State of New South Wales v White (a pseudonym) (Final)

Catchwords: CIVIL LAW – high risk offender – final hearing – extended supervision order – where interim order breached on the day it commenced – defendant in custody at time of hearing – frotteuristic and paedophilic disorders – cognitive impairment – no dispute that order should be made – no question of principle

Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW), ss 5B, 9(1)(a), 10A, 11

Cases Cited: State of New South Wales v White (a pseudonym) [2024] NSWSC 1600

Texts Cited: N/A

Category: Principal judgment

Parties: State of New South Wales (Plaintiff)
George White (a pseudonym) (Defendant)

Representation: Counsel:
E Lovell-Jones (Plaintiff)
K Ng (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid Commission (NSW) (Defendant)

File Number(s): 2024/00353826

Publication restriction: A pseudonym order over the defendant’s name pursuant to s 15A(1)(a) of the Children (Criminal Proceedings) Act 1987 (NSW). The defendant shall be referred to as George White.

JUDGMENT

1. On 13 December 2024, on the application of the State of New South Wales, I made an interim supervision order pursuant to s 10A of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) against the defendant who is known by the pseudonym George White: State of New South Wales v White (a pseudonym) [2024] NSWSC 1600 (“NSW v White”). The order was to commence on 20 January 2025 and was to endure for a period of 28 days. I resolved several disputes between the parties concerning the contents and precise terms of the conditions attaching to the order. The circumstances in which the order was made, the content of the disputes around the conditions, and the reasons I reached the necessary level of satisfaction concerning risk to justify the making of the order is set out in the earlier judgment.

2. The matter came before me for a final hearing on Monday 17 March 2025. In view of the position taken by the parties and factual developments since the preliminary hearing, I will not repeat the contents of the earlier judgment here. The facts of the offence which exposes the defendant to orders under the Act are summarised at [17]-[23] and the assessment of risk is discussed at [24]-[32].

3. The State now seeks an extended supervision order and Mr Ng, counsel for the defendant, accepts that the statutory pre-requisites for the making of such an order are satisfied. In view of the evidence and developments since the preliminary hearing, Mr Ng cannot responsibly resist the making of an order. The defendant himself understands that such an order should and will be made.

Developments between the preliminary and final hearings

4. Since the interim supervision order was made, the following things have occurred, as reported in an agreed statement of facts and elsewhere in the material tendered or read on the final hearing:

5. On 20 January 2025, officers of Community Corrections explained the interim supervision order to the defendant.

6. On 21 January 2025, the defendant was provided with a signed copy of the order and confirmed that he understood the conditions. On the same day, the defendant advised Community Corrections about an incident which occurred at “Big W” involving him and two young children. He said the children had accused him of touching them. Regional Disability Services staff “noted that when on outings, the defendant approaches children and tries to hug them”.

7. On 22 January 2025, the defendant was arrested and charged with breaching the interim supervision order after admitting to police that he had approached the children at Big W.

8. The defendant was released on bail late on 22 January 2025.

9. On 30 January 2025, the defendant was charged with contravening a prohibition order and sexually touching another person without consent, offences which allegedly occurred on 21 January 2025 and, presumably, relate to the same incident at Big W.

10. On 4 February 2025, the three outstanding criminal charges were before the Local Court and bail was refused.

11. On 4 February 2025, an out of home care co-ordinator with “New Directions”, an organisation that assists the defendant through his generous NDIS funding, advised that while clearing out the defendant’s things at his accommodation, material written by the defendant was discovered and that this “contained disturbing content and deviant thoughts”. The material was given to, and was retained by, NSW Police.

12. On 14 February 2025, Dr Sally McSwiggan, a neuropsychologist, provided a court ordered expert report. She had conducted an assessment on 10 February 2025.

13. On 16 February 2025, Dr Yolisha Singh, a psychiatrist with expertise in adolescents and young adults, provided a comprehensive and extremely helpful court ordered report for the purpose of the final hearing. That assessment was based on a consultation with the defendant on 17 January 2025.

14. In the period since the preliminary hearing, the organisation co-ordinating the defendant’s living arrangements and general care has gone out of business. The NDIS funding remains in place and new arrangements for his accommodation, care and support are being arranged.

Formal matters

5. The State’s application was brought within the time limits provided by the Act and complies with the statute’s formal requirements: NSW v White at [6], [29].

Assessment of risk

6. My opinions as to the risks posed by the defendant were set out in the earlier judgment. The events since the preliminary hearing and the contents of the report by Dr Singh, and less so that of Dr McSwiggan, fortify me in those findings.

7. I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence if he is not kept under supervision pursuant to an extended supervision order.

8. The conclusion in the last paragraph is based on the following:

9. The nature of the original offending.

10. The defendant’s demonstrated inability to control his urges to interact with and touch children inappropriately.

11. The defendant’s self-described titillation resulting from his interactions with young children and his deviant enjoyment of the power dynamic of such interactions.

12. The inability of the defendant to control his behaviour despite his awareness that what he is doing is wrong. This lack of self-control appears to be related to his cognitive impairment, a disability confirmed in the recent psychometric testing undertaken by Dr McSwiggan.

13. Dr Singh’s diagnosis that the defendant suffers from a frotteuristic disorder and a paedophilic disorder. I am satisfied, largely based on his self-reporting, that the defendant receives “intense sexual arousal from touching a nonconsenting person” and has “recurrent intense sexually arousing fantasies, sexual urges or behaviours involving sexual activity with a prepubescent child or children.”

14. The recent charging of the defendant with sexual touching and the discovery of disturbing and deviant letters at his home. On the most benign view of the Big W incident, the defendant approached two children contrary to the terms of the interim order which had been explained to him a very short time before. This simply amplifies the evidence of his impulsivity and lack of self-control.

Conditions

9. I have considered the opinions of Dr Singh who raised sensible questions about a few of the proposed conditions. She was of the opinion that some of the conditions may infringe the defendant’s independence and be counterproductive.

10. However, I am satisfied the conditions agreed upon by the parties are appropriate. These reflect determinations made on the interim order considered against the unfortunate events of January this year, where the interim supervision order appeared to be breached on the day it came into effect.

11. I expect the supervising officers will consider closely the opinions expressed by Dr Singh. I accept her opinions over those of Dr McSwiggan both generally and on the issue of the appropriateness of various conditions.

Orders

12. Accordingly, I make the following orders:

13. Revoke the interim supervision order made on 13 December 2024.

14. An order pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (“the Act”) that the defendant be subject to an extended supervision order for a period of three years commencing today.

15. An order pursuant to s 11 of the Act, directing that the defendant, for the period of the extended supervision order, comply with the conditions set out in the schedule to this order.

16. Confirm the order made on 13 December 2024 restricting access to the Supreme Court’s file.

Schedule of Conditions

In these conditions:

“Associate” includes, but is not limited to, being in company with, or communicating with by any means (including by post, facsimile, telephone, email or any other form of electronic communication).

“CSNSW” means Corrective Services NSW.

“Commissioner” means Commissioner for Corrective Services.

“Defendant” means GEORGE WHITE, the defendant in these proceedings and the subject of the order.

“DSO” means Departmental Supervising Officer, that is, any Corrective Services Officer supervising the defendant under the order.

“Electronic Identity” means each of the following:

a) an email address,

b) a user name or other identity allowing access to an instant messaging service,

c) a user name or other identity allowing access to a chat room or social media on the internet,

d) any other user name or other identity allowing access to the internet or an electronic communication service.

“Material” includes:

a) any written or printed material;

b) any picture, painting or drawing;

c) any carving, sculpture, statue or figure;

d) any photograph, film, video recording or other object or thing from which an image may be reproduced;

e) any computer data or the computer record or system containing the data; and

f) any other material or object on which an image or representation is recorded or from which an image or representation may be reproduced.

“NSWPF” means NSW Police Force.

“Search” includes:

a) A garment search, being a search of any article of clothing worn by the defendant or in the defendant’s possession, where the article of clothing is touched or removed from the person’s body; and

b) A pat-down search, meaning a search of the defendant where the defendant’s clothed body is touched.

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

1. You must accept the supervision and guidance of a DSO and obey all reasonable directions of a DSO.

2. Where a direction may 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. You must truthfully answer questions from a DSO, or any other person supervising you, about:

a) where you are or have been;

b) where you are going;

c) who you are with or have been with;

d) what you are doing or have been doing; and

e) the nature of your associations.

4. You must agree to any information relating to your risk, supervision or rehabilitation being shared between those persons and agencies that are involved in your supervision including, but not limited to, a DSO, NSWPF and CSNSW.

Electronic Monitoring

5. You must wear electronic monitoring equipment as directed by a DSO and must not tamper with or remove the equipment.

Schedule of Movements

6. If required by the DSO, each Wednesday, you must provide an honest summary in chronological order of your anticipated movements for the following week commencing on the next Saturday to the DSO.

7. You must let the DSO know if there is any change to those movements prior to the change, or if that is not possible, immediately afterwards.

Part B: Accommodation

8. You must live at an address agreed and approved by the DSO in consultation with the Public Guardian or those administering the NDIS Programme.

9. You must notify the DSO if you want to move and you must tell the DSO where you would like to move to 7 business days before you move.

10. You must promptly notify the DSO if you want to spend the night anywhere other than your approved address or any alternative approved addresses, or you wish to have anyone stay the night at your approved address.

11. You must allow a DSO to visit you at your approved address at any time and to enter the premises at that address.

Note: when/where your “approved address” is shared accommodation, for the purpose of conditions 10 and 11, “approved address” specifically means your allocated bedroom in the shared accommodation.

Part C: Place and travel restrictions

12. You must surrender any passports held by you to the Commissioner, must not be in possession of any passports, and must not attempt to apply for any passports.

13. You must not leave New South Wales without the approval of the Commissioner.

14. You must not go to any place specified by a DSO.

15. Without limiting condition 14 above, you must not go to any of the following places without the prior approval of a DSO:

a) Day-care centres, pre-schools and schools;

b) Amusement parlours, amusement parks and theme parks;

c) Cinemas;

d) Libraries and museums;

e) Camping grounds and caravan parks;

f) Children’s playgrounds, parks, and areas with play equipment provided for the use of children;

g) Pools, playing fields and sporting facilities;

h) Activities intended for the entertainment of children;

i) Residences where you know that persons aged under 18 years ordinarily reside; and

j) Internet cafes.

16. You must not attend any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment, without the prior approval of a DSO.

Part D: Employment, finance and education

17. You must take all reasonable steps to participate in programs as recommended by a DSO, in consultation with the Public Guardian or their delegate, for the management of your risk of committing a serious sex offence.

18. You must not start or change any job, volunteer work or educational course without the approval of a DSO.

Part E: Non-association

Association with Children

19. You must not associate with anyone who you know is under 18, other than:

a) incidental contact in a public place in the course of the duties of the minor; or

b) with the written permission of a DSO and in accordance with any requirements reasonably determined by a DSO.

Associations with Others (not children)

20. You must not associate with any person specified by a DSO.

21. You must notify a DSO before engaging the services of sex workers.

22. You must agree to a DSO disclosing your criminal history to another person if a DSO considers the disclosure is reasonably necessary for managing your risk of committing a serious sex offence. Before any disclosure is made, you will first be given the opportunity to make the disclosure yourself within a timeframe as identified by a DSO.

Note: Under this condition, a DSO may confirm with the other person that a proper disclosure has been made.

23. You must obtain written approval from a DSO prior to joining or affiliating with any club or organisation.

Part F: Weapons

24. You must not possess or use any of the following, without a DSO’s prior approval:

a) a knife (other than a knife posed for ordinary domestic use in the home), 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; or

b) any other implement made or adapted for use for causing injury to a person.

Part G: Access to the internet and other electronic communication

25. You must follow any reasonable direction by a DSO, in consultation with the Public Guardian or their delegate, in relation to your use of electronic devices, the internet and social media.

26. You must honestly answer any question you are asked by your DSO about your use of electronic devices, social media, internet chats and the use of internet.

Part H: Search and seizure

27. You must submit to the search by a DSO (or any other person as directed by the DSO) of your person or residence, or any vehicle which is under your control, or any item, computer, electronic or communication device, storage facility, garage, locker or commercial facility in your possession or under your control; and to the seizure of any object located during the search.

28. You 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 I: Access to pornographic, violent and classified material

29. You must notify your DSO before you purchase, possess, access, obtain, view, participate in or listen to material classified as X18+ Restricted, Category 1 Restricted and Category 2 Restricted as defined under the Classification (Publications, Films and Computer Games) Act 1995 (Cth), or any other material as directed by a DSO with respect to concerns related to risk of committing a serious offence.

Part J: Personal details and appearance

30. You must not change your name from “George White” or use any other name without notifying a DSO.

31. You must let a DSO photograph you, dressed, within one week of the commencement of these conditions and following any significant change to your appearance.

Part K: Medical intervention and treatment

On the proviso that the DSO consults with the Public Guardian or their delegate under the guardianship orders as to the defendant’s medical treatment:

32. You must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction.

33. If directed, you must undergo an assessment for the purposes of a Mental Health Care Plan.

34. You must notify a DSO of the identity and address of any healthcare practitioner that you consult.

35. You must notify a DSO immediately if you commence, cease to take or decline to commence taking any medication prescribed to you by your healthcare practitioners.

36. You must agree to your treatment and service providers and healthcare practitioners sharing information, including reports on your progress and attendance, and information you have told them, with each other and with a DSO, to the extent that the reports are considered appropriate by your DSO for your rehabilitation, supervision and/or risk mitigation in relation to a serious sex offence.

37. You must agree to any information obtained under condition 36 being shared between those persons and agencies that are involved in your supervision including, but not limited to, a DSO, NSWPF and CSNSW.

38. You must agree to the disclosure of your criminal history to any healthcare professionals that are treating you if a DSO considers it reasonably necessary to do so to manage your risk of committing a serious sex offence.

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