant must only use an electronic device which has the ability to access the internet after the device has been disclosed to a DSO and the device has been seen and approved for use by a DSO. 35 The defendant must provide the details of telephone numbers, service provider account numbers, email addresses or other user names as well as any relevant passwords, pin codes and pass codes used by the defendant and the nature and details of the internet connection, as directed. 36 The defendant must provide a DSO with all passwords, pin codes and pass codes used to access all electronic devices, electronic applications, internet sites and communication platforms of any kind. 37 The defendant must not use any coded or encrypted messaging application or service. 38 The defendant must provide any code or encryption for any electronic data or any electronic communication if discovered on the defendant's electronic devices or accounts as a result of a search or a remote inspection. 39 The defendant must not access, join and/or connect to any social networking service or application without the prior approval of a DSO, including, but not limited to, use of internet based email, instant messaging services, online community services, multi player video games and other telecommunications-based services including text and voice services. 40 The defendant must provide consent for a DSO (or any other person requested by a DSO) to remotely inspect any internet account used by the defendant, including any internet service provider account, email accounts and social media accounts, in monitoring compliance with this Order. 41 The defendant must not delete or alter any applications, email, text messages, any electronic message, call history, any data, internet search, internet or application search history, any application chat or communication history from his phone, computer, tablet or any other electronic device without the prior consent of a DSO. 42 The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with a DSO.
Further, the addition of the condition relating to the internet and access to pornographic, violent and classified material is of some significance in this case due to the nature of the index offending and the defendant's criminal history.
As mentioned, under the proposed conditions there is also an increase in the enforcement powers in relation to medication, namely, that the defendant must take medications prescribed to him by his healthcare practitioners and he must notify a DSO immediately if he ceases to take or declines to taking any medication. Under the previous parole order the condition was limited to, inter alia¸ orders to undergo psychological assessment and counselling.
Further, under the proposed conditions there is an increased stringency as to associations with others (including children) than there was previously under the parole order. The parole condition order that the defendant is not to associate with any person or persons specified by the Officer. However, the condition under the ISO expanded this restriction. That is extracted below: Associations with Others (not children) 27 The defendant must not associate with any person or persons specified by a DSO. 28 Without limiting condition 27, the defendant must not: a. associate with any people who he knows are consuming or under the influence of alcohol without the prior approval of a DSO. b. associate with any people who he knows are consuming or under the influence of illegal drugs. c. associate with any person held in custody without prior approval of a DSO. 29 The defendant must not engage the services of sex workers without the prior approval of a DSO. 30 The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary. 31 The defendant must obtain written permission from a DSO prior to joining or affiliating with any club or organisation

Behaviour in Custody

The defendant has accumulated a total of two institutional misconduct charges during his various periods of incarceration. Those two incidents are referred to below: 1. On 19 May 2016, while in custody, the defendant failed a prescribed drug test. 2. On 14 March 2018, while in custody, the defendant was charged with unlawfully use telephone or fax. This incident involved the defendant giving another inmate permission to use his Offender Telephone System account.
In the RAR, Dr Parker noted that the defendant has not been considered a "managerial problem" in custody as a result of his behaviour towards others but rather due to the frequent occurrences of his self-harming behaviour.
It was also noted in the RMR of Mr Glover that the defendant appeared to have engaged in brief periods of employment in custody. His longest period of continuous employment was in the library for 8 months between October 2018 and October 2019 and working in technology between July 2013 and January 2015.
The defendant submitted that the defendants record in custody of only two misconduct charges is significant noting that in the last 21 years the defendant has only spent approximately 2 years and 8 months in the community. It was also submitted that since 6 April 2020, the defendant holds a C2 minimum security classification in custody.

CONDITIONS

The only dispute as to conditions concerned proposed conditions 17(j) and 27. However, those issues were resolved during the course of the hearing as discussed below.
The defendant did not take any issue with any of the proposed conditions, save for two, namely, conditions 17(j) and 27. They were in the following terms: 17 Without limiting condition 16 above, the defendant must not go to any of the following without the prior approval of a DSO: j. Internet cafes or other businesses which provide public access to the internet either for payment or for no charge (other than employment agencies). … 27 The defendant must not associate with any person or persons specified by a DSO.
The State proposed an amendment to the condition 17(j) which was not opposed and alleviated the concerns of the defendant. Condition 17(j) was amended in the following terms: 17 Without limiting condition 16 above, the defendant must not go to any of the following without the prior approval of a DSO: … (j) "internet cafes or other businesses which are, either exclusively or predominantly, in the business of providing provide public access to the internet either for payment or for no charge (other than employment agencies)".
The dispute in relation to proposed condition 27 fell away at the hearing as the primary basis for the dispute raised by the defendant was so that the defendant would be able to have contact with Mr Tanner. However, as was submitted by the State, condition 27 confers a discretion on the DSO to make appropriate directions about the defendant's future contact with Mr Tanner. If contact with Mr Tanner is assessed as being beneficial for the defendant's future rehabilitation, Mr Tanner would presumably not be made the subject of a direction under condition 27. Conversely, however, if there is an indication that ongoing association with Mr Tanner is (or might, in the future, become) harmful, condition 27 allows for the DSO to take appropriate steps in this regard.

CONCLUSION

Having paid close attention to the contentions of the State as summarised at [47] above, and focussing my inquiry, at this preliminary stage upon risk avoidance (and the primary object in s 3(1)). I am satisfied that the matters alleged in the supporting documentation would, if proven, not justify the making of a CDO but do warrant the making of a ESO, and further that, on those materials it is appropriate to make an ISO pursuant to s 10A (rather than an IDO under s 18A), of the Act, for the following reasons: 1. For the reasons earlier given, I do not consider the defendant's past behaviour under parole and his response to supervision under parole as a proxy for his performance under an ESO given the conditions under parole are not truly comparable to those sought for an ESO in this case and, in particular, the conditions under the ESO are much stronger and effective conditions relevant to the risk posed by the defendant. 2. In relation to the defendant's anti-social influences and the risk of committing a serious offence, I am satisfied that the proposed conditions under the ESO are effective in managing this risk. As earlier discussed, the ESO conditions proposed by the State provide an effective regime to manage the risks of the defendant upon his return to the community through the inclusions of electronic monitoring and scheduling as well as stringent conditions relating to the defendant's association with individuals. As a result, I find that the proposed ESO conditions are capable of reducing the risk the defendant poses in the community. 3. As earlier discussed, in the RAR of Dr Parker identified that the defendant was placed at a "high level" of the risk of reoffending and raised, in particular, a risk concerning the defendant's accommodation. Nonetheless, Dr Parker found that there are limited therapeutic benefits of imposing a CDO, namely, that it would enable the defendant to participate in the HISOP program, which he has now completed in December 2021 and would provide for "containment benefits". The meaning of the expression was not defined. However, on the materials before the Court, the defendant has completed the HISOP program (so there is no apparent therapeutic gain for imposing a CDO in this case) and the defendant has obtained accommodation, The RAR of Dr Parker must be modified in that light, particular with the significant contributor of absence of accommodation being removed.
On this preliminary hearing, and on the matters alleged in the documentation before the Court, I am satisfied, however, 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.

ORDERS

The Court makes the following orders: 1. Pursuant to s 7(4) of the Act, appointing one qualified psychiatrist and one registered psychologist to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court, and directing the defendant to attend those examinations. 2. Pursuant to s 10A of the Act, that the defendant be subject to an interim supervision order commencing on 23 February 2022 for a period of 28 days from that date. 3. Pursuant to s 11 of the Act, directing that the defendant, for the period of the interim supervision order, comply with the conditions as set out in the Schedule to the Summons filed on 14 December 2021 which is attached.

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: 07 March 2022

Crimes (Serious Sex Offenders) Act 2006(NSW)

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Judgment (23 paragraphs)

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Cases Cited (27)

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