State of New South Wales v Peters

Supreme Court of NSW|2022-08-31|Before: Wright J, Lonergan J, Wood CJ

Solicitors: Crown Solicitor's Office (Plaintiff) Hugo Law Group (Defendant) File Number(s): 2021/355698

Introduction

By a summons filed on 15 December 2021, the plaintiff, the State of New South Wales, sought interim orders and final relief under the Crimes (High Risk Offenders) Act 2006 (NSW) (the CHRO Act) in respect of the defendant, Damien Anthony Peters.
Mr Peters pleaded guilty to two separate murders in 2001 and, on 20 December 2002, he was sentenced as follows: 1. imprisonment for 17 years commencing on 11 September 2001 with a non-parole period of 9 years for the murder of Tereaupii Akai, taking into account the offences of obtaining money by deception on the Form 1; and 2. imprisonment for 17 years commencing on 11 September 2005 with a non-parole period of 9 years for the murder of Bevan Frost, R v Peters [2002] NSWSC 1234 (Wood CJ at CL).
The non-parole period for the last of these sentences expired on 10 September 2014 and that sentence will expire on 10 September 2022.
After 10 September 2014, Mr Peters was released to parole in November 2016, July 2018 and December 2018 but, on each occasion, parole was revoked because of non-compliance with parole conditions. Mr Peters is presently in custody serving the balance of his sentence.

The summons and interim relief

As noted above, on 15 December 2021, the State filed a summons in the present matter, in which the following relief was sought: 1. in prayers 1 to 4, interlocutory and interim orders for psychiatric and psychological examinations (under s 7(4) or s 15(4) of the CHRO Act) and a 28 day interim detention order (IDO) or, alternatively, a 28 day interim supervision order (ISO); 2. in prayers 5 to 7, final relief by way of a continuing detention order (CDO) of 1 year followed by a 5-year extended supervision order (ESO) or, in the alternative, a 5-year ESO; 3. in prayer 8, an order that access to the Court's file for any document not be granted to a non-party without leave of a Judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.
On 10 February 2022, Lonergan J heard the application for the interlocutory and interim orders sought in the summons.
On 17 February 2022, Lonergan J published her judgment, State of New South Wales v Peters (Preliminary) [2022] NSWSC 109, which sets out in some detail Mr Peters' background, the nature of his offending, his previous releases to parole and consideration of other relevant factors in accordance with s 9(3) of the CHRO Act. On that day, her Honour made the following orders: "1(a) Two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) as agreed by the parties are to conduct separate psychiatric or psychological examinations of the defendant and are to furnish reports to the Supreme Court on the results of those examinations by a date to be agreed by the parties. 1(b) The defendant is directed to attend those examinations. 2(a) The defendant is to be the subject of an interim detention order ("the interim detention order") for a period of 28 days from 17 February 2022. 2(b) Pursuant to s. 20(1) of the Act, the Court is to issue a warrant for the committal of the defendant to a correctional centre for the duration of the interim detention. 3 Liberty is granted to the parties to approach the Common Law List Clerk to obtain hearing date for any application to extend the interim order, for the final hearing of the matter and to fix a timetable for the filing and serving of evidence and submissions."
Despite the date specified in order 2(a), the IDO made by Lonergan J did not commence on 17 February 2022 because its operation was suspended by virtue of s 18C of the CHRO Act, which relevantly provides: "18C Term of interim detention order (1) An interim detention order in respect of an offender commences on the day fixed in the order for its commencement (or, if no such day is fixed, as soon as it is made) and expires - (a) at the end of such period (not exceeding 28 days from the day on which it commences) as is specified in the order, or (b) if the order is suspended for any period - the period specified in paragraph (a) plus each period during which the order is suspended, or …. (1A) An offender's custody under an interim detention order is suspended during any period the offender is in lawful custody, whether under this or any other Act or law. …".
Since Mr Peters' parole has been revoked, he will be in lawful custody until his sentence expires on 10 September 2022. By virtue of s 18C(1)(b) and (1A), the 28 day IDO imposed by Lonergan J will be suspended until the expiration of his sentence. Accordingly, unless the IDO is revoked, Mr Peters will be subject to the IDO for 28 days commencing on 11 September 2022 and expiring on 8 October 2022.
In accordance with orders 1(a) and (b) made by Lonergan J, Mr Peters was examined by Dr Andrew Ellis, forensic psychiatrist, and Mr Patrick Sheehan, forensic psychologist, and both Dr Ellis and Mr Sheehan provided a report to the Court.
The application for final relief sought in the summons came on for hearing before me on 31 August 2022. At the commencement of that hearing, leave was given to the plaintiff to file an amended summons which deleted the prayers seeking a CDO and limited the substantive relief claimed to a 5 year ESO.
It can be noted at this point that there was no opposition to the making of the order sought in prayer 8 restricting access to the Court file to non-parties until after the parties had the opportunity to be heard in relation to any application for access. In these circumstances, and given the nature of these proceedings and the fact that there is no permanent restriction on access effected by the order, I am satisfied it is appropriate to make such an order in this case.

Relevant statutory provisions and issues

The parties took a commendably focused approach to the real issues in dispute as to whether an ESO should be made in the present matter.
The objects of the CHRO Act are stated in s 3. The primary object includes providing for the extended supervision of high risk violent offenders so as to ensure the safety and protection of the community: s 3(1). A secondary object is to encourage high risk violent offenders to undertake rehabilitation: s 3(2).
Section 5B of the CHRO Act provides that this Court may make an ESO 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."
It was not in dispute, and I accepted, that: 1. Mr Peters is an offender who is serving a sentence of imprisonment for a "serious offence", as defined in ss4(1) and 5A(1)(a); 2. Mr Peters is a supervised offender, within the meaning of s 5I(2)(a)(i); and 3. the present application was made in accordance with s 5I.
Accordingly, the prerequisites in s 5B(a), (b) and (c) were met in this case. As to the question of whether the Court is satisfied of the matter in s 5B(d), s 9 deals with how the Court may determine an application for an ESO. Section 9(1) states that the Court may make an ESO or dismiss the application. Section 9(2) establishes that, in determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration.
Section 9(3) sets out a list of non-exhaustive list of mandatory considerations when determining whether to make an ESO, as follows: "(3) In determining whether or not to make an extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant - (a) (Repealed) (b) the reports received from the persons appointed under section 7 (4) to conduct examinations of the offender, and the level of the offender's participation in any such examination, (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, (e) 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, (e1) 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, (e2) the likelihood that the offender will comply with the obligations of an extended supervision order, (f) without limiting paragraph (e2), 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, (g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004, (h) 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, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will commit a further serious offence."
Finally, under s 9(4), any intention of the offender to leave New South Wales (whether permanently or temporarily) is expressly made an irrelevant consideration.
Mr McGorey of counsel, who appeared for the State, submitted that in all the circumstances the Court should be satisfied to a high degree of probability that Mr Peters poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO and that such an order should be made for 5 years in the present case.
Mr Johnston of Senior Counsel, who appeared with Mr Bhutani for Mr Peters, expressly indicated that Mr Peters did not wish to make any submissions on the issue of whether the Court should be satisfied to a high degree of probability that Mr Peters poses an unacceptable risk of committing another serious offence if not kept under supervision. Similarly, no submissions were made on behalf of Mr Peters that the discretion to make an ESO should not be exercised in his case.
The commencement and duration of an ESO are governed by s 10 of the CHRO Act which contains the following relevant provisions: "10 Term of extended supervision order (1) An extended supervision order commences when it is made, or when the offender's current custody or supervision expires, whichever is the later. … (1A) An extended supervision order expires at the end of - (a) such period (not exceeding 5 years from the day on which it commences) as is specified in the order, or (b) if the order is suspended for any period, the period specified in paragraph (a) plus each period during which the order is suspended. (2) An offender's obligations under an extended supervision order are suspended while the offender is in lawful custody, whether under this or any other Act or law. …".
While the State submitted that any ESO to be imposed should be for a term of 5 years, Mr Peters contended that the ESO should be for no longer than 3 years.
Section 11 of the CHRO Act sets out conditions which may be imposed when an ESO is made: "11 Conditions that may be imposed on supervision order (1) An extended supervision order or interim supervision order may direct an offender to comply with such conditions as the Supreme Court considers appropriate, including (but not limited to) directions requiring the offender - (a) to permit any corrective services officer to visit the offender at the offender's residential address at any time and, for that purpose, to enter the premises at that address, or (a1) to permit any corrective services officer to access any computer or related equipment that is at the offender's residential address or in the possession of the offender, or (b) to make periodic reports to a corrective services officer, or (c) to notify a corrective services officer of any change in his or her address, or (d) to participate in treatment and rehabilitation programs, or (e) to wear electronic monitoring equipment, or (ea) to reside at an address approved by the Commissioner of Corrective Services, or (f) not to reside in or resort to specified locations or classes of locations, or (g) not to associate or make contact with specified persons or classes of persons, or (h) not to engage in specified conduct or classes of conduct, or (i) not to engage in specified employment or classes of employment, or (j) not to change his or her name, or (k) to report to police and provide information to police about the conditions imposed on the extended supervision order or interim supervision order and the offender's residential address, or (l) to comply with any obligation that could be imposed on the offender under Part 3 of the Child Protection (Offenders Registration) Act 2000 if the offender were a registrable person within the meaning of that Act and were not the subject of an interim supervision order or an extended supervision order, or (m) to comply with specified requirements in connection with the offender's access to and use of the internet, or (n) to provide any corrective services officer with requested information in relation to any employment or any financial affairs of the offender. (2) An extended supervision order or interim supervision order must include a condition requiring the offender not to leave New South Wales except with the approval of the Commissioner of Corrective Services."
The other area of dispute between the parties related to the precise terms of the conditions to be imposed in the present case.
In summary, there was no dispute as to the principles to be applied in considering whether to make an ESO or as to whether an ESO could and should be ordered in the present case. The issues to which the parties directed their attention at the final hearing were the duration of the ESO and the conditions to be imposed under the ESO.

Relevant principles

In addition to the statutory provisions referred to above, the relevant principles to be applied when considering the imposition of an ESO in accordance with the CHRO Act were not in dispute. It is sufficient to note for present purposes what follows.
As noted before, when determining whether the Court is satisfied to a high degree of probability that an offender poses an unacceptable risk of committing another serious offence if not kept under supervision, the paramount consideration must be the safety of the community: s 9(2) of the CHRO Act. In addition, the primary and secondary objects of that Act, found in s 3, are to be borne in mind when making this evaluative judgment.
The standard to which the Court must be satisfied that an offender poses an unacceptable risk of committing a further serious offence is higher than the civil standard of proof and is "beyond more probably than not" but there is no requirement that the finding be made to the criminal standard of beyond reasonable doubt: Cornwall v Attorney-General for New South Wales [2007] NSWCA 374 at [21] (Mason P, Giles and Hodgson JJA). In making such a finding to the required standard, however, the Court does not have be satisfied that the offender is more likely than not to commit a serious offence, in order to find that he or she poses an unacceptable risk: s 5D.
The assessment of whether the risk of committing another serious offence posed by an offender is unacceptable should take into account the likelihood of the risk coming to fruition and the gravity of the consequences assuming the risk eventuates: State of New South Wales v Chaplin [2019] NSWSC 471 at [15] (Rothman J).
The right of an offender to his or her personal liberty at the expiry of their sentence is not a relevant consideration in the determination of whether a person poses an unacceptable risk (Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [44] (Beazley P)). Nonetheless, consideration of an offender's circumstances, including the offender's interest in liberty and privacy, may influence the ultimate exercise of discretion as to whether or not to make an order as well as consideration of the appropriate conditions to be imposed as part of any ESO: Lynn at [131] (Basten JA) and [149] (Gleeson JA).

Background and consideration of relevant matters in s 9(3) of the CHRO Act

A proper consideration of the relevant matters in s 9(3) in this case is informed by an understanding of Mr Peters' background.

Background

Since there was no dispute about his background and it was addressed in some detail by Lonergan J in the preliminary decision, I have adopted as an accurate summary and taken into account what her Honour said at [5]-[19], which was as follows: "5. The defendant is 53 years old and is currently serving the last 7 months of a 21-year sentence for the murder of two men, Tereaupii Akai and Bevan Frost eight months apart in 2001. Also taken into account was six offences of obtaining money by deception where the defendant took money from Mr Akai's bank accounts after killing him. 6. The defendant was born in 1967 and finished school after completing year 10 twice. He seems to have had a complex relationship with his father, whom he says bullied and abused him. His mother died of cancer when he was 18-19 years old and he was traumatised by this. He left home soon after this and apparently did not have any further contact with his father until after the murder charges. There is scant detail regarding employment. There was to be a restaurant apprenticeship early on which did not continue due to long hours and poor pay. The defendant told Mr Ardasinski in 2013 that he had about 10 different jobs as a store person, labourer and kitchen hand and that he was unemployed for periods between jobs. From 1998 he was supported by a disability pension due to his HIV diagnosis. 7. There was drug use from about 18-19 years old, starting with cannabis and progressing to amphetamine use as the drug of choice. There was an admission to Odyssey House Drug Rehab Centre after a period of imprisonment for breaking into a pharmacy and stealing Rohypnol. He told Dr Skinner in 2002 that he had "dabbled" in heroin but was not dependant on it and used Valium and Xanax for mood, as well as testosterone (probably prescribed for his HIV side effects) and steroids for body building. He also took Prozac 80mg daily, noted by Dr Skinner to be above the recommended dose. 8. About the time of Mr Akai's murder, the defendant said he was using 250mg of testosterone, marijuana, methadone 90mg daily and valium as well as Ice (methamphetamine). 9. Around the time of the murder of Mr Frost, the defendant said he was using Ice and other drugs to cope with Mr Frost's sexual demands, including "handfuls of Xanax". 10. The defendant has HIV (diagnosed in 1998) and Hepatitis C. He has at different times been prescribed benzodiazepines and anti-depressants for mood difficulties. There is some debate about whether the defendant has or had any psychiatric disorder. He had long periods of depression especially after the HIV diagnosis. Post the murders, some experts have diagnosed adjustment disorder with depressed mood, substance abuse disorder and personality disorder with borderline traits. 11. At the sentencing hearing he gave evidence of a history of having been emotionally and physically abused by his father and that he feared him and that his father had cut off contact as well as cutting him off from contact with his three older sisters. 12. The defendant has a relatively minor criminal history separate to the murder convictions. He was fined for possession of cannabis in 1988. In 1992 he was sentenced to the rising of the Court for three break enter and steal offences and some related offending. He was given a bond at that time for another stealing offence. In 1995 he was placed on a recognisance for 3 years and required to attend alcohol counselling and enter an accommodation program. In 1998 there were further recognisances for stealing from a dwelling and breach of bail. At this point he received a prison sentence of 3 months for break and enter and steal and was sentenced also at this time to the rising of the Court for resist arrest and possession of a prohibited drug. 13. The only violence offence apart from the murders was an assault occasioning actual bodily harm in 1998 for which he was fined. The victim was Mr Akai. 14. He has had a relatively uneventful custodial period and has been in a trusted "sweeper" position for some years. There have been no custodial violence offences, but a number of "refuse urine sample" charges and four failed urine samples in 2017 where a drug, (amphetamine), was detected. In October 2018 he was found in possession of buprenorphine and buprenorphine was detected in a drug swab at that time. The index offending The circumstances of the murders and the discovery of them were outlined in the sentencing judgment of Wood CJ at CL on 20 December 2002: '2. The two offences came to light following a conversation between Jillian Nash and police, on 29 August 2001, when she related her concerns as to the whereabouts of Akai, who had not been seen for some time. In particular, she indicated that the defendant had mentioned to her that Akai was dead, that he had killed him six months ago, and that he had cut up his body and disposed of it down the toilet, or in bins. He also mentioned cutting the hands of the deceased, knocking out his teeth, and putting peroxide and chemicals on his hair in order to burn it, so as to prevent his identification. He mentioned additionally that he had been collecting Akai's pension using his bank card, but that it had been stolen. She said that he had asked her to go to the bank with a letter, with his name on it, saying that she had been asked to collect the rest of the money because the card had been lost and cancelled. 3. Police and Ms Nash went to the residential unit where she lived in Redfern. They were there provided with a Centrelink card in Akai's name. A bag containing clothing and medication in the name of the defendant, as well as a St George Bank statement in the name of Akai, were also collected. 4. A search warrant was obtained in relation to the premises at Flat B9/15 Northcott Flats, where Akai and the defendant had lived. When the premises were entered, they were found to have been ransacked. Blood stains and smears were observed in various locations, and an external window frame was seen to have been shattered. Other residents at the flats indicated that Akai had not been seen for some months. 5. Inquiries were made in relation to the St George Bank account in Akai's name, which revealed that there had been six withdrawals, via ATMs between 7 June 2001 and 16 August 2001, totalling $1650. In some instances, the video camera attached to the ATM's showed that the withdrawals had been made by the defendant. 6. On 30 August 2001, the defendant was spoken to by police at Langton Clinic. Later he participated in an electronically recorded interview, in the course of which he admitted to having been the person responsible for the withdrawals. In the course of this interview, he claimed to have been given Akai's bank card as a "gentlemen's agreement", under which, if he stayed and looked after his flat, and looked after their dog, he could withdraw moneys from the account, and keep any balance, after paying the rent and electricity. The money paid into the account, against which the withdrawals were made, he acknowledged had come from Akai's disability pension. 7. He claimed that this agreement had been made about six months earlier, when Akai had said that he was going away for a while, as he needed a break from the Northcott flats. He said that he had not heard from him since, and, as a result, he was "tearing [his] hair out". He added that he did not know where he was. 8. In the course of this interview, he mentioned that Bevan Frost was his "best friend''. He also said that he had turned Akai's flat upside down because he had been upset, and, in the course of doing it, he had cut his hand when breaking a pane of glass. The blood which was there, he suggested, was his own blood. 9. Inquiries revealed that the defendant had been in a homosexual relationship with Akai for some 3 years or so. Evidence given by the defendant showed that they had met at the Langton Clinic Half Way House, and had lived together for some time, with periodic interruptions when Akai had asked the defendant to leave. He blamed Akai for having infected him with HIV, Akai also having the virus, which had developed into AIDS by the time of his death. The defendant indicated that Akai had not warned him of his HIV status, and in fact had not admitted it until he was seriously ill. He claimed to have nursed him for a year, without getting any thanks for it. 10. The defendant was charged with the offences of obtaining money by deception, which later came to be included on the Form 1, and he was released on self-bail. 11. On 5 September 2001, a listening device was installed and activated in Ms Nash's apartment. A number of conversations between the defendant and Ms Nash were thereafter intercepted and monitored, until the device was deactivated on 7 September 2001. 12. In the course of one such intercepted conversation, on 5 September 2001, the defendant, while obviously suspicious as to the source of information which had led to him being interviewed by police, expressed his appreciation to Ms Nash for " sticking up" for him, indicating that he had told police that he did not know where Akai was, but that he had obtained the money under a gentleman's agreement. At one point, he clearly admitted to having killed Akai. Otherwise the tenor of the conversation was consistent with him having done so, and of being concerned that the police would arrest and charge him. 13. On 11 September 2001, police attended the residential unit 3 block A, level 1, Northcott Flats, where the deceased Frost had been living, and where, it was understood, the defendant might be found. Upon being admitted to the unit by the defendant, police observed that it too had been ransacked. The defendant was informed that he was under arrest for the murder of Akai. In the course of inspecting the premises, police discovered smudges of blood on the carpet and walls of the bedroom, as well as a pattern of blood on the mattress of a bed forming the outline of the upper torso of a body. In the bathroom they found a decapitated body in the bath. 14. The defendant informed the police that the body was that of Frost, and that he had killed him 2 days earlier with a knife, after a fight. He indicated that the knife had been placed under the carpet near the front doorway. A blood stained carving knife, 320 mm in length was found in this location. 15. The defendant was placed under arrest for the murders of both Akai and Frost and taken to Surry Hills Police Station, where he later participated in an electronically recorded interview. 16. In the course of this interview he admitted to having killed Akai, eight months or so earlier, by stabbing him in the neck. He claimed that Akai had manipulated him into sleeping with him, had been responsible for infecting him with HIV and, had experienced many mood swings, in the course of which he had been violent and abusive, and had put him down. At the time of the killing, he claimed, Akai had been screaming at him and calling him "stupid', to the point where, being "revved up", he had had enough, and had been unable to help himself. At that point he said that he had gone into the kitchen to fetch a knife. On his return he stabbed Akai twice in the neck while he was sitting on the lounge. He claimed to have been on methadone and coming off crystalline methamphetamine, ("Ice") at the time of the killing. 17. He said that he had placed the body on the floor of the bathroom, where he had disembowelled it, and cut it up, over the succeeding days, with a hacksaw. He had then disposed of the various parts, which were concealed in plastic or leather bags, and then placed into garbage bins. 18. He disclosed that he had removed the hands of the deceased, and had made cuts across them, in order to prevent fingerprint identification, and for the same reason he had removed the teeth from the body, which he had then flushed down the toilet, along with the liver. He had snapped the pelvis and leg bones in order to get them into the bag. The disembowelment of the body, he said, took about 6 hours. 19. He said that apart from methadone, he had not been on drugs at the time, and that he had been aware of what he had been doing. He explained that he had not informed police because he had been scared, and had not wanted to return to gaol. 20. The interview then progressed to the finding of the body of Bevan Frost. The defendant again agreed that it was he who had killed this man, saying that it had occurred about 2 days before the police had attended at the flat. 21. He explained that Frost had manipulated him as much as Akai, and that he had been unable to handle it. He claimed that he had been on drugs and had stabbed him in the back, chin, and then in the neck, two nights earlier, while he was lying on his bed. He acknowledged having had a sexual relationship with Frost, but said that he "got sick of being used for sex''. He described his mood as "frustrated, angry", and said that he did not think Frost had been awake when he stabbed him. He claimed to have taken about 40 of the deceased's tablets, several hours before he killed him, and said that "the mixture of them both sent me a bit crazy". 22. He acknowledged, in this interview, that two minutes or so before killing Frost, he had placed the knife under the pillow of the bed. When asked why he had killed Frost, rather than leave him, he said: " ... cause I had a dog I've got nowhere else to go and I've got to think about the dog". In his evidence he raised a question as to whether he had in fact placed the knife under the pillow or had gone out to the kitchen to fetch it. 23. When asked why he had killed Akai, he had in fact offered a similar reason, indicating that the dog was the only thing which he loved. Akai, he claimed, used to ill-treat the dog, and he suggested that this was one of 1 the reasons for killing him. 24. After killing Frost he said that he had dragged the body to the bathroom, where he had disembowelled it, and flushed the intestines and other organs down the toilet. He had then cut off the head and placed it, together with segments of the lungs, into a plastic bag, which was found by police in that room. He had intended to cut up the remainder of the body in similar fashion to the earlier murder, and had in fact begun to cut the soft tissue from one leg. However, he had felt sick, and had taken a large number of drugs, with the consequence that he had been unable to complete the task. He claimed also to have taken a number of tablets before this killing, and said that what had happened had occurred "in a haze, a daze, head full of pills". 25. In relation to each murder he asserted, in effect, that the decision to stab the victim had been a spur of the moment event. However, he conceded, in each case, that his intention had been to kill the victim….' Three failed releases to parole 16. The non-parole component of the defendant's sentence for the murders of the two men expired on 10 September 2014. He has been released to parole on three separate occasions, but each time was returned to custody because of breaches of parole. 17. The first release in November 2016 was the most successful in that he was able to remain in the community for 16 months until a combination of drug use, destruction of his monitoring bracelet and a failure to attend an appointment with his psychologist led to revocation of parole in March 2018. There had been multiple earlier breaches during 2017, including ongoing drug and alcohol use, tampering with the monitoring device and incidents of aggression, including a threat to kill his father conveyed to a cousin in November 2017. 18. The next release in July 2018 was very short - 4 days - and parole was revoked due to intimidatory behaviour with his community corrections officer including a threat that if the officer did not do what he wanted, he would slit his own throat. 19. The defendant was again released in December 2018, but parole was revoked 4 months later due to substance use, deviating from his schedule of movements and removing his monitoring bracelet. He was returned to custody on 3 May 2019 and has remained in custody since."
Furthermore, given the absence of any submissions on behalf of Mr Peters that the Court should not be satisfied to the requisite standard that he poses an unacceptable risk or that an ESO should not be made, I shall deal with the matters in s 9(3) more briefly than might otherwise have been the case. In considering each of these matters, I have taken into account the evidence that was adduced at the hearing

Section 9(3)(b) - reports received from the persons appointed under s 7(4) to conduct examinations

As a result of the orders made by Lonergan J, Mr Peters was examined by a forensic psychologist and a forensic psychiatrist.
Mr Patrick Sheehan, forensic psychologist, provided a report dated 15 July 2022. Mr Sheehan had interviewed Mr Peters via AVL on 12 July 2022 for approximately two and a half hours. After summarising Mr Peters' personal history, aspects of the index offending, social development and drug and alcohol use, Mr Sheehan referred to his health and psychiatric history. It was noted that Mr Peters reported a long history of unstable mood, relying on external sources, such as substance use and seeking the validation of others, to regulate his mood. It was recorded that he was treated with antidepressant medications since entering custody in 2001 and that he had been treated with a range of psychotropic medications including mood stabilising medications between about 2011 and 2013. Bipolar affective disorder was excluded by Dr Chew in 2016 and Dr Elliott in 2019. Mr Sheehan noted that Mr Peters was at that time prescribed the antidepressant medication sertraline and he showed an unstable affect during the interview, quickly shifting from affable to irritable and aggrieved, although he did not present as clinically depressed or manic.
In Mr Sheehan's view, the evidence suggested long-term characteristics that were emblematic of personality disorder but he noted that there was no clear evidence of childhood Conduct Disorder, which is a pre-requisite for full diagnosis of antisocial personality disorder. He was of the view that Mr Peters' history was consistent with Cluster B presentation, embodying several hallmarks of antisocial personality disorder, borderline personality disorder and narcissistic personality disorder. It was also his opinion that Mr Peters' personality disorder was his primary presenting feature and could account for much of his poor adjustment through life, including his poor decision-making during parole supervision. Mr Sheehan said that Mr Peters' personality features "form a central aspect of his risk profile". In addition, Mr Sheehan said that Mr Peters' substance use history would meet the criteria for polysubstance use disorder which was "mild, in early remission, in a controlled environment, under opiate agonist/antagonist therapy".
In relation to his assessment of Mr Peters' risk of violent offending, Mr Sheehan applied the Violence Risk Scale (VRS), a conceptual actuarial tool developed to assess the risk of violence for forensic clients, which assesses both static and dynamic risk factors to provide a comprehensive evaluation of an individual's risk for violence. The overall result of the VRS estimated Mr Peters' risk for violence as within the Medium range, relative to the sample population used in the study. In Mr Sheehan's view, Mr Peters' risk of violence extended to a "serious violent offence" as a result of his known capacity for lethal impulsive violence under particular circumstances.
Mr Sheehan noted that Mr Peters had participated in several medium intensity programs designed to address his substance use, violence and affective self-regulation, however, his insight remained unreliable, particularly with regard to appraising his own behaviour as it related to risk. Mr Sheehan said in his Executive Summary: "Release to the community at sentence expiry in the absence of supervision would in my view entail an unmanageable risk, with no mechanisms to interrupt escalating risk in the event that Mr Peters' life destabilises. In my view, an ESO could adequately manage the risk of a serious violence offence by imposed containment and support, encouraging positive community adjustment and managing episodes of decline as they occur. I would not promote the idea of continuing to detain Mr Peters for the purposes of undertaking further treatment programs."
As to the duration of an ESO, Mr Sheehan was of the view that Mr Peters' risks factors were chronic and this would indicate that an order at the upper end of the available range would be appropriate.
Dr Andrew Ellis, forensic psychiatrist, provided his report dated 15 July 2022, having conducted a clinical interview with Mr Peters on 1 July 2022 by AVL for two hours. After addressing Mr Peters' current clinical issues, his psychiatric history, substance use and addiction history, medical history, criminal history, background and development and psychosexual history and having undertaken a mental state examination, Dr Ellis was of the view that Mr Peters would meet the criteria for a substance use disorder, involving dependent use of opioids, cannabis, stimulants and benzodiazepines, currently in remission while on replacement therapy in a controlled environment. In addition, it was considered that Mr Peters would meet the criteria for a personality disorder. It was noted that Mr Peters had a history of head injury, drug use and HIV, untreated for some years, and any or a combination of these might lead to subtle impairments of memory or executive function. In those circumstances it would be of benefit for him to have brain imaging and educational and neuropsychological measures to assess his strengths and weaknesses in cognitive function.
Dr Ellis made reference to the HCR - 20 V3 structured professional judgement tool when assessing Mr Peters' risk of violence and concluded that: "Mr Peters would fall into a group of persons with a risk for violent offending that is statistically moderate - high in frequency with potential for serious consequence in his specific case, and more than a theoretical average offender."
It was also Dr Ellis's opinion that, from a psychiatric perspective, further incarceration under a CDO would not be recommended, unless in a short form to secure accommodation. The doctor continued: "In this case with the significant monitoring that can be in place with an ESO there is potential to manage the risks presented. Although he committed a breaches [sic] while released to parole this did not rise to the level of a serious violent offence, and he was not observed to engage in physical violent behaviour. If he is established in a productive routine, avoids substance use and is able to avoid unstable associates the risk of violence would likely be reduced. Rehabilitation and risk management need not be mutually exclusive goals. If he is able to sustain employment, stable accommodation and effective psychological treatment, while maintaining stable medication use this will assist in reducing his risk to others. Monitoring could detect early engagement in at risk behaviour before offending occurred, and appropriate risk management, up to and including returned to custody for breaches can be effected."
Dr Ellis also included certain recommendations for periodic forensic psychiatric review and psychological intervention directed at Mr Peters' personality disorder. He recommended monitoring to ascertain the proper use of prescribed substances and ongoing replacement therapy. It was also Dr Ellis's opinion that electronic monitoring and scheduling could assist with concerns about potential deception but, should his routine become stable and predictable, the need for monitoring in this fashion would reduce.
As to the term of any order, Dr Ellis's opinion was that from a psychiatric risk management perspective a period of 3 years' supervision was "reasonable in order to improve function in the community and refine the appraisal of risk". More specifically it was explained: "Twelve months would likely be required to find suitable accommodation and engage him in educational or vocational activity. A further 24 months of regular programmed activity, coupled with regular review of progress would be needed to firmly establish that his personality function had matured to point where more substantive reduction in his risk would be confidently considered. This period is estimated based on his current mental state, personality disorder, and current attitudes to supervision that will be unlikely to change in the short term. His psychiatric disorders are chronic and likely to persist beyond any period of supervision, but may be better internally controlled at that point."
I accepted the evidence of both Mr Sheehan and Dr Ellis.

Section 9(3)(c) and (d) - the results of any other assessments by a qualified psychiatrist, registered psychologist or registered medical practitioner, including those from Corrective Services

There were a number of reports containing assessments of Mr Peters' risk and circumstances prepared over many years. These included reports of Mr Samuel Ardasinski, Senior Psychologist with the Serious Offenders Assessment Unit of Corrective Services, dated 16 September 2013 and 28 October 2021.
Mr Ardasinski was of the view, in his later report, that: "Mr Peters fell within the Moderate risk category for violent offending relative to other adult male violent offenders. Within domestic context however, Mr Peters presents a higher risk of repeat violence, including serious violence, if he returns to heavy illicit drug use and feels 'trapped'. This is a risk which is likely manageable within a supervised community setting."
Mr Ardasinski also provided useful observations concerning the types of conditions which might be imposed if an ESO were thought to be appropriate. In particular, he was of the view that if Mr Peters were to be subject to an ESO, the mitigation of future risk may be enhanced by ongoing community supervision as well as ongoing participation in community-based programs and individual risk management sessions with Corrective Services New South Wales (CSNSW) Psychology as well as counselling for his substance abuse.
In my view, Mr Ardasinski's opinions were consistent with those of Dr Ellis and Mr Sheehan. Furthermore, none of the other reports that have been obtained in relation to Mr Peters since he committed the index offences was submitted by the parties to establish anything to the contrary of Dr Ellis's and Mr Sheehan's opinions and I did not have any reason to conclude that those other reports called into question any aspect of Dr Ellis's or Mr Sheehan's evidence.

Section 9(3)(d1) - CSNSW risk management reports

A risk management report dated 19 November 2021 was prepared by Mr Mick Glover, Community Corrections Officer, with CSNSW. After noting Mr Ardasinski's most recent assessment that Mr Peters was in the moderate risk category of violent offending, Mr Glover identified Mr Peters' risk factors as being: substance abuse; stability of relationships with significant others; emotional control, sexual issues and mental health instability; violence cycle and cognitive distortion; work ethic; impulsivity; and, lack of goals. Mr Glover also reviewed Mr Peters' post release plans and his management in custody and his previous response to Community Corrections supervision while on parole.
Mr Glover then outlined the risk management plan which could be put in place if Mr Peters were subject to an ESO. Without attempting to be exhaustive, this would include weekly contact with a community corrections officer, unannounced home visits on a monthly basis, and monitoring of his behaviour in the community through covert observation and face-to-face contact. In addition his engagement with professional services upon his release for management of substance dependency and anxiety would also be monitored. Mr Peters' criminogenic risks and needs would be addressed through behavioural change exercises being incorporated into his case plan which would be reviewed every two months to ensure its continued relevance.
Mr Glover also put forward recommendations for conditions and explained why he recommended such conditions. Those conditions included: electronic monitoring; scheduling of movements and a curfew; accommodation restrictions; conditions in relation to alcohol and other drug use; restrictions on attending certain locations, especially those associated with a drug supply including high-density unit complexes; education employment and financial conditions; non-association conditions; conditions limiting possession and access of weapons and access to the internet and other electronic communications; search and seizure conditions personal details in appearance conditions; and, medical intervention and treatment conditions.

Section 9(3)(e) - Treatment or rehabilitation programs

Dr Ellis, Mr Sheehan, Mr Ardasinski and Mr Glover have each referred to treatment or rehabilitation programs which they consider appropriate for Mr Peters. In general terms, the types of programs recommended by each of these experts were generally consistent. In addition it can be noted that Mr Peters has commendably completed a number of programs while in custody and has generally expressed a willingness to participate in the types of programs proposed if he is made subject to an ESO. Nonetheless, he has also expressed his concern about his ability to comply with all the conditions which may be imposed and the requirements inherent in the programs, in light of his mental health issues and previous failures to comply when under supervision in the community on parole.

Section 9(3)(e1) - Options that might reduce the likelihood of re-offending

It does not appear that there are any reasonably available options other than the imposition of an ESO for reducing the likelihood of his reoffending. Dr Ellis's opinion, which I accept, was that further incarceration under a CDO would not be recommended because there was nothing to indicate that extended incarceration reduced recidivism rates, and those things that do reduce rates of recidivism, such as vocational and diversional placement, and community reintegration, would be unnecessarily slowed by prolonged incarceration.

Section 9(3)(e2) and (f) - the likely compliance with an ESO and previous compliance while on parole

Mr Peters was released to parole on three occasions between 2016 and 2018 and each time he contravened directions, interfered with or removed his monitoring device, used drugs or displayed occasional aggressive and threatening behaviours. Nonetheless, in custody he has not engaged in any conduct resulting in punishment except for refusing urine tests and failing to provide drug samples. There were two such failures in 2020, one in 2021 and the last failure occurred on 14 January 2022. I accepted the submission that although his history does not bode well for his complete compliance with an ESO, his performance in custody, when viewed in totality, points to him having the capacity to comply with obligations, if he engages constructively with supervision and the supports that would be made available to him.

Section 9(3)(h) and (h1) - criminal history and views of the sentencing court

Mr Peters' criminal history has been summarised above. The two murders are the most significant aspect of that history and they suggest a pattern of offending which involves extreme violence in the context of controlling sexual relationships, especially when illicit drug and alcohol use are involved. The programs and conditions recommended by the psychiatrists and psychologists whose reports have already been referred to above are designed to address these issues.
At the time of sentencing, Wood CJ at CL said at [128]-[129]: "128 Also of relevance is the remorse which the defendant has exhibited, and the significant progress which he has made towards rehabilitation since being taken into custody. The fact of reconciliation with his family and his desire to be free of illicit drugs into the future, do require encouragement through long-term supervision on parole. 129 These special circumstances, in my view, require a substantial reduction of the statutory ratio between the non parole periods and the head sentences. …".

Section 9(3)(i) Other information as to the likelihood of further serious offending

The evidence of Ms Kelli Grabham established that Mr Peters has been assessed as suitable for placement at the Nunyara Community Offender Support Program Centre (COSP), and I understood that it was common ground that accommodation would be available at that facility if he is released from custody on the expiration of his sentence subject to an ESO.
In her affidavit, Ms Grabham also provided confirmatory details of the nature of the supervision to which Mr Peters would be subject under an ESO and a fuller explanation of various aspects of the proposed conditions of the ESO including, inter alia, the stages of electronic monitoring where such a condition is imposed and how such monitoring interacts with scheduling and curfew conditions.

Conclusion on whether the offender poses an unacceptable risk of committing another serious offence if not kept under supervision

I accepted all the evidence referred to above as it appeared to me to be generally credible and consistent. Given the nature of the index offending, in all the circumstances referred to above and in the absence of any submissions by Mr Peters to the contrary, I was satisfied to a high degree of probability that he poses an unacceptable risk of committing another serious offence if an ESO is not made.
In light of that and the other findings I have made, the Court's power to make an ESO under ss 5B and 9(1)(a) is enlivened in this case.

Should an ESO be made?

In my view, given the objects of the CHRO Act, the nature of the index offending, Mr Peters' mental health and other issues, the assessments of his risk of reoffending in the community if not supervised, the potential gravity of consequences if he does reoffend and the absence of any submissions to the contrary, an ESO should be made in this case.
The two remaining issues are: 1. Whether the term of the ESO should be 3 years or 5 years; and 2. Which conditions should be imposed.

Term of the ESO

Mr Peters submitted that the ESO should be for a term not exceeding 3 years and relied on Dr Ellis's evidence to the effect that a period of 3 years' supervision was "reasonable in order to improve function in the community and refine the appraisal of risk". Mr Peters' submissions noted that, if the risk remained unacceptable towards the end of the 3 year ESO, there was nothing to prevent a further ESO being sought.
The State sought an ESO for a term of 5 years. In this regard, in his 's report, Mr Sheehan commented that Mr Peters' risks issues were chronic and this would indicate that an order "at the upper end of the available range would be appropriate". The effect of s 10(1A)(a) of the CHRO Act is that 5 years is the maximum term for which an ESO may be imposed, subject to any suspension of the order in accordance with that Act.
In oral evidence, Mr Sheehan referred to the comment in his report, and clarified that he meant a term of between 3 and 5 years. In his view there was merit in not imposing the maximum 5 year term because "offenders…find the full-term to be crushing and lose optimism that they will be able to succeed in that order". He further opined that "[offenders'] active participation in the order is basically essential for the order to succeed." He agreed with Dr Ellis that 3 years was the minimum length in which one could really expect meaningful change. Mr Sheehan commented that determining the appropriate length was not a scientific exercise but, in effect, involved an evaluative judgment in light of all relevant factors.
While Dr Ellis acknowledged that Mr Peters' psychiatric disorders were chronic and likely to persist beyond any period of supervision, he did not view this as requiring the present ESO to extend for 5 years. As noted above, Dr Ellis explained in his report that: "Twelve months would likely be required to find suitable accommodation and engage him in educational or vocational activity. A further 24 months of regular programmed activity, coupled with regular review of progress would be needed to firmly establish that his personality function had matured to point where more substantive reduction in his risk would be confidently considered."
In oral evidence, Dr Ellis opined that a term of 3 years would be suitable. He was of this view even though he accepted that Mr Peters' prior performance in breaching parole was a negative factor. He balanced this, however, with there having been a passage of time since his previous breaches and Mr Peters having engaged in programs designed to address his personality issues. Dr Ellis opined that there could be a material reduction in risk in 2 years if that was accompanied by abstinence, stable employment, and stable accommodation, but that 3 years was appropriate due to the negative factors he identified. He also noted that there may not be an improvement in 3 years, and that it may take 5 years, but that there was no empirical evidence suggesting which was more likely. Ultimately, Dr Ellis was of the view that, from a psychiatric point of view, largely based upon his experience and not any scientific method, and the circumstances of Mr Peters, a term of 3 years was the preferred duration for the ESO.
In light of the reports and oral evidence of Mr Sheehan and Dr Ellis, I formed the view that the safety and protection of the community can be relevantly ensured by making an ESO for 3 years, with the possibility of a further ESO being made if the risk posed by Mr Peters remained unacceptable towards the end of the 3 year period. Section 10(3) expressly provides that a further ESO could be made in such circumstances. That subsection states: "Nothing in this section prevents the Supreme Court from making a second or subsequent extended supervision order against the same offender."
Thus, balancing the two objects of the CHRO Act and taking into account all the relevant circumstances, I was of the view that the term of the ESO should be 3 years, noting that there is nothing to prevent a further ESO being made prior to the end of that 3 year terms, if the requirements of the CHRO Act were met and Mr Peters' circumstance were such that continued supervision was required.

Conditions

The conditions that may be imposed as part of an ESO are governed by s 11 of the CHRO Act, which has been set out above. The conditions may include, but are not limited to, those specified in s 11(1) of the CHRO Act and must include the condition in s 11(2).
The conditions to be imposed are those that the Court considers appropriate in order to mitigate the unacceptable risk otherwise posed by the offender. The application of s 11 does not require that there must be a specific, demonstrated link to the past offending which is the basis of the ESO. Rather, the Court must be satisfied, having regard to the scope, purpose and objects of the CHRO Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order: Wilde v State of New South Wales [2015] NSWCA 28; (2015) 249 A Crim R 65 at [53] (Beazley P, McColl and Ward JJA).
In the amended summons, the State sought the imposition of 57 proposed conditions. Many of these were not the subject of dispute and the defendant was prepared to accept them. I have considered these undisputed conditions and, in my view, they were appropriate in the circumstances to address the risk of future serious violent offending and should be imposed. It is not necessary to say more about those conditions. In addition, some disputes as to the proposed conditions were resolved by way of interactions between the bench and the parties during the hearing. These included conditions 10, 17, 25, 28, 31, 33, 41, 43, 45, 46, 46A, 55 and 56. Once again, I accepted that these conditions, as agreed in substance, were also appropriate in the relevant sense and do not require further explanation in these reasons.
The conditions which remained in dispute were: 1. proposed condition 4, relating to electronic monitoring; 2. proposed conditions 5, 6 and 7 relating to movement scheduling; 3. proposed condition 9, relating to a curfew; 4. proposed condition 11, relating to visiting the defendant's premises; 5. proposed condition 21, relating to the consumption of alcohol and drugs; and 6. proposed conditions 36 and 39, relating to the internet and electronic devices.
I shall address the conditions that remained in dispute in order.

Proposed condition 4, relating to electronic monitoring

The State proposed that condition 4 require Mr Peters to wear electronic monitoring equipment, as directed by a Departmental Supervising Officer (DSO), and not tamper with, or remove, the equipment. There was no proposed time limit on when or for how long the DSO could direct that the electronic monitoring equipment was to be worn. Ms Grabham gave evidence that when a court made an order authorising electronic monitoring, if the DSO was of the opinion that electronic monitoring was necessary for the protection of the community, a direction would be given for the offender to wear electronic monitoring equipment. Ms Grabham also explained the four stage matrix for monitoring, scheduling and curfew which is apparently usually employed by the DSO supervising an offender subject to an ESO. The first three stages involve electronic monitoring and the final stage does not. There are, however, no specified time limits on, or expected timings in relation to, these four stages but the offender's progress through the stages is monitored at quarterly case management review meetings. Ms Grabham also said: "In the long-term, it is not ideal for an offender who is approaching the end of an ESO to be still be subject to electronic monitoring and schedules. At each case management review meeting, consideration is given to the length of the offender's order and what progress will be needed to ensure the end goal of having the offender within the community without schedules and without monitoring for a period of time prior to the expiration of the ESO. It is desirable that the offender is not subject to either electronic monitoring or scheduling for as long as possible prior to the end of their ESO to see how they are progressing in the absence of electronic monitoring and scheduling and to identify any concerns to any need for additional support."
The defendant contended that any condition permitting electronic monitoring should be limited so that a DSO could make a direction for electronic monitoring only once during the term of the ESO for a period of up to 12 months but a breach of any condition of the ESO would cause the 12 month period to restart. This proposal for an explicit timeline was, in effect, said to provide an incentive to comply with the electronic monitoring and other conditions of the ESO which, it was submitted, would not only serve to protect the community but also would assist in his rehabilitation.
In oral evidence, Mr Sheehan was of the view that there should be an explicit timeline and performance expectations for electronic monitoring in the conditions to be imposed as part of any ESO. This was said to be because electronic monitoring with the duration at the discretion of a DSO can be viewed by offenders as arbitrary and make them feel powerless and unable to be a part of the solution. In his view, specifying a timeline for removal of electronic monitoring was a useful way to offset such feelings through providing offenders with a clear understanding of what is required to progress. Mr Sheehan said that his view was based upon, in large part, prior matters he had been involved in. Mr Sheehan also commented to the effect that the continuous presence of electronic monitoring, in circumstances where a re-application is made, can obscure an accurate view of how the person can manage themselves without monitoring. Mr Sheehan was of the view that it may possibly be appropriate to reinstitute electronic monitoring where circumstances change, but that such a course places a lot of weight upon the value of electronic monitoring and risks further destabilising an offender if they are going through a difficult period.
Mr Sheehan also opined that an offender may not improve in the areas of social functioning, re-entering the workplace or in intimate relationships whilst he or she is subject to electronic monitoring and this hinders community development which is a necessary for electronic monitoring to be removed. Ultimately, I understood that Mr Sheehan was of the view that a condition that stipulated that electronic monitoring could be imposed for up to 12 months with no further monitoring except if there were a breach of conditions would provide a suitable timeline and performance expectation.
Consistent with Mr Sheehan's opinion, Dr Ellis was of the view that a condition allowing for the removal of electronic monitoring after a 12 month period with no breaches was reasonable. He also suggested that the threshold for re-imposition of electronic monitoring could be where the DSO was considering bringing a breach charge against Mr Peters.
In my view, the lack of any definite time frame in the condition itself could reasonably have a discouraging effect on Mr Peters and undermine the effectiveness of the ESO. The evidence of Dr Ellis and Mr Sheehan also supported the conclusion that an appropriate condition in relation to electronic monitoring, which adequately mitigated the risk of further serious violent offending by Mr Peters and which also recognised the difficulties he is likely to experience and the benefit to Mr Peters and the community of his rehabilitation, should include a specific time frame. For these reasons and in all the circumstances, I shall include a condition for electronic monitoring as follows: 4. The defendant must comply with a written direction by his DSO to wear and not tamper with or remove electronic monitoring equipment for a continuous period of up to 12 months during the currency of the ESO and: a. subject to subclause (b), only one direction of that kind may be given during the currency of the ESO; b. if at any time during the currency of the ESO the DSO has reasonable grounds to suspect that the defendant has breached, or will in the following 7 days breach, any condition of the ESO, the DSO may give a further written direction to wear electronic monitoring equipment for a continuous period of up to 12 months.

Proposed conditions 5, 6 and 7 relating to movement scheduling

The State proposed that there be conditions requiring the defendant to provide a weekly schedule of movements, any deviation from which would constitute a breach of the ESO, to complement the electronic monitoring, as follows: "5. If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start. 6. If the defendant wants to change anything in his schedule of movements once it is approved by a DSO, he must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period. 7. The defendant must not deviate from his approved schedule of movements except in an emergency."
The purpose and utility of these conditions was explained by Ms Grabham and I accepted that some form of planning or scheduling was appropriate in this case. Nonetheless, it was not clear from her evidence what would be included in "Restictive" scheduling or "Not restrictive" scheduling, as those terms were used in matrix provided by Ms Grabham. The concern which was raised by the defendant was that if the scheduling obligations were too onerous, this could lead to technical breaches by Mr Peters even for minor deviations which did not involve any risk to the safety and protection of the community but which would expose Mr Peters to criminal sanctions. On the other hand, it did not appear to me to be appropriate to include a condition prohibiting unreasonable refusal of approval of a proposed schedule as was suggested by Mr Peters, as that was not a condition with which the defendant was required to comply and it would be a potential source of dispute without there being any established basis for concluding that unreasonable refusal of approval was likely to be a problem that arose in the present case.
In general terms, the evidence of Dr Ellis and Mr Sheehan was supportive of scheduling but not so strict as to lead to inadvertent or trivial deviations constituting breaches of the conditions. Mr Sheehan was of the view that there should be performance expectations for conditions relating to scheduling. This was said to be for similar reasons to those he identified above in relation to electronic monitoring. Mr Sheehan endorsed some flexibility in scheduling because he was of the view that scheduling in a strict manner, such as requiring an offender to specify a particular time he or she is to attend the shops, is contrary to its purpose which is to provide structure, routine and predictability to an offender's life. Dr Ellis endorsed scheduling as a general mental health intervention tool for people's day to day function and similarly supported scheduling which allowed for a greater degree of flexibility. He endorsed certain aspects of scheduling such as, for example, a summary of anticipated movements, the giving of a schedule in advance, and the setting of exclusion zones.
Taking into account all the submissions and the purpose of such conditions and their protective and therapeutic aspects, in my view the appropriate scheduling conditions are: 5. If directed by his DSO, the defendant must provide, at least 3 days before the start of the week in question, an honest summary of his anticipated activities and movements (called a weekly plan) for approval but any such weekly plan does not have to specify details other than the places he intends to travel to and the activities he intends to undertake there, the dates and approximate times of travel, and the means of transport. 6. If the defendant wants to change anything in his weekly plan once it is approved by a DSO, he must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period. 7. The defendant must not deviate from his approved weekly plan except in an emergency or where any deviation could not reasonably be avoided by the defendant.

Proposed condition 9, relating to a curfew

There was no dispute between the parties, and I accept, that a curfew would be appropriate to limit the defendant's exposure to anti-social influences and situations that heighten the risk of the defendant committing a further serious violent offence. The dispute concerned whether the curfew should be from 9 pm to 6 am as the State contended, or from 12 am to 6 am as Mr Peters submitted. The defendant submitted that a 9 pm evening curfew was arbitrary and could interfere with social and work commitments. The State submitted that its proposal gave the DSO the discretion to relax the curfew in appropriate circumstances thus permitting sufficient flexibility and that the defendant would be subject to a curfew in any event at his initial accommodation. I accept the defendant's submission that adults stay out later than 9 pm and it was likely that Mr Peters could do so without heightening the risk posed by him. I do not accept that the curfew should be specified in the condition however as from 12 am to 6 am. In my view, a curfew from 10 pm to 6 am with the flexibility of the DSO approving other arrangements strikes an appropriate balance.
Consequently, condition 9 should be as follows: 9. The defendant must be at his approved address between 10pm and 6am unless other arrangements are approved by a DSO.

Proposed condition 11, relating to visiting the defendant's premises

Proposed condition 11 required the defendant to 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's proposal was that condition 11 should read: "11. The defendant must allow his DSO to visit him at his approved address between the hours of 8am and 8pm and to enter the premises and conduct a visual inspection of them as considered reasonably necessary for the purpose of ensuring the defendant's continuing compliance with the conditions of the order."
It was submitted that such a restriction on the hours of visiting was designed to avoid an abuse of power. The State submitted that the risk factors in relation to the defendant, in light of the index offences, included intimate relationships and substance abuse within residences, noting that bodies were dismembered and concealed where the defendant was residing. A power to visit at any time serves to mitigate the risk posed by the defendant. Furthermore, if visits were prohibited at certain times, this involved the risk that the defendant might feel more able to engage in concerning behaviours during those times.
In all the circumstances, there appeared to me to be considerable force in the State's submissions and it was appropriate to include condition 11 in the following form: 11. 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.

Proposed condition 21, relating to the consumption of alcohol and drugs

The State proposed conditions prohibiting the possession or consumption of alcohol or the possession or use of unlawfully obtained drugs. There was no dispute as to the drug condition. As to the alcohol condition, the defendant submitted he should be allowed to possess and consume alcohol provided his blood alcohol content was not greater than 0.05. In response, the State noted that its proposal allowed flexibility by permitting a DSO to give prior approval in relation to alcohol possession or consumption and alcohol can be a matter of concern as a gateway to misuse of other substances. It was also observed that the defendant's possession of alcohol was not addressed by his proposal.
In my view, the State's proposal strikes an appropriate balance between management of risk and taking into account the defendant's legitimate needs and circumstances. As Lonergan J noted in her preliminary judgment, Mr Peters demonstrated on parole that he would take drugs and use alcohol to manage stress, anxiety and depression and his risk scenarios included being unable to deal with his emotions, with the use of drugs and alcohol leading to his becoming angry and violent.
Accordingly, in my view, condition 21 should be: 21. The defendant must not: a. Possess or consume alcohol without the prior approval of a DSO. b. Possess or use prohibited drugs or drugs unlawfully obtained.

Proposed conditions 36 and 39, relating to the internet and electronic devices

The State has proposed that the conditions relating to the internet and electronic devices should include the following: "36. 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. … 39. The defendant must not use any coded or encrypted messaging application or service."
While the defendant acknowledged that Mr Sheehan opined that access to the internet should be controlled in Mr Peters' case because of the risk arising out of his forming associations that might involve escalating hostilities, it was also noted that Mr Sheehan did not view these conditions as central to risk management in the defendant's case. It can also be observed, as submitted by the defendant, that modern life now requires people to use electronic devices capable of accessing the internet at facilities such as Centrelink and Services New South Wales and even in restaurants and it would be difficult for the defendant to show such devices to a DSO and obtain approval before using them. Furthermore, common social media platforms, communication applications and even online games provide encrypted messaging services as a matter of course.
I accepted the State's submission that the internet, social media, the dark web and encrypted applications provide ready opportunities to access illicit drugs as well as opportunities to contact persons to develop personal and intimate relationships and that these facilities provided opportunities for conduct on the part of the defendant which could lead to an increases risk of his engaging in serious violent offending. Nonetheless, proposed conditions 36 and 39 have to be viewed in the context of the other conditions relating to internet and electronic device use, which were not the subject of any challenge. These included conditions 24, 35, 37, 38, 40, 41, 42, 43 and 44. These other conditions provided a range of restrictions on Mr Peters' use of the internet and electronic devices and an extensive regime of supervision and inspection of the defendant's devices and internet activities by a DSO.
In light of the other conditions concerning electronic device and internet usage that are to be included, it does not appear to me to be necessary or appropriate to include proposed conditions 36 and 39 at this stage, especially given the practical difficulties which they might pose if they were to be strictly complied with.

Conclusion and orders

Since Mr Peters' sentence expires on 10 September 2022 and, as I understand it, there is suitable accommodation available for him from 11 September 2022, it appears to me that the ESO which is to be imposed should commence immediately after the expiration of his sentence. The parties were in agreement with that course. In these circumstances, the IDO made by Lonergan J on 17 February 2022 is no longer necessary or appropriate and it should be revoked, together with the warrant for committal associated with that IDO.
For all the reasons set out above, the Court orders and directs: 1. The interim detention order made by Lonergan J on 17 February 2022 pursuant to ss 18A and 18C of the Crimes (High Risk Offenders) Act 2006 (the Act) is revoked. 2. The warrant for the committal of the defendant to a correctional centre for the duration of the interim detention order made by Lonergan J on 17 February 2022 pursuant to s 20(1) of the Act is revoked. 3. Pursuant to ss 5B and 9(1)(a) of the Act, the defendant is subject to supervision in the community under an extended supervision order for a period of 3 years commencing immediately upon the expiration of his current sentence on 10 September 2022. 4. Pursuant to s 11 of the Act, the defendant, for the period of the extended supervision order, is to comply with the conditions set out in the Schedule to these orders. 5. Access to the Court's file for any document is not to be granted to a non-party without leave of a Judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

SCHEDULE TO THE ORDERS MADE ON 8 SEPTEMBER 2022 CONDITIONS OF SUPERVISION DAMIEN ANTHONY PETERS In these conditions: "CSNSW" means Corrective Services NSW. "Commissioner" means Commissioner for Corrective Services "Defendant" means Damien Anthony Peters, the defendant in these proceedings and the subject of the ESO. "Digital Blueprint" has the same meaning as in the Weapons Prohibition Act 1998 (NSW) and means any type of digital (or electronic) reproduction of a technical drawing of the design of an object. "DSO" means Departmental Supervising Officer, that is, any Corrective Services Officer supervising the defendant under 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. "ESO" means the Extended Supervision Order made on 8 September 2022 in these proceedings and includes the conditions imposed as part of that 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, and, to the extent practicable, a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO.

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 comply with a written direction by his DSO to wear and not tamper with or remove electronic monitoring equipment for a continuous period of up to 12 months during the currency of the ESO and: a. subject to subclause (b), only one direction of that kind may be given during the currency of the ESO; b. if at any time during the currency of the ESO the DSO has reasonable grounds to suspect that the defendant has breached, or will in the following 7 days breach, any condition of the ESO, the DSO may give a further written direction to wear electronic monitoring equipment for a continuous period of up to 12 months. Schedule of Movements 5. If directed by his DSO, the defendant must provide, 3 days before the start of the week in question, an honest summary of his anticipated activities and movements (called a weekly plan) for approval but any such weekly plan does not have to specify details other than the places he intends to travel to and the activities he intends to undertake there, the dates and approximate times of travel, and the means of transport. 6. If the defendant wants to change anything in his weekly plan once it is approved by a DSO, he must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period. 7. The defendant must not deviate from his approved weekly plan except in an emergency or where any deviation could not reasonably be avoided by the defendant.

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 be at his approved address between 10pm and 6am unless other arrangements are approved by a DSO. 10. The defendant must not do anything that causes him to be discharged or evicted from any accommodation approved for the defendant. 11. 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. 12. 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. 13. The defendant must promptly notify a DSO of any visitor entering and remaining at his approved address and must not permit 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 14. 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. 15. The defendant must not leave New South Wales without the approval of the Commissioner of CSNSW. 16. The defendant must not frequent or visit any place or district as directed and/or specified by a DSO.

Part D: Employment, finance and education 17. 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 education, training or participation in personal development programs. 18. The defendant must not start on his own initiative any job, volunteer work or educational course without the prior approval of a DSO. 19. If directed by a DSO, the defendant must provide any information relating to his financial affairs, including income and expenditure.

Part E: Drugs and alcohol 20. The defendant must not use prohibited drugs, or abuse drugs lawfully obtained. 21. The defendant must not: a. Possess or consume alcohol without the prior approval of a DSO. b. Possess or use prohibited drugs or drugs unlawfully obtained. 22. The defendant must submit to drug and alcohol testing. 23. 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. 24. The defendant must attend and participate in programmes 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 Associations with others (not children) 25. The defendant must not associate with any person or persons specified by a DSO. 26. Without limiting condition 25, the defendant must not: a. Associate with any people who he knows are consuming or under the influence of alcohol without the prior approval of a DSO; and b. Associate with any people who he knows are consuming or under the influence of illegal drugs. 27. If the defendant starts an intimate, sexual or romantic relationship with someone, he must tell his DSO within 24 hours of engaging in that relationship. 28. The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary to address a risk of the commission of a sexual offence or an offence of violence. 29. The defendant must notify the DSO as soon as possible after joining or affiliating with any club or organisation.

Part G: Weapons 30. The defendant must not possess or use any of the following: i. a firearm, firearm part or ammunition within the meaning of the Firearms Act 1996, and ii. a prohibited weapon within the meaning of the Weapons Prohibition Act 1998. 31. Without limiting or altering condition 30, the defendant must not possess any of the following, without a DSO's prior approval: a. a knife other than: i. in his own residence, for the purpose of household tasks which has been disclosed to a DSO, and only to be used or to be on his person when CSNSW staff and/or police are not present; or ii. outside his own residence, a knife in his possession while consuming or preparing food; b. a machete, sword or any other device that consists of a single-edged or multi-edged blade or spike that is designed or adapted to inflict violence, whether actual or threatened; c. any other implement made or adapted for use for causing injury to a person; or d. anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property. 32. The defendant is only allowed to keep household knives that have been approved by the DSO. 33. Without limiting or altering conditions 30, 31 and 32 the defendant must notify and show the DSO (or any other person supervising him) any and all knives in his possession as soon as practicable after the knife is acquired.

Part I: Access to the internet and other electronic communication 34. 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). 35. The defendant must not use any alias, electronic identity, log-in name, name other than "Damien Anthony Peters" 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. 36. [Deleted]. 37. 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. 38. 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. 39. [Deleted]. 40. 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. 41. The defendant must not access, join and/or connect to any social networking service or application without the prior approval of a DSO, including, but not limited to, use of internet-based email, instant messaging services, online community services, multi player video games and other telecommunications-based services including text and voice services. 42. 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. 43. 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. 44. The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with a DSO.

Part J: Search and seizure 45. If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs i-iv below) is necessary: a. for the safety of residents or of staff at the defendant's approved address; b. for the welfare or safety of any member of the public or any other person; or c. to ensure the defendant's compliance with this order; or d. because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a sexual offence or an offence of violence. then the DSO may direct, and the defendant must submit to, i. a search and inspection of any part of, or anything in, the defendant's approved address; ii. a search and inspection of any part of, or anything in, any vehicle owned, hired by or under the control of the defendant; iii. a search and inspection of any part of, or anything in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or iv. a search and examination of his person. 46. During a search carried out pursuant to condition 45 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise: a. the safety of residents or of staff at the defendant's approved address; b. the welfare or safety of any member of the public or any other person; or c. the defendant's compliance with this order; or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a sexual offence or an offence of violence. 46A. 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 45 and 46 above.

Part L: Personal details and appearance 47. The defendant must not change his name from "Damien Anthony Peters" or use any other name without notifying a DSO. 48. The defendant must not significantly change his appearance without the approval of a DSO. 49. 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. 50. 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 M: Medical intervention and treatment 51. 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. 52. The defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults. 53. The defendant must take medications that are prescribed to him by his healthcare practitioners only in the manner prescribed. 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 condition 53. 55. The defendant must agree to his healthcare treatment providers and 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 referred to in condition 55 above being shared between those persons and agencies that are directly involved in his supervision including, but not limited to, a DSO, NSWPF and CSNSW, in relation to their direct involvement in his supervision. 57. The defendant m ust agree to the disclosure of his criminal history to any healthcare professionals that are treating him.

Amendments 08 September 2022 - Change to coversheet. 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: 08 September 2022

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Judgment (39 paragraphs)

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