State of New South Wales v Vincent

The legislative scheme

1. The primary object of the Act is protective rather than punitive. It provides for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community: s 3(1) of the Act.
2. The Act has been subject to considerable judicial scrutiny and it is hardly necessary to restate all of the principles that must be applied.
3. There is no dispute that the applicant is a detained offender within the meaning of s 13B(2)(a)(iv) of the Act. Further, there could be no dispute that the defendant was charged and pleaded guilty to an offence under s 66C(3) of the Crimes Act 1900 (NSW), which is a serious sex offence within the meaning of s 5(1)(a) of the Act.
4. At this preliminary stage, I am not now determining whether the defendant should be subject to a CDO or ESO. In this matter, I am not even considering whether the defendant should be subject to such orders on an interim basis at this stage, because he is currently in custody.
5. As the final relief sought by the State is initially a CDO for a period of two years from the date of the order, followed by an ESO, it is necessary to have regard to Part 3 of the Act.
6. Section 15 deals with pre-trial procedures, that is, the procedures at this stage of the proceedings.
7. Section 15(4) is in the following terms: 15 Pre-trial procedures … (4) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order, the Supreme Court must make orders: (a) appointing: (i) 2 qualified psychiatrists, or (ii) 2 registered psychologists, or (iii) 1 qualified psychiatrist and 1 registered psychologist, or (iv) 2 qualified psychiatrists and 2 registered psychologists, to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and (b) directing the offender to attend those examinations.
8. As set out in s 15(5), if, following the preliminary hearing, the Court is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a CDO or ESO, the Court must dismiss the application.
9. Importantly, ss 15(4) and (5) of the Act impose a mandatory obligation on the Court. That is, if the Court is satisfied of the matters referred to in s 15(4), it must make the orders appointing the experts and directing the defendant to attend the examinations. On the other hand, if the Court is not so satisfied, then it must dismiss the application.
10. It is not necessary that the Court be satisfied at the preliminary stage that the matters alleged in the supporting documentation will be proved. The Court is only required to be satisfied that, if those matters are proved, an order would be justified, bearing in mind the elevated standard of proof, namely, a high degree of probability. [1]
11. It follows that on a preliminary hearing, the Court is not engaged in weighing up the documentation or resolving any conflicts, inconsistencies or uncertainties that appear in the documentation. Nor is it necessary for the Court to predict the ultimate result or assess the likelihood of the ultimate result. [2]
12. Section 5C of the Act sets out the circumstances in which the Court may make a CDO, as follows: 5C Making of continuing detention orders - unacceptable risk The Supreme Court may make an order for the continued detention of a person (a continuing detention order) if: (a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and (b) the person is a detained offender or supervised offender (within the meaning of section 13B), and (c) an application for the order is made in accordance with section 13B, and (d) the Supreme Court is satisfied to a high degree of probability that the person poses an unacceptable risk of committing another serious offence if not kept in detention under the order.
13. The Court must be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept in detention under a CDO.
14. Accordingly, it is necessary to have regard to whether the matters alleged in the supporting documentation would, if proved, justify the making of a CDO, having regard to s 5C of the Act.
15. Whether a person poses an unacceptable risk involves an evaluative balancing exercise. [3]
16. The risk that the Court must find to be unacceptable is the risk the offender poses of committing a serious offence if not kept in detention (or under supervision). [4]
17. The assessment of the risk involves a consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate. [5]
18. Further, the determination of whether an offender poses an unacceptable risk must be understood in the context of the Act as a whole, particularly its purpose in ensuring the safety and protection of the community. [6]
19. As set out in s 15(4), the question at this preliminary stage is thus whether the matters alleged in the supporting documentation would, if proved, justify the making of a CDO (or ESO).

Background facts/defendant's criminal history

1. The defendant is currently 34 years of age. He is currently residing at Wellington Correctional Centre. He has a criminal history going back to 2005.
2. During the period 2005 to 2014, he was convicted of a number of offences of use of carriage service to menace, harass or offend and of common assault. In 2012, he pleaded guilty in the Magistrates Court at Port Augusta in South Australia to one charge of aggravated possession of child pornography. He was sentenced to 13½ months with a non-parole period of 5 months commencing 6 December 2011.
3. On 25 March 2014, he contacted Lifeline and disclosed that he had sex with a 15-year-old girl in his TAFE class. He said that he had committed rape. A subsequent Police investigation resulted in him being charged with aggravated sexual assault, contrary to s 61J(1) of the Crimes Act and breaching a bail condition. He pleaded guilty and was convicted of the offence of sexual intercourse with a person between 14 and 16 years of age, contrary to s 66C(3) of the Crimes Act, and was sentenced to a term of imprisonment of 15 months commencing 1 May 2014. His non-parole period concluded on 27 February 2015. He was entered onto the New South Wales Child Protection Register.
4. According to the sentencing judgment of his Honour Judge Conlan, the complainant disclosed that she and the defendant were hanging around Wollongong when they went to an address in Victoria Street, Wollongong. They began to kiss and ultimately engaged in sexual intercourse. The complainant stated this was a consensual act.
5. His Honour was satisfied that although it was a consensual act, the complainant was 15 years of age and the offence called for a custodial penalty.
6. The defendant was released on parole on 28 February 2015. However, on 30 April 2015 he was sighted by NSW Police loitering outside a school in Newtown. He was charged with the offence of being a convicted child sex offender loitering near a school, although that charge was withdrawn. Parole was revoked and he served the remainder of his sentence until 28 July 2015.
7. Then, on 24 July 2015, an order was made under the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) prohibiting him from communicating with or being in company with any person under the age of 18. He breached these orders on two occasions before being arrested and granted bail. That bail was revoked on 3 December 2015 because of further breaches of the prohibition order.
8. On 3 December 2015, he was sentenced to a period of imprisonment for a total term of 16 months. Breaches of the order included use of social media and failing to notify authorities that he was in possession of a second mobile phone.
9. In 2017, the State applied for an ESO against the defendant. On 28 March 2017, Fagan J made orders for an ISO.
10. On 30 June 2017, Harrison J made orders that the defendant be subject to an ESO for a period of five years from 30 June 2017. [7]
11. The defendant did not comply with the interim or extended supervision orders.
12. On 18 July 2017, he was made subject to an apprehended domestic violence order.
13. On 2 February 2018, he was convicted of a number of offences committed in 2017 in respect of use carriage service to menace, harass or offend, as well as an offence of failing to comply with an extended/interim supervision order.
14. On 29 June 2018, the defendant was sentenced to a term of imprisonment of 3 years expiring on 27 April 2021.
15. Her Honour Judge Noman SC made a recognizance release order that the defendant be released upon serving a period of two years subject to the security of $200 and a further condition that he be of good behaviour and accept the supervision of Community Corrections. His recognizance release date was 27 April 2020.
16. Although he was due to be released pursuant to the recognizance release order on 27 April 2020, he was not released because on 15 October 2019 he was charged with a number of further offences relating to use carriage service to menace, harass or offend. Bail was refused by consent.
17. The defendant has now entered a plea of guilty to four counts of using carriage services to harass. Those matters are listed in the Dubbo District Court on 18 September 2020 for the purposes of fixing a date for sentence.
18. There is a further offence of produce child abuse material to which the defendant has entered a plea of not guilty. That is listed for a defended hearing on 30 November 2020.
19. The defendant submits that it is inevitable that he will be sentenced to a further term of imprisonment in respect of the offences to which he has pleaded guilty.
20. The circumstances of the defendant's continued offending are unusual in that, although the defendant has only been convicted of one serious sex offence (as defined in the Act), being the 2014 offence, he continues to deliberately make harassing and offensive calls to various entities, giving rise to the charges to which he has pleaded guilty.
21. For example, on 16 October 2018, he called Quitline and suggested that he had sexually assaulted his daughter. He subsequently admitted the contents of the call were false, as he did not know anything about his daughter's situation.
22. Then on 27 October 2018 he called 1800 RESPECT, a domestic violence helpline, on a number of occasions. He stated he had intrusive feelings of attraction to young females. He spoke again about sexually assaulting his daughter and spoke about getting support for the sexual abuse he suffered as a child.
23. He admitted that he made these calls for the purposes of sexual gratification.
24. The defendant made further calls to the 1800 RESPECT line on seven other dates between October 2018 and June 2019, again giving fictitious names and talking about fictitious sexual activities and desires.
25. On 8, 9 and 14 August 2019, he contacted Family & Community Services and made similar statements about sexual conduct with his daughter. The calls were again made for the purposes of sexual gratification.
26. On 14 October 2019, he took part in a Police interview and made admissions about these matters to the effect that he made some calls for sexual gratification and some calls to attempt to get people to see him. He admitted to being sexually attracted to female children around the age of five. He also admitted that his intention was to attempt to stay in custody. He said he had been seeking help for his offending behaviour but had found it difficult to obtain help whilst in custody.
27. In summary, although the defendant has only been convicted of one serious sex offence in New South Wales, he has a long history of what might be described as sexual and menacing conduct. He has continued with his conduct through use of other inmates' phones, even whilst in custody.

The current ESO

1. On 30 June 2017, Harrison J made an ESO continuing for a period of five years. [8] However, the defendant has been in custody since that time. The ESO was thus suspended. Further, should the State obtain a CDO as sought in these proceedings, the ESO made in 2017 will cease to have effect: s 18D(1) of the Act.
2. It is relevant to have regard to the comments of Harrison J when ordering the ESO as follows: "[72] I have been significantly persuaded by Mr Sheehan's concern that there is no room for complacency concerning, in effect, the assessment of Mr Vincent's level of risk. The emphatic burden of the experts in this matter is that Mr Vincent's paraphilic disorder, in the context of his underlying personality disorder, is effectively chronic and permanent. Treatment regimes, including anti-libidinal medication, have some prospect of successfully reducing or controlling the risk that Mr Vincent may reoffend sexually. However, the bleak prospect is that without continual monitoring and supervision, the commission of further serious sex offences is inevitable. … [74] In summary, I consider that Mr Vincent's risk can be managed but it can never be eradicated. I consider that the risk posed by Mr Vincent of committing a serious sex offence is unacceptable if he is not kept under supervision. I am satisfied of these matters to a high degree of probability. Duration [75] I am unable presently to foresee a time when the risk that Mr Vincent will commit a further serious sex offence will not be present. Put a different way, I consider that Mr Vincent's risk of committing a further serious sex offence will always be unacceptable in the absence of supervision and the imposition of suitable conditions. …"
3. In support of the application for an ESO in 2017, the State served and relied upon extensive psychological and risk assessment and risk management evidence which is again being relied upon in these proceedings. I have had regard to that material.
4. Further, for the purposes of the application in 2017, the State obtained orders that the defendant be examined by Dr Patrick Sheehan, a Forensic Psychologist and Dr Jeremy O'Dea, Consultant Forensic Psychiatrist. Dr Sheehan and Dr O'Dea provided reports dated 17 May 2017 and 1 June 2017 respectively for the purposes of the final hearing of the 2017 ESO application. Those reports were considered by Harrison J.
5. It is also notable that for the purposes of that application, the defendant agreed and accepted that on the available evidence, he was a sex offender and that the Court could be satisfied to a high degree of probability that he posed an unacceptable risk of committing a serious sex offence if he was not kept under supervision. [9]
6. For the purposes of this application, the State has obtained up-to-date psychological/risk assessment evidence.
7. I should note that the State originally filed a summons on 8 April 2020 seeking the same orders but that summons was dismissed by Ierace J on 7 May 2020 because the summons was not filed within 9 months of the end of the defendant's sentence as mandated by s 13B(5) of the Act. [10]
8. His Honour determined that the summons could not be filed until 27 July 2020, hence the filing of this summons after 27 July 2020.
9. For the purposes of the 2017 ESO application, the State obtained risk assessment reports dated 12 December 2016 from Samuel Ardasinski, a forensic psychologist, as supported by Cherice Cieplucha, another psychologist.
10. The State also obtained a supplementary risk assessment report dated 21 March 2017. In addition, the State obtained a risk management report of Amanda Carden dated 13 January 2017.

The further evidence

1. All of those reports have now been updated. The State relies on two further supplementary risk assessment reports of Mr Ardasinski dated 28 January 2020 and 9 March 2020 as well as a further risk management report of Cathryn Veal dated 25 February 2020.
2. In his first report of 12 December 2016, Mr Ardasinski considered that the defendant presented with an overall high risk of sexual reoffending relative to other male sexual offenders and that he has serious sexual violence tendencies. Mr Ardasinski suggested that the risk of repeat sexual offending would be significantly increased in situations where he had access to children as he experienced deviant sexual fantasies about abusing children. He considered the most likely reoccurrence would involve the defendant returning to online and/or telephone offending and making obscene phone calls for sexual gratification.
3. It seems obvious that that is what has occurred since 2017, bearing in mind that the defendant has entered a plea of guilty to the most recent charges.
4. In his supplementary risk assessment report of 28 January 2020, Mr Ardasinski expresses a concern that the defendant may continue with this pattern of behaviour indefinitely, keeping himself detained in custody. He does suggest that he has been receiving support, helping him manage these challenging behaviours, and is making some progress.
5. However, Mr Ardasinski continues to believe that the defendant presents as an overall high risk of sexual reoffending relative to other male sexual offenders. He notes that during his brief period of conditional liberty under supervision between 2 April 2017 and 29 May 2017, the defendant breached his ESO and committed a further obscene phone call offence, although he did not commit any further offences of violence.
6. Mr Ardasinski notes that the defendant has submitted a new referral for treatment which he had partially received at the time that he was made subject to an ESO and expressed a wish to engage in the program again from the start. He has apparently been waitlisted. Through his Counsel in these proceedings he has requested that I make a recommendation that this treatment commence as soon as possible.
7. During his interview on 11 December 2019, the defendant presented similarly to his 2016 presentation. Mr Ardasinski's review of the psychological material from the time of his initial report to 31 December 2019 suggested an oscillating trajectory. That is, it seems that the defendant is doing his best to keep himself in custody in the sense that when his obscene calls reduce, he invariably commits another offence which leads to further punishment.
8. According to Mr Ardasinski, the defendant meets the diagnostic criteria for Telephone Scatalogia, being a disorder that comprises overt or covert repetitive telephone calls with sexual and/or obscene content to an unsuspecting victim.
9. The defendant has been taking the SSRI anti-depressant medication fluoxetine for some time. He had also been prescribed risperidone for depression but he apparently ceased taking that medication.
10. In his interview on 11 December 2009, the defendant acknowledged that he was doing it on purpose and that he would intentionally ramp up the risk in the sense that the Court would have no choice but to detain him. He said he needed people to work with him and communicate with him. He needed to see some reward for good behaviour.
11. Mr Ardasinski identified a number of risk factors including: 1. deviant sexual interests, diversity of sexual violence and sexual preoccupation; 2. problems with intimate relationships and general social rejection; 3. borderline personality disorder and psychological coercion and sexual violence; 4. problems with non-intimate relationships and boredom; 5. poor capacity to plan and poor problem-solving and impulsivity; 6. poor stress coping and problems with substance abuse; 7. problems with self-awareness and problems relating to child abuse; and 8. poor (superficial) prior compliance with supervision.
12. All of this leads Mr Ardasinski to maintain the same prediction for likely future sexual offending as in his 2016 report. Whilst Mr Ardasinski did consider that the defendant was making some progress, he remained in the high risk category relative to other men who have offended sexually.
13. In his further report of 9 March 2020, Mr Ardasinski was asked to address further information, in particular, the letter sent by the defendant from custody and the facts sheet relating to the charge of child abuse material to which the defendant has entered a plea of not guilty.
14. Mr Ardasinski referred to three issues he had noted in his January report, which he considered to be of some significance, being that: 1. although the defendant continues to receive intervention through the personality and behavioural disorder service, he requires high intensity treatment and a higher level of support that can be afforded in his current situation; 2. he has consented to a referral to a custody-based sex offender program and has been found suitable to repeat the high intensity sex offender program, which is undertaken at Long Bay complex; and 3. he has remained classified as A2 maximum security since January 2019, which may prevent his transfer.
15. Mr Ardasinski maintained the opinions expressed in his January report and suggested the overall risk remains in the highest category of a sexual re-offence. The circumstances are not changed so significantly for him to amend his earlier opinions.
16. The State also relies on an updated risk management report which refers to the reports of Mr Ardasinski and the evident risk factors. It seems to me that this report is perhaps more relevant to issues relating to any conditions that might be imposed, pursuant to any further ESO should the defendant be released from custody.
17. In the end, little appears to have changed since the making of the ESO in 2017. The defendant has remained in custody and has, by his own admission, continued to offend. Of course, his offending does not involve sexual violence, but has been limited to the use of carriage services for harassment or threatening or menacing.
18. However, the only expert risk assessment evidence is to the effect that the defendant continues to pose a high risk of sexual reoffending.
19. Whilst I have not received any direct evidence from the defendant for the purposes of this preliminary hearing, it appears from the psychological and risk assessment evidence that the defendant does not wish to be released at this time and will continue to offend unless and until he receives complete and full treatment.
20. There may be some difficulties in obtaining that treatment having regard to his current security classification.
21. It is also evident form the OIMS notes that the defendant continues to express his own fears that he might re-offend and has demonstrated what is described as a pattern of challenging behaviour.
22. He has a long history of non-compliance with orders and repeat offending (that is, repetitively making harassing and menacing calls whilst in custody for sexual gratification or to direct attention to himself).

The issue raised by the defendant

1. As set out in his supplementary submissions, the defendant maintains that I would not be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a CDO or ESO. It is submitted that, even taken at its highest, the supporting documentation does not justify the making of either order because the defendant is in custody and will remain in custody for a considerable period.
2. I understand the effect of the submission to be that the supporting documentation, if proved, would only justify the making of a CDO if the application for the order is made in accordance with s 13B of the Act. That is because, as set out in s 5C of the Act, the Court may only make an order for the continued detention of a person if all of the following matters are established: 1. the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community; 2. the person is a detained offender or supervised offender (within the meaning of s 13B); 3. an application for the order is made in accordance with s 13B; and 4. the Supreme Court is satisfied to a high degree of probability that the person poses an unacceptable risk of committing another serious offence if not kept in detention under the order.
3. Section 5C of the Act only permits the making of an order if all four matters are established and one such matter is that the application is made in accordance with s 13B. An application is only made in accordance with s 13B if the matters set out in ss 13B(2) and (3) are satisfied.
4. An application for a CDO in respect of a detained offender may not be made more than nine months before the end of the offender's total sentence, or the expiry of the existing CDO, as appropriate: s 13B(3).
5. The defendant submits that, as it is inevitable that the defendant will remain in custody for a further significant period, then s 13B is not satisfied.
6. The plaintiff submits that the Court's determination of jurisdiction is considered at the time that the final application is filed or lodged. The Court would not look into the future and enquire as to the possibility of a further sentence being imposed in addition to the sentence currently being served.
7. In this regard, the plaintiff referred to a number of cases in which the term "current custody" was considered.
8. In Turner v State of New South Wales, [11] Basten JA observed that for the power to make a CDO to be engaged, it is necessary for each limb of s 5C to be satisfied. It is necessary to consider the scheme created by paras (a)-(c) as a whole, including s 13B.
9. His Honour referred to s 18 of the Act, specifically with reference to when a CDO may commence (being when it is made or when the offender's current custody expires). [12] His Honour observed that the term "current custody" refers to the custody which the person was serving when the application was made.
10. In Turner, the first IDO had been specified to commence on the expiration date of the offender's current custody. However, as the Court observed, if no such date had been fixed, it would have commenced on the day the order was made, but would not have operated during the period of sentence by reason of s 18C(1A) of the Act. [13]
11. A similar approach was taken by Campbell J in State of New South Wales v Elmir. [14] The defendant sought to distinguish Elmir on a number of grounds, in particular, that: 1. the application was urgent; 2. the interim relief sought was the appointment of experts and an ISO; 3. the legislation was different; 4. in this matter, it is inevitable that the defendant will receive a sentence of imprisonment of some length and the Court is thus not engaged in second-guessing; and 5. if, in Elmir, the Court had declined to make the orders sought, the plaintiff would not have been able to make a further application at a later time, whereas in this case, the State would not be prohibited from making a further application.
12. I have some sympathy for the defendant's position as to the practical utility of this application, in circumstances in which, as the defendant submits, he will be serving a lengthy further period of imprisonment when sentenced in respect of further offences in the coming months.
13. The orders sought by the State at this time might be viewed as having no practical utility because there would be little point in the defendant being medically examined by the two experts at this time for the purposes of any final hearing.
14. However, the plaintiff submits that the practical utility of seeking preliminary orders at this stage is to keep the application on foot. The plaintiff is not seeking an order that the plaintiff attend the medical examinations within 28 days and there is no requirement that it do so or that the order contain a time limit.
15. Further, the plaintiff submits that the Court is not, at this stage, second-guessing what might happen in the future. [15]
16. The plaintiff submits that the Court does not know what sentence is going to be imposed and should not act on the submission of the defendant as to what sentence will be imposed. The plaintiff submits that the appropriate course is to make the preliminary orders sought and the parties can await the outcome of the sentence and then further consider the appropriate course.

Determination

1. The State is only entitled to an order appointing the experts to conduct separate psychiatric or psychological examinations and directing the defendant to attend those examinations if I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a CDO or ESO.
2. If I am so satisfied, I have no discretion as to the making of the orders for the appointment of examinations. I must make those orders.
3. The matters alleged would only justify the making of a CDO if each of the matters set out in ss 5C(a)-(d) of the Act would be satisfied. Each of the paragraphs ends with "and", used in the conjunctive sense. As I have already said, paras (a) and (b) are not in dispute.
4. As for para (d), having regard to the matters alleged in the supporting documentation to which I have referred, I am satisfied that the defendant would pose an unacceptable risk of committing another serious offence if not kept in detention or under supervision. Indeed this is not disputed by the defendant. In coming to this conclusion, I have had regard to the matters referred to in s 17(4) of the Act, as would be apparent from this judgment.
5. As identified by Mr Ardasinski, there has really been no change in the risk posed by the defendant since the ESO was made by Harrison J in 2017. That which Mr Ardasinski predicted back in 2017 has come to fruition in terms of his ongoing use of carriage services to harass or menace for the purposes of sexual gratification. As identified by Mr Ardasinski, the defendant requires further extensive treatment.
6. That only leaves the point raised by the defendant that the matters alleged in the supporting documentation would not if proved justify the making of a CDO because the application is not made in accordance with s 13B.
7. In my view, the reference to the offender's total sentence in s 13B(3)(a) of the Act is a reference to the current sentence. Section 13B(3)(a) should be construed harmoniously with the rest of the Act. A CDO only commences when the offender's "current custody" expires. The reference to "total sentence" must be a reference to the sentence which has resulted in the offender being currently in custody.
8. It may be that, as the defendant submits, the application might prove to be premature in the sense that there would be no utility in the defendant being medically examined by independent experts for quite some considerable period. However, that is yet to be determined and, as the plaintiff submits, that can be considered after the defendant is further sentenced in respect of the new charges.
9. I thus would not determine this application on the basis that the defendant might, will or could be sentenced to a significant further term of imprisonment in November 2020. The application must be determined having regard to the defendant's current custody and when his current total sentence expires.
10. In all those circumstances, I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a CDO or ESO.
11. I must make the preliminary orders sought by the State for the appointment of medical experts and a direction that the defendant attends examinations, when arranged.
12. It is a matter for the State when those medical examinations are arranged. It is unnecessary for me to impose any timetable on the parties.
13. Finally, the defendant and the State have urged me to make a recommendation to Corrective Services that the defendant be expedited through the wait-list so that he can commence the relevant therapeutic and treatment program whilst in custody.
14. Having regard to the evidence before me and, indeed, reiterating the observations of Harrison J when making the ESO in 2017, it is not possible to predict when the defendant's ongoing conduct might cease or diminish.
15. Whether it is all undertaken for sexual gratification or as a means of ensuring that he remains in custody is not certain, but it seems clear that he needs to embark upon an intensive program as soon as possible in the hope that such behaviour might cease or at least diminish. Such conduct is not only detrimental to the defendant's own interests but is plainly detrimental to persons in receipt of these calls. It would be beneficial to all concerned if his access to such treatment programs could be expedited.
16. I thus make the following orders: 1. Orders pursuant to s 15(4) of the Crimes (High Risk Offenders) Act 2006 (NSW): 1. appointing two qualified psychiatrists, psychologists (or any combination of such persons) to conduct separate examinations of the Defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and 2. directing the Defendant to attend those examinations. 1. An order that access to the Court's file for any document shall not be granted to a non-party without 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. State of New South Wales v Wilmott (Preliminary) [2019] NSWSC 776; State of New South Wales v Sturgeon [2019] NSWSC 559.
2. Sturgeon at [6]; Wilmott at [7]; State of New South Wales v Monteiro (aka Lowe) (No 3) (Preliminary) [2020] NSWSC 350 at [17].
3. State of New South Wales v Holschier (No 2) [2018] NSWSC 1921 at [24].
4. Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [51] (Beazley P).
5. State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71].
6. Lynn at [55].
7. State of NSW v Vincent [2017] NSWSC 858.
8. State of NSW v Vincent [2017] NSWSC 858.
9. State of NSW v Vincent [2017] NSWSC 858 at [2].
10. State of New South Wales v Vincent (Preliminary) (No 2) [2020] NSWSC 590.
11. (2019) 99 NSWLR 767; [2019] NSWCA 164 at [14].
12. Turner at [19].
13. Turner at [22].
14. [2019] NSWSC 263.
15. Elmir at [28].

Amendments 11 November 2020 - Amendment to para [45] 11 November 2020 - Reference to Judicial Officer 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: 11 November 2020