State of New South Wales v Nixon

Factual Background

1. The factual background was set out in in the plaintiff's submissions as follows: "(a) The Defendant's personal circumstances 8. The Defendant is 37 years of age. He is of Indigenous background and, it is understood, is of the Wiradjuri and Wonnarua People. 9. Reports indicate that the Defendant had violent and aggressive behavioural tendencies since he was a child. He had been expelled from school for repeated fighting and assaulting a teacher. The Defendant's poor behaviour continued through his teens at which time he began using illicit substances. 10. Despite describing a "good" relationship with his family, the Defendant appears to have had limited contact with his family during the 10 years he has spent in custody. He is also reported, at times, to have verbally abused family members when his demands are not met. He is reported as being estranged from his mother since he was a child. (b) The Defendant's Criminal history 11. As detailed below, the Defendant has an extensive criminal history. … … Offending prior to 2008 13. The Defendant has a lengthy juvenile criminal record which includes convictions for larceny, property offences, stalk/intimidate, custody of a knife in a public place and multiple breaches of bail, good behaviour bonds and community service orders. 14. As an adult, but prior to 2008, the Defendant committed a large number of offences …, including larceny, custody of a knife in a public place, common assault and driving offences. Stalk/intimidate intend fear of physical/mental harm; common assault and contravene AVO - sentence date 13 February 2009 15. On 11 August 2008, the Defendant attended the victim's address, in breach of an Apprehended Domestic Violence Order ("ADVO") that was in place between the Defendant and the victim (his former partner). The Defendant harassed the victim about her movements the night before, and then proceeded to drag her into the kitchen where he grabbed a meat cleaver and held it to her throat. The victim's dog then bit the Defendant on the arm which allowed the victim to get away and call the police. The Defendant was admitted into custody. 16. On 25 August 2008, the Defendant was released from custody. Upon his release, he again attended the victim's address, in breach of the ADVO (which remained in place). The Defendant threatened the victim with violence and proceeded to assault her by applying pressure to both sides of her face and pushing her head forcefully. The Defendant said to the victim that he would "get a knife and cut (her) clothes off and rape [her]". The Defendant returned to the premises in the early hours of the morning and stood in the victim's lounge room before being confronted by the victim who called police12. 17. On 13 February 2009, the Defendant was convicted of two counts of contravening an ADVO, stalk/intimidate with intent to cause fear of physical/mental harm and two counts of common assault. He was sentenced to a total effective sentence of 6 months imprisonment (reflecting time served) and a bond requiring him to be supervised by NSW Probation and Parole Services for 12 months upon his release. Sexual intercourse without consent - sentence date 3 March 2010 18. On 29 April 2009, the victim (the [sister of the] Defendant's former partner, and a vulnerable person who had been diagnosed with Borderline Personality Disorder and was receiving assistance from the Department of Aging, Disability and Home Care) was having a shower. The Defendant got into the shower and began to engage in sexual intercourse with her. The victim said "No Nicko, don't do it". The Defendant continued to have intercourse with the victim. 19. The Defendant was convicted of one count of sexual intercourse without consent. On 3 March 2010, he was sentenced to a period of imprisonment for 18 months, which was wholly suspended upon entry into a good behaviour bond for 18 months. Index offending … 22. The circumstances of the index offending was as follows: at about 2am on 1 September 2009 [at which time he was on bail for the offence of sexual intercourse without consent referred to above] the Defendant and a juvenile co-offender (identified as "C1") assaulted, robbed and indecently and sexually assaulted a 29-year-old female passenger on a train travelling between Gosford and Wyong. The Defendant had met C1 earlier in the evening and they had formed a plan to rob someone on the train. 23. C1 approached the victim, spraying her in the face with aerosol deodorant, before attempting to remove her handbag. The Defendant then repeatedly punched the victim in the face and, at one point, slammed her head against the window or wall of the train, which caused a wound through the victim's eyebrow requiring four sutures. The Defendant kicked the victim's legs, but the victim refused to let go of her handbag. The Defendant yelled for C1 to stab the victim; however the handle of the victim's handbag broke and C1 was able to take the handbag. 24. The Defendant continued to punch the victim in the head. He then undid her belt and pulled her jeans down enough to get his hands under her underpants before inserting his fingers in her vagina. The victim stated that the Defendant's fingers were inside her for a number of minutes. C1 assisted the Defendant by holding down the victim's arms (which he was instructed to do by the Defendant). 25. At some point during the incident, the Defendant indecently assaulted the victim by biting her breast through her clothing. 26. The Defendant reported that he was not intoxicated at the time of offence, however, has acknowledged that his smoking of cannabis was a factor in the days leading up to the offence."
2. The defendant pleaded guilty to offences of robbery in company causing wounding, aggravated sexual assault in company and aggravated indecent assault. On 24 August 2010, he was sentenced to a total effective sentence of 13 years and 3 months, with a non-parole period of 9 years.

Post sentence history

1. The defendant has served a lengthy period of imprisonment. From 2009, he did not receive visits in custody from family or friends, although he reported that he had maintained telephone contact with an uncle and a friend he had met in custody.
2. The defendant incurred eight institutional misconduct charges while in custody. The last of these, however, was in 2015 and his classification ultimately progressed from A2 maximum security to C3 minimum security. The defendant's non-parole period expired on 31 August 2018. He remained in custody beyond this date, his release to parole occurring on 6 September 2021. It was reported that the defendant initially responded well to supervision. He was maintaining regular contact with his supervising officer, following the directions of the National Disability Insurance Scheme (NDIS) coordinator and was "an active and respectful participant in the case planning and supervision process".
3. From around March 2022, there was, however, a deterioration in the relationship between the defendant and his parole supervisors, including a failure to comply with directions and deviations from the schedule of movements imposed as part of his parole conditions. Based on a report from Community Corrections, the State Parole Authority revoked the defendant's parole on 18 March 2022 and the defendant returned to custody on 19 March 2022, where he remained until the revocation was rescinded on 29 June 2022. Since that time, he has been in the community under the supervision of a parole order, or the interim supervision order.

Legislative Framework

1. The Act is designed to address the "almost intractable problem" of how "the criminal justice system should respond to the case of the prisoner who represents a serious danger to the community upon release": State of New South Wales v Donovan [2015] NSWSC 1254 at [3].
2. Regard must be had to the objects in s 3 of the Act. The primary object of the Act is to ensure the safety and protection of the community by providing for the extended supervision of "high risk violent offenders": s 3(1). Section 3(2) provides that another object of the Act is to encourage such offenders "to undertake rehabilitation".
3. Section 5B provides the test for the making of an order and is set out in full, with its heading: 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.
4. There exists a discretion as to whether to make an order, even if each of s 5B(a)-(d) are satisfied (given the use of the word "may" as opposed to "must").
5. Turning to the preconditions for the making of an order, there is no issue the defendant satisfies s 5B(a). That is, he is an "offender" (as defined in s 4A) and has served a sentence of imprisonment, by way of actual custody, for a "serious offence" (as defined in ss 4 and 5(1)(a)). To explain, the "index offence" (the term used by the parties to describe the offence triggering s 5B(a)) committed by the defendant, is an offence of aggravated sexual assault in company and inflict actual bodily harm contrary to s 61JA(1) of the Crimes Act 1900 (NSW). It falls under the definition of a "serious offence" by virtue of it being a "serious sex offence" (s 4). It is a "serious sex offence" as defined by s 5(1)(a), as it is an offence within Division 10 of Part 3 of the Crimes Act punishable by imprisonment of more than 7 years, and committed in circumstances of aggravation within the meaning of the provision under which the offence arises: s 5(1)(a)(i) and (ii).
6. Similarly, there is no issue that the defendant is a "supervised offender" within the meaning of s 5I of the Act (as required by s 5B(b)). That is, he is an offender who, when the application for the order was made, was in custody or under supervision. In this case, the application was made while the defendant was on parole which is taken to be "in custody": s 5I(3). The application for an order has been made in accordance with s 5I (as required by s 5B(c)).
7. Given that ss 5B(a), (b), and (c) are satisfied, the question for resolution is the test in s 5B(d): that is, whether I am satisfied, to a high degree of probability, that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.

Matters to be taken into account

1. In determining whether to make an ESO, I am required to have regard to the safety of the community as the "paramount consideration". Other mandatory considerations, in addition to any other matters I consider relevant, are set out in s 9(3) of the Act. Those matters are as follows.

The reports received from the persons appointed under s 7(4) to conduct examinations of the offender, and the level of the offender's participation in any such examination: s 9(3)(b)

1. As noted above, reports were obtained from Dr Dayalan and Dr Davis. Both conducted interviews with the defendant and comprehensively surveyed the available material. Both formed the opinion that the defendant poses a risk of committing a further serious offence.
2. Dr Dayalan diagnosed the defendant as suffering from an antisocial personality disorder within the meaning of the DSM-V based on his repeated offending behaviour, impulsivity and propensity for aggression when distressed. Dr Dayalan reported that his "offending behaviour suggests disregard for the safety of others" and that the defendant "has displayed consistent lack of responsibility and has a tendency to minimise and deny his antisocial behaviour".
3. Dr Dayalan acknowledged the problematic nature of predicting future risk, but nonetheless endorsed the use of various risk assessment instruments as "guides to forming a professional opinion on the individual's risk management". Dr Dayalan administered the Static-99R test which placed the defendant in the "well above average risk level"; the Stable 2007 test which pointed to a "high level of stable dynamic risk and needs"; and the Violence Risk Appraisal Guide - Revised (VRAG) on which the defendant was assessed to be in the "high risk category for future violent behaviour".
4. Dr Dayalan said (at [143]): "[The defendant] has been described as having a limited insight into his risk of sexual offending. The treatment gains from engaging in the sex offender treatment program have been limited. It is quite unlikely that [the defendant] would voluntarily engage in any interventions recommended to address the dynamic risk factors, especially given his denial of sexual offending. He has demonstrated a pattern of getting into unstable relationships in the community including a relationship with a vulnerable woman and has struggled to maintain accommodation. In my opinion the risk of [the defendant] committing a serious sex offence cannot be managed in the community without any supervision order imposed."
5. Dr Davis, in addition to surveying the available material, conducted an assessment interview with the defendant, administered psychological tests including the Paulhus Deception Scales, the Personality Assessment Inventory and completed the Sexual Sadism Scale. In an assessment I regard as consistent with that of Dr Dayalan, Dr Davis opined that while the defendant does not meet criteria for a major mental illness, he does have a "disordered personality" which Dr Davis reported had been complicated by "poor childhood attachments, abusive experiences, and previously chronic substance misuse". Dr Davis said (at [143]): "… he is a sensation-seeker with a low tolerance for boredom and a somewhat impoverished ability to empathise. It is my opinion that [the defendant's] repeated offending, impulsivity, deceitfulness, reduced guilt, and irritability meet formal criteria for Antisocial Personality Disorder, …"
6. While Dr Davis immediately acknowledged that such a diagnosis is not particularly discriminative in forensic or correctional settings, he noted that in the defendant's case there were a high number of behavioural features, as well as some psychopathic personality features, such that it could be said that his antisocial personality disorder does not "simply reflect his lengthy history of criminal and antisocial behaviour".
7. Dr Davis also reported that the defendant and has some prominent borderline personality features, those being unstable relationships, impulsivity, emotional instability and inappropriately intense anger, without meeting formal criteria for a diagnosis of borderline personality disorder. He stated that, overall, the defendant's personality disorder is "at a severe level of impairment", although he noted the possibility that the defendant had, in recent years, been experiencing "a degree of personality maturation".
8. Dr Davis also administered various risk assessment tools. The defendant's results on the Hare Psychopathy Checklist - Revised, indicated "a large number of antisocial behaviour features" and "some, although far from all, of the more personality based features of psychopathy". On the Level of Service/Risk, Need, Responsivity (LS/RNR) classification scale, the defendant scored in the upper end of the high range of risk and need. On the Static-99/ Static-99R assessment, the defendant fell into the "high risk category". On the Risk for Sexual Violence Protocol - Version 2 (RSVP-V2), the defendant was found to have experienced a range of difficulties across all five domains against which risk factors are measured. Dr Davis noted improvement between past coding of the various risk factors and present coding of those factors. While he noted this coding improvement may temper the risk presented by the defendant, he also observed the improvement may also be attributable to the restrictions on the defendant as a result of his incarceration and subsequent supervision.
9. Ultimately, Dr Davis expressed the opinion that the defendant poses a "moderate-to-high risk for sexual recidivism", but that the risk of the commission of a serious sex offence within the meaning of the Act is "moderate".

The results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner: s 9(3)(c)

1. I have had regard to the risk assessment report prepared by Samuel Ardasinski, senior psychologist of the Serious Offenders Assessment Unit, of 23 May 2022. Mr Ardasinski assessed the defendant's risk of sexual reoffending as in the high risk category, relative to other men who have offended sexually. He also found the defendant to pose a high risk of committing further violent offences in the future. Mr Ardasinki's assessment included the use of empirical actuarial tools factoring in static and dynamic risk factors. Mr Ardasinski accepted that the defendant may have moderated his risk through completion of programs in custody but noted that while he had completed the High Intensity Sex Offender Program (HISOP, previously known as CUBIT) over 13 months from June 2019, the final report indicated that he "did not develop a great deal of insight" into the reasons for his commission of the index offences. The 13-month timeframe was longer than the standard owing to the time required for the defendant to understand and process content and complete assigned tasks. According to Mr Ardasinski, this warrants a greater emphasis on external monitoring and surveillance.

The results of any statistical or other assessment: s 9(3)(d)

1. This matter has been considered in the context of the expert reports.

Any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community: s 9(3)(d1)

1. The plaintiff relied on a risk management report prepared by Community Corrections dated 22 June 2022. The authors conducted an interview with the defendant and additionally relied on, amongst other reports, the risk assessment report. The report noted the defendant's limited support network in the community and his recent response to Community Corrections supervision whilst on parole (which had been described as "unsatisfactory" and "superficial").
2. The risk management report sets out a number of strategies for the management of the defendant in the community. These strategies are summarised in the plaintiff's submissions as follows: "a. Weekly face-to-face interviews. These interviews would focus on engaging the Defendant in discussions relating to his behaviour, intervention, associates and the activities he engages in in the community. b. Scheduled and unannounced home visits, field visits and observations in community based settings. Those measures will, according to the Report's authors, allow opportunities to identify any escalation in the Defendant's identified risk factors. c. Contact with third party providers such as treatment providers, medical professionals, as well as intimate partners, friends and/or family members. Development of a weekly schedule of movements to proactively assess and manage risk in relation to the Defendant's proposed activities. The authors specifically note that a curfew should be imposed. e. Electronic monitoring, should the order permit. The RMR notes that electronic monitoring would allow Community Corrections to monitor the Defendant's movements in order to monitor risk related behaviour and identify exclusion zones of known risks. Accordingly, place and travel restrictions are proposed to assist in managing the Defendant's movements and mitigating risk. Further, in the opinion of the authors of the report, a schedule of movements would provide the Defendant "the opportunity to plan his activities ahead of time, assist him with building a routine and assist him in engaging in appropriate prosocial activities". f. Employment and education opportunities that do not place the Defendant at further risk or place him in breach of his legal orders. g. A non-association condition to require the Defendant to notify his DSO of any person with whom he intends to associate or form a relationship. The report's authors also consider it appropriate that those supervising the Defendant have the power to make disclosures of the Defendant's criminal history to new associates, where that disclosure is deemed necessary. h. A requirement for the Defendant to remain abstinent from drugs and alcohol. The Defendant will also be subject to random drug and alcohol testing. i. Approval from the Defendant's DSO for the Defendant to change his personal appearance significantly or to change his personal details. j. A requirement for the Defendant to attend psychiatric and psychological appointments as directed. k. A requirement for the Defendant to attend assessment and subsequent community-based intervention recommended by professionals as directed."
3. It is intended that the above measures would be reviewed bi-monthly.

Any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs: s 9(3)(e)

1. As noted above in the context of the risk assessment report, between June 2019 and July 2020, the defendant participated in HISOP, however the benefit he received appears to be qualified.
2. On 24 April 2012, the defendant completed the Managing Emotions Program. The case notes suggest that his participation was good.
3. The defendant also completed the "Getting SMART" addiction program, alongside a number of vocational courses.

Options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time: s 9(3)(e1)

1. There is no application to keep the defendant in custody. With respect to assistance in the community, the defendant has been approved to receive approximately $13,000 from NDIS to assist with daily living, employment, and support coordination. The plaintiff notes that this may assist the defendant in receiving support which may, in turn, reduce his risk of reoffending. There is, however, little to suggest that this NDIS funding on its own, would significantly ameliorate the risk of the commission of a serious offence.

The likelihood that the offender will comply with the obligations of an extended supervision order: s 9(3)(e2); and The level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order: s 9(3)(f)

1. While the defendant's response to parole deteriorated over time, he did, upon his release, demonstrate a capacity to comply with parole conditions. Given this, I am satisfied he is capable of complying with the obligations of an ESO. Indeed, it appears he is presently motivated to do so, with a view to progressing his reintegration into the community.

The offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history: s 9(3)(h)

1. The defendant's criminal history is recounted in the factual background above.

The views of the sentencing court at the time the sentence of imprisonment was imposed on the offender: s 9(3)(h1)

1. The remarks of the sentencing judge raised concerns with respect to the defendant's prospects of rehabilitation based on issues with empathy, hostility and bitterness, together with reports available at the time. That assessment, however, has been largely overtaken by more recent evidence.

Any other information that is available as to the likelihood that the offender will commit a further serious offence: s 9(3)(i)

1. I have had regard to the other materials tendered on this application including the extensive materials contained in Exhibit GR-1 to the affidavit of Georgia Rose of 2 September 2022.

Determination of primary issue: whether to make the order

1. In determining the statutory test, I have had regard to the safety of the community as the paramount consideration pursuant to s 9(2) of the Act and make my determination having had regard to the mandatory, (but non-exhaustive matters) listed under s 9(3) of the Act and discussed above.
2. The meaning of "an unacceptable risk" in s 5B(d) and the principles which are to be applied were discussed in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [51] (Beazley P), and subsequently applied by Hoeben CJ at CL in State of New South Wales v Holschier (No 2) [2018] NSWSC 1921 at [23]-[24]: "23 As to the meaning of the phrase 'an unacceptable risk', the case law establishes the following: 1. What the court must find to be unacceptable is the 'risk' of the offender 'committing a serious [sex] offence if he or she is not kept under supervision'. 2. The word "unacceptable" - which means, relevantly, 'so far from a required standard, norm, expectation etc as not to be allowed' - is one that 'requires context in which, or parameters against which, the unacceptable risk can be measured'. 3. While the HRO Act does not specify 'the precise parameters or standard or norm against which that determination (i.e. the determination whether an offender poses an unacceptable risk) is to be made', this 'must be so' because '[a] determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made'. 4. The determination whether an offender poses an unacceptable risk has to be understood in the context of the objects or purposes of the Act; in particular, its purpose in ensuring the safety and protection of the community. 5. The right of an offender to his or her personal liberty at the expiry of a sentence of imprisonment is not relevant to the determination whether an offender poses an unacceptable risk. Nevertheless, as their Honours held, the intrusion on a subject's liberty and privacy are undoubtedly matters which the Court may take into account in its discretion to make an ESO. 24 The 'unacceptable risk' inquiry is not discretionary, but it does involve an evaluative balancing exercise. It involves consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate." (citations omitted)
3. As noted above, the defendant is presently 37 years of age. His background is one of severe disadvantage. He has spent a substantial period of time in custody. He has not committed a serious sexual offence since 2009. He made progress in custody, ultimately achieving a minimum-security classification and was released on parole. Nonetheless, there are real concerns with respect to the risk posed by the defendant. It is clear that the reasons for his offending have not been addressed. His continued denial of the offending appears to have slowed his progress. While it does not follow that denial of past proven offending will inexorably lead to the commission of a further offence, on the evidence in the present case, it presents as an obstacle to rehabilitation. Further, while significant time has elapsed since the commission of the index offence, the defendant has been either in custody or under close supervision for the entirety of that time.
4. Beyond the simple facts recounted above, after comprehensive analysis Dr Dayalan and Dr Davis have each found the defendant to be suffering from an antisocial personality disorder, a condition Dr Dayalan describes as "chronic and enduring". Dr Dayalan's unchallenged opinion is that "the risk of [the defendant] committing a serious sex offence cannot be managed in the community without [a] supervision order". Dr Davis's opinion is that the defendant poses a moderate risk of committing a serious sex offence and that an ESO may serve to contain that risk by "providing much needed support and addressing some of the more social risk factors identified". While I would not, without some solid foundation, reject the considered opinions of suitably qualified experts, it remains for me to determine whether I am satisfied to the required high degree of probability that the defendant poses an unacceptable risk of committing a serious offence if not kept under supervision under an order. It is my view of what is "unacceptable" not the view of the experts. With respect to the question of unacceptable risk, I note that an offender may pose an unacceptable risk even if the likelihood of the commission of such an offence is low, where the likely consequences of such an offence are very grave: State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41], [43].
5. The defendant's reintegration into the community remains at an early stage. To the extent that he has been at liberty, he has been subject to stringent conditions. He remains, to a large extent, untested.
6. Having regard to all relevant material, I am satisfied to a high degree of probability that the defendant does pose an unacceptable risk of committing another serious offence if not kept under supervision under the order. No submission was made that, should I reach this state of mind, there are matters that would lead me to exercise my discretion not to make an order.
7. For the reasons above, I am of the view that an order should be made. I turn now to the determination of the conditions and the duration of the order.

Determination of secondary issue

1. Section 11(1) of the Act provides that an ESO "may direct an offender to comply with such conditions as the Supreme Court considers appropriate". An inclusive list of directions which may be given is then set out at s 11(1)(a) to (n).
2. Section 11(2) provides a mandatory condition that the offender must not leave New South Wales except with the approval of the Commissioner of Corrective Services.
3. The power to impose conditions is constrained by the scope of the Act: Winters v Attorney General of New South Wales (2008) 182 A Crim R 107; [2008] NSWCA 33 at [19]. Regard must be had to the primary objects in s 3 of the Act. Having noted the above matters, Hoeben CJ at CL in State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813 said (at [44]): "Important principles to be considered in relation to the imposition of conditions are: (i) having served a sentence of imprisonment for their offences, an offender has a right to personal liberty, however, this right is not absolute; (ii) in imposing conditions, the Court needs to strike a balance between competing considerations; (iii) a relevant consideration in imposing conditions is that a breach gives rise to a criminal penalty; (iv) conditions do not have to have a demonstrated link to past offending, but they should address the risk of future offending based on the scope, purpose and objects of the Act; (v) conditions should not be designed toward future general criminal conduct, but instead focussed on mitigating the risk of a serious offence; (vi) conditions must not be unjustifiably onerous or punitive, 'nor should they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision'; (vii) conditions 'must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice'; (viii) to ensure a balance between the community interests and personal liberty, the Court should impose conditions that are the least intrusive possible." (citations omitted)

Determination of specific conditions

1. There was very little dispute between the parties as to the conditions which should be imposed. As noted above, the plaintiff, with the exception of condition 35, did not press any of the conditions which had been sought in the summons but not imposed by McNaughton J. The defendant did not oppose any of the conditions pressed by the plaintiff, with the exception of condition 19 with respect to which he sought some relaxation to facilitate the defendant obtaining and maintaining employment. He also sought modification to conditions 7 and 10 to bring them into line with the proposed condition 19.
2. The final form of the orders will be as set out in the Schedule to this judgment. The form of the conditions originally sought in the summons can be ascertained through the use of strikeouts to indicate matters in the summons which do not form part of the conditions I impose, the use of underline to indicate the matters which were amended in the interim order, and the use of bold to indicate matters which I have added as a result of this final hearing.

Part A: Reporting and monitoring obligations

1. Conditions 1-8, with the exception of condition 4, which was not sought, and condition 7, which is the subject of a proposed modification, were not opposed by the defendant. With the exception of condition 7 in the form sought, these conditions are appropriate. Conditions 1-3 are a necessary foundation for the defendant's supervision. While scheduling and electronic monitoring, as provided by conditions 5-8 significantly impinge on the defendant's liberty, they are in my view, at this stage of the defendant's reintegration, appropriate in order to manage the risk presented by the defendant. It is, of course, hoped that the extent of the monitoring and restrictions on the defendant's movements will be reduced over time.
2. I will deal with the appropriate form of condition 7 in the context of condition 19 and any accommodation to be made to facilitate the defendant's employment.

Part B: Accommodation - conditions 9-13

1. With the exception of condition 10, with respect to which a modification is sought, the defendant does not oppose conditions 9-13. These conditions, subject to a modification of condition 10, are appropriate. Having regard to the defendant's stage of reintegration, while the conditions are intrusive, it is important that Corrective Services NSW (Corrective Services), through a DSO, maintain the power to approve and monitor the defendant's arrangements. A condition with respect to visitors to the home and person's staying overnight as regulated by condition 13 is appropriate.

Part C: Place and travel restrictions - conditions 14-17

1. These conditions were not opposed by the defendant. Condition 15 is mandatory. Otherwise, it was not suggested that these conditions would significantly impact the defendant. On the other hand, they will allow Corrective Services to restrict the defendant from attending places or locations which raise concerns.

Part D: Employment, finance and education - conditions 18-21

1. Condition 21 was not sought. Conditions 18 and 20 were not opposed and are appropriate. In particular, condition 18 will assist in the defendant's rehabilitation. Condition 20 is not particularly onerous while allowing the DSO to remain involved in the defendant's employment choices, and potentially provide valuable guidance.
2. Condition 19 was the subject of debate at the hearing. In the form sought it reads: "The defendant must not start on his own initiative any job, volunteer work or educational course without the approval of a DSO."
3. The defendant opposes this condition on the basis that it restricts his ability to obtain employment. He additionally seeks modifications to conditions 7 and 10 to allow him greater flexibility with respect to his schedule of movements and curfew where necessary in order for him to engage in paid employment. It became apparent during argument that the concern relates only to paid employment. Consequently condition 19 is appropriate in so far as it relates to volunteer work and educational courses.
4. The issue is, then, what is an appropriate condition, balancing relevant concerns, in relation to employment. There is no issue between the parties that, as a general proposition, obtaining and maintaining employment will assist the defendant's reintegration into the community and will consequently both benefit him and enhance community safety. In this regard Dr Dayalan said (at [150]): "Restrictions in regards to employment, finance and education would be regarded as negatively impacting on his rehabilitation. Though these conditions may play a role in mitigating general risk of offending, his past sexual offending behaviour does not suggest that liberty in regards to employment, finance and education are significant risk factors relevant to his risk of committing a serious sex offence."
5. Material tendered by the defendant established that, in November 2022 he was able to obtain employment with Woolworths. It appears that this was arranged with the assistance of the defendant's NDIS support worker. The defendant was engaged to collect shopping trolleys, although it was envisioned that he may progress to the bakery, an area in which he has some interest. While this, on its face, appeared to be a positive development, the defendant was advised that he was in breach of condition 19 of the ISO as he had not received prior approval to engage in the employment. In subsequent communication between Corrective Services and the defendant's NDIS support worker, it became apparent that such employment was not viable in the light of the conditions of the defendant's ISO. In particular the work was on a casual basis. Conditions on the defendant's ISO requiring him to provide 24 hours notice of scheduling changes meant that he was unlikely to be able to accept shifts when offered, as these tended to be rostered at short notice.
6. The defendant's experience with Woolworths is unlikely to be atypical. That is, given the defendant's particular circumstances, it is unlikely that he will be able to obtain work other than on a casual basis. Additionally, it is likely that if offered work, it will be on the basis that the defendant commences within a relatively short period of time. If having obtained a casual position, the defendant is regularly unavailable, he is unlikely to be offered shifts, and his employment will dwindle to the point where it is effectively terminated.
7. Against the above, from Corrective Services' perspective, there is a need to confirm the appropriateness of any employment, including persons with whom the defendant may come into contact. The plaintiff also pointed out that other agencies were involved in making the necessary enquiries, making it difficult for Corrective Services to manage the timeframe, and hence the desirability of leaving the condition in its current form, providing no time limit on Corrective Services in determining any approval. While the Corrective Services' desire to have an unrestricted time in which to pre-approve any employment is understandable, as recent experience has established, this is highly likely to scupper the defendant's prospects of employment.
8. I am of the view that Corrective Services should have some notice of the defendant's intention to take up employment, but not such as is likely to negatively impact the defendant's prospects of actually obtaining work. This will allow Corrective Services to veto any obviously unsuitable employment prior to commencement. Corrective Services will, of course, be able to continue enquiries after the defendant has taken up employment. I appreciate that, as pointed out by the plaintiff, it will not be conducive to the defendant's relationship with his DSO if, having commenced employment, he is prevented from continuing in that employment. However, it is also the case that it will be frustrating to the defendant if he is prevented from commencing employment for no obvious reason. It is hoped that, in the event that employment is commenced but found to be unsuitable, the reasons can be explained to the defendant, and he will not be overly discouraged from seeking alternative employment. This to me seems preferable to a situation where he is denied, without reason (other than an insufficient time for the making of enquires), the opportunity to take up employment at all. The following conditions are framed with a view to achieving this objective: 19. The defendant must not start on his own initiative any job, volunteer work or educational course without the approval of a DSO. 19A. The defendant must notify his DSO of his intention to commence employment as soon as practicable after securing such employment and in any case at least 24 hours prior to commencing such employment or such shorter time as may be agreed to by his DSO.
9. The consequential changes to be made to conditions 7 and 10 are as follows: 7. 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 or the change is for the purposes of the defendant engaging in paid employment notified to his DSO under condition 19A, in which case the defendant is to advise his DSO of the proposed change as soon as practicable after becoming aware of the availability of work and in any case within 1 hour of the proposed change, or such shorter period as approved by the DSO. 10. The defendant must be at his approved address between 9PM and 6AM unless other arrangements are approved by a DSO or the defendant's absence is for the purposes of engaging in paid employment with an employer notified to his DSO under condition 19A.
10. I note I have provided in condition 7, a period of one hour, which is somewhat shorter than the figure I postulated in the course of the oral hearing. On reflection, given that the employment will have already been notified to the DSO pursuant to condition 19A, I regard one hour as sufficient for the purposes of rescheduling, given that the defendant will not be at large, but rather attending a place of employment.

Part E: Drugs and alcohol - conditions 22-26

1. These conditions were not opposed. While there is little of recent concern with respect to the defendant's abuse of drugs and alcohol, his past use of cannabis in particular, and its connection with offending behaviour, are such that these conditions are appropriate.

Part F: Non-association - conditions 27-31

1. These conditions were not opposed. The maintenance of prosocial connections, and limits on negative influences will be critical in assisting the defendant's reintegration into the community. I regard the conditions as appropriate.

Part G: Weapons - conditions 32-34

1. Condition 33 was modified from that originally sought as a result of discussions between the parties. It allows, with appropriate protections, the defendant to carry a knife for the purposes of fishing, an activity of importance to the defendant. The conditions, including the modified condition 33, are appropriate given the prior offending.

Part H: Access to the Internet and other electronic communication - conditions 35-45.

1. These conditions were not imposed by McNaughton J on the ISO. With the exception of condition 35, they are not pressed by the plaintiff. While condition 35 is not opposed by the defendant, it remains necessary for me to determine whether it is appropriate.
2. While conditions 36 to 45 were not pressed, they could potentially be engaged through the implementation of condition 35, subject to the additional requirement of reasonableness in condition 35. In relation to these conditions McNaughton J said, (at [129] - [130]): "129 It is contended by the plaintiff that these are required in order to enable the DSO to monitor or assess whether the defendant has entered into any antisocial associations and, in particular, to monitor his relationships. The defendant contends that these conditions are overly intrusive and prescriptive, were not part of his parole conditions, and are of some complexity such that the defendant may face difficulties in compliance. 130 I am of the view that in light of all the other conditions imposed, and given the nature of the particular risk identified, these conditions are not reasonable or appropriate, and I decline to impose them."
3. The plaintiff points to evidence that the defendant has spent long periods during the night playing games on his phone. It is submitted that this provides a means by which the defendant might contact antisocial influences or potential victims, together with a need to regulate the content of the games played by the defendant, insofar as they may be inappropriately violent or pornographic.
4. The defendant does not oppose the condition. As I understand, this is on the basis that it is not expected to have any real impact upon him. That the condition is not anticipated to be particularly intrusive, favours its inclusion. But, even so, it is a condition restricting the liberty of an individual who has served his sentence and it must still be appropriate. The condition is in broad terms and, despite the defendant's attitude, having regard to the part played by the Internet in modern life, is intrusive. Against this, the plaintiff's concerns are somewhat speculative. There is nothing in the evidence to support any concern the defendant will use the Internet in this way. To an extent, the fact that the defendant regards the proposed condition as unlikely to impact on him underscores its tenuous relevance. Given these matters and having regard to the other conditions which will be in place, I do not propose to impose condition 35.

Part I: Search and seizure - conditions 46-47

1. These conditions were not opposed and are appropriate in order to effectively monitor the defendant.

Part J: Access to pornographic, violent and classified material - condition 48

1. This condition was not opposed. While I have some reservations as to its foundation, on balance, and in the absence of any issue, I regard the condition as appropriate.

Part K: Personal details and appearance - conditions 49-52

1. These conditions were not opposed and are appropriate in order to effectively monitor the defendant.

Part L: Medical intervention and treatment - conditions 53-56

1. I have some concern that conditions interfering with the confidentiality of the defendant's relationship with treatment providers may be counterproductive. This was a concern voiced by Dr Davis. The defendant, despite being appraised of Dr Davis' opinion does not oppose these conditions. In these circumstances, I regard the conditions as appropriate.

Conclusion as to the appropriate conditions

1. The conditions I regard as appropriate in all the circumstances of this case, based on the above reasons, are those set out in the Schedule to this judgment. I accept there is a large number of conditions. It will be necessary for the defendant to be carefully taken through these conditions and the practical operation of them explained.

The term of the order

1. The plaintiff sought that the order be in place for two years. This was not opposed. When regard is had to the period of the ISO, the total supervision period under the Act will be some months over two years. While I am mindful of the intrusion into the defendant's autonomy and privacy resulting from the conditions imposed, having regard to the concerns raised, I regard two years as an appropriate period. It is, of course, hoped the strictures placed on the defendant will be eased over the period of the order.

Orders

1. I make the following orders: 1. Pursuant to s 13(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), the interim supervision order made by McNaughton J on 18 November 2022, is revoked. 2. Pursuant to ss 5B and 9(1)(a) of Crimes (High Risk Offenders) Act 2006 (NSW), the defendant be subject to an extended supervision order for a period of two years from today's date. 3. Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant, for the period of the extended supervision order, must comply with the conditions set out in the Schedule to this judgment. 4. Access to the court file in respect of any document in this proceeding shall not be granted to a non-party without the leave of a judge of the Court. 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.

State of NSW v Nixon (Final) - Schedule of Conditions (159935, pdf) 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: 20 February 2023