State of New South Wales v Pearson

Legislation and legal principles

1. The CHROA relevantly provides: 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. … 5I Application for extended supervision order (1) An application for an extended supervision order may be made only in respect of a supervised offender. (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. (3) A person is taken to be serving a sentence of imprisonment whether the sentence is being served by way of full-time detention or intensive correction in the community (whether or not subject to a home detention condition) and whether the offender is in custody or on release on parole.
2. Section 4 defines a serious sex offence. Section 5 relevantly defines "serious sex offence" as meaning an offence under Division 10 of Part 3 of the Crimes Act where the offence is punishable by imprisonment for seven years or more and, in the case of an offence against an adult, the offence is committed in circumstances of aggravation.
3. Section 9 relevantly provides: 9 Determination of application for extended supervision order … (2) In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court. … Section 9(3) then sets out the matters to which the Court must have regard in determining whether an order should be made.
4. Section 3 provides: 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. (2) Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation. In that way ESOs (and Continuing Detention Orders) are protective, not punitive: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [5].
5. When discussing the concept of "unacceptable risk", Hoeben CJ at CL in State of New South Wales v Azar (Preliminary) [2020] NSWSC 1807 said: [77] While the Court must be satisfied to a high degree of probability that there is an unacceptable risk, that does not require the Court to conclude that the offender is more likely than not to commit a serious offence: s 5D of the Act. The Court may well conclude that an unacceptable risk is a lower probability, provided the level of the Court's satisfaction about that risk meets the requirement of a "high degree of probability". The Court needs to be satisfied to a high degree of probability not that the offender will necessarily commit a serious offence, but, rather, that he or she poses an "unacceptable risk" of committing a serious offence: State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 at [21]; The State of NSW v Sharpe [2017] NSWSC 469 at [52]. [78] As to the meaning of the phrase "an unacceptable risk", the case law establishes the following: (a) what the court must find to be unacceptable is the "risk" of the offender "committing a serious violence offence if he or she is not kept under supervision": see Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCCA 57 (Lynn) at [51]; (b) 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": see Lynn at [50]; (c) while the 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": Lynn at [51]; (d) 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: Lynn at [55]; (e) 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: Lynn at [44], [55]-[58], [128], [148]. 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; and (f) the evaluation to be made is directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection: Lynn at [61]. As Campbell J put it in Holschier at [49], guaranteeing community safety is an impossible task; making it secure is a relative, not absolute, standard. [79] The "unacceptable risk" inquiry is not discretionary, but it does involve an evaluative balancing exercise. As Wilson J put it succinctly in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71], "[u]nacceptability of risk involves considerations of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate": embraced, inter alia, in State of New South Wales v Wilson (Preliminary) at [128] per N Adams J and in State of New South Wales v Kaiser (Preliminary) [2018] NSWSC 1971 at [19] per Walton J.

Expert reports

1. Pursuant to the orders I made in my earlier judgment, the defendant was examined by Dr Marcelo Rodriguez, a psychologist, on 6 May 2021 and by Dr Patrick Sheehan, a forensic psychologist on 13 May 2021.
2. In addition to the information set out in my earlier judgment concerning the defendant's childhood and background, the defendant told Dr Rodriguez that as a result of the violence he witnessed from his stepfather, he (the defendant) "became out of control" around age nine or ten when he started to engage in petty crime such as stealing and shoplifting. He said that he started using cannabis and alcohol at around age 12, and started to use amphetamines at age 14.
3. After leaving school at the age of 15 years he first worked as a storeman at a bookstore in Chatswood for two or three years. However he had started using drugs heavily by this stage and became unemployed as a result of his habitual drug use.
4. He subsequently worked at a chicken shop in Gosford on a part-time basis for about 12 months. Subsequently he worked as a forklift driver for two and a half years before moving to another company, where he also worked as both a forklift driver and a storeman. His last job was working for a cousin who had a company named "Walkabout Coffee", where the defendant cleaned vehicles. There were lengthy periods of unemployment, particularly because he was in and out of custody, and he had difficulty finding employment due to having to wear an electronic ankle bracelet.
5. He said that he had had three long-term relationships. The first was with a woman named Nicole who was ten years older than the defendant. That relationship lasted ten years and produced a daughter. The defendant denied the presence of domestic violence in that relationship.
6. He subsequently had a three-year relationship with a woman called Chloe, with whom he had two sons. He said the relationship was based on the consumption of illicit substances, including amphetamines, heroin, cannabis, "pills" or "anything they could find". He told Dr Rodriguez that he thought Chloe's parents now had custody of their sons, and he was unaware of their whereabouts.
7. The third relationship was with a woman called Jade, and that relationship is current. This relationship appears to have commenced towards the end of 2020, and other information indicates that the parties have not yet been intimate.
8. The defendant told Dr Rodriguez that, having started to use cannabis at about the age of 14, he used it heavily for 15 years, approximately 30-40 cones a day. He reported cannabis induced paranoid ideation. He began to use heroin intravenously at age 17, and said he used it to "come down" from other substances. He denied to Dr Rodriguez ever having used methamphetamine, although that was inconsistent with what he had told Dr Allnut in 2006.
9. The defendant was on the methadone program for ten years and only stopped it six months ago. He has been receiving long acting monthly injections of Buprenorphine.
10. He was prescribed the antidepressants Citalopram and Quetiapine both in custody and in the community, and was also prescribed Mirtazapine for a number of years.
11. Dr Rodriguez said that the defendant did not display psychotic features such as hallucinations, delusions or thought disorder. The defendant appeared to present in the best possible light in the face of the significant and serious nature of his violent and sexual offending. Dr Rodriguez thought that he met the criteria for Substance Use Disorder and for Antisocial Personality Disorder. He said those diagnoses increased the defendant's risk of committing a further serious offence. He said that the defendant was also at increased risk of committing a further serious offence if he relapsed into substance abuse.
12. Dr Rodriguez assessed the defendant using a number of protocols. Using the Historical-Clinical-Risk Management 20 - Version 3 (HCR-20), Dr Rodriguez said that the defendant presented with a number of risk factors that may perpetuate his risk of reoffending including: Potential problems with professional services and plans; Future problems with personal support unless he is able radically to change his support network to non-criminogenic individuals; Potential problems with treatment or supervised response (the defendant has a history of non-compliance with authority, which could potentially resurface; and he has not sought any mental health treatment despite identifying a need for such treatment); and he faces future problems with stress or coping.
13. Dr Rodriguez said that the defendant presented with high static risk factors and future risk factors, and said that he fell into the high risk group for violent reoffending.
14. Dr Rodriguez evaluated the defendant's risk of intimate partner violence (IPV) using the Spousal Assault Risk Assessment Guide - Third Edition (SARA-V3). His assessment of the defendant's risk of IPV was high.
15. On the STATIC-99R risk assessment the defendant fell within the average risk category with a score of 5. It should be noted that with the same score, Mr Sheehan placed the defendant in the above average risk category.
16. Using the Risk of Sexual Violence Protocol (RSVP), dealing with dynamic risk assessment, Dr Rodriguez said that the defendant fell into a group of offenders who are at high risk for sexual offending within intimate relationships. Although Dr Rodriguez thought that, as the defendant ages, his risk may diminish, there was no guarantee that he would not develop an interest in a new victim or sexually reoffend. Not using substances of addiction, including alcohol, would reduce the distinct issue of disinhibition.
17. Dr Rodriguez said he did not believe that the defendant's risk could be managed in the community without any order, and he thought he could be suitably managed with an ESO in the community, which would include a comprehensive risk management plan with strict supervision and monitoring. Dr Rodriguez considered that the ESO should be in place for a period of at least three years.
18. The defendant saw Patrick Sheehan on 13 May 2021. Mr Sheehan thought that the defendant would meet the criteria for Polysubstance Use Disorder (moderate-severe, in sustained remission, on opioid agonist-antagonist therapy), and Antisocial Personality Disorder. In relation to the latter diagnosis, Mr Sheehan said that the outward expression of the disorder is known to attenuate when the individual moves into middle age as processes of maturation occur. He said that, at 43 years, the defendant may be on the cusp of entering a phase of life where his antisocial features might be expected to lessen.
19. Mr Sheehan said that the defendant's history of insecurity, unstable self-image, unstable affectivity, unstable interpersonal relationships, and anger, were all indicators of Borderline Personality Disorder. He said that the defendant did not meet criteria for any diagnosable paraphilic disorder. While his sexual offences against a 15 year old girl were problematic, they did not infer paedophilic disorder. Mr Sheehan noted that the majority of the violence offences, particularly the more serious sexual violence offences, were committed against women in the context of domestic violence.
20. Mr Sheehan noted that Mr Pearson had completed The High Intensity Sex Offender Program (HISOP) and, at the conclusion of it, the defendant's risk of sexual reoffence was considered to be in the well above average range, with his most salient risk areas being intimacy deficits (poor capacity for relationship stability, hostility towards women) and general self-regulation (impulsivity, poor problem solving, feeling mistreated).
21. Mr Sheehan assessed the defendant on a number of risk protocols. As mentioned earlier, he assessed the defendant on the STATIC 99-R as being in the above average risk category, with a score of 5.
22. In relation to the dynamic risk factors referred to in the RSVP, Mr Sheehan noted that there was some diversity to his sexual offending, with offending both against adult and child victims. He said, however, that the context of the offences had more similarities than differences, being against females, in a relationship, accompanied by violence. There was clear evidence of physical coercion, with psychological coercion present after the offences by the defendant seeking to influence the complainants to withdraw statements.
23. Mr Sheehan noted that the defendant had a history of hostile attributions towards women (that they are untrustworthy and treacherous), which has underpinned his aggression by creating a sense of victimisation and grievance. He has also upheld views of women as the property of men. Mr Sheehan said the defendant had chronic problems with self-awareness and self-appraisal which had continued to undermine his decision-making over time.
24. Mr Sheehan noted an assessment in 2007 using the Hare Psychopathy Check List: Screening Version where the defendant was found to be in the high range for psychopathy. Mr Sheehan said that taking into account the defendant's presentation in recent years, he would be seen to be within the low-medium range on that instrument. He said there would appear to be some improvement in responsibility, behaviour control, impulsivity and empathy.
25. Overall, the evidence led Mr Sheehan to estimate the defendant's overall risk of sexual offending to be in the above average or medium-high range of the risk spectrum. The type of sexual offending in respect of which the defendant was at risk would seem to involve aggressive sexual offences against female partners in circumstances of anger and sexual jealousy, possibly aggravated by substance abuse. He saw no evidence of sexual risk to young children, but said there might be a residual risk towards young women who were vulnerable.
26. In relation to the risk of violence, Mr Sheehan assessed the defendant on the Violence Risk Scale (VRS). The overall result of the VRS estimated his risk for violence at the upper end of the medium range. Mr Sheehan noted that his lifestyle in the community since his release to parole in December 2019 was not violent, showing observable improvement. Mr Sheehan assessed him as being in the medium risk category for violent behaviour.
27. As to the need for an ESO, Mr Sheehan said that he would be unable to state with any confidence that the defendant had demonstrated readiness to self-manage his risk of a serious offence in the absence of external controls and support. He was of the view that the risk could not be managed adequately in the community without an ESO being imposed, and that the risk could be managed adequately in the community under an ESO. He considered three years' duration would be an appropriate length for such an order.

Victim Statement

1. Mr Jake Harris of counsel for the State sought to tender a victim statement from the victim of the index offences. The statement had only been served on the defendant's solicitors the day before the hearing. The tender was, in the first instance, opposed by Ms Goodhand of counsel for the defendant, partly on the basis of the late service, partly because it introduced new evidence, and partly because the maker of the statement was not available for cross-examination.
2. Section 21A of the CHROA provides: 21A Victim statements (1) As soon as practicable after an application for an order under this Act is made in respect of an offender, the person acting on behalf of the State for the purposes of the application must take such steps as are reasonable (or, if the application concerned is for an emergency detention order, as are practicable in the circumstances) to ensure that written notice of the application is given to: (a) each victim of the offender, or (b) if any such victim is under 18 years of age or lacks legal capacity - that victim's parent or guardian. (2) The notice must inform the person that the person may make a statement orally before the Supreme Court, or provide a statement in writing, about: (a) the person's views about the order and any conditions to which the order may be subject, and (b) any other matters prescribed by the regulations. (3) It is sufficient for the notice to be sent to the person at the person's last known address as recorded in the Victims Register. (3A) A statement in writing must be provided before the date specified in the notice. (4) Any statement in writing received before the final hearing date in respect of the application may be placed before the Supreme Court for consideration in respect of the application. (4A) An oral statement may be made at such time during the proceedings on the application before the Supreme Court makes its decision on the application as the Supreme Court determines. (4B) The Supreme Court is to hear an oral statement in the absence of the offender unless the person giving the statement consents to the offender being present. (4C) The Supreme Court may arrange for an oral statement to be made by way of closed circuit television. (5) A person who makes a statement may amend or withdraw the statement. (6) The Supreme Court and the State must not disclose a statement (other than one given in the presence of the offender in accordance with subsection 4B) to the offender to which the application relates unless the person who made the statement consents to the disclosure. (7) If consent is not provided the Supreme Court may: (a) reduce the weight given to the statement, and (b) take reasonable steps to disclose to the offender, or the offender's legal representative, the substance of the statement but only if the Court is satisfied that those steps could not reasonably be expected to lead to the identification of the victim or the person who made the statement. (8) In this section: victim of an offender means a victim who is recorded on the Victims Register in respect of the offender for the purposes of section 256 (2) (b) of the Crimes (Administration of Sentences) Act 1999. Victims Register has the same meaning it has in the Crimes (Administration of Sentences) Act 1999.
3. Ultimately, Ms Goodhand's submission was that the statement should be given very limited weight. That was for two reasons. First, the maker of the statement did not consent to the disclosure of the statement to the defendant. In those circumstances, subs 21A(7) requires the Court to reduce the weight given to the statement. In addition, the statement contained information inconsistent with contemporaneous statements made by the defendant in the OIMS notes.
4. The defendant had said that the victim approached the residence where the defendant was living and made loud statements concerning the defendant. The information in the Victim Statement said that the defendant, whilst on parole, would seek the victim out where she resides. It also said that she is concerned that he is accessing her social media or her children's social media, because the defendant has posted photographs of the two boys who are the children of the defendant and the victim.
5. The Statement said that the victim would feel safer if the defendant was electronically monitored and that there be exclusion zones to protect her, her children and her parents. She also requested that he not be allowed to access social media.
6. There was no evidence concerning the timing of the matters referred to in subsections (1), (2), (3) (3A) and (4) of s 21A, except that the Statement had first been served on the day before the hearing.
7. There is no doubt that the index offences manifested a very degree of sexual and other violence. It is entirely understandable that the victim still entertains fears for her safety and, to a lesser extent, the safety of hers and the defendant's children, and other members of her family. I am, therefore, prepared to receive the Statement into evidence.
8. However, in the absence of the victim giving consent for the statement to be disclosed to the defendant, at least so that instructions could be obtained from him about factual assertions, and in the absence of the victim being prepared to be available for cross-examination, I cannot place much weight on the factual assertions in the Victim Statement.

Determination

1. The requirements of s 5B (a), (b) and (c) of the CHROA are satisfied. The defendant was a supervised offender within the meaning of s 5I.
2. The evidence points to an improvement in terms of the risk of the defendant committing further serious offences. The fact that he has abstained from illicit substances for some lengthy period of time is the best indicator of that. However, he has, whilst so abstaining, been in a controlled environment to a greater or lesser extent. Much of the time was spent in custody, with the time from December 2019 being spent on parole.
3. It is clear from the evidence of Dr Rodriguez and Mr Sheehan, and also from the report from Ms Cieplucha, that at the present time the defendant remains at risk of committing further serious offences, even if that risk has now reduced a little. The experts remain of the opinion that the defendant needs to be managed in the community by an ESO and that such management needs to extend for a period of three years.
4. Whilst I accept that the alleged breach by the defendant of the ISO has not yet been proved to the criminal standard, I must have regard to the fact that within just over a week of being on the ISO he was charged with breaching it. I take into account the police facts with regard to that breach, and even to an account given by the defendant to Dr Elliott, to which I will later refer. On its face, the breach, if proved, is of concern, not only by reason of past offences committed by the defendant, but also as to his motivation for compliance with any order that is imposed. It strengthens my opinion that the defendant's risk of offending is such that an ESO should be imposed. The alleged breach supports the views of the psychologists that the defendant is not yet ready to self-manage.
5. I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence, most probably a serious sex offence, if not kept under the supervision of an ESO. In accordance with the opinion of both experts, I consider that the ESO should be in place for three years.

Conditions

1. In my earlier judgment I set out at [66] to [70] the principles to be applied when considering what conditions should be imposed under the ESO. It is not necessary to repeat those principles in this judgment, but what follows takes them into account.
2. The parties have reached agreement on a number of the conditions which the State proposed should be imposed. I will now deal with those conditions where issues remain.

Conditions 4-7 Electronic monitoring and Schedule of movements

1. The defendant does not oppose either electronic monitoring or the conditions associated with a schedule of movements. However, the defendant seeks that the Court impose a time beyond which electronic monitoring is not to be required. Reliance was placed on State of New South Wales v Davis (Final) [2021] NSWSC 516 at [75]-[83] and State of New South Wales v Grooms (Final) [2019] NSWSC 353 at [91]. In relation to the schedule of movements, Ms Goodhand agreed with Mr Sheehan that they should remain beyond the time of any electronic monitoring.
2. The usual approach to electronic monitoring and scheduling is one involving four stages. Electronic monitoring is imposed for the first three stages but not the fourth. Restrictive scheduling is provided in stage 1, non-restrictive scheduling in stage 2 and no scheduling in stages 3 or 4. Movement from one stage to another is ordinarily at the discretion of the DSO.
3. Mr Sheehan's evidence was that a better approach is for electronic monitoring to be removed whilst scheduling is still in place. Mr Sheehan said that scheduling is a good risk management tool and a good rehabilitation tool. If the electronic monitoring remains in place beyond the time when a schedule of movements is not required, Mr Sheehan said it was difficult to gauge how skilled the person was at independently managing their risk.
4. Mr Sheehan said that there should be a time frame specified for the removal of scheduling and electronic monitoring. Neither he nor Dr Rodriguez specified what that time should be. Whilst I accept that the Court could impose a limitation on the time during which electronic monitoring and scheduling is in place (Davis (Final) at [81]-[82), I do not consider that I have sufficient evidence to justify defining any given period, especially when the experts could not identify the limits of such a period.
5. However, bearing in mind that the defendant has been subject to electronic monitoring since his release to parole in early December 2019, I make a recommendation to the DSO and those responsible for the defendant's supervision that consideration should be given to removing the defendant's electronic monitoring within 12 months of the commencement of the ESO, provided that there has generally been satisfactory compliance with the schedule of movements. I consider also that the schedule of movements should remain in place for a period of time after the removal of the electronic monitoring.
6. Condition 7, as proposed by the State, provided: The defendant must not deviate from his approved schedule of movements except in an Emergency. Ms Goodhand submitted that there should be some flexibility in relation to condition 7, so that any deviation from the schedule should not be only in cases of emergency, but on the basis that the defendant notified any change of plan as soon as reasonably practicable.
7. Bearing in mind the most likely risk of a further serious offence would involve an intimate partner of the defendant, I do not consider that condition 7 should be as restrictively worded as the State proposes. Condition 7 should read: The defendant must not significantly deviate from his approved schedule of movements except in an emergency. If the defendant does deviate from his approved schedule of movements for good reason, he must notify the DSO of the changed plans as soon as is reasonably practicable.

Conditions 8-12 Accommodation

1. The State proposes that condition 8 should read: The defendant must live at an address approved by a DSO and notify a DSO of any intention to change the defendant's address or living arrangements.
2. The defendant proposes the condition should read: The defendant must live at an address reasonably approved by a DSO and notify a DSO of any intention to change the defendant's address as soon as practicable.
3. The substantive difference between the two conditions is the insertion of the word "reasonably" in the defendant's proposed condition. The evidence is that the defendant has been living at his mother's residence since prior to the imposition of the ISO. The condition proposed by the State was the condition in the ISO and there is no evidence that there has been any difficulty as a result of it.
4. The Court must impose conditions on the assumption that the DSO and those supervising the defendant will act reasonably: State of New South Wales v Strong (by his tutor Ainsworth) (Final) [2018] NSWSC 1438 at [80]. Mr Sheehan had some experience with working with the DSO monitoring team. It was his experience that the ESO team would usually approach the conditions in an order with a case management goal, although he accepted that different DSOs differed in their approach.
5. I do not intend to insert a requirement into this condition or others sought by the defendant, that the DSO should act reasonably. The condition put forward by the State should be imposed.
6. Condition 10 as proposed by the State provides: The defendant must allow a DSO to visit him at his approved address at any time and, for that purpose, to enter the premises at that address. The defendant submits that the words "at any time" should be removed and that there should be defined hours during which the DSO can visit.
7. The Risk Management Report, referred to in my earlier judgment says this: If subject to an Extended Supervision Order, (ESO) Mr Pearson will be expected to partake in minimum weekly face to face visits with the Community Corrections Extended Supervision order (ESO Team) and field visits would occur at minimum, once per month. These visits may be conducted announced or unannounced and in a variety of community based settings. Mr Pearson may also be subject to covert observations and visits conducted by the Police Extended Supervision Order Investigations Team (ESOJT). This contact will provide opportunities to identify any escalation in Mr Pearson's risk, Mr Pearson will be expected to continue treatment with EPS, adhere to his mental health medication regime and continue to comply with the opioid replacement program, with random drug testing to be carried out to verify abstinence from illicit substances.
8. Unannounced visits or requirements for random testing (where appropriate) are useful risk management tools. It would be entirely unsatisfactory if the person subject to the ESO knew that for various defined periods they were not subject to unannounced visits. That said, it would be expected that the DSO would act reasonably, and it would be a rare occurrence, if it took place at all, that the defendant would be disturbed in the middle of the night. The State's condition should be imposed.
9. Condition 11 as proposed by the State provided: The defendant must not spend the night anywhere other than his approved address or any alternative approved addresses (if relevant) without the approval of a DSO. The defendant proposed that there be added to that condition the following: If the DSO refuses to approve any such request the DSO must provide reasons in writing if requested to do so. The DSO must not unreasonably refuse to approve such request.
10. This was one of a number of conditions where the defendant sought to have added a requirement, that if the DSO refused to approve something, reasons in writing must be provided. It is not appropriate that the DSO should be required to provide reasons in writing. Ordinarily, contemporaneous notes are made in the OIMS notes when approval issues arise. Decisions of the DSO are not reviewable in an administrative law sense, such that written reasons are necessary.
11. It was suggested by Ms Goodhand that written reasons would be relevant if the defendant was prosecuted for a breach of the conditions. It was ultimately accepted on behalf of the defendant that the OIMS notes would provide a satisfactory record of what transpired in relation to any refusal. Condition 11 as proposed by the State should be inserted.
12. Condition 12 as proposed by the State is as follows: The defendant must promptly notify a DSO of any visitor entering and remaining at his approved address and must not invite any person to stay overnight, at his approved address (other than persons who ordinarily reside at his approved address), without the prior approval of a DSO.
13. The defendant proposes the following alternative: The defendant must not invite any person to stay overnight at his approved address without the approval of a DSO. If the DSO refuses to approve any such request the DSO must provide reasons in writing if requested to do so. The DSO must not unreasonably refuse to approve such request. The defendant must notify the DSO within a reasonable time, of any visitor that stays overnight at the approved address at the invitation of another co-resident.
14. I have already indicated that I do not intend to impose any requirement on the DSO to provide written reasons. Further, the wording of this condition was contested at the hearing of the ISO, and the condition the State now seeks was the one I imposed following that contest. No reason has been shown for revisiting that decision.

Conditions 13 - 20 Place and travel restrictions

1. Conditions 14, 16 and 18 as proposed by the State were as follows: 14. The defendant must comply with any reasonable direction from his DSO not to go to a particular place. … 16. The defendant must not attend any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment, without the prior approval of a DSO. … 18. The defendant must not start on his own initiative any job, volunteer work or educational course without the approval of a DSO.
2. The defendant sought an addition to each requiring the DSO to provide reasons in writing for any direction not to go to a particular place or from a failure to approve requests by the defendant. For reasons given already, such a requirement should not be imposed. In response to the defendant's request for condition 16 the State proposes an alternative condition as follows: The defendant must not attend any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment, without informing a DSO in advance.
3. Such a condition was supported by both of the experts and should be imposed.
4. The State proposed condition 19 as follows: The defendant must notify a DSO of any intention to change his employment if practicable before the change occurs or otherwise at his or her next interview with a DSO.
5. This was opposed by the defendant on the basis that it was not directed to the defendant's specific risk factors. However, in circumstances where condition 18 is to be imposed concerning starting a job, it is appropriate that the defendant should notify his DSO of an intention to change his employment.

Conditions 29 and 57 Disclosure of criminal history

1. The State proposes that condition 29 should relevantly read: The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary.
2. The State also proposes condition 57 which provides: The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him. Before disclosing his criminal history, a DSO must first inform the defendant of their intention to disclose his criminal history and the reason for the disclosure.
3. The defence submitted that there should effectively be a carve out in condition 29 so that after the word "person" there should be inserted "(other than health care professionals)". The basis for the carve out is because of condition 57. I do not agree. The disclosure in condition 57 is limited to health care professionals who are treating the defendant. A situation may arise where it would be necessary for the DSO to disclose the defendant's criminal history to a person who was a health care professional even if they were not treating the defendant. No basis is shown for the limitation the defendant seeks.

Condition 31 Weapons

1. The State proposes condition 31 as follows: The defendant must not possess or use any of the following, without a DSO's prior approval: a. any implement made or adapted for use for causing injury to a person; or b. anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property.
2. The defendant opposes this condition on the basis that it is not directed to the defendant's specific risk factors and that possessing weapons is already prohibited by the law.
3. In my view, the defendant's specific risk factors include the use of a weapon. In the index offences he hit and threatened the victim with a knife sharpener. The defendant has also been convicted of Use Offensive Weapon to Prevent Lawful Detention when he lunged at police with scissors, and threatened to stab and shoot them.
4. Simply because possession of a weapon may constitute an offence under the Firearms Act 1996 (NSW) or the Weapons Prohibition Act 1998 (NSW) is no reason not to include a provision such as condition 31. Conditions are also a reminder to the defendant that the restrictions that are placed upon him include obeying the law generally, but particularly laws pertinent to his offending and risk. Where weapons have been employed by him in past offending, it is entirely appropriate that a condition prohibiting him possessing them should be included.

Conditions 32 - 42 Access to the internet and other electronic communication

1. The defendant objected to the inclusion of these conditions on the basis that they are not directed at reducing the defendant's risk of committing a further serious sexual offence. In that regard, the defendant relied on what Mr Sheehan said in his report: I do not think that these conditions are central to risk management and in my view could be removed without significantly weakening the order. The only benefit to these conditions would be if there were concerns that Mr Pearson was using a carriage service to threaten or intimidate others.
2. Mr Sheehan maintained that position in his oral evidence. On the other hand, Dr Rodriguez thought that the conditions were appropriate at the initial stages of his rehabilitation. He thought that the conditions were appropriate because new relationships could be formed through social media and other internet sites. He thought it would be important to be able to monitor the defendant's communications in that way.
3. The use of the internet, whether through social media outlets or otherwise, was not related to the defendant's past offending. However, because a principal risk is intimate partner violence, it is important for there to be some oversight of the defendant's use of the internet. The internet conditions generally assist in the operation of conditions 26-30 concerning persons with whom the defendant may and may not associate.
4. Although I have indicated that I do not give much weight to what is contained in the Victim Statement for the reasons given, I do have some concern from the assertion by the victim that the defendant may try to access her social media, because she asserts that he has copies of photos she posted of their sons. I am not, for this purpose, accepting that the defendant has accessed her social media or that he would do so, but these conditions provide oversight of his use of the internet.
5. However, condition 39 as proposed by the State provides: 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, multiplayer video games and other telecommunications-based services including text and voice services.
6. In circumstances where the other conditions give a DSO the complete oversight of the defendant's use of the internet, I do not consider that condition 39 is necessary. It is unnecessarily restrictive on the defendant, and is not directly related to the defendant's risk of offending.

Conditions 43 - 44 Search and seizure

1. The State proposed condition 43 as follows: The defendant must submit to the search of his person or any item or place in his possession or under his control, including his residence, any vehicle in which he is travelling or which is under his effective control, any computer, electronic and communication device, or any storage facility, garage, locker or commercial facility; and to the seizure of any object located during the search.
2. The defendant proposed the following condition in lieu: If the DSO forms a reasonable suspicion that a search is required, either to monitor the defendant's compliance with this Order, or because the DSO suspects the defendant of having engaged in behaviour or conduct associated with an increased risk of committing a serious offence, the defendant must submit to the search by his DSO (or any other person as directed by the DSO) person or residence, or any vehicle in which he is travelling or which is under his effective control, or any computer, electronic or communication device, bag, container, storage facility, garage, locker or commercial facility in his possession or under his control and to the seizure of any object located during the search.
3. In his report, Mr Sheehan said of this and the following condition, preventing the defendant from destroying or interfering with any object the subject of a search or seizure: The conditions are highly invasive and likely detrimental to any rapport with the DSO (which is an important element of supervision effectiveness) that may be reasonable and necessary in Mr Pearson's case with regard to drugs and weapons. In my experience this provision is not used injudiciously.
4. Dr Rodriguez did not comment specifically about the search and seizure conditions. However, he said that the conditions set out in the amended summons were appropriate at this time to address the defendant's risk of violent and sexual reoffending.
5. While there can be no doubt that search and seizure is very invasive, a significant matter in the defendant's rehabilitation is abstention from illicit drugs which have been a serious problem for him in the past. The Risk Management Report made specific reference to the need for search and seizure provisions in relation to illicit drugs.
6. The experts agree that the defendant's abstention from illicit drugs is likely to be the most significant matter which will determine whether he is likely to cease to be above average risk of reoffending. In my view, the search and seizure conditions are reasonable. For reasons earlier given in relation to the DSO acting reasonably or being of a reasonable view, I do not consider that the condition should be amended in the form the defendant seeks.

Conditions 50 - 56 Medical intervention and treatment

1. Condition 50 as proposed by the State provided: 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.
2. The defendant proposed, in lieu, the following condition: The defendant must attend a healthcare professional if reasonably directed to do so by a DSO. The DSO can reasonably direct the defendant only if the DSO believes on reasonable grounds that the attendance is necessary to ameliorate the defendant's risk of further serious offence.
3. In my opinion, it is not appropriate for the DSO to be determining whether an offender should undergo psychological or psychiatric assessment, or what therapy or treatment programs he should undergo. There is also force in Mr Sheehan's view that it is quite unnecessary for the DSO to require the defendant to comply with a Community Treatment Order because the order itself requires compliance. Further, in the absence of the defendant having ever been a mentally ill person under the Mental Health Act 2007 (NSW), the condition does not appear to relate to the risks the defendant presents.
4. The condition should read as the defendant proposes in the first paragraph. The second paragraph is not to be included.
5. The State proposed the following condition 54: The defendant must notify a DSO immediately if he ceases to take or declines to commence taking any medication as referred to in the above condition. The defendant proposed replacing "immediately" with "as soon as practicable". In response, the State proposed "within 24 hours". The psychologists agreed that notification as soon as possible was desirable. In my opinion the State's "within 24 hours" should be imposed.
6. The State proposed the following conditions 55 and 56: 55. The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with a DSO. 56. The defendant must agree to any information being shared between those persons and agencies that are involved in his supervision including, but not limited to, a DSO, NSWPF and CSNSW.
7. The defendant sought to add to condition 55 the words "if such disclosure is reasonably necessary to reduce the risk of the defendant committing a serious sex offence". The defendant opposed entirely condition 56. Both psychologists considered the conditions as sought were necessary. The defendant sought to draw a distinction between physical ailments (the example given was a wart on the foot) and matters which might concern his mental health or diagnosed conditions. A similar argument was put at the preliminary hearing regarding the ISO, although it was there directed to the condition requiring the defendant to notify the name and address of any healthcare profession the defendant consulted.
8. Dr Rodriguez made the point that there needed to be common sense in relation to providing shared information. This is, of course, related to the expectation that the DSO will act reasonably. In my earlier judgment I said at [90]: The defendant's proposal assumes that there is a clear demarcation between physical and mental problems. There is force in the State's submission that the defendant's physical health impacts upon his anxiety condition, which may in turn manifest itself in poor coping mechanisms. It does not seem that any such link between the offender's mental health issues and physical ailments (if any) was identified in Wilkinson. Each case must, of course, be decided on its own facts. I am satisfied there is such a link in the present case.
9. I adhere to that view. Conditions 55 and 56 as proposed by the State should be included.

Bail

1. During the hearing, the defendant applied for bail. I granted bail on the condition that the defendant complied with the terms of his ISO and subsequently any ESO that was made. These are my reasons for so doing.
2. The offence of failing to comply with the requirements of an ISO is found in s 12 of the CHROA. The maximum penalty is 500 penalty units and/or imprisonment for five years. As mentioned earlier, the defendant was refused bail at his appearance before Wyong Local Court on 9 April 2021, and the remand was continued at subsequent appearances before that Court. The defendant must show cause why his continued detention is not justified because the offence is an offence listed in s 16B(1)(i) of the Bail Act 2013 (NSW).
3. When the matter was before Wyong Local Court on 8 June 2021 it was adjourned until 20 July for a further reply. Even if it is fixed for hearing on that day, it is unlikely to be heard before September 2021 at the earliest. If the defendant is not released to bail he would be in custody for at least five months and maybe more.
4. Without minimising the seriousness of the defendant breaching his supervision order only eight or nine days after an ISO was put in place, the facts of the offending suggest that it is a relatively minor breach in all the circumstances, particularly if the 15 year old girl was his brother's daughter, as the defendant told Dr Elliott on 3 May 2021. If the defendant remains on remand until the hearing, there is a strong chance that he will remain in custody for a period exceeding the likely sentence that would be imposed. In that way, the defendant shows cause why his continued detention is not justified.
5. I certainly hold concerns that the defendant will continue to commit further serious offences if released on bail. His criminal record has a number of convictions for breaching apprehended domestic violence orders and for driving while disqualified. They are both offences which tend to show that an offender will not comply with orders of the Court or requirements of conditional liberty.
6. However, if the defendant is under an ISO or an ESO, that represents the closest form of supervision that is available. I am satisfied, in those circumstances, that a bail condition that requires the defendant to comply with the conditions of his ISO or an ESO will sufficiently mitigate the bail concern that I have. For those reasons I granted bail to the defendant at the hearing.

Conclusion

1. I make the following orders: 1. Order pursuant to s. 5B and s. 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 ("the Act"), that the defendant be subject to an Extended Supervision Order for a period of three years from the date of the order. 2. Order pursuant to s. 11 of the Act, that the defendant, for the period of the Extended Supervision Order comply with the conditions set out in Annexure A to these short minutes. SCHEDULE OF CONDITIONS OF SUPERVISION KEITH PEARSON Departmental Supervising Officer (DSO) Corrective Services NSW (CSNSW) In these conditions: "CSNSW" means Corrective Services NSW. "Commissioner" means Commissioner for Corrective Services "Defendant" means Keith Pearson, otherwise known as Keith Jon Adams, the defendant in these proceedings and the subject of the order. "Electronic Identity" means each of the following: (a) an email address, (b) a user name or other identity allowing access to an instant messaging service, (c) a user name or other identity allowing access to a chat room or social media on the internet, (d) any other user name or other identity allowing access to the internet or an electronic communication service. "DSO" means Departmental Supervising Officer, that is, any Corrective Services Officer supervising the defendant under the order. "Material" includes: 1. any written or printed material; 2. any picture, painting or drawing; 3. any carving, sculpture, statue or figure; 4. any photograph, film, video recording or other object or thing from which an image may be reproduced; 5. any computer data or the computer record or system containing the data; and 6. any other material or object on which an image or representation is recorded or from which an image or representation may be reproduced. "NSWPF" means NSW Police Force. "Associate" includes, but is not limited to, being in company with, or to communicate by any means (including by post, facsimile, telephone, email or any other form of electronic communication). "Search" includes: 1. A garment search, being a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body; and 2. A pat-down search, meaning a search of the defendant where the defendant's clothed body is touched. Part A: Reporting and Monitoring Obligations Monitoring and Reporting 1. The defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions of a DSO. 2. 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. 3. The defendant must truthfully answer questions from a DSO, or any other person supervising him, about where he is, where he is going, who he is with, what he is doing and the nature of his associations. Electronic Monitoring 4. The defendant must wear electronic monitoring equipment as directed by a DSO and must not tamper with, or remove, the equipment. 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 significantly deviate from his approved schedule of movements except in an emergency. If the defendant does deviate from his approved schedule of movements for good reason, he must notify the DSO of the changed plans as soon as is reasonably practicable. Part B: Accommodation 8. The defendant must live at an address approved by a DSO and notify a DSO of any intention to change the defendant's address or living arrangements. 9. The defendant must allow a DSO to visit him at his approved address at any time and, for that purpose, to enter the premises at that address. 10. The defendant must not spend the night anywhere other than his approved address or any alternative approved addresses (if relevant) without the approval of a DSO. 11. The defendant must promptly notify a DSO of any visitor entering and remaining at his approved address and must not invite any person to stay overnight, at his approved address (other than persons who ordinarily reside at his approved address), without the prior approval of a DSO. Part C: Place and travel restrictions 12. The defendant must surrender any passports held by him to the Commissioner, must not be in possession of any passports, and must not attempt to apply for any passports. 13. The defendant must not leave New South Wales without the approval of the Commissioner. 14. The defendant must comply with any reasonable direction from his DSO not to go to a particular place. 15. The defendant must not attend any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment, without informing a DSO in advance. Part D: Employment, finance and education 16. The defendant must take all reasonable steps to participate in interventions as recommended by a DSO, including the development of a case management plan which may include employment, education, training or participation in personal development programs. 17. The defendant must not start on his own initiative any job, volunteer work or educational course without the approval of a DSO. 18. The defendant must notify a DSO of any intention to change his employment if practicable before the change occurs or otherwise at his or her next interview with a DSO. Part E: Drugs and alcohol 19. The defendant must not use prohibited drugs, or abuse drugs unlawfully obtained. 20. The defendant must not possess or consume alcohol without the prior approval of a DSO. 21. The defendant must submit to drug and alcohol testing. 22. The defendant must not enter any licensed premises including hotels, bars, racecourses and licenced clubs, but excluding cafes and restaurants, without the prior approval of a DSO. 23. The defendant must attend and participate in programs and courses for drug and alcohol rehabilitation as reasonably directed by a DSO and must not discharge himself from such programs and courses without prior approval of a DSO. Part F: Non-association Association with Children 24. The defendant must not associate with anyone whom he knows or reasonably should know is under 18, other than incidental contact in a public place; or with the written permission of a DSO and in accordance with any requirements reasonably determined by a DSO, including that the contact takes place in the presence of an adult who has been approved in writing by a DSO. Associations with Others (not children) 25. The defendant must not associate with any person or persons specified by a DSO. 26. The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary. Disclosure under this condition is only reasonably necessary if the DSO believes on reasonable grounds that the disclosure is necessary to ameliorate the defendant's risk of further sexual offending. If the defendant's DSO is to make such a disclosure, he must give the defendant (within a reasonable timeframe as agreed between the DSO and the defendant) the opportunity to tell the other person. 27. The defendant must obtain written permission from a DSO prior to joining or affiliating with any club or organisation Part G: Weapons 28. The defendant must not possess or use any of the following, without a DSO's prior approval: a. any implement made or adapted for use for causing injury to a person; or b. anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property. Part H: Access to the internet and other electronic communication 29. 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). 30. The defendant must not use any alias, electronic identity, log-in name, name other than "Keith Pearson" or "Keith Jon Adams" or any email address other than those known to 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. 31. 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. 32. 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. 33. 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. 34. The defendant must not use any coded or encrypted messaging application or service. 35. 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. 36. 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. 37. 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. 38. The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with a DSO. Part I: Search and seizure 39. The defendant must submit to the search of his person or any item or place in his possession or under his control, including his residence any vehicle in which he is travelling or which is under his effective control, any computer, electronic and communication device or any storage facility, garage, locker or commercial facility; and to the seizure of any object located during the search. 40. 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 this Order. Part J: Personal details and appearance 41. The defendant must not change his name from "Keith Jon Adams" or use any name other than "Keith Jon Adams" or "Keith Jon Pearson" without notifying a DSO. 42. The defendant must not significantly change his appearance without the approval of a DSO. 43. The defendant must let a DSO photograph him, dressed, within one week of the commencement of these conditions and following any significant change to his appearance. 44. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide a DSO with such details. Part K: Medical intervention and treatment 45. The defendant must attend a healthcare professional if reasonably directed to do so by a DSO. 46. The defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults. 47. The defendant must take medications that are prescribed to him by his healthcare practitioners only in the manner prescribed. 48. The defendant must notify a DSO within 24 hours if he ceases to take or declines to commence taking any medication as referred to in the above condition. 49. The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with a DSO. 50. The defendant must agree to any information being shared between those persons and agencies that are involved in his supervision including, but not limited to, a DSO, NSWPF and CSNSW. 51. The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him. Before disclosing his criminal history, a DSO must first inform the defendant of their intention to disclose his criminal history and the reason for the disclosure.

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: 29 June 2021