State of New South Wales v Presta

Supreme Court of NSW|2021-08-18|Before: Cavanagh J

Background facts / Defendant's criminal history

The defendant is currently 51 years of age.
On 4 November 1998 he was sentenced on five counts of kidnapping contrary to s 90A of the Crimes Act 1900 (NSW) and 21 counts of aggravated sexual assault contrary to s 61J of the Crimes Act. He was sentenced to a period of imprisonment of 19 years with a non-parole period of 14 years and 3 months. He was not granted parole. He remained in custody until the expiration of his sentence on 13 November 2016.
Prior to the completion of his sentence the State made an application for an ESO.
On 22 August 2016 Wilson J made orders imposing an ESO for a period of five years: State of New South Wales v Presta (No 2). [4]
That ESO expires on 21 August 2021. The defendant is already in the community. If no further orders are made under the Act he will remain in the community (subject to proceedings being pursued in respect of an alleged breach of the ESO). He would remain subject to the obligations of the Child Protection Register (two of his victims were aged 15) until August 2031.
It is thus now 24 years since the index offences. Prior to the commission of the index offences the defendant had no criminal history. However, the index offences were of a particularly brutal, extreme and sadistic nature. He kidnapped five young men (two of whom were only 15) at gunpoint.
Whilst his treatment of every victim was not identical, it was similar in nature. It is not necessary that I provide an extensive recitation of the extremely violent conduct perpetrated by the defendant in respect of each victim. Suffice to say that he either tied up the victims and placed tape over their eyes or sedated them with drugs. He held them against their will and performed various extremely violent and sadistic acts upon them apparently for the purposes of some form of sexual gratification. Those acts included forced anal intercourse, forcing objects into the anus of the victims, forced fellatio, treating a victim like a dog, including placing a belt around his neck, tightening it and making him bark. Other acts of violence included using his belt on the victims, slapping them and putting out a cigarette on them. He filmed many of his acts.

The current position

Having regard to the reports to the Attorney-General dated 17 December 2017 and 23 September 2018, as well as the ESO completion reports dated 3 February 2021 and 17 March 2021, there might not have been much of a dispute that the defendant no longer poses an unacceptable risk. The very purpose of these sort of reports, including the ESO completion reports, is to allow an assessment of the progress of a person under an ESO to determine whether the risks which were found to exist at the time of imposition of the ESO are still present at the expiration of the ESO. The reports were generally favourable in terms of the defendant's progress and risk factors.
As the focus of the argument between the parties was very much on why the defendant's risk factors have changed within the last six months (leading to the suggestion that he remains an unacceptable risk according to the State) it is only necessary in this judgment to focus on that issue.

The State's position

On 9 July 2021 the defendant was arrested and charged with two offences under s 12 of the Act being: 1. failure to comply with the ESO in that he failed to notify his DSO of the identity and the address of healthcare practitioners; and 2. he failed to comply with the ESO in that he used prescription medication other than as prescribed.
The defendant has entered a plea of not guilty to both charges. He disputes the charges. The State says that the alleged breaches of the existing ESO are significant because they illustrate a possible return to substance misuse (drug use) which was at least one of the significant factors which led to the commission of the index offences.
Although the original sentencing judge was unable to determine the motivation for the defendant's crimes other than sexual sadism with which he was diagnosed prior to sentencing, medical evidence provided on sentence referred to the defendant attributing his criminal conduct at least in part to excessive use of analgesics and benzodiazepines. The defendant also attributed his conduct to the experience he claimed to have had as a teenager, that is, being sexually assaulted in Kings Cross.
The State thus points to the defendant's misuse of prescription drugs as leading to an elevation in the risks associated with him being in the community without supervision.
The State further points to the opinion of Dr Jeremy O'Dea, as contained in his report of 19 July 2016, obtained for the purpose of the existing ESO. In his report, Dr O'Dea referred to the defendant's history of being the victim of sexual assault at the age of 14, experiencing significant traumatic injuries in a motor vehicle accident in which his twin brother was killed at the age of 16 and the subsequent history of substance use disorder including benzodiazepine and opiate use disorder.
The defendant described his state at the time of the offending as associated with taking 20 sleeping tablets a night and 20 painkillers a day.
In 2016 Dr O'Dea suggested it was reasonable to assume that there was a significant risk of the defendant engaging in further sexual offending behaviours in the community, particularly if the sexual sadism disorder was to remain untreated and he again abused prescription medication, alcohol or illicit substances. Dr O'Dea recommended he engage in structured and supervised community drug and alcohol counselling so as to ensure that he remained abstinent from alcohol and illicit substance use and prescription medication abuse.
Further, the State pointed to the report of Dr Stephen Allnutt dated 20 July 2016 also obtained for the existing ESO. Dr Allnutt records in his report that the defendant accepted his theory (that is, Dr Allnutt's theory) that prescription drugs had uncovered an underlying propensity for sexual arousal to violence and humiliation. Dr Allnutt records that the defendant recognised that he needed to avoid drugs.
The State refers to the PBS patient summary which provides evidence of all of the occasions on which the defendant has obtained benzodiazepine. It is only necessary to say that during the period January to June 2021 the defendant obtained 50 tablets of diazepam on five occasions including obtaining 100 tablets in the course of two weeks in April 2021.
The State then relies on the risk management report prepared by Joshua Begg dated 30 July 2021. As Mr Begg says, referring to the report of Mr Ardasinski dated 21 July 2021, there is a link between the defendant's prescription medication abuse and an increased risk of sexual offending. Mr Begg refers to the defendant's long-standing deceit about his substance abuse.
Finally, the State relies on the most recent risk assessment report of Mr Ardasinski dated 21 July 2021. Despite the ESO completion reports which suggest that the imposition of a further ESO is not necessary, Mr Ardasinski seemingly changes his opinion based on receipt of the additional information as to substance abuse.
Although he said on 3 February 2021 that the defendant's risk had reduced somewhat, he now suggests that not only were his assessments of the defendant's management of his substance abuse incorrect but the nature of the defendant's long-term deceit in concealing his return to regular and high-level benzodiazepine use also calls into question his compliance with supervision more generally and whether he has been concealing more than that.
He says that, in considering the future risk of serious sexual offending, there are some warning signs, as noted in the original CUBIT treatment report, one of which includes abuse of prescription medication. Others include being given too much autonomy too quickly without enough support and expressions of thoughts of self-harm.
Further, Mr Ardasinski refers back to his report of 22 February 2016, in which he suggested that the potential for sexual violence is chronic since the psychiatric literature suggested sexual sadism often has a lifelong course, even if the disorder itself may be moderated by age. Mr Ardasinski goes on to consider worst-case scenarios. He opines that it is possible that the defendant has harboured an ongoing deviant sexual interest through his time on the ESO but it is ego-dystonic, that is, he hates that he has sexually sadistic fantasies and it is potentially for this reason that his return to prescription drugs occurred recently.

The defendant's position

The defendant's position is that: 1. until such time that the defendant was charged with breaches of the ESO there was really no evidence which would have justified the State's application or any finding that the defendant poses an unacceptable risk; 2. the defendant disputes the breaches of the ESO. Specifically, he disputes that there was any attempt by him to deceive his DSO as to his use of prescription medication or that he has not been forthcoming to those persons from whom he has sought treatment about his use of prescription medication; and 3. even despite his apparent change of opinion, which the defendant says is based on incorrect information, Mr Ardasinski does not elevate his risk assessment above moderate. That is, even in light of the events which have allegedly occurred in 2021, the defendant only poses a moderate risk of committing a further serious sexual or violent offence.
The defendant submits that in these circumstances, I would not be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. I would not be so satisfied because I would not accept that the defendant poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision. [5]

Determination

The purpose of the legislation is protective not punitive. Despite the severity and depravity of the defendant's crimes, he has served his full sentence and completed a five year ESO without any events, incidences or matters arising which would give rise to any real concerns until the most recent discovery of him seeking benzodiazepine from various doctors.
Having said that, I am not weighing up the defendant's right to his freedom or unrestricted place in the community as against the interests of the community in ensuring that the community is kept safe from persons who pose an unacceptable risk of committing a further serious offence.
I am applying the legislation in accordance with its terms, having regard to its purpose. Firstly, if I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, I must make the orders set out in ss 7(4)(a) and 7(4)(b) of the Act. That is, I must appoint the medical experts and direct that the defendant attend those examinations.
On the other hand, if following the preliminary hearing I am not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, I must dismiss the application.
Further, even if I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, I have a discretion as to whether an ISO should be made.
One of the difficulties in this matter at this preliminary stage is that there is a real dispute between the parties as to the events which may have caused this application to be pursued and which may have led persons such as Mr Ardasinski to alter his opinion (if he has altered his opinion). Indeed, the defendant points to what appears to be a degree of speculation in Mr Ardasinski's risk assessment report and highlights the extent to which the change of opinion might be based on incorrect assumptions.
In particular, the defendant points to the notes of the forensic psychologist, Theresa Britton, which record the defendant having volunteered his issues with substance abuse. On 25 January 2021, Ms Britton records discussing substance abuse, particularly improper excessive use of diazepam, noting that the defendant is a particularly high risk for diazepam misuse, given his history of abuse of prescription drugs. She notes that the defendant went to great lengths to justify his actions and how this had been managed through the GP, although he admitted that his use of the prescription was not as directly prescribed.
Further, Ms Britton refers to the defendant himself mentioning his assessment by Mr Ardasinski and Mr Ardasinski's reference to the use of "benzo". Reference was made to the defendant having his first psychological consultation in respect of this misuse.
The State refers to the OIMS case notes, particularly on 3 December 2020, in which the defendant asserted that he had been taking medication in accordance with the prescriptions and denied taking any Valium. The State also referred to the OIMS notes of 7 July 2021 as follows: "Psychologists Britton and Ardasinski both acknowledged that this new information with Bruno does not necessarily place him in an identical situation (risk wise) to that of his index offending, however it does represent an increase in his current risk levels, as well as confirmed long term patterns of deceit in contacts with CSNSW/FPS/ESOIT, and explain some of his concerning behaviours in interviews … Britton and Ardasinski agreed that it is unknown what impact this will have upon Mr Prest[a]'s risk longer term in the event that he is without further supervision"
In his conclusion in his risk assessment report of 21 July 2021 Mr Ardasinski states: "After five years under ESO supervision, there has been some reduction in his risk profile, such that he more squarely sits in the Moderate risk category on relevant empirical actuarial risk measures, but his risk of serious sexual offending remains - and the new evidence of Mr Presta concealing his benzodiazepine addiction from his supervising officers does not bode well for what will remain when his ESO expires on 21/8/2021."
Further, by way of contrast as to what will happen to the defendant if a further ESO is not imposed, the State relies on Mr Ardasinski's commentary that the defendant will return to the community with no supervision. His mother has poor health and the defendant has his own concerns about how he will cope without the support of the Department which has been managing his life since he was 28. He would not be eligible for further formal support from the Department if he is not subject to any form of community-based supervision.
Plainly, the defendant himself is expressing concern as to how he will cope in the community after 24 years of being provided for and kept under supervision by the State. This gives rise to one of the risk factors identified by Mr Ardasinski as elevating the risk, being the possibility of the defendant having thoughts of self-harm.
One of the difficulties at this point in the proceedings is that central to the defendant's position on risk is a contention that he has not been deceitful in terms of his use of prescription medication and that he had not been engaging in substance abuse. There may be some evidence to support those matters but I must determine this matter at the preliminary stage on the basis of whether the matters alleged in the supporting documentation would, if proved, justify the making of an ESO.
It is correct that Mr Ardasinski suggests only that the risk of sexual re-offending is moderate, but his opinion is not the only evidence on the issue. I may have regard to the opinions of Dr O'Dea and Dr Allnutt. I may have regard to the very nature of the disorders of which the defendant was diagnosed, not just back when he was committing the offences, but for the purposes of the ESO application in 2016.
Having regard to my analysis of all of the evidence, I consider that the risks associated with the defendant remaining in the community unsupervised are elevated by the excessive use of prescription medication, specifically benzodiazepines. This is the very medication that he has been seeking, at least since January 2021.
There is evidence of a link between the original offending and benzodiazepine misuse and there is evidence of an increased risk of re-offending arising out of benzodiazepine abuse. Whilst it may be that Mr Ardasinski continues to describe the risk as moderate, placing a label on the risk or identifying it within a category is not determinative of whether a person poses an unacceptable risk of committing a further serious offence.
No doubt there will be further exploration of the assumptions made by Mr Ardasinski and some challenge to the matters alleged by the State at the hearing of the application for an ESO, but I must proceed on the basis of the facts alleged.
The matters alleged include opinions offered by experts based on factual assumptions. I must determine the outcome of this preliminary application on the basis that the defendant has been deceitful and withheld information about his prescription medication use, as that is a matter alleged in the supporting documentation. Whether that matter will be proved will be determined at a later time.
It is thus only necessary to find at this time that, if the matters alleged in the supporting documentation are proved, then those matters would justify the making of a further ESO. I accept that they would because the increased and excessive use of such medication, coupled with the defendant being deceitful about his misuse (allegedly), elevates the risk to a level that he would pose an unacceptable risk of committing a further serious offence if not under supervision.
In the circumstances, I must make the orders that the defendant be medically examined and that the experts provide reports.
I have a discretion whether to make an ISO but having regard to the currency of the matters alleged which give rise to this application and, indeed, the defendant's own expressed concerns about what might happen to him, I consider that I should make the order for an ISO.
The conditions proposed for the ISO are not in dispute. They are annexed to this judgment.
In the circumstances, I make the following orders: 1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"): 1. Appointing two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) to conduct two separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed; 2. Directing the defendant to attend those examinations. 1. An order pursuant to sections 10A and 10C of the Act, that the defendant be subject to an interim supervision order for a period of 28 days. 2. An order pursuant to section 11 of the Act, directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the schedule to this judgment. 3. An order that access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the 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 OF CONDITIONS OF SUPERVISION BRUNO PRESTA Note: This schedule has been drafted to reflect the numbering used in the schedule of conditions imposed on the defendant by the Court on 22 August 2016. Departmental Supervising Officer (DSO) Corrective Services NSW (CSNSW) In these conditions: "CSNSW" means Corrective Services NSW. "Commissioner" means Commissioner for Corrective Services "Defendant" means Bruno Presta, the defendant in these proceedings and the subject of the order. "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. "Electronic Identity" means each of the following: (a) an email address, (b) a user name or other identity allowing access to an instant messaging service, (c) a user name or other identity allowing access to a chat room or social media on the internet, (d) any other user name or other identity allowing access to the internet or an electronic communication service. "DSO" means Departmental Supervising Officer, that is, any Corrective Services Officer supervising the defendant under the order. "Material" includes:

any written or printed material;
any picture, painting or drawing;
any carving, sculpture, statue or figure;
any photograph, film, video recording or other object or thing from which an image may be reproduced;
any computer data or the computer record or system containing the data; and
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:
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
A pat-down search, meaning a search of the defendant where the defendant's clothed body is touched.

Part A: Reporting and Monitoring Obligations Monitoring and Reporting

The defendant must accept the supervision of Corrective Services NSW (CSNSW) until the end of the Order.
The defendant must report to the Department Supervising Officer (DSO) or any other person supervising him as directed by the DSO.
The defendant must follow all reasonable directions by his DSO or any other person supervising him. 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.
NOT APPLICABLE. Electronic Monitoring
The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him and must not tamper with, or remove, the equipment. Schedule of Movements
If directed, the defendant must provide a weekly plan (called a schedule of movements) to his DSO 3 days before it is due to start.
If approved by his DSO the defendant must comply with the schedule of movements.
If the defendant wants to change anything in his schedule of movements once it is approved by his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period.
The defendant must not deviate from his approved schedule of movements except in an emergency.
The defendant must truthfully answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing.

Part B: Accommodation 11. The defendant must live at an address approved by his DSO. 12. The defendant must be at his approved address between 10 p.m. and 6 a.m., unless other arrangements are approved by his DSO. 13. The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time and, for that purpose, to enter the premises at that address. 14. The defendant must not spend the night anywhere other than his approved address without the approval of his DSO. 15. The defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO.

Part C: Place and travel restrictions 16. The defendant must not leave New South Wales without the approval of the Commissioner. 17. The defendant must surrender any passports held by the defendant to the Commissioner. 18. The defendant must not go to a place if his DSO tells him he cannot go there. 19. NOT APPLICABLE. 20. The defendant must not attend any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment.

Part D: Employment, finance and education 21. NOT APPLICABLE. 22. The defendant must not start any job, volunteer work or educational course without the approval of his DSO. 23. The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by his DSO.

Part E: Drugs and alcohol 24. 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. (c) Use his prescription medication other than as prescribed. 25. The defendant must submit to testing for drugs and alcohol as directed by his DSO. 26. The defendant must not enter any licensed premises including hotels, bars, racecourses and licenced clubs, but excluding cafes and restaurants, without the approval of his DSO. 27. The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as directed by his DSO, and must not discharge himself from such programs and courses without prior approval of his DSO.

Part F: Non-association Association with Children 28. The defendant must not approach or have contact without anyone who he knows is under 18 unless his DSO tells him he can, and he is with someone who has been approved in writing by his DSO. Associations with Others (not children) 29. The defendant must not associate with people that his DSO tells him not to. 30. Without limiting condition 29, the defendant must not: (a) Associate with any people who he knows are consuming or under the influence of alcohol without the prior approval of a DSO. (b) Associate with any people who he knows are consuming or under the influence of illegal drugs. (c) Associate with any person held in custody without prior approval of a DSO. 31. The defendant must not engage the services of sex workers, without prior approval of a DSO. 32. If the defendant starts a relationship with someone, he has to tell his DSO who may want to tell the person about his criminal history. 32A. The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary. 33. The defendant must obtain written permission from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service.

Part H: Weapons 34. The defendant must not possess or use any firearm within the meaning of s.4 of the Firearms Act 1996 or prohibited weapon as defined in s.4 and Schedule 1 of the Weapons Prohibition Act 1998.

Part I: Access to the internet and other electronic communication 35. 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. 36. The defendant must not use any alias, electronic identity, log-in name, name other than "BRUNO PRESTA" 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. 37. 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. 38. 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. 38A. 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. 38B. The defendant must not use any coded or encrypted messaging application or service. 38C.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. 38D. 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. 38E. 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. 38F. 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. 38G. 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 39. The defendant must submit to the search of any item or place in his possession or under his control, including his residence, any vehicle in which he is traveling or which is under his effective control, any computer, electronic and communication device, or any storage facility, garage, locker or commercial facility; and to the seizure of any object located during the search. 40. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure carried out pursuant to this Order. 41. NOT APPLICABLE. 42. NOT APPLICABLE. 43. NOT APPLICABLE.

Part K: Access to pornographic, violent and classified material 44. The defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification, X18+, Restricted Category 2 and Restricted Category 1, or any other material as directed by a DSO. 44A. If the defendant purchases, possesses, accesses, obtains, views, participates in or listens to material classified or material that would be classified as R18+, he must notify his DSO.

Part L: Personal details and appearance 45. The defendant must not change his name from "Bruno PRESTA" or use any other name without the approval of his DSO. 46. NOT APPLICABLE. 47. The defendant must not significantly change his appearance without the approval of his DSO. 48. The defendant must let CSNSW photograph him, dressed, within one week of the commencement of these conditions and following any significant change to his appearance. 49. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details.

Part M: Medical intervention and treatment 50. The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults in advance or as soon as practicable afterwards. 50A. The defendant is only permitted to see one primary physician who is aware of his drug dependence (with the exception of a physician at a hospital or other emergency room). 51. The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend. 52. The defendant must take all medications that are prescribed to him by his healthcare practitioners. 53. If the defendant knowingly stops taking medication that he has been prescribed, either temporarily or permanently, the defendant is to notify his DSO within 24 hours of stopping taking the medication. 53A. The defendant must truthfully notify a DSO about any prescriptions and medications he obtains and any changes to those prescriptions and medications. 53B.The defendant must not possess or use prescription benzodiazepine or opioid medication without prior approval from a DSO (except in a medical emergency). 53C. The defendant must disclose all prescribed medication in his possession or which he is using to any prescribing doctor. 53D. The defendant must notify a DSO of a nominated pharmacy at which he intends to fill any prescription issued to him, and must not fill prescriptions at another pharmacy without prior approval. 54. The defendant must agree to his healthcare practitioners sharing information about him with each other and with his DSO, including reports on his progress, attendance, information he has told them, and information regarding his prescriptions. 55. The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, his DSO, NSWPF and CSNSW. 56. The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him.

Endnotes

[2019] NSWSC 776 (Lonergan J).
[2019] NSWSC 559 (Garling J).
[2018] NSWSC 1921.
[2016] NSWSC 1154.
Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [51] (Beazley P). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 August 2021

The Legislative Scheme

The primary object of the Act is protective rather than punitive. It provides for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community: s 3(1) of the Act.
The Court may make an order for the interim supervision of an offender, pursuant to s 10A of the Act, if in proceedings for an ESO, it appears to the Court that: 1. the offender's current custody or supervision will expire before the proceedings are determined; and 2. the matters alleged in the supporting documentation would, if proved, justify the making of an ESO.
The defendant is currently subject to an ESO. It will expire before the proceedings are determined.
Section 7 of the Act deals with pre-trial procedures. The wording in s 7(4) of the Act is identical to the wording in s 10A(b) of the Act.
For the purposes of the orders sought, it is thus necessary to be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. If so satisfied, the Court must make the orders set out in ss 7(4)(a) and (b) of the Act.
However, if the Court is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, the Court must dismiss the application: s 7(5) of the Act.
It is not necessary that the Court be satisfied at the preliminary stage that the matters alleged in the supporting documentation will be proved. The Court is only required to be satisfied that, if those matters are proved, an order would be justified, bearing in mind the elevated standard of proof, namely, a high degree of probability: ss 5B and 5C of the Act; State of New South Wales v Wilmot (Preliminary) [1] ("Wilmot"); State of New South Wales v Sturgeon [2] ("Sturgeon").
It follows, that on the preliminary hearing, the Court is not involved in weighing up the documentation or resolving any conflicts, inconsistencies or uncertainties which appear in the documentation. Nor is it necessary for the Court to predict the ultimate result or to assess the likelihood of the ultimate result: see Sturgeon at [6]; Wilmot at [7].
An ESO may be made if the matters set out in ss 5B(a)-(c) of the Act are established and if the 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: s 5B(d) of the Act.
The meaning of "an unacceptable risk" in s 5B(d) and the principles which are to be applied were summarised by Hoeben CJ at CL in State of New South Wales v Holschier (No 2) [3] at [23]-[24] as follows: "23. As to the meaning of the phrase 'an unacceptable risk', the case law establishes the following: (a) What the court must find to be unacceptable is the 'risk' of the offender 'committing a serious [sex] offence if he or she is not kept under supervision' (see Lynn v State of New South Wales [2016] NSWCA 57; 91 NSWLR 636 at [51] (Beazley P)). (b) The word 'unacceptable' - which means, relevantly, 'so far from a required standard, norm, expectation etc as not to be allowed' - is one that 'requires context in which, or parameters against which, the unacceptable risk can be measured' (see Lynn at [50]). (c) While the HRO Act does not specify 'the precise parameters or standard or norm against which that determination (i.e. the determination whether an offender poses an unacceptable risk) is to be made', this 'must be so' because '[a] determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made' (see Lynn at [51]). (d) The determination whether an offender poses an unacceptable risk has to be understood in the context of the objects or purposes of the Act; in particular, its purpose in ensuring the safety and protection of the community (see Lynn at [55]). (e) The right of an offender to his or her personal liberty at the expiry of a sentence of imprisonment is not relevant to the determination whether an offender poses an unacceptable risk (Lynn at [44], [55]-[58], [128], [148]). Nevertheless, as their Honours held, the intrusion on a subject's liberty and privacy are undoubtedly matters which the Court may take into account in its discretion to make an ESO. 24. The 'unacceptable risk' inquiry is not discretionary, but it does involve an evaluative balancing exercise. It involves consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate: New South Wales v Simcock [2016] NSWSC 1805 at [71]."

At a glance

Court

Decision date

Before

Source

Judgment (19 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (7)