By summons filed 17 October 2017 the State of New South Wales (the "State") sought orders under the Crimes (High Risk Offenders) Act 2006 (the "Act") against the defendant, Mark Stephen Whaley.
On the day of the hearing of this matter the State was granted leave to file an amended summons. The amended summons made three principal claims for relief against Mr Whaley under the Act in its amended form. The first form of relief is for orders under subs 7(4) appointing two qualified psychiatrists or two qualified psychologists or one of each to examine Mr Whaley and require that he attend an examination.
The second form of relief is an Interim Supervision Order ("ISO") under section 10A of the Act for a period of 28 days in respect of which the State seeks to impose various conditions under section 11.
The third principal form of relief is an Extended Supervision Order under section 5B of the Act for a period of five years.
This judgment deals with the first two forms of relief sought. The amended summons also seeks an order concerning the distribution of any reports obtained as a result of any compulsory examinations that may be ordered. I do not understand that order to be contentious.
On 24 October 2017 the Crimes (High Risk Offenders) Amendment Act 2017 received Royal Assent. It commenced on 6 December 2017. Clause 17 of Schedule 2 to the Act, as amended, provides that the Act in its amended form applies to persons, such as Mr Whaley, who committed offences before the amendments commenced as well as persons serving sentences that began before the amendments commenced. Clause 19 confirms that the Act as amended applies to proceedings such as these which were commenced but not determined before the amendments came into force. It follows that this application is governed by the Act in its amended form.
Section 6 of the Act sets out the requirements with respect to the making of an application for an Extended Supervision Order. The application may not be made until the last nine months of the offender's current custody or supervision (s 6(1)). As I will explain, Mr Whaley was in custody when the summons was filed, but was released to parole on 25 October 2017. His last sentence will expire on 3 March 2018.
Subs 6(3)(a) of the Act provides that the application must be supported by documentation that addresses the matters referred to in subs 9(3) of the Act, being a series of factors relevant to the determination of whether or not to make an Extended Supervision Order. The documentation that has been filed meets those requirements. Those requirements are further addressed later in this judgment.
Subs 6(3)(b) requires that the documentation accompanying the application include a report prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner assessing the likelihood of the offender committing a serious offence. This condition was satisfied in that the accompanying documentation included a report of Dr Parker, a senior psychologist employed within the Serious Offenders Assessment Unit, dated 24 July 2017. I will return to address the contents of Dr Parker's report later in this judgment.
Subss 7(1) and 7(2) specify certain procedural requirements concerning an application for an Extended Supervision Order. I do not understand that they were in dispute on this application.
Subs 7(3) provides that the Court must conduct a preliminary hearing within 28 days after the application is filed or within such further time as the Court may allow. It follows that the Court has allowed further time.
As already noted, subsection 7(4) and section 10A, respectively confer power on this Court to make an ISO and to direct the defendant to attend for examination. Those provisions respectively provide:
"7 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 an 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.
10A Interim supervision order
The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, it appears to the Court:
(a) that the offender's current custody or supervision will expire before the proceedings are determined, and
(b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order."
Three matters should be noted about these provisions. First, in relation to subs 10A(a), I am satisfied that Mr Whaley's period of supervision on parole will expire before the proceedings are determined. As noted, his last sentence expires on 3 March 2018. There is no possibility of a final hearing of this proceeding being able to be concluded before that time, especially given the reports under subs 7(4) of the Act have not yet been obtained.
Second, each of subsections 7(4) and 10A(b) require a consideration of the "matters alleged in the supporting documentation" and the adoption of the hypothesis that those matters are proved. At the risk of stating the obvious, this confirms the preliminary nature of this hearing and directs attention to what is set out in the documentary material accompanying the application. Nevertheless, oral evidence was adduced at the hearing, including from Dr Parker. It is unnecessary to finally determine how this material can be assessed when one is considering the matters "alleged in the supporting documentation", although it is likely that, on any view, such supplementary oral evidence is at least relevant to a determination of what conditions are "appropriate" to include in an ISO pursuant to section 11.
Third, both of subsections 7(4) and 10A(b) require a consideration of whether the matters alleged, if proved, would justify the making of an ESO. This directs attention to section 5B of the Act which provides as follows:
5B Making of extended supervision orders - unacceptable risk
The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if:
(a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and
(b) the person is a supervised offender (within the meaning of section 5I), and
(c) an application for the order is made in accordance with section 5I, and
(d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.
As already stated, Mr Whaley is currently on parole and his sentence will expire on 3 March 2018. Mr Whaley pleaded guilty to two counts of murder which were committed in early 1992. On 5 November 1992 he was convicted and sentenced to concurrent terms of imprisonment of 25 years which expired on 3 March 2017.
In April 1992, while he was on remand for the murder charges, he seriously assaulted a fellow inmate with a billiard cue. For that he was ultimately convicted of an offence under former section 35 of the Crimes Act 1900 (NSW), namely, "maliciously inflict grievous bodily harm", (the "GBH offence"). For this offence he was sentenced in 1995 to six years' imprisonment with a non-parole period of one year. The sentence for that offence was fixed to commence on 4 March 2012 and will expire on 3 March 2018.
The State's written submissions address the issue whether the GBH offence satisfied the definition of "serious violence offence" in section 5A of the Act. For the reasons that follow, it is not necessary to resolve that issue on this application.
In this case at the very least Mr Whaley is an "offender who … has served … a sentence of imprisonment for a serious offence either in custody or under supervision in the community" for the purposes of subsection 5B(a), namely, the sentences for the two murder convictions. On any view, murder is a "serious violence offence" within the meaning of section 5A (and thus a "serious offence" as defined in s 4 of the Act). Even though when Mr Whaley committed murder the Crimes Act did not contain any definition of "serious indictable offence", it was nevertheless committed in circumstances that it would have been such an offence if it was committed in 2017 or 2018 (see subsection 5A(3)(c) of the Act.) Murder is an offence punishable by imprisonment for life or a term of five years or more (see the definition of "serious indictable offence" in section 4 of the Crimes Act).
Further, Mr Whaley is also a "supervised offender" within the meaning of section 5I of the Act and thus the State has satisfied subsection 5B(b). This is so because Mr Whaley is "serving a sentence of imprisonment for an offence", namely the GBH offence, that is being served partly concurrently and partly consecutively with "a sentence for a serious offence", namely the two murder offences (see subsection 5I(2)(a)(iv)). For similar reasons, subsection 5B(c) is also satisfied. However, at least at this point of the analysis, there remains to be considered the criteria in section 9(3) and, most importantly, whether the allegations in the supporting documentation would, if proved, demonstrate to a high degree of probability that Mr Whaley poses an unacceptable risk of committing another serious offence if he is not kept under supervision (subsection 5B(d)).
There was a debate in the written submissions filed on this application as to whether there was any ambiguity in relation to that provision and whether resort needed to be had to the Second Reading Speech to resolve that ambiguity. In my view, it is not necessary to resolve any such alleged ambiguity on this preliminary application.
To address subsection 5B(d) it is necessary to briefly set out Mr Whaley's personal, criminal and custodial history. Mr Whaley was born in 1968 and is now 49 years of age. Dr Parker's report records him having a positive family environment while living with his grandparents until he was six years old. However, according to Dr Parker, Mr Whaley then returned to live with his father who abused alcohol and was allegedly violent towards him.
Mr Whaley spent much of his youth alternating between Youth and Community Services facilities, his father's house and the homes of other families and friends. His education was severely disrupted. At some stage during his teenage years he was very much fending for himself. At the age of 12 he was convicted of stealing. He committed a steady stream of dishonesty offences throughout his teenage years. From around 1985 his offending escalated such that he accumulated a number of convictions for assault and robbery type offences which led to custodial sentences. When imposing sentence for the two murder offences, the sentencing judge referred to Mr Whaley as having a "very bad antecedent criminal record".
The murder offences were committed in March 1992 when Mr Whaley was 23 years old. The victims were two elderly persons. Mr Whaley beat them around the head with a piece of timber. Mr Whaley was found by the police in possession of a number of their items. A search of his house apparently located a semi-automatic rifle. Mr Whaley was arrested soon after the murders. In an interview with the police he admitted the killings. He said that the victims disturbed his robbery of their home and he panicked. He was sentenced on that basis.
However, while Mr Whaley was participating in a Violent Offenders Treatment Programme ("VOTP") in 2012, he claimed that he committed the offences because he was seeking to return to gaol for a long period of time to escape various events in his life that had overwhelmed him. In effect, he said that the murders were a premeditated means by which he could achieve that aim. He repeated that explanation when he was interviewed by Dr Parker.
On this application counsel for the State, Mr Aitken, referred to a pre‑release report dated 2 January 2014 which arguably records a third explanation for the offence as having been given by Mr Whaley, namely, that he was "angry with the victims for selling his possessions without his knowledge, but was also fuelled with anger at himself and the world in general at the time of the offence". In his oral evidence before me Dr Parker opined that he found this a more likely explanation for the offending than the other two versions. It is neither necessary nor appropriate for the Court to make any determination on this application of which, if any, of these explanations for the offending is the correct one. Ultimately it does not affect my assessment of the test in section 5B(d) based upon the matters alleged in the supporting documentation.
As indicated earlier, Mr Whaley was refused bail for the murder offences and in April 1992 he committed the GBH offence upon a fellow inmate. That other inmate suffered a laceration, amnesia and a fracture of a bone in his head. While participating in the VOTP programme in 2002 Mr Whaley said he confronted the inmate because that inmate was a child sexual offender.
I have already stated the sentences that were imposed for the murder offences and the GBH offences. In each of the sentencing judgments for those offences the sentencing judge emphasised the severity of Mr Whaley's attack and his poor subjective case.
The extensive material filed in support of the application includes a number of reports addressing Mr Whaley's mental health. In 2005 a psychiatrist diagnosed him as having a major depressive disorder and anti-social personality disorder. In 2014 and 2016 there are reports of him having paranoid delusions. On each occasion a medical practitioner referred to the possibility that he was schizophrenic. Nevertheless, in light of more recent events, it does not seem that his mental health issues have played a significant part in Dr Parker's assessment of his risk of recidivism.
One matter in Mr Whaley's favour is that generally during his time in custody he was not convicted of any further acts of violence. Nevertheless, his time in custody had its difficulties. He committed a number of custodial infractions including possession of drugs and intimidation. He was first eligible for release on parole in March 2013. He did not receive parole then, but instead commenced a work release placement. This was suspended on 11 December 2013 when he attempted to bring a mobile phone into a correctional centre. Work release recommenced in March 2014, but ended when he failed to return to prison. According to Dr Parker's report, Mr Whaley explained that this arose because he was being intimidated to bring drugs back into the prison, but after sourcing the drugs he changed his mind about trying to smuggle them into the gaol and decided to stay out for the night and then hand himself in the next day.
While in custody Mr Whaley participated in a number of rehabilitation programmes and other courses with varying degrees of success. This included courses in alcohol and drug rehabilitation, relapse prevention, anger management, conflict resolution as well as the "Getting Smart" and the "Equips Foundation" programmes. I have already referred to his participation in the VOTP Programme during 2012. The report from that programme describes Mr Whaley as having made gains, but has also as having been "frequently argumentative", although at other times he was "insightful and positive". Nevertheless he was initially assessed as being not suitable to participate in the VOTP Maintenance Programme. Ultimately in 2015 he participated in VOTP Maintenance. In an affidavit sworn on 29 January 2018 a Corrective Services psychologist, Ms Fiona Mason, described Mr Whaley's re-engagement with that programme in positive terms.
At the time Dr Parker prepared his report Mr Whaley had not yet been released on parole. Dr Parker's report canvasses much of what has been discussed already. It includes Dr Parker's assessment of Mr Whaley's risk of re‑offending by reference to a number of different methods, including the "Level of Service Inventory - Revised" (LSI-R) actuarial risk instrument, the "Violence Risk Appraisal Guide - Revised" (VRAG-R) actuarial risk instrument, the "Violence Risk Scale" (VRS) actuarial risk assessment and a methodology of assessing risk by reference to a prisoner's so-called "criminogenic needs".
The LSI-R instrument consists of both static and dynamic risk factors. It can be administered to an offender both in custody and in the community. Dr Parker's assessment yielded a "medium/high risk" rating.
The VRAG-R assessment appears to involve more static factors. In Mr Whaley's case, this also yielded a relatively high assessment of the risk of recidivism. Dr Parker was cross-examined about this instrument. He stated that the VRAG-R was based upon a study of a group of Canadian prisoners who were in a forensic facility although some of them were assessed as not having mental health issues. He said that the risk of re-offending was assessed by reference to, not just the likelihood of the offender's committing serious acts of violence, but common assaults and sexual offences as well. He added that when the analysis was applied to exclude less serious offences of violence the results were generally similar.
In relation to a consideration of Mr Whaley's criminogenic needs, Dr Parker referred to his association with criminal peers, his history of substance abuse and his modes of "criminal thinking" which includes an acceptance of the normalisation of violence, a belief that the offender rejects society's roles in setting law, an attitude of the offender that they will either succeed or be defeated by others and an attitude of an offender that events are out of their control. Dr Parker was cross-examined on this in relation to Mr Whaley and his present circumstances. The effect of his answers in cross-examination is that, while at present there is little or no evidence of many of these factors affecting Mr Whaley, their presence in the past means there is some basis for apprehending their return in the future.
Ultimately, in his report Dr Parker concluded as follows:
"76. Were Mr Whaley to return to a criminal lifestyle, it is likely that it will involve the following steps:
A continuation of the criminal thinking identified earlier. Unless he makes some fundamental changes in the way he views the world, and himself he will continue to regularly abuse substances and engage in violence when he believes he is provoked or justified.
Associating with antisocial peers, combined with a lack of prosocial peers. This appears to be a substantial risk factor for Mr Whaley, as he appears to have few prosocial peers and antisocial peers are likely to reinforce criminal thinking patterns.
Substance abuse. A return to substance abuse, while not necessarily a causal factor for violence, may be a marker for the presence of the two earlier factors.
CONCLUSIONS AND RECOMMENDATIONS
77. Mr Whaley is a 49 year old man who is estimated to be at high risk of further violent offending. This assessment is anchored by static, unchangeable factors and backed up by the identification of a number of criminogenic needs. While he has completed the VOTP, and engaged in an extended period of maintenance counselling, it is likely that he will need an extended period of strict monitoring to implement and consolidate the skills and attitudes he learned in that program.
78. In the event that Mr Whaley is subject to an Extended Supervision Order (ESO), it is likely that he will benefit from intensive supervision and case management by CSNSW. This may include electronic monitoring, the obligation to provide weekly schedules of movement; unannounced visits by supervising staff; assistance finding suitable accommodation; scrutiny of social contacts, employment and leisure activities; and attending programs to address his criminogenic needs. The higher level of supervision involved in an ESO, compared to standard supervision, would assist in helping Mr Whaley to develop a prosocial lifestyle in the community."
I stated earlier that the relevant statutory test is primarily, if not solely, directed to the matters alleged in the supporting documentation. While the further oral evidence and cross-examination of Dr Parker was both informative and I suspect will be useful at a final hearing, ultimately it did not add to or detract from the conclusions that are expressed in the above extract when considered in light of the statutory constraints that are imposed upon a preliminary hearing.
On 17 August 2017 Ms Pauline Jeffress prepared a risk management report in respect of Mr Whaley (subsection 9(3)(d1) of the Act). The report set out a proposal to supervise Mr Whaley by the use of interviews, field visits, review and monitoring of third party contacts, as well as, if necessary, monitoring his movements. The report also referred to the imposition of curfews and restrictions on associations and place as well as the potential for referrals to psychiatric and psychological services and alcohol and drug testing. The proposal outlined in Ms Jeffress' report is reflected in the proposed conditions to be attached to the ISO and is also reflected in the current conditions of Mr Whaley's parole which Ms Jeffress ultimately supervises.
On 29 January 2018 Ms Jeffress swore a further affidavit. In that affidavit she states that Mr Whaley was the subject of an LSI-R assessment as well as a "Community Impacts Assessment" (CIA) on 26 December 2017. In her affidavit Ms Jeffress says that the outcome of the LSI-R assessment was that Mr Whaley was given a "medium-high rating". In cross-examination she agreed that the strict application of the criteria in the LSI-R test yielded only a medium rating, but a score of "medium-high" was imposed by reference to an assessment of Mr Whaley's circumstances, particularly the fact that he had only recently taken up accommodation and employment after his release on parole.
Dr Parker explained that LSI-R assessments can alter as the relevant offender's personal circumstances change and that they often yield more favourable scores for the offender when undertaken in the community because of such matters as accommodation and employment. It is not necessary to determine whether the process that was undertaken in relation to this LSI-R assessment undertaken by Ms Jeffress was or was not consistent with the methodology that should be applied. The conclusion that I come to is applicable regardless of whether Mr Whaley is assessed as having a "medium" risk of re-offending or a "medium-high" risk of re-offending.
The "Community Impact Assessment" is a test that determines the likely extent of supervision that is required by reference to the consequences of any re-offending of the offender. In Mr Whaley's case, given his convictions in 1992, it is not surprising that if one was to apply an analysis that assumed he re-offended that it would yield a medium to high rating as it did. This only demonstrates what would be suggested by his record, namely, that following release from an institution a period of supervision is appropriate and, indeed, required.
As already stated, Mr Whaley was released on parole on 25 October 2017. He was initially released to a community offender's support programme facility, but later moved to private rental accommodation close to his workplace. He secured full-time employment on 9 November 2017. In an affidavit sworn 29 January 2018 Ms Jeffress states that Mr Whaley has been compliant with supervision requirements and continues to be engaged with VOTP maintenance.
I have referred to the criteria in subsection 9(3) already. The matters that I have discussed address the factors stated in subsections 9(3)(c), (d), (d1), (e), (f), (h), (h1) and (I). The matters referred to in subsection 9(3)(b) and (g) of the Act have no relevance to this application at this point. In relation to subsection 9(3)(e1) no "options" were raised by the parties on this application. In relation to subsection 9(3)(e2) Mr Whaley's conduct while on parole suggests that there is a likelihood that he will comply with the conditions of both an ESO and an ISO if they were to be made.
In relation to the test posed by subsection 5B(2) in the context of subsection 7(4) and section 10A(b), and despite the submissions made by counsel for Mr Whaley, I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO.
Mr Whaley has an extensive criminal record and has committed many violent offences, albeit a number of decades ago. The two murders that he committed were of the utmost seriousness. His conduct in gaol, while not violent, does not suggest that the risk of violent offending was greatly mitigated throughout the passage of time. All of the actuarial assessments that have been undertaken, as well as the personal assessment of Dr Parker, point towards there being an unacceptable risk of Mr Whaley committing a serious violence offence if he was released unsupervised. In particular, when one bears in mind the two murder convictions, it seems to me that the risk of him committing a further serious violence offence need not be very high for it to be unacceptable. Whether that risk be described as medium, medium-high or high, it still meets that test.
Mr Whaley's conduct for the relatively short period that he has been on parole is very encouraging. However, the fact that that has been undertaken under supervision on parole only supports an assessment that he poses an unacceptable risk unless he is supervised. It follows from this that the Court will make an order under subsection 7(4) and an ISO under section 10A. However, there remains to consider the conditions that will attach to an ISO.
Section 11 of the Act as amended provides:
11 Conditions that may be imposed on supervision order
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.
The approach to the imposition of conditions was discussed in Wilde v State of New South Wales [2015] NSWCA 28 at [47] to [54]. In Wilde at [54] the Court accepted that it is not appropriate to impose conditions on a person directed to general future criminal conduct, but added that the imposition of a condition "does not have to have a demonstrated link to the past offending" in the sense submitted by the appellant in that case.
Attached to the amended summons are 52 proposed conditions. Those conditions were the subject of some evidence given by Dr Parker and Ms Jeffress as well as focused submissions by Mr Aitken and Counsel for Mr Whaley, Mr O'Neil.
Conditions 1 to 3 concern monitoring and reporting and were not seriously in dispute. Condition 4 involves attendance at the police station within three days of the making of the order and the provision of a copy of the order. Ms Jeffress confirmed that that was not required and ultimately it was not pressed by the State. Conditions 5 to 7 relate to electronic monitoring of Mr Whaley. They are not mandatory, but only arise if they are directed by the DSO, which in this case at present is Ms Jeffress. Ms Jeffress explained that their purpose was to manage exclusion zones and, if necessary, manage Mr Whaley's associations should they indicate that there is a heightened risk of offending.
While on parole Mr Whaley has been the subject of electronic monitoring which has been directed to excluding him from the area in which he committed the murders. Ms Jeffress' evidence was to the effect that, at the moment, she considers it is unlikely that any direction would be required. Ultimately, in light of her evidence, Mr O'Neil did not submit that these conditions were not appropriate. In my view, for the reasons given by Ms Jeffress, they are.
The same observations apply to conditions 8 to 11, which concern requirements to provide schedules of movements. Conditions 12 to 16 concern Mr Whaley's accommodation. There was some discussion about clause 16 which requires permission from the DSO if any person is to enter and remain at Mr Whaley's premises. Ms Jeffress explained that this condition could be utilised to allow someone who is either a family member or in a relationship with Mr Whaley to stay when they wished provided that a risk assessment had been undertaken. I am satisfied those conditions are appropriate.
Conditions 17 to 19 are place and travel restrictions which are clearly appropriate. Conditions 20 to 22 concern employment, finances and education. Clause 22 requires Mr Whaley to provide any information relating to his financial affairs, including income and expenditure, if directed by his DSO. Ms Jeffress indicated that this was unlikely to be invoked, but could be if concerns arose about any associations or the possibility that he was abusing drugs. Conditions 23 to 26 concern drugs and alcohol. The background is that it is accepted that in the period leading up to the two murders committed by Mr Whaley he was heavily addicted to drugs and was abusing alcohol.
Proposed condition 23 seeks to prevent Mr Whaley possessing or using alcohol or any illegal drug. Dr Parker did not support so much of that condition which related to alcohol. He stated that he thought it was appropriate that a prisoner in the circumstances of Mr Whaley at least have the opportunity to consume alcohol to a small degree. He said that that was a much more preferable approach to one which simply restricted him from using alcohol and then later lifted the ban entirely. Ms Jeffress' evidence was to the same effect. Mr Aitken nevertheless submitted that it was appropriate to maintain a ban on alcohol. However, having regard to Dr Parker and Ms Jeffress' evidence and Mr Whaley's encouraging performance whilst on parole, I think it is appropriate to ameliorate this condition. Accordingly, the words "alcohol or" will be deleted from proposed condition 23 and a new condition 23A will be imposed to the effect that the defendant must not consume alcohol to the extent that his blood alcohol level will exceed .05.
Condition 24 concerns drug and alcohol testing. That condition is appropriate. Condition 25 precludes the defendant from entering licensed premises. In light of the conclusion I have just reached, I do not regard that condition as appropriate and it will not be made. Condition 26 concerns rehabilitation programmes if necessary and that condition is appropriate.
Proposed conditions 27 to 30 concern association with others. Condition 29 purports to preclude the defendant from associating with people who are consuming or under the influence of alcohol without the prior approval of the DSO. In light of the conclusion I have already reached, that condition will not be imposed. The other conditions are appropriate.
Proposed condition 31 prohibits the possession of weapons. That is appropriate. Proposed conditions 32 to 35 concern access to the Internet. Ms Jeffress stated that, although it was unlikely that these provisions would be invoked by her, she considered them necessary in case a concern arose about Mr Whaley's associations. I am satisfied they are appropriate. That conclusion also means that conditions 39 and 40 are appropriate, as are conditions 36, 37, 38, 41.
Proposed conditions 42 to 46 concern Mr Whaley's personal details and appearance. Proposed condition 43 precludes him from using an alias when using the Internet. I consider that that condition is appropriate, although I think provision should be allowed for Ms Jeffress or another DSO to waive it if proper cause has been shown. Thus, the words "unless otherwise approved by the DSO" will be inserted at the beginning of that condition. Otherwise the remaining conditions attached to the amended summons are clearly appropriate.
It follows that I will make orders substantially in the form of orders 1 and 2 of the amended summons with the ISO to take effect from the date that Mr Whaley's sentence ends. However, I will not make those orders today, but will instead direct the State to bring in the form of orders that they require, bearing in mind that the proposed conditions will need to be amended and renumbered to take into account the findings that I have made.
Otherwise it will be necessary for the parties to approach the Manager of Civil Listing to obtain a hearing date which will have to be some time after six weeks from today when the reports will be obtained, but must be before the middle of May.
Accordingly the orders I make are as follows:
I will direct the State of New South Wales to provide a draft form of order to give effect to these reasons by 11am on 12 February 2017.
I will direct the parties, within seven days, to approach the Manager of Civil Listings to obtain a final hearing date of the matter.
I will list the proceedings for directions before a Registrar at 9am on 23 February 2018.
[3]
Amendments
21 February 2018 - [1], [6] - (Cth) deleted from legislation cited.
[38] - section 9(3)(d)(1) amended to read 9(3)(d1)
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: 21 February 2018