State of New South Wales v Russell

Supreme Court of NSW|2022-09-19|Before: Cavanagh J, Button J, Adams J, Harrison J, Davies J, Bellew J

Judgment

By way of an amended summons filed in Court on 19 September 2022, the State of New South Wales (the State) brings proceedings against the defendant, Brett Russell, pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act).
Having already obtained preliminary and interim orders on 28 June 2022, [1] the State seeks final relief in the nature of a continuing detention order (CDO) followed by an extended supervision order (ESO).
This is the judgment in respect of the final hearing.
In the original summons, the State did not seek a CDO but has amended the summons to seek a CDO for a period of 12 months prior to the imposition of the ESO.
The defendant has already been subject to three CDOs, being: 1. A CDO imposed by Button J for 12 months commencing 12 December 2018 (the first CDO); [2] 2. A CDO imposed by N Adams J commencing 15 April 2020 (the second CDO); and [3] 3. A CDO imposed by Harrison J for a period of 12 months commencing 6 July 2021 (the third CDO). [4]
The defendant remains in custody on an interim detention order (IDO) in accordance with orders made by Button J on 28 June 2022, as extended by Davies J on 2 August 2022 and Bellew J on 29 August 2022.
The IDO expires on 27 September 2022.
If I do not make orders for a CDO or ESO or extend the IDO prior to that day then the defendant will be eligible for general release into the community.
Following the preliminary hearing, Button J made orders for the appointment of a psychiatrist and/or psychologist. The State obtained two expert reports as follows: 1. Dr Sathish Dayalan, a forensic psychiatrist, dated 18 August 2022; and 2. Dr Carollyne Youssef, a forensic psychologist, dated 18 August 2022.
The State submits that, particularly in view of an alleged recent assault perpetrated by the defendant in prison, the defendant should remain subject to a further CDO for a period of 12 months and then an ESO for a period of 5 years. The State's alternative position is that the defendant should be subject to an ESO for 5 years with very stringent conditions.

Legislative Scheme

As set out in s 3 of the Act, the primary object of the Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders, so as to ensure the safety and the protection of the community. Another object of the Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation. In making any orders under the Act, I would have regard to the objects of the Act.
Section 5B of the Act specifies the circumstances in which the Court may make an ESO: 5B Making of extended supervision orders - unacceptable risk The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if: (a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and (b) the person is a supervised offender (within the meaning of section 5I), and (c) an application for the order is made in accordance with section 5I, and (d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.
Section 5C of the Act specifies the circumstances in which the Court may make a CDO: 5C Making of continuing detention orders - unacceptable risk (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 detained offender or supervised offender (within the meaning of section 13B), and (c) an application for the order is made in accordance with section 13B, and (d) the Supreme Court is satisfied to a high degree of probability that the person poses an unacceptable risk of committing another serious offence if not kept in detention under the order.
Being satisfied to a high degree of probability means something beyond more probable than not. The existence of the risk, that is, the likelihood of the defendant committing a further serious sex or violence offence, does have to be proved to a higher degree than the normal civil standard of proof, although not to the criminal standard of beyond reasonable doubt. [5]
The meaning of "unacceptable risk" was considered in Lynn v State of New South Wales: [6] "As the respondent pointed out in its submissions, by reference to dictionary definitions, the word 'unacceptable' requires context in which, or parameters against which, the 'unacceptable' risk can be measured. Thus, according to the Macquarie Dictionary, that which is unacceptable is 'so far from a required standard, norm expectation, etc as not to be allowed'. The Oxford Dictionary defines the word by reference to its antonym 'acceptable'. Something is 'acceptable' if it is 'tolerable or allowable, not a cause for concern; within prescribed parameters'. What the court, therefore, must find to be unacceptable is the 'risk' that the offender poses 'of committing a serious violence offence if … not kept under supervision'. The respondent accepted that the precise parameters or standard or norm against which that determination is to be made are not immediately evident from the text of the provision. That must be so. A determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made."
Importantly, the impact that an ESO may have on the defendant's liberty is not a relevant consideration for the purposes of assessing whether the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision, but the Court may take that factor into account in determining whether to exercise its discretion pursuant to s 9 of the Act. [7]
Section 9(2) of the Act requires that, in determining whether or not to make an ESO, the safety of the community must be the paramount consideration of the Court.
Further, in determining whether or not to make an ESO, I must have regard to the factors as set out in s 9(3) of the Act.
Similarly, an application for a CDO must be made in accordance with s 13B of the Act and must be supported by the matters referred to in s 14.
As set out in s 17, the Court may determine an application for a CDO by making either an ESO or CDO or by dismissing the application.
Again, the safety of the community must be the paramount consideration of the Court. Further, in determining an application for a CDO, the Court must have regard to the factors set out in s 17(4).

Threshold requirements

The defendant accepts that the threshold requirements set out under ss 5B and 5C are satisfied, except that he does not accept that he poses an unacceptable risk of committing another serious offence if not kept in detention (s 5C(d)).
Although the defendant accepts that the requirements for an ESO are satisfied, I must be independently satisfied that he would pose an unacceptable risk if not kept in detention or under supervision in the community.

The central issues

The central issues of dispute between the parties are: 1. Should the defendant be subject to a CDO for a period of 12 months commencing on 27 September 2022? 2. Should he then be subject to an ESO for a period of 5 years commencing 27 September 2023? 3. If not, for what period should he be subject to an ESO? 4. What are the conditions which should be imposed on the making of an ESO?

Background facts/defendant's criminal history

In each of the earlier judgments involving the defendant, the Court has summarised the defendant's criminal history and background. It is not necessary that I repeat everything that has been said in this judgment.
By way of summary, the defendant is a 59 year old Aboriginal male. He has been in custody for most of his adult life. Indeed, he has been in custody almost continuously since his first sentence of imprisonment at the age of 14. He was last in the community on parole in 2008.
On 5 April 2008, he sexually assaulted a 19 year old girl. He returned to custody on 7 April 2008 and has remained in custody since that time.
In July 2009, he was sentenced on two counts of sexual intercourse without consent and two counts of indecent assault. He was sentenced to a term of imprisonment of 9 years (which ended on 3 October 2018) with a non-parole period of 7 years. His sentence in respect of this offending expired 4 years ago.
As observed by the sentencing judge (Woods QC DCJ) on 2 July 2009, the defendant had a long and tragic history of criminality flowing from deprived family circumstances and exposure to violence. The defendant's exposure to trauma and violence as a young boy in the family was significant. He took to running away from the age of 10 and ultimately ended up in another institution where he was abused.
Prior to 2008, the defendant had a long history of violent offending and the index offence constitutes a serious instance of offending of a sexual nature within the meaning of the Act.
The defendant opposes the imposition of a further CDO on the basis that, despite his long period of institutionalisation and the allegation of recent violence against another prisoner, he is in a different position now from the last occasion when the State sought and obtained a CDO. For example, the defendant points to his improvement, his undertaking of treatment programmes and his demonstrated recognition for that which he has done.
At least on one view of the evidence, that appears to have been accepted by the State until such time as the defendant was allegedly involved in the assault on a fellow prisoner. This appears to have altered the State's position, such that the summons was amended to seek a further CDO rather than simply an ESO.

The evidence

The State relies on the following affidavits: 1. Four affidavits of David Yang, a solicitor employed on behalf of the solicitor for the State dated 15 March 2022, 26 May 2022, 6 June 2022 and 14 September 2022. 2. Three affidavits of Kelli Grabham, the High Risk Offender Applications and Operational Governance Officer employed by Corrective Services NSW (CSNSW) dated 15 March 2022, 6 June 2022 and 14 September 2022. 3. An affidavit of Angela West, the General Manager of Inmate Classification and Placement employed by CSNSW dated 29 August 2022. 4. An affidavit of Nicole Ahern, the Chief Psychologist in Intensive Therapeutic Programs employed by CSNSW, dated 30 August 2022.
The defendant relies on: 1. An affidavit of Theo Voros, the solicitor for the defendant, dated 17 June 2022; and 2. Affidavits of Laura Campbell, a clerk employed by the solicitor for the defendant dated 21 June 2022 and 9 June 2022.
The material relied upon by the parties as exhibited to those affidavits includes extensive medical evidence, the criminal records and the Offender Integrated Management System (OIMS) case notes.
In addition to the two recent expert reports, the State has obtained a risk assessment report from Samuel Ardasinski, Senior Psychologist, within the Serious Offenders Assessment Unit, dated 13 December 2021 and a risk management report prepared by Mick Glover, Senior Community Corrections Officer in the Metropolitan Extended Supervision Team, dated 5 January 2022.
Both Dr Youssef and Dr Dayalan were required for cross-examination. They gave evidence concurrently.
Ms Grabham was also required for cross-examination and gave further oral evidence.

Should the defendant be subject to a CDO?

Although the defendant accepts that he should be subject to an ESO (but not a CDO), it is necessary that I be independently satisfied that the defendant poses an unacceptable risk of committing another serious offence, if not kept under supervision under an ESO. For the reasons set out in this judgment, I am so satisfied.
Both Dr Youssef and Dr Dayalan consider that the defendant remains a high risk of committing a further serious offence (either sexual and/or violent), albeit both experts observed that there were limitations on the use of risk assessment tools in a case such as this.
Dr Youssef summarised the risk as follows: "Mr Russell presents with risk factors in each of the domains covered by the RSVP-V2 and HCR-20v3 suggestive of a high level of outstanding dynamic risk. This suggests that his risk score placing him in the highest category for recidivism in the VRAG-R and Static-99R is an accurate reflection of his risk of re-offending. The risk factors relevant to Mr Russell largely overlap for both violent and sexual recidivism. Particularly salient dynamic risk factors identified for Mr Russell include limited insight into his risk factors (e.g., substance use, antisocial peers, interpersonal difficulties, offence-supportive cognitions, need for intervention and support); general self-regulation (e.g., poor coping skills, negative emotionality, poor problem-solving, difficulty planning); intimacy deficits (e.g., difficulties in relationships, entitlement, hostility, mistrust and suspicion); violence- supportive attitudes, and limited insight regarding internal processes (i.e., thoughts, emotions)…Specifically, Mr Russell would benefit from the development of a support network, structured activities, financial assistance, the development of specific, achievable goals, meaningful engagement in treatment/psychological intervention, and the development and refinement of effective coping strategies."
Dr Dayalan came to a somewhat similar conclusion as to the risk level, particularly having regard to his use of the risk assessment tools. He considered that the defendant continued to present with cognitive distortions which were persecutory in nature. This placed him at increased risk of interpersonal conflicts. Because he has been institutionalised for such a long period, he has a known repertoire of adaptive coping strategies. Dr Dayalan anticipated that the defendant would be exposed to increased stress following his release into the community.
Further, he identified a number of dynamic risk factors most relevant to the defendant's risk of committing a serious offence, being: 1. Substance abuse; 2. Sexual preoccupation/drive; 3. Emotional, behavioural and cognitive instability; 4. Compliance with treatment and supervision; 5. Living circumstances; 6. Personal support; 7. Psychosocial stresses; and 8. Access to potential victims.
The State also relied on a risk assessment report prepared by Mr Ardasinski, dated 13 December 2021. Mr Ardasinski referred to the same key risk factors as Dr Dayalan. He considered that the defendant continues to fall into the high risk category for both sexual and violent reoffending.
These reports are consistent with the expert reports of Dr Marcello Rodrigeuz, a psychologist, and Dr Richard First, a forensic psychiatrist, obtained for the purposes of the third CDO application as referred to by Harrison J in his judgment in respect of that application. [8]
It is important to observe that the defendant has not entered a plea of guilty to the recent assault charge against him. However, for the purposes of this application, I am entitled to have regard to the allegations.
The alleged incident involved a fellow inmate who it is said may have been providing sexual favours to the defendant. At some point, the victim approached the defendant, passing him a note to the effect that they should keep their distance. This caused the defendant to become angry. He then threatened the victim. At approximately 1.10pm on the same day, the defendant is alleged to have approached the victim, accusing him of causing him to have lost his job. He punched the victim in the face causing the victim to lose consciousness and fall onto the floor. As a result, he was charged. Further, his classification regressed from a C2 to a B classification.
On the State's case, this alleged incident is significant because it demonstrates that the defendant should remain in custody and undertake a further programme or programmes to assist him in managing his tendency for violence.
Dr Youssef supports the imposition of a further CDO for 12 months followed by an ESO. Having said that, in her report, Dr Youssef suggested that there were no further programmes in custody that she believed would be helpful in reducing the defendant's risk or preparing for community re-entry. She stated: "The only goal that a further CDO would achieve in the absence of graded community exposure and staged re-entry, is containment. Without any opportunities to gradually engage in the community and have an opportunity to demonstrate and practise new behaviours, it is unclear how long containment on its own will be required, short of indefinite incarceration."
Dr Youssef was initially of the view that the defendant should be subject to some form of gradual exposure to the community, such as through a work release programme. Her opinion was that the defendant should gradually re-enter the community, which would assist in managing his risk.
However, on his current classification, the defendant would not be eligible for such day release. According to Angela West, the defendant would be required to progress through the classification system and obtain a category C2 classification. The defendant's next classification review is on 29 April 2023. There is of course no certainty that his classification will be changed. It seems likely that if a CDO is imposed, the defendant would not be eligible for day leave at least before the very end of the 12 month period.
In support of its application for a CDO, the State suggests that there is a need for further treatment whilst in custody. This proposition is based on the opinion of Nicole Ahern. She observes that the defendant's primary issues relate to his impulse control. She says that he has an outstanding need for violence offending specific treatment. She considers that the defendant would need six to eight months for further treatment. He would commence one-on-one treatment with a senior psychologist from the Violent Offenders Therapeutic Programme (VOTP). On completion of that treatment, he would commence treatment with the senior psychologist from the Sex Offenders Programme (SOP).
She accepted that the idea of the defendant being monitored, supported and receiving treatment on a less restrictive environment, such as in the community, would be generally advantageous but that there were some benefits associated with treatment in custody. She thought a short-term CDO would be meaningful.
Dr Youssef generally supports that approach. Dr Youssef suggested she had two primary concerns, being: 1. The dosage of treatment, meaning that whilst the defendant had completed a number of programmes in custody, she was not satisfied that the level of treatment was necessarily sufficient; and 2. That he would face difficulties in reintegrating into the community after a long period of incarceration.
It is for this reason that she favoured the idea of a graduated release into the community through something such as a return to work programme.
Having said that, she accepted in cross-examination that, perhaps differently from earlier occasions, there were now a number of protective factors available to the defendant which would reduce his risk of both sexual and violent reoffending, including: 1. He will be enrolled in a training course to obtain a forklift licence and obtain employment; 2. He intended to participate in an Aboriginal smoking ceremony as part of the process of reintegration; 3. He intended to make contact with his family and children; 4. He would be engaging in a number of creative and leisure activities; and 5. He was currently demonstrating an enthusiasm for release and determination to be "a citizen" rather than "a criminal".
Further, she accepted that, in circumstances in which her original idea of a graduated reintegration would not be possible, there was a risk that keeping the defendant in custody any further would be counter-productive to reducing the risk.
Dr Dayalan was supportive of the defendant being released into the community under an ESO with the conditions suggested by the State. He considered that there were appropriate forms of intervention and treatment in the community and, if some form of graded reintegration was not available, then there would be little benefit in keeping him in prison for a further short period at this time. He was not satisfied that the defendant had not undergone the treatment for violent offending available in prison already.
Dr Dayalan referred to the views of Mr Ardasinski that the defendant had completed most of the programmes available to him in custody. Dr Dayalan believed that ongoing treatment could be provided in the community. Dr Dayalan noted that the defendant had completed all available sex offender treatment. Further, he did not agree that the defendant had not participated in the relevant violent offender programmes.
Dr Dayalan said in his oral evidence that, having regard to the defendant's progress over the past year, including treatment, completion of programmes and what seemed to be a general change of attitude, it was appropriate that he be released into the community under an ESO.
Dr Dayalan agreed that further incarceration for a period of 12 months could be counter-productive in that it could destroy the defendant's enthusiasm and willingness to engage in treatment.
I observed in my judgment on the preliminary application for the third CDO: [9] "As discussed with the parties, there may come a time when the observations made by McCallum JA in Jones v State of NSW [2020] NSWCA 202 at [39], become particularly pertinent to this defendant. That is, the discretionary power (to impose a CDO) should be exercised having regard to the importance of the right to personal liberty to the extent possible consistent with the purpose and the express provisions of the Act. Her Honour noted there would be a point that, beyond which, the Act can intrude no further upon the right to liberty."
In State of New South Wales v Kaiser, [10] Simpson AJA (Bell CJ and Beech-Jones JA agreeing) observed at [61]: "But that is not all that the Act does. It is not solely directed to the abrogation or curtailment of freedom; it has among it express objects the protection of the community and the promotion of rehabilitation of serious sex and violent offenders: see State of New South Wales v Donovan (2015) NSWLR 389; [2015] NSWCA 280 at [58]-[60]. Community safety is, by s 9(2) made the paramount consideration in the determination whether or not to make an extended supervision order."
Further, the importance of the right to individual liberty has most recently been emphasised by the High Court in Garlett v Western Australia ("Garlett"). [11] As Kiefel CJ, Keane and Steward JJ commented at [73]: "… whether a restriction order is "necessary" to protect against that risk requires recognition of what would otherwise be the offender's entitlement to be at liberty, an entitlement not lightly to be denied …"
Further, Edelman AJ stated that a continuing detention order under similar legislation in WA would likely be rare because of the almost unlimited range of possible conditions beyond the standard supervision order conditions which might be imposed on an ESO. As his Honour said at [233]: "… a continuing detention order should be a rare order because s 30(5) permits an almost unlimited range of possible conditions beyond the standard supervision order conditions. In most circumstances, a supervision order should be able to satisfy the Court that the specified serious offence will not be committed on the balance of probabilities. In addition to reporting and electronic monitoring, the long list of possible supervision order conditions includes conditions like those before the Court in Minister for Home Affairs v Benbrika such as prohibitions on various associations or attending various locations, home curfew, and even, in extreme cases, home detention requirements."
The fact that the defendant's risk factors still remain high might suggest that he remains an unacceptable risk if released into the community, although there is some dispute about that. Having said that, in my view, the time has come where the objects of community safety and rehabilitation are best served by supervising the defendant's reintegration into the community. This is particularly so, having regard to the defendant's current enthusiasm and determination to reintegrate into the community as well as his willingness to undertake ongoing treatment in the community.
The defendant points to his general cooperation and participation in all appropriate programmes. He refers to an OIMS note dated 14 June 2022 which refers to him as being a "model inmate". The alleged assault on 4 April 2022 might suggest otherwise but the defendant emphasises the difference between the prison culture and living in the community.
Further, the defendant does not accept that he has not completed appropriate violent offender programmes and points to the availability of treatment programmes through Forensic Psychology Services (FPS) if he were to be released. To a certain extent, this contention is supported by the opinion of Dr Dayalan.
Although I have some concern about the recent alleged assault on another inmate, it is clear that there has at least been some change of attitude on the part of the defendant towards participation in treatment programmes and he has at least some better insight into those conditions which cause him to act impulsively and lose control.
Dr Dayalan considers that he can be adequately managed in the community under an ESO. Dr Youssef's somewhat altered opinion seems to have been very much influenced by the recent incident as well as the further evidence from Ms Ahern that he could undertake a further programme in custody. However, he has demonstrated a willingness to undergo appropriate treatment and programmes through FPS.
On 21 June 2022, the defendant told Tania Martin, a Services and Programs Officer at CSNSW, that he is ready to enact positive change and make a contribution to the community. He wants to start a band, pursue his art and obtain employment as a forklift driver. The defendant submits that being in the community is critical to his rehabilitation.
In determining whether or not to make a CDO, I must have regard to the factors set out in s 17(4) of the Act and any other matters which may be relevant.
In this regard, it is notable that: 1. Only one of the experts retained by the State for the purpose of this application supports the imposition of a further CDO. 2. The imposition of an ESO is supported by Mr Ardasinski, the Senior Psychologist in the Serious Offenders Assessment Unit. 3. Whilst on a statistical risk assessment analysis, the defendant continues to present in the high risk category, there are limitations to that type of analysis. 4. The defendant, perhaps differently from earlier occasions, has demonstrated a willingness to participate in community-based programmes, expressed enthusiasm for release and a desire to become a good citizen rather than a criminal and has a number of important protective factors available to him at this stage. 5. I also accept that a continuing detention of the defendant may ultimately be counter-productive. I have regard to the initial comments of Dr Youssef in her report to the effect that continuing detention at this stage may serve little purpose other than continuing containment.
In the circumstances, I am not satisfied that the defendant should be subject to any further CDO. He should be released into the community and subject to an ESO.

The conditions

The conditions which the State proposed are attached to the amended summons. There is limited dispute as to the conditions. I am satisfied that the conditions not in dispute are appropriate. I will deal with the conditions in dispute.
In considering the conditions which should be imposed, I have regard to a number of important principles, including: 1. The condition should address the identified risk. As stated by Edelman J in Garlett at [230]: "… The requirement of appropriateness imposes a duty on the Court to make only the additional supervision conditions required to ensure "adequate" protection of the community, while imposing the minimum intrusion on an offender's liberty." (citations omitted). 1. The Court should seek to impose the least intrusive conditions that are most likely to be effective. [12] Too stringent conditions may be counter-productive, both in terms of the general rehabilitation of the defendant and the defendant's relationship with his DSO or those persons with whom he is required to work with to ensure successful reintegration into the community. [13]
The conditions to which the defendant consents are extensive. They include electronic monitoring, restrictions on accommodation, place and travel restrictions, restrictions on the use of drugs and alcohol, access to the internet and various obligations in respect of ongoing treatment.
However, the defendant does dispute the appropriateness of a number of conditions which he says will not assist in reducing the risk of either violent and/or sexual offending, which do not otherwise address the risk factors and are unnecessarily onerous.

Conditions 6,7 and 8 - Schedule of movements

Although the defendant consents to electronic monitoring, he does not consent to the conditions relating to the schedule of movements as proposed by the State. The State proposes that the defendant must provide a weekly plan and that he must not deviate from his approved schedule of movements except in an emergency.
The State relies on the evidence of Ms Grabham as to the benefits of the proposed schedule of movements in addition to electronic monitoring. As Ms Grabham says, monitoring of the defendant can be in real-time. Any deviations from the defendant's approved moments can be immediately detected and the DSO can be made aware.
Ms Grabham also emphasises that the condition relating to electronic monitoring is in terms that the defendant must wear the monitoring equipment as directed by a DSO. She says that there is generally a graduated reduction in the use of electronic monitoring. For example, the imposition of a 5 year ESO would not necessarily result in the defendant being required to wear monitoring throughout that entire period. As I understand it, the ESO team will continue to assess the risks and the defendant's compliance with his schedule and may reduce the monitoring requirement accordingly.
The defendant does not oppose the imposition of a schedule of movements but says that the condition should be in the form of a "dry schedule". A dry schedule imposes a somewhat less onerous condition. The defendant is not required to precisely identify his planned movements for each day. [14]
Ms Grabham says that if there is a dry schedule, there cannot be real-time tracking. Ms Grabham agrees that most offenders find electronic monitoring schedules and movements frustrating but she does not consider this to be a negative. Most offenders have spent a substantial time in custody and a certain level of structure upon release is positive for them.
There may be merit in Ms Grabham's views, expert as they are. However, the Court should seek to impose the least intrusive conditions that are most likely to be effective. [15]
I consider it appropriate that the defendant commences with the State's condition but that after 12 months the defendant only be required to provide a dry schedule. The conditions will be amended to reflect that.

Conditions 27 and 28 - Association with children

The defendant seeks modification to these conditions to permit him to see his grandchildren and other family members. The defendant points out that there is no history of abuse of children. At least according to the defendant, one of the things he intends to do is reconnect with his family. Dr Youssef considers this would be of benefit to him and a protective factor. He should be permitted to be in the company of his grandchildren without seeking prior approval of the DSO.
Conditions 17 and 27 will be amended to include the words "except family members under the age of 18".

Condition 22 - Provision of financial information

The State maintains that Condition 22 (which requires the defendant to provide any information relating to his financial affairs if directed by the DSO) is necessary because of the defendant's gambling disorder.
Dr Youssef opines that substance abuse, gambling and financial stresses "are likely to contribute to emotional dysregulation for Mr Russell and may increase the risk". If he reverts to stealing to support himself, it is possible there may be associated violence with that stealing, but I am uncertain as to how requiring the defendant to provide his financial information to the DSO would necessarily reduce the risk of that occurring.
It is a long time since the defendant has gambled. The relationship between gambling and the offending is unclear. It might be said that the stress caused by losing money on gambling may lead to violence but it is not clear how allowing the State to have access to the defendant's bank accounts would necessarily reduce that risk.
I am not satisfied that the State has established that this condition is necessary.

Condition 34 - Relationships

The defendant is required to inform the DSO if he starts or seeks to start a relationship with a woman (friendly or intimate). The defendant submits that the condition is too broad and should be limited to intimate relationships. The State relies on the evidence of Ms Grabham who notes that many of the defendant's earlier offences were committed against female acquaintances.
The risk assessment report dated 13 December 2021 suggests that one likely scenario for further violent and sexual offending would be against a known female acquaintance or intimate partner.
I am satisfied that Condition 34 is specifically directed at the risk and that it should be imposed.

Conditions 48 and 49 - Search and Seizure

The defendant seeks search and seizure conditions on the basis (as stated by Ms Grabham) that the conditions are used in risk management to guard against the possibility of the defendant possessing inappropriate material, including alcohol, drugs, or weapons. The State submits that it is necessary that the DSO have the power to search as part of the process of managing the risk.
The defendant points out that the State retains all its usual powers of surveillance and arrest, albeit in State of New South Wales v AA, [16] Hoeben CJ at CL observed the rights and obligations of the Police and citizens are quite different from the supervisory obligations arising in this type of matter.
In the end, I am satisfied that the defendant's sexual and violent crimes have been opportunistic and impulsive rather than planned. I am not satisfied that these conditions address the particular risk in this matter and thus I do not accept that they should be imposed.

The length of the ESO

The State seeks an ESO of 5 years. The defendant maintains that an ESO of 3 to 4 years would be sufficient. This appears to be based on in part on the opinion of Mr Ardasinski.
It is not clear to me why an ESO for 5 years rather than something less is appropriate. Dr Youssef suggested a 5 year period but on the basis that there would be a greater reduction in conditions over time. She understands that an ESO has four stages with the conditions being reduced gradually over each year. Hopefully, should the risk reduce, those responsible for the monitoring of the defendant will adopt that approach but there is nothing in the conditions proposed by the State that mandates such an approach.
Mr Ardasinski suggested that a very lengthy ESO may not be required as the defendant may have reached "the burnout age" in terms of his personality disorder and potential to reoffend. He considered that an ESO for 3 or 4 years would be appropriate.
The defendant emphasises that he is now 59 and that the risk reduces after 60. The defendant pointed to the life expectancy tables for Aboriginal men, raising the prospect that on those life tables, he does not have that many years left to live. I am not sure that pointing to life tables provides a basis for either reducing the term of the ESO or changing the conditions, bearing in mind the purposes of the Act.
In the end, I am not satisfied that the State has established why a 5 year rather than a 4 year period is necessary.

Orders

I thus impose an ESO for a period of 4 years on the conditions set out in the amended summons, subject to the variations which I have directed.
In the circumstances, I make the following orders: 1. Pursuant to ss 5B and 9(1)(a) of the Act, the defendant is subject to an extended supervision order for a period of 4 years from 27 September 2022 to 26 September 2026. 2. 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 this judgment. 3. Access to the Supreme Court's file in respect of any document shall 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.

SCHEDULE OF CONDITIONS OF SUPERVISION BRETT THOMAS RUSSELL In these conditions: "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). "CSNSW" means Corrective Services NSW. "Commissioner" means Commissioner for Corrective Services "Defendant" means Brett RUSSELL, also known as Peter COE and Graham John ELLA, the defendant in these proceedings and the subject of the order. "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. "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. "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 submit to the supervision and guidance of a DSO and obey all reasonable directions of a DSO.
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.
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.
The defendant must not engage in any threatening, intimidating or abusive behaviour towards CSNSW or electronic monitoring staff involved in his supervision that would cause the staff member to fear for their safety and/or interfere with or impede supervision. Electronic Monitoring
The defendant must wear electronic monitoring equipment as directed by a DSO and must not tamper with, or remove, the equipment. Schedule of Movements From the period 27 September 2022 to 26 September 2023:
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.
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.
The defendant must not deviate from his approved schedule of movements except in an emergency. From the period 27 September 2023 to 26 September 2026: 6A. If directed by his DSO, the defendant is to provide an honest summary of his anticipated movements each week (or over successive weeks), limited to places he intends to travel to, the purchases and means of his travel to those places, and the dates of travel, but unconfined by any travel route or timetable. If so directed, such a summary is to be provided on, or before the Friday prior to each week (or as otherwise agreed between the defendant and his DSO). 7A. The defendant must not deviate from his summary of anticipated movements except in an emergency, or unless as specified in paragraph 8A below. 8A. It will not be a breach of condition 7A if the defendant departs from the summary but notifies his DSO of his change of plans before doing so, or as soon as is reasonably practicable afterwards. 9A. The defendant must truthfully answer questions from his DSO, or any person supervising him, about where he is, where is going and what he is doing. Part B: Accommodation
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.
The defendant must be at his approved address between 9pm and 6am unless other arrangements are approved by a DSO.
The defendant must allow a DSO to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.
The defendant must not spend the night anywhere other than his approved address or any alternative approved addresses (if relevant) without the prior approval of a DSO.
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
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.
The defendant must not leave New South Wales without the approval of the Commissioner of CSNSW.
The defendant must not frequent or visit any place or district specified by a DSO.
Without limiting condition 16 above, the defendant must not go to residences where the defendant knows that persons aged under 18 years ordinarily reside without the prior approval of a DSO, except to visit family members.
The defendant must not attend any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment, without the prior approval of a DSO. Part D: Employment, finance and education
The defendant must take all reasonable steps to participate in interventions as recommended by a DSO, including the development of a case management plan which may include employment, education, training or participation in personal development programs.
The defendant must not start on his own initiative any job, volunteer work or educational course without the approval of a DSO.
The defendant must notify a DSO of any intention to change his employment if practicable before the change occurs or otherwise at his or her next interview with a DSO.
Deleted. Part E: Drugs and alcohol
The defendant must not: (a) Possess or consume alcohol without the prior approval of a DSO. (b) Possess or use prohibited drugs or abuse drugs unlawfully obtained.
The defendant must submit to drug and alcohol testing.
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.
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 Association with Children
The defendant must not associate with anyone who he knows or reasonably should know is under 18, other than Incidental contact in a public place in the course of the duties of the minor; or with the written permission of a DSO and in accordance with any requirements reasonably determined by a DSO, including that the contact takes place in the presence of an adult who has been approved in writing by a DSO, except family members.
Deleted. Associations with Others (not children)
The defendant must not associate with any person or persons specified by a DSO, except family members.
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.
The defendant must not engage the services of sex workers, without the prior approval of a DSO.
The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary. If the defendant's DSO is to make such a disclosure, he must give the defendant (within a reasonable timeframe as agreed between the DSO and the defendant) the opportunity to tell the other person.
The defendant must obtain approval from a DSO prior to joining or affiliating with any club or organisation.
If the defendant starts or seeks to start a relationship with a female (friendly or intimate), he has to tell his DSO as soon as practicable the name of that person (and, if known, the names of any female children (under or over 18 years) that the person may have) and truthfully answer any questions that the DSO asks regarding that relationship. Part G: Weapons
The defendant must not possess or use any of the following: (a) a firearm, firearm part or ammunition within the meaning of the Firearms Act 1996, and (b) a prohibited weapon within the meaning of the Weapons Prohibition Act 1998.
Without limiting or altering condition 35, the defendant must not possess or use any of the following: (a) a knife, 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 (b) any other implement made or adapted for use for causing injury to a person; and (c) anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property. Part H: Access to the internet and other electronic communication
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.
The defendant must not use any alias, electronic identity, log-in name, name other than "Brett Russell" 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.
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.
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.
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.
The defendant must not use any coded or encrypted messaging application or service.
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.
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.
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.
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.
The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with a DSO. Part I: Search and seizure
Deleted.
Deleted. Part J: Access to pornographic, violent and classified material
The defendant must notify a DSO within 48 hours if he has purchased, possessed, accessed, obtained, viewed, participated in or listened to material classified or material that would be classified as Refused Classification, X18+, Restricted Category 2 and Restricted Category 1, or any other material as directed by a DSO with respect to concerns related to risk of committing a serious offence. Part K: Personal details and appearance
The defendant must not change his name from "Brett Russell" or use any other name without notifying a DSO.
The defendant must not significantly change his appearance without the approval of a DSO.
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.
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 L: Medical intervention and treatment
The defendant must attend and 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.
The defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults.
The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with a DSO.
The defendant must agree to any information being shared between those persons and agencies that are involved in his supervision including, but not limited to, a DSO, NSWPF and CSNSW.
The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him.

Endnotes

See State of New South Wales v Russell (Preliminary) [2022] NSWSC 843.
State of New South Wales v Russell [2018] NSWSC 1880.
State of New South Wales v Russell (Final) [2020] NSWSC 396.
State of New South Wales v Russell [2021] NSWSC 702.
Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21] (Mason P, Giles and Hodgson JJA).
(2016) 91 NSWLR 636; [2016] NSWCA 57 at [50]-[51] (Beazley P).
Ibid at [44], [56]-[58] (Beazley P), [126]-[128] (Basten JA), and [148] (Gleeson JA).
State of New South Wales v Russell [2021] NSWSC 702.
State of New South Wales v Russell (Preliminary) [2021] NSWSC 361 at [56].
[2022] NSWCA 86.
[2022] HCA 30.
Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [129] (Basten JA).
State of New South Wales v Osman [2021] NSWSC 124 at [43] (Harrison J).
State of New South Wales v Matthews (AKA Hackett) (Final) [2019] NSWSC 1360 at [56] (Cavanagh J).
Lynn v State of New South Wales (2016) 91 NSWLR 636 at 129; [2016] NSWCA 57.
[2021] NSWSC 566.

Amendments 29 September 2022 - Schedule of Conditions of Supervision Schedule of Movements - Typographical error. References to June corrected to September in relation to conditions 6-8 and 6A-9A. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 September 2022

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Judgment (18 paragraphs)

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Legislation Cited (1)

Cases Cited (15)