State of New South Wales v Steven Single

Whether an ESO should be made

1. As I have said, while Mr Single does not specifically concede that an order should be made, he accepts "that it is likely the Court will make such an order". Even if a clearer concession was made on behalf of the defendant, the Court can only make an order if the prerequisites of the Act have been fulfilled and the Court determines, by reference to the relevant considerations, that an order should be made. The assessment of risk is an evaluative task rather than a discretionary one. [3] There is a discretion as to whether to make an order but it would be unusual not to make an order if the statutory pre-requisites are established. [4]
2. Section 5B of the Act sets out the circumstances in which the Supreme Court "may make" an extended supervision order. I am satisfied that each of those criterion is established.
3. The first three criteria in s 5B are of a formal nature and are established as follows: 1. Mr Single is a person who is serving a sentence of imprisonment for a serious offence: 5B(a). He is currently serving a sentence of imprisonment for the offence of using a carriage service to transmit a communication with the intent of procuring the underage recipient (who was as it turns out fictitious) to engage in sexual activity with the sender. That is an offence under s 474.26(1) of the Commonwealth Criminal Code Act 1995. The definition of serious sex offence includes an offence under that provision: see s 5(1)(b5) of the Act. 2. Mr Single is a supervised offender within the meaning of s 5I: s 5B(b). 3. The application was made in accordance with the provisions in s 5I: s 5B(c).
4. The more substantive criterion is in s 5B(d) which requires the Supreme Court to be 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." Serious offence is defined in s 4 of the Act and includes a "serious sexual offence" which is, in turn, defined in s 5(1). Various cases have established what is required to establish this "unacceptable risk" test in s 5B. The question involves an evaluative task which must be undertaken in the light of the objects and purposes of the Act and in particular its purpose in ensuring the safety and protection of the community. In this case, that task involves considering the risks to children that Mr Single may represent. That is the primary objective of the Act: see s 3(1). A secondary objective of the Act is also relevant and is to encourage the rehabilitation of high risk [sex] offenders.
5. In the context of this protective legislation, the word "unacceptable" has been held to mean "so far from a required standard, norm, expectation, etc as not to be allowed". [5] The expression "a high degree of probability" means something "beyond more probably than not" but is a standard of proof lower than the criminal standard of beyond reasonable doubt. [6] The question involves a consideration of both the likelihood of the risk manifesting itself and also the gravity of that risk should it manifest. These matters are well-established and were not subject to debate between experienced counsel appearing on both sides. In addition to the statutory criteria identified under s 5, the Act also provides a non-exhaustive list of relevant considerations in s 9(3).
6. I have considered each of those matters in so far as they are relevant to a proper assessment of Mr Single's case. I am satisfied that there is an unacceptable risk of the kind referred to in the legislation and that an analysis of the evidence, set against the criteria in s 9(3), results almost inevitability in the exercise of the discretion in favour of making an extended supervision order. The evidence of particular significance is Mr Single's history of offending either against children directly or attempting to make contact with children via the internet and the practice known as "grooming".
7. Mr Single's criminal history shows that in 1998 he was sentenced to a long term of imprisonment for a number of serious child sexual assault offences including having homosexual intercourse with a male aged between 10 and 18. The statements of the victims of the offence have been included in the material and I have considered their contents along with the opinions given at the time of sentence by two distinguished psychiatrists. I have also read the fact sheet and pre-sentence report. I will not outline the offences in any detail but they involved the sexual abuse of children who came into contact with Mr Single either through his employment in a video store or as neighbours. There were many offences, some of which were subject to specific charges while others were admitted and taken into account on sentence. The 1998 offending constituted criminality of a very high order.
8. Mr Single also came to the attention of police, and was subject to significant punishment, when he offended again in 2012. On this occasion, the offence did not involve direct contact with a child. In fact, the child in question was fictitious and Mr Single was dealing with an agent provocateur over the Internet. However, Mr Single attempted to meet up with a child with the purpose of involving them in sexual activity. The facts of the case are troubling and demonstrated a determination on the defendant's part to sexually interfere with the child. It is the sentence imposed for this offence that is about to expire.
9. While there was a significant period of time between the offences, the evidence established that he re-commenced accessing child sexual abuse material within around six months of being released from gaol in 2000. This continued until his arrest in 2012.
10. In addition to his criminal history, his chronic resort to child pornography and the serious facts established by the records relating to the criminal proceedings, there are a series of reports offering an assessment of the extent to which he represents a risk to young children if released unsupervised into the community. While Mr Single has undertaken a number of courses while in custody, and has been generally a compliant prisoner, the authors of the various reports are unanimous in the opinion that he represents a significant risk of reoffending, particularly if released without supervision. He is described in various ways as a person with a paedophilic disorder. He was assessed by Dr Furst, psychiatrist, as being a person with a high risk of reoffending and also was considered to be a "well above average risk of reoffending in a sexual manner compared to the typical adult male sex offender." The psychologist Miriam Wyzenbeek assessed him as being "well above average risk" or "above average risk" of committing sexual offences against children. Between those two reports, which were prepared for the purpose of this application pursuant to orders under s 7(4) of the Act, it is clear that Mr Single remains a person representing a high risk of sexual reoffending.
11. In addition to the reports prepared by the Court appointed experts, there were other reports tendered that provided opinions as to the extent of the risk involved in releasing Mr Single without supervision.
12. A "risk assessment report" prepared in advance of his possible release described Mr Single as "being in the highest risk category for sexual offending compared with other male sex offenders" according to actuarial risk assessment measures.
13. A "risk management report" prepared by the Department of Corrective Services also indicated that he fell into the high risk category for sexual offending and, when all relevant factors were taken into account, Mr Single was assessed to be a person with a "well above average risk of sexual reoffending".
14. These reports, taken together with his criminal history, establish to a high degree of probability that the defendant represents an unacceptable risk of reoffending. That conclusion takes into account not only the likelihood of him committing further sexual offences against children, in so far as that can ever be determined in advance, but also the nature and gravity of the risk involved. It is notorious that the impact that such offending can have on its victims can be lifelong and devastating.
15. Having considered all relevant matters, I am comfortably satisfied that an order must be made for the extended supervision of Mr Single.

Disputes over conditions

1. In submissions filed in advance of the hearing, a number of the conditions sought by the State were opposed on the basis that the risks to which they were directed were already mitigated by virtue of conditions pursuant to the Child Protection (Offenders Registration) Act 2000 ('the Registration Act'). However, s 15 of the Registration Act provides that: 15 Suspension and extension of reporting obligations (1) A registrable person's reporting obligations are suspended for any period during which: … (d) the person is the subject of an interim supervision order or extended supervision order under the Crimes (High Risk Offenders) Act 2006 or the Terrorism (High Risk Offenders) Act 2017.
2. Reporting obligations are defined very widely so that the conditions sought by the State in the present application would result in similar conditions being suspended pursuant to s 15(1)(d), at least for the period of the ESO.
3. The State accepted a number of proposed amendments to the conditions originally sought. The State filed an Amended Summons in which the conditions were amended to accommodate some of the concerns raised by the defendant.
4. In spite of this cooperation between the parties, there remained a number of significant disputes as to the conditions that should - or, in some cases, could - be imposed. Some of those disputes raised important questions of the power of the Court and scope of the legislation. Others involved an argument that the conditions were not appropriate to the circumstances of the case and did not mitigate against the kind of risk arising from the defendant's history and the expert evidence.
5. It is important for a judge making orders such as these to bear in mind the nature and purpose of the legislation in question. The legislation specifically establishes a system which allows for a high risk offender either to be incarcerated beyond the length of the sentence imposed for their past crimes, or to be subject to supervision with conditions. The legislation allows for conditions which are, at times, very onerous and which are calculated to interfere with the defendant's freedoms. Such legislation runs contrary to common law principles against what is often referred to as "protective custody". Many judicial officers, and some members of the community, feel a degree of discomfort in the imposition of orders requiring a defendant to be incarcerated or to have their freedoms seriously restricted in response to crimes that have not yet been, and may never be, committed or even in contemplation. As McCallum J (as her Honour then was) said in State of New South Wales v Donovan: [7] After serving any sentence of imprisonment lawfully imposed, an offender has the right to personal liberty. That is 'the most fundamental and important of all common law rights'. It is one which 'cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes': Williams v The Queen [1986] HCA 88; 161 CLR 278 at 292 per Mason and Brennan JJ.
6. However, detention or intensive supervision beyond the term of an expired sentence is precisely what the legislature has provided for in this legislation. In doing so, it has expressed its purpose in clear terms. As I have already said, "the primary object of this Act is to provide for the extended supervision and continuing detention of high-risk sex offenders and high-risk violent offenders so as to ensure the safety and protection of the community." [8] Further, in s 9(2) the Act provides that "[i]n determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court."
7. These are matters to be considered at all stages of the process. It has been held that conditions of supervision orders are not restricted to conditions directly relating back to the previous offences committed by an offender. Rather, they must be designed to mitigate the risks that the Court identifies. This was made clear in the case of Wilde v State of New South Wales. [9] In that case, the Court (Beazley P; McColl and Ward JJA) said at [47] to [54]: Section 11 provides that the court may impose such conditions as it considers appropriate. The discretion is broad, but must be exercised having regard to the scope and purpose of the Act and its objects. The purpose and statutory objects of the Act are referred to above at [25]. The scope of the Act, so far as it is relevant to the making of an extended supervision order, is to be found in those provisions which govern the making and determination of an order, namely, s 9(3) and s 11. The matters specified in those sections are not exhaustive of the matters to which the court is to have regard or to which any condition imposed by the court must relate. Rather, as s 9(3) provides, the court must have regard to matters specified in the subsection "in addition to any other matter it considers relevant". Likewise, the conditions that may be imposed are not restricted to those that fall within the paragraphs of s 11. The statutory objects listed in s 3 are twofold: the safety and protection of the community and encouraging high risk offenders to undertake rehabilitation. However, it is apparent from the language of s 3 that the listed objects do not exhaustively delineate the scope and purposes of the Act. This is apparent, in particular, from the language of subs (2), which refers to encouraging rehabilitation as being "another object of this Act". Thus, whilst s 3(2) specifies that an object of the Act is to encourage offenders to undertake rehabilitation, the scope and purpose of the Act is such that it would be permissible for the court, if it considered it appropriate, to impose a condition directed to facilitating rehabilitation, even if that did not require the offender personally to "undertake" rehabilitative steps as is envisioned in the statutory object in s 3(2). It may be appropriate in a particular case to impose conditions that may reduce risk factors relevant to the particular type of offending to which the order made under s 11 relates. In the present case, the primary judge accepted, at [11], that although the discretion conferred by s 11 was a broad one, it had to be exercised in conformity with the legislative purpose. At [12], his Honour referred, it would appear with approval, to the propositions stated in Green set out above. His Honour also quoted the statements of Beech-Jones J in Fisk at [96] and [99], referred to above. At [14], his Honour accepted the appellant's submission that: "… the Court must be satisfied as to the appropriateness of any given condition in the context of mitigating the defendant's demonstrated risk of committing future serious sex offences, as opposed to simply being punitive." The correct test The State submitted that this statement is wrong in law and does not reflect the statutory test in s 11. Strictly, this matter should have been raised by a notice of contention. Nonetheless, it was fairly raised in the State's written submissions and it is necessary to deal with it. Care always needs to be taken with use of language which is different from the statutory text. Section 11 does not require that there must be a specific demonstrated link to the past offending which is the basis of the order made under the Act. Rather, the court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order. As the cases to which we have referred correctly state, it is not appropriate for the court under s 11 to impose conditions on a person directed to general future criminal conduct. But the condition does not have to have a 'demonstrated' link to the past offending in the sense submitted by the appellant. Conditions C(19) and E(30) provide a good example of conditions that may be appropriate notwithstanding that the past sex offences did not involve conduct of the type constrained by such conditions. Here, the appellant's serious sex offences had no connection with any association with an Outlaw Motorcycle Gang. Nonetheless, for the reasons we explain below, at [69]-[70], there was no error in his Honour imposing conditions prohibiting the appellant's association with such groups.
8. In Mr Single's case, the risk stated plainly is that he will offend in a sexual way against children. The risk arises from his past offending which involved coming into contact with children in his everyday life, either as neighbours or in his workplace, and by using the Internet to attempt to make contact with, groom, and ultimately meet a child with a view to having them engage in some form of sexual liaison with him. It is that primary risk, risks associated with it, and triggers that may increase the likelihood of the risk manifesting itself, that the conditions need to address. Even so, the conditions must be appropriate to address the identified risk and it is desirable that the least intrusive conditions are imposed to strike a balance between the personal liberty of the defendant (who has served the entirety of his sentence for past offences) and the community interests in the protection of children. [10]
9. As Fullerton J said in State of New South Wales v Bugmy: [11] The Court is entitled to expect that the conditions the plaintiff proposes that Mr Bugmy be subject to are drafted to address what are identified in the evidence as the risk factors to his further violent offending (State of New South Wales v Burns [2014] NSWSC 1014 at [59]). The conditions must not be unjustifiably onerous or simply punitive (see Wilde v State of NSW (2015) 249 A Crim R 65; [2015] NSWCA 28 at [45] citing RA Hulme J in State of New South Wales v Green (Final) [2013] NSWSC 1003). Neither may they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision under an extended supervision order.
10. In considering the arguments advanced by the parties as to the appropriate conditions in Mr Single's case, I have applied the principles explained in cases like Wilde, Lynn and Bugmy along with many other cases in which Judges of this Court and the Court of Appeal have analysed the legislation in fashioning appropriate orders to the circumstances of the individual cases. [12]
11. I turn now to the conditions which are in dispute between the parties. I will adopt the order in which counsel for the defendant approached the matter.

The principle of legality and proposed conditions 29, 30 and 31

1. The first dispute concerned the conditions sought by the plaintiff in conditions 29, 30 and 31. The proposed conditions are as follows: 29. If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to g below) is necessary: a. for the safety and welfare of residents or staff or persons present at the defendant's approved address; b. to monitor the defendant's compliance with this order; or c. because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence; then the DSO may direct, and the defendant must submit to: d. search and inspection of any part of, or any thing in, the defendant's approved address; e. search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant; f. search and inspection of any part of, or any thing in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or g. search and examination of his person. 30. For the purposes of the above condition: a. a search of the defendant means a garment search or a pat-down search. b. to the extent practicable a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO. NOTE: "Garment search" means 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. "Pat-down search" means a search of a person where the person's clothed body is touched. 31. During a search carried out pursuant to condition 29 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise: a. the safety of residents or of staff at the defendant's approved address; b. the welfare or safety of any member of the public or any other person; or c. the defendant's compliance with this order; or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence.
2. Mr Single submits that the "State is attempting impermissibly to utilise the conditions power in s 11 of the Act to graft on a power for individual corrective services officers when the Act does not provide such a basis and the Crimes (Administration of Sentences) Act 1999 ("the CAS Act") does not either". [13] On the hearing of the application, counsel relied on "the principle of legality" to submit that "if the legislature is to impinge upon an established right, then it has to do so with irresistible clarity." [14] It was submitted that the proposed conditions breach the principle of legality because they purported to provide a power of search and seizure to Corrective Services officers in circumstances where the law otherwise provides no such power or, where such a power exists, it is subject to significant limitations, restrictions and conditions designed to ensure that the search power is confined to appropriate circumstances and subject to some form of control.
3. It is the fact that many past orders under the legislation have included conditions in precisely the same or very similar terms. However, with one exception, it seems the question of the power of the Court to make such orders has not been challenged. Accordingly, the fact that similar orders have been made in past cases does not establish that the power was appropriately exercised.
4. The Act provides a list of the kinds of orders that can be made. Section 11 is in the following terms: 11 Conditions that may be imposed on supervision order (1) An extended supervision order or interim supervision order may direct an offender to comply with such conditions as the Supreme Court considers appropriate, including (but not limited to) directions requiring the offender: (a) to permit any corrective services officer to visit the offender at the offender's residential address at any time and, for that purpose, to enter the premises at that address, or (a1) to permit any corrective services officer to access any computer or related equipment that is at the offender's residential address or in the possession of the offender, or (b) to make periodic reports to a corrective services officer, or (c) to notify a corrective services officer of any change in his or her address, or (d) to participate in treatment and rehabilitation programs, or (e) to wear electronic monitoring equipment, or (ea) to reside at an address approved by the Commissioner of Corrective Services, or (f) not to reside in or resort to specified locations or classes of locations, or (g) not to associate or make contact with specified persons or classes of persons, or (h) not to engage in specified conduct or classes of conduct, or (i) not to engage in specified employment or classes of employment, or (j) not to change his or her name, or (k) to report to police and provide information to police about the conditions imposed on the extended supervision order or interim supervision order and the offender's residential address, or (l) to comply with any obligation that could be imposed on the offender under Part 3 of the Child Protection (Offenders Registration) Act 2000 if the offender were a registrable person within the meaning of that Act and were not the subject of an interim supervision order or an extended supervision order, or (m) to comply with specified requirements in connection with the offender's access to and use of the internet, or (n) to provide any corrective services officer with requested information in relation to any employment or any financial affairs of the offender.
5. It will be seen that there is no explicit power in s 11 for the Court to empower a corrective services officer (or anybody else) to conduct searches of the defendant's person or premises. However, the list of conditions in s 11 is specifically and, it must be assumed, deliberately a non-exhaustive one. The words in the chapeau of the provision - "including (but not limited to)" - mean that the Supreme Court has a broad power to impose conditions which mitigate the risks involved in the conditional release of an offender. Even so, the fact that the Court is entrusted with such a broad power does not mean that any condition is appropriate or that the Court can ignore fundamental freedoms such as the right of a citizen to be protected against arbitrary search and seizure of their person and private property.
6. As Allsop CJ said in Hands v Minister for Immigration and Border Protection, the exercise of a public power cannot be divorced "from what is being done to people". [15] In Hands, the Chief Justice was concerned with the exercise of executive power under the Migration Act 1958 (Cth). What the Chief Justice said about the principle of legality in that context was: [16] "Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament." (footnotes omitted)
7. In Secretary, Department of Family and Community Services v Hayward (a pseudonym), [17] the Court (Bathurst CJ, Beazley P, Basten, Gleeson & Payne JJA) made the following observations about the application and operation of the principle or requirement of legality: [25] … However, that principle [of legality] does not necessarily determine the outcome of an exercise in statutory interpretation once a condition of its engagement is satisfied. Nor does it displace other principles of statutory interpretation. Rather, being a requirement for a clear statement of intention, it will not contradict the natural and ordinary meaning of the text, nor justify disregarding otherwise relevant context, statutory history or extrinsic material. It may operate with varying force in different circumstances. … [30] In Electrolux Home Products Pty Ltd v Australian Workers' Union, Gleeson CJ justified the principle of legality as "a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted". The function and operation of the principle must be understood within the confines of general principles of statutory construction. Thus, in Project Blue Sky Inc v Australian Broadcasting Authority, the joint judgment stated: "[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed." [31] Consistently with this approach, and with the authorities referred to in the footnotes, "context" will always include established legal principles and rules. The presumptions underlying the principle of legality may thus operate as a qualification of the primary focus on the language of the statute. That does not mean that it is open to the court to disregard the ordinary and natural meaning of the language adopted by the Parliament, nor to impose limitations which the Parliament has addressed and rejected with sufficient clarity." (footnotes omitted)
8. A significant matter relied on by the State is the fact that under s 11(1)(l), conditions may be imposed requiring the offender to comply with conditions that could be imposed under the Registration Act. The Registration Act does include a power of search, but that power is subject to some limitations. Section 16C provides: 16C Entry by police officers to verify residence (1) One or more police officers may, without prior notice, enter and inspect any residential premises of a registrable person for the purpose of verifying any relevant personal information reported by the registrable person under section 9. Note : Safeguards relating to the exercise of power under this section are set out in Part 15 of the Law Enforcement (Powers and Responsibilities) Act 2002 . (2) The power of entry and inspection under this section may be exercised in respect of any particular residential premises of a registrable person: (a) twice during the first 12-month period following the making of an initial report by the registrable person under Division 2 (only one of which may be exercised after the period of 28 days following the making of that report), and (b) once during each following 12-month period. (3) A power may not be exercised under this section if the relevant reporting period of the registrable person has expired. (4) A registrable person must allow a police officer to enter and inspect any residential premises of the registrable person under this section and must co-operate with any such police officer with respect to that entry and inspection. (5) For the avoidance of doubt, an obligation imposed on a registrable person under subsection (4) is a reporting obligation of the registrable person. (6) A power is not exercisable under this section in respect of any part of residential premises that is occupied exclusively by a person other than the registrable person unless the police officer exercising the power has reasonable grounds for suspecting that the part of the premises is used by the registrable person. (7) In this section: "residential premises" of a registrable person means premises identified by the registrable person under section 9 (1) (d) as an address at which the registrable person generally resides.
9. Otherwise, and speaking generally, the powers of a police officer to search a citizen's person or home is limited to the circumstances provided for in Pts 4, 5 and 6 of the Law Enforcement (Powers and Responsibilities) Act 2002. These provisions are extensive and provide a variety of checks and balances against the misuse of the search and seizure power.
10. It will be seen that any power under the Registration Act includes a number of significant limitations. There is a limit on the number of searches that can be conducted (two searches in the first year that a person is registered and one in any subsequent year). The Registration Act also provides the power to a police officer, whereas the condition contended for here provides the power to corrective services employees who, subject to searching cells when an inmate is in prison, are not generally empowered to conduct searches on members of the community, parolees or those subject of an ESO. The parties took me to the provisions of the CAS Act and I have considered those provisions and the relevant regulations.
11. The plaintiff submits that the conditions concerning search and seizure is a necessary one in the present case. Further, the State submits that the conditions proposed do not in terms purport to empower a corrective services officer to conduct a search. Rather, it requires the offender to consent to a search. That may be seen as a fine or nuanced distinction but it is a real one. As counsel for the State pointed out, if such a condition is unsatisfactory to the defendant the alternative that could be pursued is an order for the defendant's continued detention under Part 3 of the Act. The State was not by this submission purporting to make a veiled threat. Rather, it was emphasising the fact that the Act does on its terms and in its application impose substantial restrictions on the freedoms and liberties of people subject to its scope.
12. Counsel for Mr Single stressed the importance that the common law of Australia has always placed on the right of citizens against arbitrary searches of their home and person. Many cases have emphasised the need for any search and seizure of a person's personal property to be justified, either by reference to specific statutory powers or pursuant to suspicions reasonably formed followed by a search lawfully executed. Counsel went so far as to submit that the common law of Australia provides a protection equal to that enjoyed by citizens of the United States who are protected by the terms of the Fourth Amendment to the United States Constitution: Article [IV] (Amendment 4 - Search and Seizure) The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
13. Reference was made to the decision of the High Court in George v Rockett. [18] I accept that the common law protects the citizenry against arbitrary search and seizure. Even so, the "principle of legality" must be applied by reference to the particular terms, purposes and objectives of the legislation under consideration. I agree with the defendant that it would be preferable if the legislature made clear the extent to which such conditions can be imposed. However, by the use of clearly non-exhaustive language in s 11 the legislature has provided to the Court a broad jurisdiction to impose conditions considered to be necessary and desirable to mitigate risk, in this case the risk that the offender may commit, or try to commit, serious sexual offences against children.
14. It is pertinent that the non-exhaustive list of conditions in s 11 includes conditions that require a defendant to permit a corrective services officer to enter their home and to access their computer. [19]
15. I alluded earlier to the fact that there appeared to be one previous case where a single judge of the Court was called upon to consider whether such orders could be made pursuant to the terms of s 11. In State of New South Wales v John Raymond Holschier, [20] Hidden J resolved the matter in favour of the State. His Honour said: [21] "Finally, Mr Scragg objected to conditions empowering the supervising officer to search the defendant's premises and his person if he or she believes that it is necessary for the safety and welfare of residents or staff at his premises, or to monitor his compliance with the order, or because the officer reasonably suspects him of behaviour carrying an increased risk of the commission of a serious violence offence. Mr Scragg referred to the variety of conditions which may be placed upon an extended supervision order in s 11 of the Crimes (High Risk Offenders) Act, noting that this power of search and seizure is not one of them. He argued that the defendant has a common law right not to be stopped and searched and, relying on the principle of legality, submitted that the Act had not provided to the contrary expressly or by necessary implication. However, as counsel for the State, Mr Hammond, pointed out, these conditions have frequently been imposed when orders are made under the Act. He noted that the list of conditions in s 11 is inclusive, and is expressed not to be exhaustive. He noted that many of the conditions imposed under an extended supervision order restrict a defendant from exercising rights he or she would otherwise have, in the interests of the protection of the community. I accept Mr Hammond's submission on this aspect, and I consider these conditions to be appropriate."
16. While s 11(1) has since been amended by the introduction of the additional sub paragraphs (k), (l), (m) and (n), the legislation was otherwise substantially the same. The addition of paragraph (l) is significant because it (in effect) imports the kinds of obligations and conditions that could be, or are, imposed under the Registration Act. Amendments made in 2017 emphasised that community safety is the paramount consideration in deciding whether to make an order. There is a helpful analysis of the 2017 amendments in the decision of N Adams J in State of New South Wales v Jones. [22]
17. Counsel for the defendant accepted that unless I considered this decision to be clearly wrong or distinguishable I should, in the interests of "comity", proceed along the same lines as that adopted by Hidden J. I think that is a fair and appropriate concession and I do not think the 2017 amendments or the addition of paragraphs (k), (l), (m) and (n) to s 11(1) affects any relevant change to the scope and meaning of the condition.
18. Counsel for the State emphasised the need for such conditions and the identifiable risks against which those conditions will serve the order's protective purpose. They will ensure that other conditions to which Mr Single takes no objection are able to be enforced. For example, there is little point in conditions restricting the number of electronic or communication devices to which he is to have access if there is no way of checking whether he has other devices inside his home. It will enable those administering the order to check that Mr Single is not in possession of items (such as hard copy child pornography or literature) that might lead, tempt or trigger him to re-offend.
19. I have concluded that the principle of legality does not operate to prohibit the imposition of conditions of the kind sought by the State. It will be a matter for Mr Single whether he is prepared to accept conditions which require him to consent to occasional searches of his person and home. Nevertheless, in exercising this power and in formulating the appropriate conditions, it is important to bear in mind the common law's zealous protection of the citizenry against arbitrary search and seizure, the absence of any specific power under s 11, the kinds of limitations that exist in other statutory contexts including the Registration Act, and the practical impact of the imposition of such conditions or as Allsop CJ put it, "what is being done to people".
20. The conditions requiring Mr Single to consent to occasional searches and seizure should also take into account other conditions to be imposed that require him to consent to searches of some of his personal property. He consents to most of these. For example, condition 27 requires the defendant to allow his telephone and/or internet service provider to share information about his accounts with the DSO. Condition 28 requires him to provide a list of communication and data storage devices, and condition 32 requires that he "must allow CSNSW to search any 'phone, tablet device, data storage device or computer that he may use."
21. I propose to make an order requiring that Mr Single consent to search and seizure from time to time. However, I intend to fashion conditions so that the power is less open-ended than the conditions formulated and proposed by the State. While I am not constrained by the terms of the search power contained in s 16C of the Registration Act, I have considered the terms of that provision in formulating the conditions that will attach to the ESO.
22. I repeat that it would be helpful if the legislature were to clarify whether such conditions are contemplated by the Act by amending s 11 to include (or exclude) such a power. I would only add that there is considerable force in the submissions made on this issue by Mr Beckett who appeared for Mr Single on the final hearing.

Do conditions 15, 18 and 20 constitute an improper delegation of the Court's power?

1. The next broad area of dispute between the parties concerns proposed conditions 15, 18 and 20. The defendant submits that these conditions constitute an improper delegation of the powers vesting in the Court pursuant to the Act and in particular pursuant to s 11. As has been seen, that section enumerates in a non-exhaustive way the kinds of conditions that can be imposed.
2. The conditions proposed by the State are as follows: 15. The defendant must not go to a place if his DSO tells him he cannot go there. 18. The defendant must not start any job, volunteer work or educational course without the approval of his DSO. 20. The defendant must not associate with people that his DSO tells him not to.
3. Condition 15, requiring the defendant not to go to any place forbidden by the DSO, is said to constitute an inappropriate delegation of the Court's power in s 11(1)(f) to order the defendant "not to reside in or resort to specified locations or classes of locations".
4. Condition 18 restricting the defendant's participation in work and education is said to involve an improper delegation of the Court's power in sub-ss (1)(h) and (1)(i) to order him "not to engage in specified conduct or specified employment or classes of employment".
5. Condition 20 is said to be an improper delegation of the type of conditions contemplated under s 11(1)(g) requiring the offender "not to associate or make contact with specified persons or classes of persons".
6. While I accept that the legislation allows the Court to make specific orders in relation to each of these subject matters, and the Act does not provide for the delegation of the powers vesting in the Court, acceptance of the defendant's position has the potential to render the Act practically inoperable. Orders of this kind are often of a significant duration, more often than not 3 to 5 years. At the time of the hearing of the application, it is impossible for the Court to predict the types of employment opportunities or educational opportunities that the defendant may encounter in his first few years out of custody. Similarly, the Court will not know the people with whom he may choose or seek to associate with or the places he may want to go.
7. A condition accepted by the defendant requires him to provide the DSO with a weekly plan of his movements. No objection is taken to this condition and it includes a condition that Mr Single must not deviate from the schedule without approval (of the DSO) except in the case of an emergency. It will be seen that this condition essentially covers the matters referred to in the condition said to be an inappropriate delegation of the Court's power. The clear purpose of these conditions is to ensure that the defendant is not again in a position where he may come into contact with children.
8. It is appropriate that the conditions be modified to ensure that any power exercised by the DSO pursuant to the conditions is directed to the particular risk or risks that I have identified. Provided such modifications are made, I am satisfied that these conditions do not represent an inappropriate delegation of the power in s 11 to fashion conditions that are appropriate to the case and the non-exhaustive list provided therein.
9. I propose to include conditions which require the defendant to comply with the DSO's directions as to his employment, education, location, and the people with whom he associates, but I propose to do so in terms somewhat different to that proposed by the State. The conditions I will impose under the ESO are calculated to ensure that the defendant retains some freedom of movement and association, while ensuring that that freedom does not prejudice the safety and security of the community, and in particular its children. They will also ensure that the powers are not exercised capriciously by those administering the order and supervising the defendant.

Other conditions subject of dispute

1. The defendant submits that some of the conditions proposed in the summons are too onerous and/or do not mitigate the risk identified in his particular case.

Electronic monitoring

1. The most fundamental of these, and the condition to which the defendant takes the strongest objection, is the condition requiring him to wear an electronic monitor. This is condition 4 of the conditions proposed by the State in the amended summons.
2. The defendant relies on the opinion of Ms Wyzenbeek who says that a condition requiring electronic monitoring is "not indicated on the basis of Mr Single's modus operandi." I assume this is because the risk of Mr Single re-offending arises out of him meeting children (in his work place, in his local neighbourhood, or online) and tracing his movements will not mitigate this risk. On the other hand, Dr Furst agrees with all of the conditions proposed by the State. Dr Furst does not specifically address the condition involving electronic monitoring.
3. I accept the defendant's submission that this is a particularly onerous condition. Even so, it is a condition commonly imposed and one that is particularly important to those administering the order to ensure the defendant is complying with directions concerning their movements. In view of the history of lapses in compliance evident in the material, and balanced against Mr Single's general compliance while he was in custody, I propose to direct Mr Single to comply with the electronic monitoring condition for a period of six months. If he does not breach the order during the first six months, the requirement for electronic monitoring will lapse. However, if there is any breach during the currency of the ESO, the electronic monitoring will continue or be re-instated. This will provide incentive to Mr Single to comply with the conditions of the order and will also allow a short period when he is first released to enable him to develop his routines. The condition for electronic monitoring proposed by the State will be modified accordingly.

Other conditions

1. It is unnecessary to go through each and every condition in relation to which the parties were in dispute at the hearing. Counsel for Mr Single provided a helpful chart setting out the conditions to which objection was taken and the basis of the objection. In some instances, the objection was withdrawn and in others the Crown made amendments to the proposed conditions. In many cases where a condition remained in dispute, the position of the parties was not far apart and the defendant sought a relatively small modification or amendment to the condition.
2. I have determined to make certain changes to the conditions proposed in the amended summons. I have not adopted all of the amendments suggested by Mr Single. The changes will be apparent from the orders I am about to make. In view of the urgency and limited time available to prepare this judgment, I will not provide detailed reasons for the precise content of the amended conditions save as to say they have been fashioned in an attempt to give some effect to the secondary object of the Act (attempting to foster Mr Single's rehabilitation) while recalling the particular risks in the present case and that the primary objective of the Act is to protect the community from further offences.
3. For the foregoing reasons, I make the following orders: 1. Pursuant to s 5B and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) the defendant is subject to an extended supervision order for a period of 3 years commencing on 5 March 2019. 2. Pursuant to s 11(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is to comply with the conditions set out in the schedule of conditions attached to this order for the period of the order. 3. Access to the Court's file is restricted such that access will be permitted to a non-party only with the leave of a judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.

Endnotes

1. Defendant's written submissions ('DWS') at [5].
2. For example, see the cases cited below in footnotes 3, 4, 5, 6, 7, 9, 10, 11, 12, 20 and 22.
3. State of New South Wales v Holsheir (No 2) [2018] NSWSC 1921 at [24].
4. State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [46].
5. See Lynn v State of New South Wales [2016] NSWCA 57 at [50].
6. Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21].
7. State of New South Wales v Donovan [2015] NSWSC 1254 at [2].
8. Crimes (High Risk Offenders) Act 2006, s 3(1).
9. Wilde v State of New South Wales [2015] NSWCA 28.
10. See the observations of the Court of Appeal in Lynn v State of New South Wales [2016] NSWCA 57 at [129] - [130].
11. State of New South Wales v Bugmy [2017] NSWSC 855 at [89].
12. See, for example, State of New South Wales v Loto [2018] NSWSC 1522; State of New South Wales v Donovan [2015] NSWSC 1254 (upheld on appeal in State of New South Wales v Donovan [2015] NSWCA 280); State of New South Wales v Carr [2014] NSWSC 1348; State of New South Wales v Thurston [2018] NSWSC 421; Anderson v State of New South Wales [2016] NSWCA 86.
13. DWS at [77].
14. Transcript (T) at 37.
15. Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3].
16. Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3].
17. Secretary, Department of Family and Community Services v Hayward (a pseudonym) [2018] NSWCA 209.
18. George v Rockett (1990) 170 CLR 104; [1990] HCA 26, particularly at 110 - 111.
19. Section 11(1)(a) and (b).
20. State of New South Wales v John Raymond Holschier [2016] NSWSC 234.
21. State of New South Wales v John Raymond Holschier [2016] NSWSC 234 at [42].
22. State of New South Wales v Jones [2018] NSWSC 459 at [15]-[31]. 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: 01 March 2019