State of New South Wales v Stone

Facts and matters agreed

1. Commendably and in accordance with cl 26(i) of Supreme Court Practice Note SC CL 12, the parties produced a Joint Statement of Agreed Facts for the purposes of the final hearing. In all the circumstances, I was satisfied that it was appropriate to accept the facts and matters agreed between the parties. In addition to the agreed facts, there was also before the Court significant further information derived from a number of sources many of which fall within the types of matters described in s 9(3) of the CHRO Act, including the sentencing judgments of the judges who sentenced the defendant for his offending in 1990 and 1998. My findings based on the facts and matters agreed and that other information are as set out in the paragraphs which follow.

Defendant's background

1. The defendant was born on 19 April 1959 and is presently aged 64 years. He has no dependents. His background and circumstances were shortly summarised by Grove J in his sentencing judgment, R v Stone [2004] NSWSC 224; 144 A Crim R 568, as follows: "39 … His early life was markedly disadvantaged. At about the age of three he was made a ward of the State and thereafter resided in homes and a foster home. He never again saw his natural parents. He had some contact with a brother. At various times when he was housed in what appear to have been institutions of sorts he suffered beatings, punishment by being deprived of food and was subjected himself to sexual abuse. 40 From his mid teens he embarked upon criminal behaviour eventually accumulating what he accepted in his own testimony was 'a lengthy criminal record'. He developed a drug habit and appears to have been an undiscriminating user of a wide range of substances. The effect of the oxblood [methylamphetamine] was magnified by his practice of injecting it intravenously."

The index offending

1. On 15 May 1990, the defendant was released to parole after serving a sentence and was residing with his then partner at Glenfield.
2. On 9 July 1990 while still on parole, the defendant used methylamphetamine taking it in capsule form and continuing until he took the last capsule at about 8 am on 10 July 1990. After consuming the drug, the defendant went to a hotel where he consumed bourbon whiskey. There, he described being attacked by a stranger. While trying to escape from someone by whom he believed he was being pursued, the defendant forced his way into the unit of the victim, a young mother who was a complete stranger to the defendant.
3. After he forcibly entered the unit, he harboured at some point an intention to assault the victim sexually and may have been frustrated by reason of his incapacity to do so because of his state of intoxication. After all of her clothing had been removed, he tied the victim in a spread-eagle fashion on a bed using stockings and football socks. There, the defendant strangled the young woman. Violence was visited upon the victim not only in the fatal attack but additionally as evidenced by the bruising found at post mortem both to her face and from the ties upon her wrists and ankles as well as the stripping of her clothing. The sentencing judge said it was something of an understatement to say that the murder of the young woman in the circumstances involved "gratuitous cruelty". After the killing, the defendant stole money from the victim's purse, took her car keys and fled the scene.
4. The sentencing judge said, at [52], that he found the dangerousness of the defendant troubling. The evidence of Dr Allnut that the defendant represented a high risk of reoffending in a violent way and in a sexual way was accepted but it was noted that the doctor was of the view that the passage of time could ameliorate the risk.
5. The defendant's involvement in this crime was not detected for another 13 years.

The 1998 offending

1. In early 1997, the defendant, whilst living in Tasmania, suffered a stroke. The stroke left him partially paralysed in his left leg and arm. He was, however, subsequently able to move to Sydney with his partner at that time where he lived with her and her adult daughter.
2. On 12 March 1998, the defendant whilst affected by alcohol picked up his partner's adult daughter at her request from an hotel after her theatre rehearsal. Shortly after getting into the vehicle with the defendant, the daughter was able to smell alcohol and he appeared affected.
3. After she arrived home, the victim had a bath and was in her bedroom preparing to go out again. The defendant entered the room and grabbed her around the neck and threatened her with a knife saying he would kill her if she screamed. She pleaded with him not to hurt her. The defendant dragged the victim to the bedroom he shared with her mother still holding the knife at her throat. With much effort, the defendant forced the victim onto the bed where he tried to tie her left wrist with a stocking he had tied to the bedpost. There was a stocking tied to each of the four bedposts where the defendant had intended to tie her down. He said to her "I have killed before, you know I will kill again, I have fancied you, do exactly as I say". After a further struggle, the victim was eventually able to grab the knife suffering a small cut to her right finger as she did so. She got off the bed and ran from the apartment. The defendant was arrested in the early hours of the following morning, but fell asleep during the interview at the police station due to his intoxicated state.
4. For this offence, the defendant pleaded guilty on 28 October 1998 and was sentenced by Luland DCJ on 30 October 1998 to 5 years' imprisonment, with non-parole period of 3 years. While in custody in 1998, the defendant suffered a significant head injury when assaulted and he began experiencing regular seizures following this injury.
5. On 23 October 2001, the defendant was released from custody and on 23 January 2003, whilst residing in Tasmania, he was arrested for the index offence of murder after DNA testing established a matching profile with a DNA sample provided by the defendant with the blood sample obtained from the scene of the index offence.
6. On 5 March 2004, the defendant entered a plea of guilty to the murder committed in 1990. Grove J sentenced him, on 30 March 2004, to 21 years' imprisonment commencing on 21 January 2003, with a non-parole period of 15 years and 9 months.
7. The non-parole period for the index offence of murder expired on 20 October 2018.

Program participation

1. The defendant participated in and completed the following programs while in custody: 1. 1999 - SORT Sex offender program (10 weeks); 2. 2009 - PREP program; 3. 2014 - Getting Smart and KIROS Christian Program; 4. 2017 - EQUIPS Aggression (20 sessions); 5. 2017 - EQUIPS Addiction (20 sessions); 6. 2020 - Drivers Knowledge Test; and 7. 2020 - High Intensity Sex Offenders Program (from 26 June 2019 to 29 October 2020).

Conduct while on parole

1. The defendant was released to parole on 11 February 2022. Since that time, there have been instances where he deviated from his approved activity and there have also been breaches of supervision conditions involving, inter alia, consumption of alcohol, use of prohibited drugs (cannabis and methamphetamines) and multiple deviations from his electronic monitoring schedule. The breach of parole report dated 7 July 2023 referred to examples of such problems. That report also contained the following significant commentary under the heading "Relationship between alleged breach and risk factors": "The identified risk factors for [the defendant] are aggression, sex offending, violence, and drugs. [The defendant] has lapsed into the use of methamphetamines. This appears to have attributed [sic] to threats being made to harm persons in the community utilising violence, drugs and aggression. Furthermore, FPS [Forensic Psychology Services] practitioners have suggested his current acute risk factors include, substance use, unstable housing, antisocial peers, concealing behaviour from supervision as well as verbal threats. Of note, FPS have further outlined that there is significant acute risk, and [the defendant] has demonstrated the inability to safely manage this currently."

Risk Assessment Reports

1. On 27 June 2023, Dr Richard Parker, psychologist, prepared a Risk Assessment Report (RAR) pursuant to s 6(3)(b) of the CHRO Act. Dr Parker prepared his report on the papers and reported the following risk assessment results for various risk assessment tools (which are explained in more detail below in relation to the evidence of Dr Dayalan and DR Davis) as follows: 1. LSI-R: medium/high; 2. Static-99R: average; 3. STABLE-2007: high; 4. STABLE-2007 combined with STATIC-99R: above average; and 5. VRAG: higher than 99% of the construction sample - ninth of nine bins.
2. On 3 August 2023, Dr Parker provided a Supplementary RAR. Dr Parker did not rescore any of the risk assessment instruments.

Risk Management Report

1. On 20 July 2023, Antonios Koklas, Community Corrections Officer, prepared a risk management report pursuant to s 9(3)(d1) of the CHRO Act. The report detailed the conditions recommended by Community Corrections to be imposed on any ESO. These proposed conditions and the explanation for their inclusion were essentially consistent with the conditions which I decided should be imposed.

Physiotherapist Report - Defendant's physical mobility

1. On 5 March 2024, Ms Elizabeth Shannon, Consultant Physiotherapist, prepared a report following her assessment of the defendant's level of physical mobility/capacity. Ms Shannon assessed the defendant in person at the Integrated Support Centre (ISC), Campbelltown, on 19 February 2024. Ms Shannon opined that: 1. his physical impairments include left sided muscle weakness, reduced motor control (speed and coordination of movement) and muscle spasticity; 2. he walks with a wide base of support. He is a medium risk of falls and has reduced mobility measurements when walking requiring supervision for higher mobility tasks such as negotiating stairs and outdoor mobility tasks on uneven surfaces (grass and slopes); 3. he cannot lift and carry something heavier than 1kg with his left hand and has significantly reduced dexterity/coordination of the left hand. He cannot lift heavy objects from the floor while sitting; 4. he has full active and passive range of motion of his right upper limb and normal dexterity/coordination of his dominant right upper limb; 5. his walking is slow and limited to 100m before he requires a rest. He is limited to walking 200 metres outdoors; 6. he is unable to stand in tandem stance or single leg stance without loss of balance; 7. after a fall, he needs the help of a person and a piece of furniture to get up off the floor; and 8. he received the following scores: 1. Berg Balance Scale - Score 32/56. 2. Six Minute Walk Test - Distance: 210 metres. This is significantly less than the distance compared to normal healthy males of similar age. 3. Timed Up and Go - Time: 19.6 seconds. He takes significantly longer to perform the task compared with community dwelling independently ambulant men of similar age.

Expert Report of Dr Dayalan

1. On 30 December 2023, Dr Sathish Dayalan furnished a report in relation to the defendant to the Court. Dr Dayalan interviewed the defendant via AVL on 8 December 2023. Dr Dayalan opined that: 1. the defendant suffers from complex post-traumatic stress disorder ("PTSD"), or possibly borderline personality disorder; 2. fulfils the criteria for antisocial personality disorder; and 3. has a history of substance use disorder.
2. Dr Dayalan conducted a risk assessment using a number of risk assessment tools. He noted the inherent challenges in predicting the probability of a specific event occurring in the future despite the use of validated risk assessment tools, and opined these tools are best used to identify risk factors and form a professional opinion on risk management. They were: 1. STATIC-99R - an actuarial tool that measures risk of sexual reoffending relative to other sex offenders based on 10 static factors only. Mr Stone's score placed him in the average risk level. 2. STABLE-2007 - a structured professional judgment tool used to identify dynamic risk factors associate with sexual reoffending. Mr Stone had a high level of stable dynamic risks and needs. 3. HCR-20 V3 - a structured clinical judgment tool widely used in forensic psychiatry to assess and manage risk of violence in psychiatric patients. Mr Stone had a high loading of historical risk factors, a moderate to high loading of dynamic risk factors, and a high loading of risk management variables. 4. VRAG - an actuarial tool that places individuals into risk categories based on the presence of factors that correlate with the risk of violent behaviour. Mr Stone's score placed him in the high risk category.
3. Dr Dayalan further opined: 1. the defendant poses a risk of committing a serious offence (sexual and violent) (and the parties agreed that this was as defined by the CHRO Act); 2. the defendant requires comprehensive treatment and rehabilitation and active supervision to manage his risk of committing a serious sexual/violent offence; 3. the risk factors identified cannot be managed in the community unless he is subject to an ESO; 4. the conditions are restrictive in nature and will impede rehabilitation by limiting opportunities for the individual to make informed choices, however they do serve the purpose of managing risks which needs to be balanced against the rehabilitation needs; 5. the defendant will require a lot of support in the community given the extent of his physical disability, psychiatric conditions and degree of institutionalisation, but he was likely overwhelmed by travel requirements to attend appointments when previously receiving support from numerous agencies, and assistance with travel and reminders of his obligations under the ESO would improve his prospects of remaining in the community; and 6. an ESO for a period of three years would allow for completion of recommended treatment and rehabilitation programs, followed by graded reduction in conditions so he will have minimal conditions when the order comes to an end.

Expert Report of Dr Davis

1. On 9 January 2024, Dr Michael Davis furnished a report in relation to the defendant to the Court. As the defendant initially refused to be interviewed, Dr Davis prepared the report on the papers. The defendant subsequently agreed to be interviewed by Dr Davis and he furnished a further report (intended to replace his earlier report) on 21 March 2024. Dr Davis assessed the defendant using the following instruments: 1. Neuropsychiatry Unit Cognitive Assessment Tool (NUCOG): a screening tool that provides an overview of cognitive function across five major domains, but is not a substitute for comprehensive neuropsychological evaluation. The defendant returned results that were at least three standard deviations below the average on all five domains, with lowest scores in memory and executive functioning. 2. Paulhus Deception Scales (PDS): a self-report instrument that measures the tendency to give socially desirable responses to assess the validity of the results of self-report based assessments. The defendant's responses revealed elements of both impression management and "non-effortful positive distortion in the form of self-deception". These results are usually found in individuals who are aware of their shortcomings but who want to appear publicly acceptable. The impression management result was unusually elevated. 3. Personality Assessment Inventory: a self-report questionnaire that reliably measures personality functioning and the presence of psychiatric symptoms. His responses in regard to impression management are associated with a "cry for help", or an extremely negative evaluation of oneself and one's life. Substantively, Mr Stone's profile showed significant elevations across several scales, usually associated with marked distress and severe impairment in function. The results are thoroughly explored at paragraphs [170]-[187] of the report, but in summary they suggested he experiences considerable inner turmoil, prominent difficulties with personality functioning and a range of clinical concerns, which (allowing for distortion by impression management) included poor interpersonal rapport, substance dependence, unsupportive family or friends, hostility and bitterness, tension and apprehension, disruptions in thought process, feelings of helplessness, physical signs of depression, compulsiveness or rigidity, poor control over anger and a history of antisocial behaviour. 4. Trauma Symptom Inventory: a self-report questionnaire that reliably measures trauma-related symptoms and behaviours across four domains, and was administered to ascertain the extent and degree of any post-traumatic stress Mr Stone may have experienced in the past six months. The defendant had elevated scores on all four domains. The results of this assessment are explored in detail at [192]-[204], but in summary found Mr Stone has a considerable number of difficulties associated with post-traumatic symptoms, largely consistent with the results of the PAI. 5. Sexual Sadism Scale: there was no evidence or at best weak evidence of sexual sadism. Mental state examination did not reveal delusions or other psychotic symptoms.
2. Dr Davis also administered a number of risk assessment tests, as follows: 1. Hare Psychopathy Checklist-Revised (PCL-R): this test was administered as Dr Davis was of the view that a diagnosis of anti-social personality disorder was not particularly informative or helpful due to its prevalence among inmates. It reliably identifies traits of psychopathology. Mr Stone's score on the PCL-R is in the high range, however analysis revealed more of the behavioural than the personality features. Mr Stone's highest score was in the antisocial facet. The results of the PCL-R indicate that Mr Stone has a large number of antisocial behavioural features that reflect his diagnosis of antisocial personality disorder. Dr Davis concludes that while Mr Stone has some problematic personality features, he is not "overwhelmingly psychopathic" and has far more antisocial behavioural features. Nonetheless, the elevated total score is still associated with an increased risk for offending in general. 2. Level of Service/Risk, Need, Responsivity (LS/RNR): a standardised offender classification scale that covers the majority of the best-established predictors of general criminal conduct across eight broad domains. Mr Stone's score on this instrument was in the upper end of the "high" range of risk and need, with the following five areas identified as "high" or "very high" needs: antisocial pattern; family/marital; criminal history; companions; and alcohol/drug problem. In addition, leisure/recreation and pro-criminal attitude/orientation were identified as areas of "medium" needs. The elevated total number of risk factors indicates that Mr Stone currently poses a high risk for general criminal recidivism until he can demonstrate a reasonable period of behavioural stability in the community that is not accompanied by chronic substance misuse. Further, the identified areas of need represent treatment and management targets that may assist in reducing Mr Stone's risk of recidivism. 3. Risk Matrix 2000/V: a brief statistically-derived risk classification instrument designed to assess the risk of sexual and violent recidivism. Mr Stone had evidence of two of the three static items (violent court appearances and burglary offences). This placed Mr Stone into the "above average" risk category, which is the second highest of four risk categories. 4. Violence Risk Appraisal Guide - Revised (VRAG-R): an actuarial assessment designed to assess the risk of violent (including sexual) recidivism with reference to static risk factors. Mr Stone's score of 32.32 placed him in the highest of nine categories, indicating that he has a considerably elevated number of static risk factors for violence. 5. HCR-20: a structured professional judgment tool covering risk factors related to general violence, and is among the most accurate methods for assessing risk of violence. Dr Davis noted the difficulty in assessing Mr Stone's risk of violent reoffending with regard to the historical nature of his offending. Mr Stone had evidence of 9 out of the 10 historical risk factors, suggesting an elevated risk for violence. In terms of dynamic factors, the following clinical factors were identified: recent problems with violent ideation or intent; instability; and, treatment or supervision response. There was also partial evidence of insight and symptoms of major mental disorder. Mr Stone was determined to be at high risk of verbal violence, but a moderate risk for physical violence, although that assessment appeared to be equivocal. The following risk management factors were identified (as coded on the basis that Mr Stone was residing in the community and not subject to an extended supervision order): future problems with living situation; personal support; treatment or supervision response; and stress or coping. There was also partial evidence of the remaining item of professional services and plans. 6. STATIC-99R: an actuarial tool that assesses the risk of sexual recidivism. Dr Davis notes that this instrument is of limited utility in the present case, given the historical nature of the offending. The way in which the STATIC-99 is scored provides a "baseline estimate" of what Mr Stone's risk would have been in October 2001 and Dr Davis cautions that there would be very little weight that could be placed on such an estimate. Mr Stone scored 5 on this instrument, which is considered to fall in the moderate-high risk category relative to other male sexual offenders. It is noted that advanced age is generally deemed to be a protective factor using the STATIC-99, however due to the "quirks" of the coding rules, it is not taken into account in the present case, nor are the mobility issues or the time spent in the community without further criminal charges. 7. Risk Matrix 2000/S (RM2000): a brief actuarial risk classification instrument designed to assess sexual recidivism. Mr Stone had evidence of one of the risk factors in step one of the instrument (large number of criminal court appearances). The remaining two items did not apply (young age or a large number of sexual court appearances). One aggravating factor (stranger victim) was also identified. This placed Mr. Stone into an initial risk category of "average" risk, which is the second of the four risk categories on the RM2000/S. However, taking Mr Stone's advanced age into account as a protective factor reduces the risk level such that Mr Stone falls into the "below average" risk category on this instrument. 8. Risk of Sexual Violence Protocol - Version 2 (RSVP-V2): a structured professional judgment tool for assessing risk of sexual recidivism that considers both static and dynamic risk factors. A number of past and present dynamic risk factors were identified in relation to Mr Stone, and there were some cautiously positive indications of improved attitudes to sexual offending, insight, and mental state in recent years.
3. Dr Davis described the defendant as a "diagnostically complex" man. He considered that the defendant had depressive episodes with anxious distress, panic disorder, PTSD, antisocial personality disorder, borderline personality disorder, neurocognitive disorder, and somatic symptom disorder. While he had childhood episodes of voyeurism and fetishism, he did not meet the criteria for a paraphilia.
4. Ultimately, Dr Davis considered that the defendant's two sexual offences were an amalgam of opportunistic, pervasively angry and vindictive motivations, in the context of methylamphetamine and/or alcohol use, lowering already impoverished inhibitions and compromised ability to tolerate anger, frustration and perceived disrespect. He considered that alcohol or methylamphetamine use created situations where aggression, violence, and sexual violence were arguably more likely to occur.
5. Dr Davis considered that: 1. the defendant posed a moderate risk for sexual recidivism and violent recidivism. Dr Davis noted that the overall degree of case prioritisation required for risk of sexual recidivism was moderate to high because of the continued methylamphetamine use; 2. the defendant currently posed a high risk for verbal violence in the form of making threatening statements, but a moderate risk for physical violence (i.e., comparable to that of the average violent offender). Dr Davis observes that the defendant's physical health issues would appear to reduce the risk of future violence to some degree, and whilst consideration was given as to whether the risk of physical violence would be at a low to moderate level, the defendant's ongoing periodic use of methylamphetamine and his recent experiences of anger, suggest that some degree of risk remains; 3. the defendant poses a moderate risk of sexual recidivism; 4. the overall degree of case prioritisation required for risk of sexual recidivism was moderate to high because of the defendant's continued methylamphetamine use; 5. the imposition of the ESO will not necessarily lower the defendant's risk immediately but may serve to contain it by providing much needed support and appropriate housing, addressing methylamphetamine misuse and other risk factors; and 6. an ESO of two to three years to allow the defendant to demonstrate stability in the community that would lower their assessed risk of recidivism. A three-year ESO could potentially provide the defendant with enough time to demonstrate the behavioural and social stability necessary to reduce his risk for violent and sexual recidivism.
6. In light of the evidence as a whole and in particular the matters referred to above and below when dealing with specific issues, I now turn to consider the relevant statutory provisions, whether an ESO should be imposed and, if an ESO is imposed, the appropriate conditions with which the defendant should be directed to comply.

Relevant statutory provisions

1. In the present case, the parties accepted that: the defendant was a "supervised offender" within the meaning of s 5I of the CHRO Act; the prerequisites in s 5B(a), (b) and (c) of that Act were satisfied; and, the requirements of ss 5H, 5I, 6 and 7 had been complied with. I am satisfied that this acceptance was well founded, particularly in light of the circumstances referred to above.
2. As to the making of an ESO in those circumstances, ss 5B and 5D relevantly provide: "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: … (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." … 5D Determination of risk For the purposes of this Part, the Supreme Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence."
3. The Court's determination of the application for an ESO is to be made in light of the objects of the CHRO Act found in s 3 and is more specifically governed by s 9 of the Act. Section 3 is as follows: "3 Objects of Act (1) The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community. (2) Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation."
4. Section 9 provides: "9 Determination of application for extended supervision order (1) The Supreme Court may determine an application for an extended supervision order: (a) by making an extended supervision order, or (b) by dismissing the application. (2) In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court. (2A) (Repealed) (3) In determining whether or not to make an extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant: (a) (Repealed) (b) the reports received from the persons appointed under section 7 (4) to conduct examinations of the offender, and the level of the offender's participation in any such examination, (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, (e1) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time, (e2) the likelihood that the offender will comply with the obligations of an extended supervision order, (f) without limiting paragraph (e2), the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order, (g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004, (h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will commit a further serious offence. (4) In determining whether or not to make an extended supervision order in respect of an offender, the Supreme Court is not to consider any intention of the offender to leave New South Wales (whether permanently or temporarily)."
5. Furthermore, the term of an ESO is to be set in accordance with s 10 which relevantly provides: "10 Term of extended supervision order (1) An extended supervision order commences when it is made, or when the offender's current custody or supervision expires, whichever is the later. … (1A) An extended supervision order expires at the end of - (a) such period (not exceeding 5 years from the day on which it commences) as is specified in the order, or (b) if the order is suspended for any period, the period specified in paragraph (a) plus each period during which the order is suspended. …".
6. In the present case, the defendant did not wish to be heard in opposition to the making of an ESO but submitted that such an order should be made for only two years rather than three years as sought by the State.

Should an ESO be imposed?

1. In determining whether I was satisfied to a high degree of probability that the defendant posed an unacceptable risk of committing another serious offence if not kept under the supervision of an ESO, and whether to make such an order, I had regard to the safety of the community as the paramount consideration in accordance with s 9(2), the matters identified in the relevant paragraphs of s 9(3) of the CHRO Act and to the relevant provisions of the CHRO Act including those identified above and the two objects of that Act stated in s 3.
2. Since there was no dispute as to the appropriateness of the imposition of an ESO, I shall not refer in detail to all of the material I have considered. It is sufficient to note what has been set out above and below, the information and background provided in the reasons of Fagan J (which should be read in conjunction with these reasons) and the more detailed information provided in the reports of Dr Dayalan and Dr Davis, which are the reports referred to in par (b) of s 9(3) of the CHRO Act. Their evidence was, in my view, consistent and not challenged to any significant extent and I accepted it in whole. The most pertinent other material referred to in pars (d) to (i) of s 9(3) was adequately covered in the material I have already referred to and the parties did not draw my attention to anything that was inconsistent with the views of Dr Dayalan or Dr Davis in that material. In addition, I did not discern that any of that material called into question in any way the opinions of those experts. In short, it is a fair summary of the situation to say that, in substance, that other material supported the making of an ESO in the defendant's case.
3. Consequently: 1. I accept that the preconditions in s 5B(a), (b) and (c) and the requirements in s 5H, 5I, 6 and 7 of the CHRO Act were met in this case; and 2. I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO.
4. In the absence of opposition and in all the circumstances, it is in my view appropriate to make an ESO.

Duration of ESO

1. As has been noted above, the parties were not in agreement as to the duration of the ESO, with the State seeking a three-year order and the defendant contending that the order should be for two years.
2. The defendant submitted that he "has achieved some level of stability in the community" and noted that he had a number of service providers providing substantial support and that his physical mobility and health were only likely to worsen with time. It was then submitted that: "[i]n these circumstances, having regard to the general principle favouring the least intrusive outcome and the unrestricted ability for the plaintiff to bring a further application, a shorter time of two years ought to be preferred in this case."
3. In light of the evidence and in all of the circumstances, it did not appear to me that the defendant's submission should be accepted.
4. Dr Dayalan's opinion in par 179 of his report was that: "[a] period of three years would allow for completion of recommended treatment and rehabilitation programs followed by graded reduction in the conditions so Mr Stone will have minimal conditions when the order comes to an end".
5. Dr Dayalan did not suggest that a shorter period than three years would be adequate. His approach appears to me to give appropriate weight to both ensuring the safety and protection of the community and encouraging the defendant to undertake effective rehabilitation.
6. In his report, Dr Davis expressed his opinion in relation to the duration of an ESO at pars 323-324, including the following: "it is difficult to determine how long it will take for Mr Stone to prove that his risk has reduced. From a forensic assessment perspective, one would wish to see him demonstrate a reasonable period of behavioural stability in the community, particularly in regard to abstinence from methylamphetamine use, before his various risks could be viewed as having reduced from their current levels. In fact, as noted above, the passage of time offence-free in the community, even if subject to supervision, can be a powerful protective factor in terms of risk. … I have generally found that a period of two-to-three years is enough time for an offender to demonstrate stability in the community that would lower their assessed risk of recidivism. However, this is highly dependent upon the status of recognised risk factors at the time, so I unfortunately cannot be more precise than this. Nonetheless, the three-year ESO being sought by the state of New South Wales could potentially provide Mr Stone with enough time to demonstrate the behavioural and social stability necessary to reduce his risk for violent and sexual recidivism. …".
7. This issue was taken up with Dr Davis in oral evidence where he noted that the defendant's period on parole had not been "what would be considered a period of behavioural stability" and, if an ESO were for two years with similar instability, that would leave Dr Davis with concerns. The evidence continued: "But the other things is if you go three years from now he's going to be close to 68, and as I've mentioned in my report, the sexual offences against adult victims are extraordinarily rare amongst men in their 60s to be committing them in their 60s. It's ‑ sex offences by men in their 60s are usually offences against children involving grooming, or obscene exposure offences amongst exhibitionists. So the mere passage of time as well is going to have a protective effect, just in terms of health and physical ability to commit the offences. So I think with Mr Stone, yes, that I think probably towards the latter end of that is over the two to three year period is probably a little more realistic given the, the instability that he experienced when he was in the community of parole. And also the fact that he has this stimulant use disorder which I think is going to have some lapses along the way, so you need to give him enough time to, to prove himself, and to prove that the risk factors that are, that maybe reducing are genuinely reducing."
8. Furthermore, Dr Davis accepted that when he referred to the latter end of the period of two to three years, there was no significant difference between two years and six months, two years and nine months and three years.
9. In this regard, I also note the two experts' views as to the need for the intensity of supervision to be reduced, if possible, over the term of the ESO depending on the defendant's lifestyle stability, abstinence from drugs and responsible use of alcohol and a reduction in other risk factors. As I understand the expert evidence, such a lessening of the intensity of supervision would be facilitated by a term of three years rather than a two-year term. A situation where, at the end of a three-year ESO, the defendant required no or minimal supervision would be a less intrusive and preferable result than a situation where, at the end of two-year ESO, a further period of significantly restrictive supervision was required.
10. In my view the experts' evidence, the defendant's circumstances, his history of offending, his performance on parole and under interim supervision as well as the nature and extent of the risk posed, supported a term of three years rather than two years as the appropriate duration.
11. Accordingly, I ordered that the term of the ESO be three years.

Conditions of ESO

1. The conditions that may be imposed as part of an ESO are governed by s 11 of the CHRO Act. They may include, but are not limited to, those specified in s 11(1) of the CHRO Act and must include the condition in s 11(2). The consequences for breach of a supervision order are set out in s 12 and a power to vary such an order is conferred by s 13.
2. Those provisions relevantly provide: "11 Conditions that may be imposed on supervision order (1) An extended supervision order or interim supervision order may direct an offender to comply with such conditions as the Supreme Court considers appropriate, including (but not limited to) directions requiring the offender - (a) to permit any corrective services officer to visit the offender at the offender's residential address at any time and, for that purpose, to enter the premises at that address, or (a1) to permit any corrective services officer to access any computer or related equipment that is at the offender's residential address or in the possession of the offender, or (b) to make periodic reports to a corrective services officer, or (c) to notify a corrective services officer of any change in his or her address, or (d) to participate in treatment and rehabilitation programs, or (e) to wear electronic monitoring equipment, or (ea) to reside at an address approved by the Commissioner of Corrective Services, or (f) not to reside in or resort to specified locations or classes of locations, or (g) not to associate or make contact with specified persons or classes of persons, or (h) not to engage in specified conduct or classes of conduct, or (i) not to engage in specified employment or classes of employment, or (j) not to change his or her name, or (k) to report to police and provide information to police about the conditions imposed on the extended supervision order or interim supervision order and the offender's residential address, or (l) to comply with any obligation that could be imposed on the offender under Part 3 of the Child Protection (Offenders Registration) Act 2000 if the offender were a registrable person within the meaning of that Act and were not the subject of an interim supervision order or an extended supervision order, or (m) to comply with specified requirements in connection with the offender's access to and use of the internet, or (n) to provide any corrective services officer with requested information in relation to any employment or any financial affairs of the offender. (2) An extended supervision order or interim supervision order must include a condition requiring the offender not to leave New South Wales except with the approval of the Commissioner of Corrective Services. 12 Breach of supervision order A person who fails to comply with the requirements of an extended supervision order or interim supervision order is guilty of an offence. Maximum penalty - 500 penalty units or imprisonment for 5 years, or both. 13 Supervision order may be varied or revoked (1) The Supreme Court may at any time vary or revoke an extended supervision order or interim supervision order on the application of the State or the offender. (1A) The period of an order must not be varied so that the period is greater than that otherwise permitted under this Part. (1B) Without limiting the grounds for revoking an extended supervision order or interim supervision order, the Supreme Court may revoke an extended supervision order or interim supervision order if satisfied that circumstances have changed sufficiently to render the order unnecessary. (2) For the purpose of ascertaining whether to make such an application in relation to an extended supervision order, the Commissioner of Corrective Services must provide the Attorney General with a report on the offender at intervals of not more than 12 months. (3) The report must indicate whether the Commissioner considers the continuation of the extended supervision order to be necessary and appropriate."
3. The conditions to be imposed are those that the Court considers appropriate in order to mitigate the unacceptable risk otherwise posed by the offender. The application of s 11 does not require that each condition must have a specific, demonstrated link to the past offending which is the basis of the ESO. Rather, the Court must be satisfied, having regard to the scope, purpose and objects of the CHRO Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order: Wilde v State of New South Wales [2015] NSWCA 28; (2015) 249 A Crim R 65 (Wilde) at [37]-[54] (Beazley P, McColl and Ward JJA). It is not appropriate for the court under s 11 to impose conditions on a person directed to general future criminal conduct: Wilde at [54].
4. There may be a sufficient connection between a proposed condition and the risk if, for example: 1. the condition addresses a means of controlling possible risk factors related to the type of offending in question; 2. the condition is designed to avoid situations where the offender's rehabilitation or reintegration into the community might be compromised; or 3. the condition does not directly relate to the offender's risk but promotes the efficacy of the order containing other conditions which do, see Wilde at [67]-[70] and State of New South Wales v BP (No. 2) [2019] NSWSC 806 at [11] (Wright J).
5. The objects of the CHRO Act include, not only the primary object of ensuring the safety and protection of the community by the extended supervision of high risk offender but also, as "[a]nother object", encouraging high risk offenders to undertake rehabilitation. As was noted in Wilde at [49]: "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."
6. The authorities establish a number of general propositions concerning the imposition of conditions under ESOs and a helpful summary is found in State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813 (Wilkinson) at [44] (Hoeben CJ at CL). One of those principles is that the defendant, having served a sentence of imprisonment for his offending, has a right to personal liberty. Nonetheless, this right is not absolute. The limitations on that right include those inherent in the provisions, objects, scope and purpose of the CHRO Act. Depending on the circumstances, the conditions which may be imposed include ones which are relatively intrusive: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (Lynn) at [113] (Basten JA).
7. In addition, the process of determining what conditions may be imposed under s 11 of the CHRO Act in order to diminish the relevant risk posed by the defendant to an acceptable level will involve a balancing exercise, and the Court will seek to impose the least intrusive conditions consistent with its assessment of the risk and the kind of conditions that are likely to be effective: Lynn at [129]. Thus, in determining "the least intrusive conditions", a practical rather than a theoretical approach must be taken so as to balance, in a properly informed way, the nature of the particular risk posed by the defendant if unsupervised and the actual way in which the proposed conditions are likely to operate to mitigate that risk, taking into account not only the present state and circumstances of the defendant but also potential developments which may increase or decrease that risk. For this reason, conditions which assist with monitoring risk factors or which practically reinforce other obligations, whether imposed by other conditions or by the general law, may be appropriate, depending on the circumstances.
8. Finally, the determination of the appropriate of conditions depends on a common sense approach being taken to the formulation and enforcement of appropriate conditions. As Harrison J (as the Chief Judge then was) said in State of New South Wales v Osman [2021] NSWSC 124 at [43]: "Conditions that are too restrictive may operate counterproductively by imperilling the development of an harmonious working relationship between [the defendant in that case] and any enforcement officers with whom he is required to work. It would clearly be both counterproductive and potentially unfair if conditions were imposed that operated in a way that exposed a person such as [the defendant] to the highly likely, if not inevitable, prospect of failure. It is critically important for [the defendant], and anyone in his position, that the choice of, and the monitoring of compliance with, conditions attaching to an extended supervision order should not inadvertently increase the chances of non-compliance and hence failure. On the other hand, the statutory paramountcy of the protection of the community requires the maintenance of an ongoing scheme that ensures that a person such as [the defendant] can be monitored and directed in a way that as far as possible provides enforcement officers with sufficient notice and information to foresee and act upon problems before they arise."
9. I have applied the principles referred to above to guide the determination of the appropriate conditions noting also the specific provisions of s 11, understood in their context and having regard also to the scope and purpose of the CHRO Act as a whole.
10. In the amended summons, the State sought the imposition of 52 proposed conditions. As a result of appropriate and helpful discussions between the parties as to the form of the proposed conditions, by the end of the hearing, the number of proposed conditions had been reduced to 43 and many of the conditions were not the subject of dispute and the defendant was prepared to accept them.
11. I have considered the undisputed conditions and, in my view, they are appropriate and well directed in the circumstances to addressing the risk of future serious violent and sexual offending posed by the defendant and should be imposed. Given the lack of opposition to these conditions, it is not necessary to say more about them other than to note that they are conditions 1-13, 18, 20-22, 24-25, 27-31 and 33-43.
12. The conditions which remained in dispute were: 1. proposed conditions 14, 23 and 32 relating to sexually explicit entertainment, obtaining sexual services, and pornography; 2. proposed condition 15 relating to provision of information concerning the defendant's financial affairs; 3. proposed conditions 16, 17 and 19, relating to possession or use of drugs and alcohol and attending licensed premises; and 4. proposed condition 26 relating to the possession of firearms and weapons.
13. I shall address the conditions that remain in dispute in that order.

Proposed conditions14, 23 and 32

1. The State's proposed conditions 14, 23 and 32 (which had previously been numbered 14, 23 and 37 respectively) were as follows: "14. If the defendant attends any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment, he must tell a DSO within 24 hours from the start of that attendance. The defendant must truthfully answer any questions that a DSO asks regarding the attendance. … 23 The defendant must seek approval from a DSO before engaging the services of sex workers. … 32 The defendant must notify a DSO as soon as practicable if he has purchased, possessed or possesses, accessed, obtained, viewed, participated in or listened to material classified or material that would be classified as Refused Classification, X18+, Category 2 Restricted and Category 1 Restricted, or any other material as directed by a DSO with respect to concerns related to risk of committing a serious offence."
2. Dr Dayalan's evidence was that "increased sex drive is one of the risk factors that's been identified as a source with risk of sexual offending" and Dr Davis was of the view that "most certainly sexual preoccupation and hyposexuality is a potent risk factor when it's present". Each of conditions 14, 23 and 32 was submitted to be directed towards the monitoring of increased sex drive or an increase in sexual preoccupation which, if it developed, would lead to a significantly increased risk of sexual recidivism on the defendant's part. Dr Davis was also of the view in relation to condition 14 that "the way that that condition is worded I think is very balanced; it's not stopping him from going, he just needs to let people know when he is, so I don't have any issues with it". A similar comment could be made concerning the wording of conditions 23 and 32.
3. As to condition 23, it was also contended on behalf of the State that the condition enabled a DSO to conduct any necessary risk assessments before the defendant engaged a sex worker to ensure that worker's safety. It was also said to enable the DSO to consult with a treatment provider - for example, a Forensic Psychology Services psychologist ‑ to determine whether the contact is appropriate with regard to his current presentation and any concerns around elevated risk factors. Dr Dayalan's view was that condition 23 was consistent with condition 14 and "in the early stages of his transition in the community I think it would be helpful for that condition to be present". In this regard, Dr Davis said: "it's a decent condition, your Honour, particularly because there is obviously a discretion to the DSO. I think it's important not to stop all sexual outlets for Mr Stone may have, and there's not that many at his disposal at the moment. But there's nothing in the way that the condition is worded, particularly the additional material counsel's just outlined is suggestive that it's going to stand in the way of that. And as my colleague indicated, you know, if he's asking permission to go every second day, which I have hope, I strongly doubt will ever happen, but say if that happened that would be something to be concerned about."
4. Both experts accepted that condition 32 (formerly condition 37) was complementary to, consistent with and supported by the same considerations as supported, conditions 14 and 23.
5. In cross examination, Dr Davis accepted that although the defendant may have engaged in some paraphilia behaviours decades ago they were not ongoing concerns and he was of the opinion that while he could not rule out entirely that the defendant would become sexually preoccupied, he would be "very surprised" if that occurred. Nonetheless, Dr Davis said: "So in essence, that condition [14], yes, it would be very helpful if there was concerns about sexual preoccupation and hypersexuality because they are quite potent risk factors. I don't think it's going to be a concern with Mr Stone, so it's something that probably won't be an issue."
6. The defendant's position was, in substance, since there was little if any likelihood of the defendant becoming sexually preoccupied given his history, age and conditions, there was no substantial justification for conditions 14, 23 and 32 being imposed in the defendant's case.
7. In this case, it can be accepted that the Court must be satisfied as to the appropriateness of these proposed conditions in the context of mitigating the defendant's demonstrated risk of committing future serious sexual offences, as opposed to simply being punitive. While the likelihood of the defendant becoming sexually preoccupied may be very low, if that were to occur it is a potent risk factor in relation to the commission of further sexual and violent offences, which may include potentially very serious offences. In addition, Dr Davis's opinion was that the proposed conditions would not impose any significant limitations on the defendant.
8. Taking into account the defendant's circumstances and the experts' relevant opinions as a whole, I was of the view that these three proposed conditions in relation to sexual activities would allow appropriate monitoring of a potent risk factor and, thus, would be useful in assisting in ensuring the safety and protection of the community. At the same time, given that the conditions do not prohibit access for the defendant to those locations or services and that they would not impose significant limitations on him, they do not appear to me to be punitive or unreasonably or unnecessarily restrictive. Nor would they be likely to affect adversely his rehabilitation. For these reasons, I included conditions 14, 23 and 32 in the conditions to be imposed.

Proposed condition 15 relating to provision of information concerning the defendant's financial affairs

1. The State's proposed condition 15 was as follows: "15 The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by a DSO."
2. This condition was proposed on the basis that it provided a means of monitoring the defendant's lifestyle stability in relation to matters such as accommodation and the ability to pay rent and the use of prohibited drugs, which were said to be significant factors which would affect the risk posed by the defendant.
3. In par 315 of his report, Dr Davis stated in relation to this condition: "I respectfully cannot see why condition (15), regarding income and expenditure, would have any relationship to Mr Stone's risk of committing a serious violence or sex offence. In contrast, it may serve to cause difficulties in his relationship with Corrective Services staff if he starts to find the requests overbearing."
4. In oral evidence, Dr Davis qualified his original view, stating: "Yes, I had some concerns with this, this condition, your Honour, which I express at paragraph 315 of my report. Well I can certainly, and I think it's been written in a, in a nice way, in that it's not something that is, the way it's written it's not something that sounds like it's going to occur on a daily basis. I think my, my concern there is really just to make sure that he is not finding these request overbearing if they're happening all the time. Periodic check ins, I don't think have too much of a problem."
5. Dr Davis also clarified that the concern expressed in his report related more to implementation rather than the content of the condition itself and he indicated that, in his view, the condition could be useful in an indirect fashion in that: "it [reducing risk] all comes down to whether or not his lifestyle is stable and his accommodation is stable, and anything that is going to help him have stability in the community is important. So yes, periodic inquiries as to how he's spending his money and whether or not he can stick to a budget, particularly given some of his difficulties with executive functioning, can most certainly be helpful in terms of ensuring that his life remains as stable as possible."
6. In oral evidence, Dr Dayalan was of the view that, if a direction were given only when specific concerns were raised, proposed condition 15 would be appropriate for the purposes as contended for by the State.
7. The defendant submitted, in substance, that this proposed condition was not the least intrusive condition possible and did not have actual identifiable substantial work to do, if it were designed to mitigate the risk resulting from drug use or lifestyle instability. It was said that there were other conditions that were much more likely to succeed in identifying drug use than this one is. In addition, it was contended that there was no evidence before the Court that the defendant was presently financially unable to pay his rent or that suggested that that was a foreseeable risk in relation to this particular offender. In written submissions, the defendant also contended that the evidence clearly showed that: "the defendant answered questions, shared information, and discussed the issue with the DSO voluntarily, without the need for a direction to be given. Further, he is required to, and has, given consent to his accommodation provider … to share information with those supervising him. The evidence does not establish that this condition has a proper basis".
8. The question of whether a condition is appropriate turns in essence on whether it addresses the risk of future offending of the kind that formed the basis for the ESO being imposed. As noted above, however, it is not necessary that the risk be addressed directly rather than indirectly, for example, by permitting reasonable monitoring of the defendant's affairs or activities which might disclose matters which significantly heighten the risk of relevant reoffending. Accepting the experts' evidence, it appears to me that proposed condition 15 does serve the purpose of mitigating, albeit indirectly, the risk posed by the defendant by permitting monitoring of his financial affairs in order to determine his capacity to maintain his lifestyle stability including whether his accommodation is likely to remain stable and to assess whether he remains abstinent from drugs. Although I accepted that there was a potential problem of heavy-handed or overbearing implementation of the condition, there was nothing in the material before the Court to suggest that a similar condition had been previously implemented in an overbearing or heavy-handed manner or that this was likely to occur in the future.
9. Furthermore, the evidence to which the defendant referred in submissions indicated that the defendant had not objected to the provision of this information and, thus, it did not appear that he regarded providing this information as unduly intrusive or punitive.
10. In all the circumstances, in my view the condition was not overly intrusive and was likely to contribute in a significant way to the mitigation of the risk posed by the defendant and I included condition 15 in the conditions to be imposed.

Proposed conditions 16, 17 and 19, relating to possession or use of drugs and alcohol and attending licensed premises.

1. The State proposed conditions 16, 17 and 19 in the following terms: "16 The defendant must not possess or use prohibited drugs, or abuse prescription drugs unlawfully obtained. 17 The defendant must not possess or consume alcohol without the prior approval of a DSO. … 19 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."
2. The defendant opposed proposed 16 and 19 outright and proposed an alternative version of condition 17 as follows: "The defendant must not possess or consume alcohol if directed not to by a DSO."
3. Dr Dayalan was of the view that proposed condition 16 was "very appropriate and very relevant" and Dr Davis opined that it was "very appropriate". I understood these answers to relate in particular to the defendant's previous and recent use of methylamphetamine and the role drug use had played in relation to his offending and his ongoing risk. Dr Davis went further and explained that proposed condition 16 also had a useful role to play in relation to other types of prohibited drugs as follows: "… and even if it's substances that may not be necessarily increasing Mr Stone's risk of committing a serious offence, any illicit substance use is problematic for, in terms of his mental health, in terms of him developing stability in the community, so it's most definitely contra‑indicator, even if it's not necessarily increasing his risk, it's most definitely impeding him decreasing his risk".
4. In cross examination, Dr Dayalan conceded that he had some reservations about the proposed condition but explained: "I have some reservations about it. I understand that, you know, there's differences between lapses and relapses, but if the individual has been using the substances and its escalating over a period of time, just having him submit to it and encouraging him to continue attending rehabilitation isn't really going to contain that risk. If there's an odd occasion where he tests positive, yes, I agree. But to entirely remove that condition and be in a situation where there's an escalating use of methylamphetamine, and he's still attending, and he's still participating the drug testing isn't really going to contain that risk."
5. The defendant opposed proposed conditions 16 particularly in relation to prohibited drugs. It was in effect submitted that, since the possession and use of prohibited drugs was already proscribed in the relevant criminal legislation, the addition of proposed condition 16 was not only unnecessary but also exposed the defendant to the risk of prosecution under s 12 of the CHRO Act for breach of the condition and imprisonment for a term of up to 5 years. It was also contended that, if such a condition was breached, the imposition of a term of imprisonment was more likely for a lapse into prohibited drug use in breach of a condition of the ESO than for the same lapse prosecuted under the Drug Misuse and Trafficking Act 1985 (NSW). Imprisonment in these circumstances was then said to be likely to affect adversely the defendant's rehabilitation without having any significant effect on mitigating his risk.
6. While the defendant accepted that relapsing into ongoing drug use, especially the use of methylamphetamine, would lead to an increase in the defendant's risk of reoffending, it was contended that the experts were of the view that lapsing into drug use from time to time, not amounting to a relapse into continued drug use, would not significantly increase the risk posed by the defendant. It was noted that Dr Davis had observed that the defendant had lapsed into methylamphetamine use while on parole but had not committed any further violent or sexual offences. In addition, it was contended that other conditions such as those permitting drug testing and requiring the defendant to participate in drug rehabilitation programs or treatment provided more appropriate means of mitigating risk in the defendant's case. Finally, it was effectively contended that proposed condition 16 might lead to the defendant being less than honest with his supervisors because of the fear of reincarceration as a result of drug use in breach of the condition.
7. Notwithstanding the points made on the defendant's behalf, it appears to me that proposed condition 16 has a substantial role to play in reducing the likelihood that the defendant will relapse into methylamphetamine use and the abuse of other prohibited drugs and thus would play a substantial role in reducing the risk of his relevantly reoffending. This was particularly supported by the evidence of Dr Dayalan which has been quoted above.
8. It may be accepted that a heavy-handed approach to enforcement of this condition could lead to reincarceration and could adversely affect his rehabilitation and possibly his willingness to engage with supervision. Nonetheless, in my view the condition remains suitable and necessary, especially in the circumstances where, while on parole and subject to the ISO, the defendant was subject to essentially the same condition and was apparently aware of this condition. Given his cognitive deficits, if such a condition were not included under the ESO, the defendant may, wrongly, form the view that, because the condition had been removed, lapsing into prohibited drug use was in some way either permitted or would be tolerated by those supervising him without any possible sanction. If that were to occur, the risk of a significant relapse would be substantially increased and this would in turn lead to a significant increase in the risk of his reoffending.
9. Furthermore, there was an agreed position reached by the parties as to how breaches of a condition such as proposed condition 16 were dealt with by the Extended Supervision Order Investigations Team (ESOIT). In substance, it was accepted that where there was a prima facie breach of a drug abstention condition the usual procedure is for the relevant stakeholders to convene a meeting and to discuss the appropriate way forward. The stakeholders would include, in the defendant's case, the ESOIT team, including Ms Slattery‑McDonald and the DSO, a Forensic Psychology Services psychologist, Police and other relevant stakeholders such as a representative of NEAMI, a community organisation which provides a number of services, such as a through‑care support service for a number of months after release from custody, transport and accommodation as well as assisting with filing an NDIS application, as occurred in the defendant's case. Whilst efforts would be made to maintain the defendant on the ESO and to direct him to other forms of treatment as opposed to the penal sanction path, the ultimate decision concerning prosecution for a breach remains with the police and they will take into account considerations of current risk. If the condition was implemented in this way, the potential for it to be counterproductive so as to justify not including the condition was, in my view, effectively eliminated.
10. Finally, it can be noted that the defendant has ongoing issues relating to use of prohibited drugs. For example, in the breach of parole report dated 7 July 2023 it was recorded that the defendant reported that he continued to associate with anti-social acquaintances and admitted standing over other persons subject to supervision, demanding they allegedly purchase methamphetamines for his consumption. He also returned positive drug test results in June and July 2023 and engaged in on-going drug use in September 2023 as recorded in his case management notes for 22 September 2023, while subject to conditions prohibiting drug use. As recently as July 2023 and when he was subject to supervision, Forensic Psychology Services expressed the view that, in the defendant's case, there was significant acute risk and he demonstrated an inability to safely manage that risk.
11. Given the experts' evidence, the significance of drug use in previous offending and recent difficulties in relation to drug use, I was satisfied that proposed condition 16 should be imposed as one of a combination of means of assisting to mitigate the risk of further serious offending.
12. As to the proposed alcohol related conditions, Dr Dayalan was of the opinion that "alcohol use was involved prior to both the offences for 1990 and the 1998, so I would think that it's quite relevant that there's some monitoring of his alcohol use in the community". Dr Davis stated: "at least initially, yes, abstaining from alcohol will be just as important as abstaining from other drugs. I guess it's one of those things that as the order progresses a gradual loosening of restrictions might be useful; where he's permitted to perhaps have, you know, one or two standard drinks at a particular time. But that's certainly not ‑ shouldn't be happening very early on. And there's most definitely evidence of alcohol use in, in the 1998 offence, there's unequivocal descriptions, in term of the 1990 offence, but I don't think anyone would think that it's a positive thing for Mr Stone to be using alcohol."
13. The defendant submitted that since there was no evidence that alcohol abuse or attendance at licensed premises had been a concern for the defendant in recent years, it had not been identified as a meaningful contributor to his offending and monitoring would be facilitated by the obligation to undergo testing as directed, the condition was unnecessary. In addition it was said that, if it were necessary to prevent his consumption of alcohol, that could be done by way of a direction not to consume, as proposed by the defendant.
14. In all the circumstances and as apparently accepted by the parties, a condition regulating consumption of alcohol is appropriate. As to the different versions proposed, it appears to me that the State's proposed version of condition 17 allows more effective monitoring, by means of requiring disclosure in addition to testing, and provides scope for more flexible supervision compared to the version proposed by the defendant which involves limited if any scope for monitoring in addition to testing and provides in essence for prohibition rather than permission. For those reasons, I decided to impose condition 17 in the form put forward by the State.
15. As to proposed condition 19, both Dr Dayalan and Dr Davis thought such a condition was consistent with the alcohol monitoring condition and was relevant. Dr Davis noted in his evidence that the defendant was in an hotel before he killed somebody in 1990, but that did not necessarily mean that being in a hotel was a risk factor for him killing somebody. Nonetheless, Dr Davis was of the view that the type of approval process envisaged by proposed condition 19 was preferable early on in the order and a relaxing of restrictions concerning notification may be fine after a period of stability.
16. The defendant effectively submitted that the defendant had limited mobility and almost no pro-social network and that proposed condition 19 would impede beneficial socialisation and lead to social isolation. It was contended that "it is appropriate that he be permitted to attend these locations and partaken alcohol consumption unless and until some risk-related reason arises for prohibiting him from doing so".
17. Proposed condition 19 does not prohibit the defendant from attending licensed premises including hotels, bars, racecourses and licenced clubs outright. It simply requires the prior approval of the DSO to do so. In my view, this did not involve an unreasonable restriction or one which was likely to cause social isolation, if implemented reasonably. There was nothing to suggest that approval to attend such locations would be withheld punitively or unreasonably. Although there were other conditions also directed to mitigating the risk associated with alcohol consumption, in my view this proposed condition provided a useful adjunct to those other conditions and thus would assist in ensuring that the risk posed by the defendant was adequately mitigated.
18. In light of the experts' evidence and in the circumstances, I was satisfied that proposed condition 19 was appropriate and I decided to include it.

Proposed condition 26 concerning the possession of firearms and weapons

1. The State proposed that a condition in the following form should be included: "26. 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, or (b) a prohibited weapon within the meaning of the Weapons Prohibition Act 1998."
2. Dr Dayalan did not "have a problem with such a condition" as it was unlikely to have a negative impact on the defendant's rehabilitation but otherwise did not think that it served a substantial purpose. Dr Davis's evidence in relation to both proposed conditions 26 and 27 (the latter of which is now not opposed) was: "I think they're nicely formulated, and I think they remove as much as is practically possible for the opportunity for him to utilise weapons as he becomes more physically frail, so I think they're actually quite important conditions."
3. Dr Davis also explained that in his view the proposed conditions had a real role to play in managing the defendant's risk in the community based on his opinion that: "[such conditions] become more relevant the older and more frail that Mr Stone becomes. So obviously there was a knife used in the 1998 offence, it wasn't sexualised in any way, but it was used to control the victim. There is also a history of armed robberies and things, so Mr Stone at least has some affinity for using weapons in criminal behaviour. He did describe to me obtaining a firearm in the past, and going back to, to want to kill the person that sexually abused him as a child. But there's no, nothing to suggest he's that actually occurred, or that he actually has ever used a firearm against anyone. I think as I describe in paragraph 317 of my report, at page 105, your Honour, I think as he becomes more physically frail the use of weapons, should any, should risks then manifest themselves in offending behaviour is going to be a more important thing as he, as he's at this age, and with the physical limitations that he has. So I, I as intrusive as they maybe I'm, I actually support both of those conditions."
4. Dr Davis's opinion was also that the defendant's declining physical health might lead to an increased likelihood of a resort to weapons such as a firearm. He said: "there were certainly no physical limitations when he committed the murder offence in 1990. In 1998, when he commits the assault with intent to commit a sexual offence, he's ‑ it's a year after he's had a stroke so he's got some physical limitations because of that and he ‑ the behavioural evidence is very clear, that he alters his modus operandi to pre‑prepare the stockings on the bed in order to tie the victim and uses a knife in order to control them, which wasn't necessary in the first offence because he was a much more physically capable offender. So given that his ‑ both of his offending is driven by a vindictive anger, particularly towards women, I think that's one of the things to keep in mind and one of the reasons I had issues with ‑ I had no issues, sorry, with the conditions around knives and firearms in that, if Mr Stone still has the levels of anger that have been described in the past year, there is still some chance that he's going to be able to alter his modus operandi again in order to commit offences."
5. The defendant submitted that the proposed condition prohibiting the defendant from possessing or using a firearm was not supported by the evidence noting that the comment referred to by Dr Davis was made some decades ago, there was no evidence of the defendant ever taking any steps to obtain a firearm or otherwise carrying through on the threat. It was also submitted that the conduct prohibited by the proposed condition was already illegal and that there would be significant regulatory and administrative barriers to obtaining a firearm. Thus, it was submitted that the utility of the proposed condition only arose in a "speculated future scenario" for which no present evidence existed.
6. In my view, Dr Davis articulated a basis for imposing proposed condition 26 which came close to being merely speculative. Nonetheless, there was evidence in the breach of parole report dated 7 July 2023 that the defendant had made threats to harm persons in the community and those threats were sufficiently serious to cause the Police to notify Community Corrections of their intent to commence an assessment for a Weapon Prohibition Order. In addition, such a condition would not be unreasonably restrictive or intrusive because it is unlikely that the defendant would ever have a legitimate need to possess or use a firearm and the condition would not be likely to prohibit something which he would otherwise be able legally to do. Furthermore, if the defendant did obtain a firearm and attempt to use it, the consequences may be of the very most serious nature, especially since, in the past, his offending was driven, at least in part, by vindictive anger especially towards women and the risk of his reoffending would be significant if such anger issues remained or re-emerged.
7. In all the circumstances, I was satisfied that proposed condition 26 had a legitimate function to play in assisting to mitigate the risk posed by the defendant and was not so restrictive or punitive that the benefit would be outweighed by those considerations. Accordingly, I included condition 26 in the conditions to be imposed.

Implementation and variation

1. In reaching my conclusions concerning the appropriateness of the contested conditions, I proceeded on the basis that the implementation and enforcement of the conditions would be reasonable, responsive to the defendant's cognitive, mental health and physical conditions and essentially directed at reducing the risk of reoffending and encouraging his rehabilitation. This was supported by the evidence before me from Ms Slattery‑McDonald and the facts agreed between the parties in that regard. If that understanding proved not to be the case, consideration could be given as to whether the circumstances had sufficiently changed that a variation of the conditions under s 13 of the CHRO Act was available or appropriate.

Orders

1. For all these reasons, I made the orders set out above at [8] on 12 April 2024.

SCHEDULE TO THE ORDERS MADE ON 12 APRIL 2024 CONDITIONS OF SUPERVISION Part A: Reporting and Monitoring Obligations Monitoring and Reporting

1. The defendant must submit to the supervision and guidance of a Departmental Supervising Officer (DSO) and obey all reasonable directions of a DSO.
2. Where a direction may conveniently be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service.
3. The defendant must truthfully answer questions from a DSO, or any other person supervising him, about where he is, where he is going, who he is with, what he is doing and the nature of his associations. Electronic Monitoring
4. If directed by a DSO, the defendant must wear electronic monitoring equipment and must not tamper with, or remove, the equipment. Schedule of Movements
5. 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 to a DSO 3 days in advance of the schedule commencing (or as otherwise agreed between the defendant and his DSO).
6. The defendant must not depart from the summary of his anticipated movements except as allowed under condition 7.
7. It will not be a breach of condition 6 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. It will also not be a breach if he deviates from his summary in an emergency. Part B: Accommodation
8. The defendant must live at an address approved by a DSO and notify a DSO of any intention to change the defendant's address or living arrangements.
9. The defendant must allow a DSO to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.
10. The defendant must not spend the night anywhere other than his approved address or any alternative approved addresses (if relevant) without the approval of a DSO.
11. The defendant must promptly notify a DSO of any visitor entering and remaining at his approved address and must not 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. Note: "Approved address" when in shared accommodation is a reference to the defendant's own room. Part C: Place and travel restrictions
12. The defendant must not leave New South Wales without the approval of the Commissioner of Corrective Services NSW (CSNSW).
13. The defendant must not frequent or visit any place or district specified by a DSO.
14. If the defendant attends any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment, he must tell a DSO within 24 hours from the start of that attendance. The defendant must truthfully answer any questions that a DSO asks regarding the attendance. Part D: Employment, finance and education
15. The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by a DSO. Part E: Drugs and alcohol
16. The defendant must not possess or use prohibited drugs, or abuse prescription drugs unlawfully obtained.
17. The defendant must not possess or consume alcohol without the prior approval of a DSO.
18. The defendant must submit to drug and alcohol testing.
19. 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.
20. The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as clinically recommended and as reasonably directed by a DSO, and must not discharge himself from such programs and courses without prior approval of a DSO. Part F: Non-association Associations with others (not children)
21. The defendant must not associate with any person or persons specified by a DSO.
22. Without limiting condition 21, the defendant must not: (a) associate with any people who he knows are consuming or under the influence of illegal drugs; or (b) associate with any person held in custody without prior approval of a DSO.
23. The defendant must seek approval from a DSO before engaging the services of sex workers.
24. The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary to mitigate the defendant's risk of committing a serious offence. Prior to the DSO disclosing the defendant's criminal history, the DSO must provide the defendant with a reasonable opportunity to do so himself.
25. The defendant must notify a DSO within 24 hours of joining or affiliating with any club or organisation. Part G: Weapons
26. 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 (NSW); or (b) a prohibited weapon within the meaning of the Weapons Prohibition Act 1998 (NSW).
27. Without limiting or altering condition 26, the defendant must not possess or use any of the following, without a DSO's prior approval: (a) a knife, other than one designed for use in connection with food preparation or consumption and possessed or used in a domestic/residential setting, 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; or (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
28. The defendant must allow a search of his electronic devices if a DSO reasonably suspects that the defendant is using prohibited drugs. The defendant must allow such search by providing passwords and passcodes to his devices and apps. The defendant must not delete any apps, messages or call logs on his electronic devices. Part I: Search and seizure
29. The defendant must submit to the search of any item or place in his possession or under his control, including his residence, any vehicle in which he is travelling or which is under his effective control, or any storage facility, garage, locker or commercial facility if concerns arise in relation to his possession or use of weapons and/or drugs or an increase in sexual preoccupation or evidence of undisclosed visitors. The defendant must agree to the seizure of any object located during the search.
30. The defendant must submit to the search of any computer, electronic and communication device should concerns arise in relation to the possession or use of illicit drugs.
31. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure carried out pursuant to this Order. Part J: Access to pornographic, violent and classified material
32. The defendant must notify a DSO as soon as practicable if he has purchased, possessed or possesses, accessed, obtained, viewed, participated in or listened to material classified or material that would be classified as Refused Classification, X18+, Category 2 Restricted and Category 1 Restricted, 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
33. The defendant must not change his name from "Peter Stone" or use any other name without notifying a DSO.
34. 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.
35. 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
36. The defendant must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as clinically recommended and as directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction.
37. The defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults.
38. The defendant must attend, as clinically recommended and upon the direction of a DSO, any therapy sessions, support and treatment programs the subject of the direction.
39. The defendant must take medications that are prescribed to him by his healthcare practitioners and only in the manner prescribed, unless there are reasonable clinical grounds for the defendant not to take the medication.
40. The defendant must notify a DSO immediately if he ceases to take or declines to commence taking any medication as referred to in the above condition.
41. 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 to the extent it is relevant to his risk of reoffending or rehabilitation.
42. 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, NSW Police Force and CSNSW, to the extent it is relevant to his risk of reoffending or rehabilitation.
43. The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him in relation to his mental health or drug and alcohol issues if a DSO considers it necessary to do so in order to assist in the management of the defendant's risk and/or rehabilitation. Before any disclosure is made the defendant must first be so informed and given the opportunity to make the disclosure himself.

Amendments 22 April 2024 - Amended pursuant to order made under r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW).

Condition 6 of the Schedule to the Orders made on 12 April 2024, is amended by deleting "6" and inserting in its place "7" so that Condition 6 reads as follows:

"The Defendant must not depart from the summary of his anticipated movements except as allowed under Condition 7." 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: 22 April 2024