I am dealing with an application brought by the State for the making of an Interim Supervision Order ("ISO") under the provisions of s 10A Crimes (High Risk Offenders) Act 2006 (NSW). The defendant, who was represented by Ms Cotton, solicitor, consents to the making of the orders and the parties have agreed on the conditions that ought to be imposed as part of the ISO under s 11 of the Act.
It seems to be settled jurisprudence of this Court that notwithstanding the consent of the parties, the Court must be affirmatively satisfied that the statutory conditions justifying the making of an ISO are met. Section 10A is in the following terms:
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.
There is no difficulty in relation to the first condition. Although the defendant is currently in custody, matters involving him are before the Local Court on 8 November 2019 and there is a prospect that he may be released on bail then. This Court will not be able to consider the final relief sought in the summons by then. Indeed, pursuant to orders made by Harrison J on 4 September 2019, the court appointed experts under s 7(4) of the Act have yet to examine the defendant.
I understand that the matter is before the High Risk Offenders List Judge, Bellew J, for further directions on 14 November next and at that time it may be that a hearing date will be fixed, assuming the appointments with the experts have been arranged.
I turn then to the second question, which is whether, as I have said, the matters alleged in the supporting documentation would if proved justify the making of an extended supervision order. That question depends upon the provisions of s 5B of the Act. Harrison J in an earlier decision in April this year, State of New South Wales v NW [2019] NSWSC 415, found that what might be called the preliminary matters, the subject of s 5B paras (a)-(c) of the Act, had been satisfied and it is not in dispute that those matters were then established. There has been no further evidence or suggestion of any material change in circumstances which would justify the Court revisiting Harrison J's findings, bearing in mind that notwithstanding, perhaps, there quasi-criminal nature, the proceedings fall to be determined by the Court in the exercise of its civil jurisdiction.
The real question for determination then for the purpose of s 10A(b) is whether the matters alleged in the supporting documentation would justify the Supreme Court being satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence, if not kept under an extended supervision order. That is say, if the matters alleged were proved at the final hearing.
Harrison J dealt with this issue for the purpose of s 7(4) of the Act in his second decision in State of New South Wales v NW (Preliminary) [2019] NSWSC 999. Having reviewed the material placed before him for that purpose his Honour made the following findings (at [18]):
Based on the foregoing, I am satisfied if the matters alleged in the material before me were proved, the Court would be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision. The defendant admits to having a continuing sexual attraction to children. He has been diagnosed as having a paraphilic disorder. He allegedly admitted only last year that he has had thoughts of re-offending and he has been assessed as posing a high risk of re-offending by Dr Parker.
Dr Parker is a senior psychologist employed in the Serious Offenders Assessment Unit of Corrective Services New South Wales, part of the Department of Justice. His report is part of the materials before me, to which I have had regard. A second affidavit of Dr Parker of 8 March 2019 confirmed that additional material he was asked to review did not in any way alter the opinions he expressed in his first report.
I have also received a risk management report by Erin Kirkwood, a Senior Community Corrections Officer and an affidavit affirmed by her of 12 March 2019, in which she considered other material which she said did not change her views. It seems to me, on the basis of the information contained in her report, that the defendant can be properly managed in the community, if subject to an extended supervision order.
As I have said, although the jurisprudence of the Court suggests that these matters have to be considered by a judge for himself or herself notwithstanding the consent of the defendant, I am of the view that given: that Harrison J has considered these issues on two separate occasions; there is no real difference in substance between the question I have to consider for the purpose of s 10A and the question he considered for the purpose of s 7(4); and there has been no suggestion of new material or a change in circumstances, the Court is justified in acting on the basis of the previous interlocutory decision of another judge who has fully considered the material.
Moreover, it may be said that as we are speaking of civil proceedings the consent of the defendant, if not determinative, at least may be taken as an admission of all necessary facts underlying the exercise of the Court's power. There is certainly no question here, however, in respect of the making of an interim supervision order or in imposing the conditions to which the defendant will be subject, that the Court is being invited to make orders and impose conditions which are in any way beyond power. In those circumstances, being so satisfied, it seems to me that it is not necessary that I engage in any deep review or analysis of the material.
One only has to consider that this is the third time this matter, at the preliminary stage, has come before a judge. It cannot have been the intent of the legislature that given the somewhat truncated process that has been followed in this particular case - I hasten to interpolate for good reasons fully explained in Harrison J's previous decisions - that either he on each occasion that he reviewed the matter or me, coming to it on the third occasion, would have to, as it were, consider in detail all of the mandatory statutory considerations which inform the making of an extended supervision order under s 9 of the Act, to answer the question posed by s 10A(b).
Having regard to the evidence I have read, I am satisfied that the conditions which are annexed to the amended summons, which I gave leave to be filed in court this morning, are appropriate. I have taken into account that these conditions have been the subject of discussion and negotiation between the experienced lawyers representing the parties. It may be noted that, as is not uncommon, they are stringent. But having regard to the evidence, and in particular the defendant's ongoing criminal history, in this area a degree of stringency is called for.
Although this matter will be dealt with over the next two or three months in all probability, I record that the evidence satisfies me, as is my experience in similar matters, that the most intrusive or burdensome conditions are by large measure discretionary and it is the aim of the Department to ameliorate the burden of them, provided that the defendant fully complies and makes progress towards his rehabilitation. I remind myself that rehabilitation is not the primary purpose of the legislation, the safety of the community and its protection from serious offenders is.
In any event, for those reasons I am satisfied that the condition in s 10A(b) has been met and the evidence persuades me, to the extent to which the question is discretionary, that I should make an ISO and that the conditions proposed are appropriate for the purpose of s 11 of the Act.
Accordingly I make the following orders:
1. Pursuant to section 10A of the Crimes (High Risk Offenders) Act 2006 ("the Act") the defendant is subject to an interim supervision order from 8 November 2019 for a period of 28 days.
2. Pursuant to section 11 of the Act, that the defendant comply with the conditions set out in the Schedule below for the period of the interim supervision order.
3. The parties may apply to relist the matter on two days notice.
4. For the avoidance of any doubt, to the extent to which it may be necessary, I confirm the orders made by Harrison J on 4 September 2019.
[3]
SCHEDULE
Conditions of supervision in respect of Mr NW
Departmental Supervising Officer (DSO)Corrective Services NSW (CSNSW)
[4]
Part A: Reporting and Monitoring Obligations
Monitoring and Reporting
The defendant must submit to the supervision of Corrective Services NSW.
The defendant must report to the DSO or any other person supervising him as directed by the DSO.
The defendant must comply with any reasonable direction given by the DSO, or any other person supervising (including monitoring) him, for the administration of the ISO or any condition of the Order. Where a direction may conveniently be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service.
Electronic Monitoring
The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him.
Schedule of Movements
If directed by his DSO, the defendant is to provide an honest oral summary of his anticipated movements each week, limited to where he wants to go, why he wants to go the location identified, how he intends to get there, and in what part of the day (Morning/ Lunch/ Afternoon) he will be going there, but unconfined by any travel route or timetable. If so directed, the defendant is to provide that oral summary on, or before the Friday prior to each week (or as otherwise agreed between the defendant and his DSO).
If the defendant wants to change anything in this summary of anticipated movements once it is approved by his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period.
The defendant must not deviate from his summary of anticipated movements except in an emergency or if the defendant immediately provides a reasonable explanation for the deviation to his DSO or any person supervising the defendant. The defendant must comply with any direction from the DSO or any person supervising him regarding that deviation.
The defendant must truthfully answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing.
[5]
Part B: Accommodation
The defendant must live at an address approved by his DSO.
The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.
The defendant must not spend the night anywhere other than his approved address without the prior approval of his DSO.
If the defendant is living alone, he must not permit any person to enter and remain, or to stay overnight, at his approved address without the prior approval of his DSO.
If the defendant is living with any co-residents, he must not invite any person to enter and remain, or to stay overnight, at his approved address (or room, if staying at supported accommodation) without the prior approval of his DSO. If any of his co-residents invite or permit someone ('the visitor') to enter, remain or to stay overnight at the approved address (or room, if staying at supported accommodation), the offender must inform his DSO as soon as possible of the identity of the visitor. The defendant must follow all directions from his DSO in relation to the visitor.
[6]
Part C: Place and travel restrictions
The defendant must not leave New South Wales without the approval of Commissioner for Corrective Services ("the Commissioner").
The defendant must surrender any passports held by the defendant to the Commissioner.
The defendant must comply with any reasonable direction from his DSO not to go to a particular place where that direction is relevant to his risks or risk factors.
Without limiting condition 16 above, the defendant must not, without prior approval of his DSO, go to any:
1. Day-care centres, pre-schools and schools;
2. Amusement parlours, amusement parks and theme parks
3. Cinemas;
4. Libraries and museums;
5. Camping grounds and caravan parks;
6. Children's playgrounds, parks, and areas with play equipment provided for the use of children;
7. Pools, playing fields and sporting facilities;
8. Concerts, theatre shows, movies, events and activities intended for the entertainment of children; or
9. Residences where the defendant knows or ought reasonably to know that persons under 18 ordinarily reside.
The defendant must not attend any place where he knows or ought reasonably to know illicit drugs are sold.
The defendant must notify his DSO within 24 hours if he has attended any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment.
[7]
Part D: Employment, finance and education
If the defendant is unemployed, the defendant should make himself available for employment, education, training or participation in a personal development program as directed by the DSO.
The defendant must not start any job, volunteer work or educational course without the prior approval of his DSO.
[8]
Part E: Drugs and alcohol
The defendant must not possess or use illegal drugs, and he must not possess or use prescription medication other than as prescribed.
The defendant must not consume alcohol unless:
1. He is given prior approval by his DSO and only in the manner approved (approval may be given in a general sense or for consumption to a particular blood/alcohol level or approval may be given in relation to a particular event); or
2. It is in the taking of communion during the celebration of Mass in the practise of the defendant's religion.
The defendant must submit to testing for drugs and/or alcohol as directed by the DSO.
The defendant must notify his DSO within 24 hours of entering any licensed premises including hotels bars, racecourses and licensed clubs but excluding cafes and restaurants.
[9]
Part F: Non-association
Association with Children
The defendant must not deliberately approach or have contact with anyone who he knows or ought reasonably to know is under 18 unless his DSO tells him he can, and only if the defendant is with an adult who has been approved by his DSO to accompany him.
If the defendant associates with a person who is the parent or guardian or has care and control of a child under the age of 18 years, he must notify the DSO of that association as soon as possible. The DSO may want to tell the person about the defendant's criminal history and the defendant must permit that disclosure.
Associations with Others (not children)
The defendant must comply with any reasonable direction from his DSO not to associate with individuals or identified categories of people that his DSO tells him not to (such reasonable direction being relevant to his risks or risk factors).
The defendant must not associate with any people who he knows or ought reasonably to know will be or are consuming or under the influence of illegal drugs.
The defendant must not engage the services of sex workers without the prior approval of his DSO.
If the defendant starts a romantic relationship with someone, he has to tell his DSO as soon as practicable the name of that person and truthfully answer any questions that the DSO asks regarding that relationship. The DSO may want to tell the person about his criminal history if it is relevant to his risks. The DSO will notify the defendant of the intended disclosure and the defendant must permit it.
The defendant must obtain approval from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service
[10]
Part G: Access to the internet and other electronic communication
The defendant must give his DSO a list of all communication and data storage devices in his possession plus a list of all services and applications he uses to communicate with or to access the internet. This includes phones, tablet devices, data storage devices or computers. This includes the details of telephone numbers, service provider account numbers, email addresses or other user names and relevant passwords and codes, used by the defendant and the nature and details of the internet connection, as directed.
The DSO (or any other person requested by the DSO) may remotely inspect any internet account used by the defendant, including the defendant's email addresses, in monitoring compliance with this order.
The defendant must obey any reasonable directions by his DSO about the use of phones, tablet devices, data storage devices, computers and other devices, including any reasonable directions relating to his access to the internet.
The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO.
The defendant must advise the DSO of any change to the inventory listed in condition 33 immediately.
[11]
Part H: Search and seizure
If the DSO reasonably suspects that a search of the defendant's approved address, or any vehicle in which he is travelling or which is under his effective control is necessary to confirm his continuing compliance with the ESO, the DSO must inform the defendant of the basis of that suspicion. The defendant must then, if directed by the DSO, consent to a search of his approved address or any such vehicle.
If the DSO reasonably suspects that a search of the defendant's person is necessary to confirm the defendant's compliance with the ESO, the DSO must inform the defendant of the basis of that suspicion. The defendant must then, if directed by the DSO, consent to a "pat down search" (that is a searched confined to those areas of the defendant's body which are clothed), and consent to a search of any article of the defendant's clothing carried by him but not worn, and a search of any bag or other receptacle in his possession.
Where the DSO believes, on reasonable grounds, that anything found in the course of executing a search of the kind comprehended by conditions 38 and 39 is related to behaviour or conduct associated with an increased risk of the defendant committing a serious offence (as defined) the defendant must submit to that item or those items being seized. If the DSO does not form that belief, the items must not be seized.
The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use.
The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions 38 to 41 above.
[12]
Part I: Access to pornographic, violent and classified material
The defendant must notify his DSO if he has purchased, possessed, accessed, obtained, viewed, participated in or listened to material classified or material that would be classified as Refused Classification, X18+, Category 2 Restricted and Category 1 Restricted and obey any reasonable directions of his DSO in relation to this condition.
[13]
Part J: Personal details and appearance
The defendant must not change his name from "XXXXXX" [1] or use any other name without the prior approval of his DSO.
The defendant must not use any alias, log-in name, or a name other than "XXXXXX" [2] or use any email address other than those known to the DSO under condition 33 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email.
The defendant must not significantly change his appearance without prior notice to his DSO.
The defendant must let CSNSW photograph him at the beginning of his ESO and after any significant change in his appearance.
If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details.
[14]
Part K: Medical intervention and treatment
The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults.
The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend in respect of the defendant's potential risk of re-offending unless he provides a reasonable excuse to his DSO for non-attendance.
The defendant must take all medications, including but not limited to anti-libidinal medications, that are prescribed to him by his healthcare practitioners.
If the defendant knowingly ceases to take medication referred to in condition 51 either on a temporary or permanent basis, the defendant is to notify the DSO within 24 hours of ceasing to take the medication.
The defendant must agree to his general practitioner and any treating psychologist, psychiatrist, counsellor or other mental health practitioner sharing information, including reports on his progress, with each other and with his DSO, and with any other persons involved in his supervision as considered appropriate by those treating practitioners.
The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO and CSNSW in connection of the administration of the Order.
[15]
Endnotes
Name of defendant anonymised
Name of defendant anonymised
[16]
Amendments
04 May 2020 - Paragraph 16(1) Section 104 has been replaced by Section 10A
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Decision last updated: 04 May 2020