State of NSW v Cusack

Supreme Court of NSW|2014-08-19|Before: Bellew J, Hall J

INTRODUCTION 1By an amended summons filed on 15 August 2014 the plaintiff seeks orders pursuant to the provisions of the Crimes (High Risk Offenders) Act 2006 ("the Act") in the following terms: "a) pursuant to s. 5C and s. 9(1)(a) of the Act that the defendant be subject to a High Risk Sex Offender Extended Supervision Order ("the extended supervision order") for a period of 5 years from the date of the order; and b) pursuant to s. 11 of the Act, that the defendant, for the period of the extended supervision order, comply with the conditions set out in Schedule A. 2The following affidavits were read by the plaintiff in support of the application: (i)Christopher Butler sworn 9 May 2014; (ii)Samuel Ardasinski sworn 7 August 2014; (iii)Zouhier Abedine affirmed 8 August 2014; (iv)Vicki McCarthy sworn 8 August 2014. 3Mr Abedine gave oral evidence in the hearing before me and I have referred to aspects of his evidence below. 4Also tendered in the plaintiff's case were two medical reports, namely: (i)a report of Dr Andrew Ellis, Forensic Psychiatrist dated 27 July 2014; and (ii)a report of Dr Jeremy O'Dea, Forensic Psychiatrist dated 7 August 2014. 5Counsel for the defendant tendered two documents which were admitted without objection, namely; (i)a copy of the notification of the decision of the State Parole Authority to release the defendant on parole dated 19 July 2012; and (ii)a transcript of the defendant's evidence before Hall J on 4 June 2014 in a preliminary hearing. 6The making of an extended supervision order was not opposed by the defendant, although it obviously remains necessary for the court to undertake its own assessment of the evidence to determine whether or not such an order is appropriate. On the assumption that I were to conclude in favour of making the order, the parties approached the matter on the basis that the following issues would then remain for determination: (i)the length of the order; and (ii)the conditions attaching to such order.

THE HISTORY OF THE DEFENDANT'S OFFENDING 7On 8 June 1994, the defendant appeared before his Honour Judge Viney QC in the District Court having pleaded guilty to: (i)one count of armed robbery; (ii)six counts of aggravated sexual intercourse without consent; and (iii)one count of assault occasioning actual bodily harm. 8All of the offences occurred on 9 February 1993. The defendant, in the company of another person, was visiting some friends in their home. The male was threatened by the defendant and his co-offender, tied up and assaulted. The victim, a female who was then aged 39 and who suffered from muscular dystrophy, was subjected to what the sentencing judge described as "dreadful sexual assaults". It is not necessary for present purposes to canvass this offending further, other than to say that his Honour's description was entirely accurate. 9The defendant surrendered to the police on 15 February 1993 and admitted the offences. Judge Viney made reference to the fact that the offender had expressed "his remorse and disgust with himself". However, his Honour described the offending as "objectively, a serious attack on people in their own home, accompanied by threats and terror and brutality of a very high degree". 10Ultimately, on the charge of armed robbery, the defendant was sentenced to a fixed term of 3 years imprisonment to date from 15 February 1993 and to expire on 14 February 1996. In respect of each of the five counts of aggravated sexual assault, he was sentenced to a minimum term of 5 years imprisonment with an additional term of 2 years and 6 months. In respect of the charge of assault occasioning actual bodily harm he was sentenced to a fixed term of 12 months imprisonment, concurrent with the fixed term imposed in respect of count 1. 11The sentence imposed on the defendant was reduced by 50 percent on account of his assistance to the authorities. It is not necessary for me to detail the circumstances of that assistance, however in dealing with it on sentence his Honour said: "I say at once that halving what I otherwise consider to be the proper sentence for these offences should not be thought by anybody, including the victims, to be any indication that the original sentences are not thoroughly merited by this disgraceful episode of criminality. It is only done because the rules of law by which I am bound demand that for utilitarian purposes, those who assist the prosecution authorities have to be rewarded appropriately." 12Following his release from custody the defendant committed further offences on 21 June 2000 for which he appeared before his Honour Judge Sides QC on 26 October 2000 for sentence. Those offences were: (i)aggravated sexual intercourse without consent; and (ii)detain with intent to obtain an advantage. 13The facts of that offending were that the defendant had gone to live with the mother of the victim of the offending. The victim resided in the same premises. On the day of the offending, the defendant used a quantity of heroin, following which he consumed a quantity of alcohol. He took a butcher's knife into a bedroom in which the victim was sleeping. She awoke to find the defendant holding the knife across her throat. 14At knife point, the victim was subjected to numerous instances of forced sexual intercourse. The offending took place over a period of about 4 hours, following which the defendant took the victim back into her bedroom and used an electrical cord to tie her hands behind her back. 15Whilst the victim remained tied up in the bedroom, the defendant went to the front door of the premises to answer the knock of a work colleague who had come to collect money that the defendant owed him. The defendant immediately admitted to his colleague that he had sexually assaulted the victim and had tied her up. At his colleague's suggestion, the defendant rang the police and immediately admitted to the offending. 16In sentencing the offender, Judge Sides noted that the defendant was on parole in respect of the offences for which he had earlier been sentenced by Judge Viney. His Honour said: "Those sentences as I understand it expired on or about 14 August 2000. It could not be said that the offences was (sic) premeditated, however they occurred over a considerable period of time. They were committed in the victim's home where she was entitled to feel safe. The offences amount to a serious breach of trust by a house guest upon a vulnerable person. The fact that he may have been affected by liquor is not in my view a mitigating factor as the earlier offences were committed whilst he was under the influence of liquor." 17In respect of the count of aggravated sexual assault, and taking into account a number of other offences contained in a Form 1, the defendant was sentenced to 10 years imprisonment commencing on 21 June 2004. His Honour fixed a non-parole period of 6 years and ordered that the defendant be eligible for release on parole on 20 June 2010. 18In respect of the detain for advantage, the defendant was sentenced to imprisonment for a fixed term of 4 years. 19The effect of the sentences imposed by Judge Sides was the imposition of a total sentence of 14 years imprisonment, with an eligibility for parole after serving 10 years.

THE DEFENDANT'S RELEASE ON PAROLE 20On 19 July 2012 the State Parole Authority directed that the defendant be released on parole not later than 26 July 2012. That release was subject to a number of conditions, including that the defendant totally abstain from alcohol, and that he not use or possess a prohibited drug or substance. 21On 11 December 2013, the defendant admitted to the daily use of cannabis over the preceding two weeks. He explained to his parole officer that he was using cannabis to assist with getting to sleep and to treat feelings of anxiety. A subsequent report of Naomi Cheetham, the defendant's parole officer, of 16 December 2013 stated the following: "Overall, Mr Cusack has responded well to parole supervision. Contact with police suggests there has been no re-offending and he is compliant with the conditions on the Child Protection Registry (CPR). He has maintained full time work for much of his parole period and feedback from his employers has been positive with regard to his attitude and commitment to work. Mr Cusack has generally been open with his supervising officer about struggles he may be experiencing whether it is with alcohol and other drug use, mental health or interpersonal relationships; although he is often slower to act upon recommendations to address these issues. He has presented as future focussed and has developed positive life goals over the previous 17 months on conditional liberty." 22Ms Cheetham recommended that any action for the breach of parole be limited to a warning regarding abstinence from drug use. This recommendation was based upon the defendant's honesty in discussing his drug use, his expressed willingness to seek medical intervention and what Ms Cheetham described as his "overall compliance with parole supervision over the previous 17 months." Her recommendation was supported and, I infer, implemented. Consequently, the defendant was not returned to custody. 23On 16 March 2014 an unannounced visit was made to the defendant's home by parole officers. Testing confirmed that he had a blood alcohol reading of 0.022 at approximately 11am. A subsequent report noted that he "became aggressive" towards the officers concerned, to the extent that those officers deemed it necessary to leave the premises. A recommendation that the defendant's parole be urgently revoked was accepted and the defendant was returned to custody on 16 March 2014. He was released at the expiration of his sentence on 20 June 2014.

THE HISTORY OF THE PRESENT PROCEEDINGS 24A preliminary hearing pursuant to s. 7(3) of the Act was heard by Hall J on 4 June 2014. On that occasion his Honour ordered (inter alia) that: (i)the defendant be subject to an interim supervision order for a period of 28 days commencing 20 June 2014; (ii)Dr Andrew Ellis and Dr Jeremy O'Dea, both Psychiatrists, be appointed to conduct psychiatric examinations of the defendant and to furnish reports to the Court of the results of those examinations. 25The interim supervision order made by Hall J was renewed on 15 July 2014, and again on 12 August 2014. It expires on 12 September 2014.

THE LEGISLATIVE SCHEME 26Section 5B of the Act is in the following terms: Division 1 - High risk sex offenders 5B High risk sex offender (1) An offender can be made the subject of a high risk sex offender extended supervision order or a high risk sex offender continuing detention order as provided for by this Act if and only if the offender is a high risk sex offender. (2) An offender is a "high risk sex offender" if the offender is a sex offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision. (3) The Supreme Court is not required to determine that the risk of a person committing a serious sex offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious sex offence. 27Section 5C is in the following terms: 5C Extended supervision orders for high risk sex offenders (1) The Supreme Court may, on application under this Act, make an order for the supervision of an offender if the offender is a high risk sex offender. (2) An order made under this section is an "extended supervision order". (3) An extended supervision order made under this section may also be referred to as a "high risk sex offender extended supervision order". 28Section 5I of the Act is in the following terms: 5I Application for high risk sex offender extended supervision order 1) An application for a high risk sex offender extended supervision order may be made only in respect of a supervised sex offender. (2) A "supervised sex offender" is a sex offender who, when the application for the order is made, is in custody or under supervision (referred to in this Part as the offender's "current custody or supervision" ): (a) while serving a sentence of imprisonment: (i) for a serious sex offence, or (ii) for an offence of a sexual nature, or (iii) for another offence which is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraph (i) or (ii), or (b) pursuant to an existing extended supervision order or continuing detention order. (3) A person is taken to be serving a sentence of imprisonment whether the sentence is being served by way of full-time detention, intensive correction in the community or home detention and whether the offender is in custody or on release on parole. 29The court's power to make the order sought is contained in s.9(1) of the Act: Division 2 - Determination of application 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. 30Section 9(3) sets out those matters to which the court must have regard in determining whether or not to make the order sought. Subsection 9(3) is in the following terms: 9 Determination of application for extended supervision order ... (3) In determining whether or not to make an extended supervision order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant: (a) the safety of the community, (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 relevant 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 relevant 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, (f) 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 in future commit offences of a sexual nature (in the case of an application for a high risk sex offender extended supervision order) or serious violence offences (in the case of an application for a high risk violent offender extended supervision order). ..." 31It was expressly conceded by counsel for the defendant that: (a)the offence for which the defendant was most recently convicted was a serious sex offence within the meaning of s.5(1)(a) of the Act; (b)the defendant is a supervised sex offender within the meaning of s. 5I(2); (c)the present proceedings were commenced within the last 6 months of the defendant's period of custody or supervision, as required by s. 6(2); (d)at the time of commencing proceedings the defendant was in custody in respect of a serious sex offence within the meaning of s. 5I; (e)the present application was supported by the evidence referred to in s.6(3)(a) of the Act. 32Counsel for the defendant further conceded that on the basis of the evidence before the Court, it would be open to me to be satisfied to a high degree of probability, pursuant to s.5B(2) of the Act, that the defendant poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision. However as I have previously noted, I am required, notwithstanding that concession, to undertake an examination of the evidence so as to determine whether the relevant test has been met, and an order warranted.

IS THE MAKING OFAN ORDER WARRANTED? 33The test in s. 5B(2) is satisfied if there is present, to a sufficient degree, a risk that the defendant will commit a serious sex offence, such that the safety and protection of the community cannot be ensured unless an order is made: New South Wales v Thomas (Preliminary) [2011] NSWSC 118. In considering whether that test has been satisfied I have had regard to the following considerations which are established by the evidence: (i)the defendant's substantial criminal history which includes those offences to which I have specifically referred, the seriousness of which needs no comment; (ii) the views expressed by Judge Viney and Judge Sides, when sentencing the defendant, as to the nature of his previous sexual offending; (iii)the fact that the defendant has been subject to parole on three separate occasions and has failed to complete any of those periods due to re-offending; (iv)the defendant's recent positive response to supervision whilst on parole, notwithstanding the breach which saw him returned to custody; (v)the defendant's satisfactory completion of the CUBIT program, and his demonstrated improvement in motivation, participation and ability to develop therapeutic ties with his psychologists; (vi)the defendant's resumption of employment and his ongoing commitment to that employment. 34I have had particular regard to the safety of the community. In doing so, I have taken into account the reports of both Dr Ellis and Dr O'Dea. 35In the case of Dr O'Dea, although he did not diagnose the defendant as suffering from a major psychiatric illness, he concluded (at paragraph 72 of this report): "72. Mr Cusack's history of problems with anger, aggression and violence, including his history of repeated offending behaviour, including repeated sex offending, in the context of his overall personality, including his interpersonal and social skills, poor judgment and insight and limited intellectual functioning, would satisfy the psychiatric diagnostic category of a personality disorder, with significant anti social and psychopathic traits. 73. On the basis of his history, I would also consider that Mr Cusack satisfies the psychiatric diagnostic category of Substance Use Disorder, in particular alcohol, cannabis and heroin use disorder. 74. Although Mr Cusack did not report a clear awareness of specific, strong and/or deviant sexual urges or fantasies, and a significant component of his sex offending behaviours may be understood as impulsive in the context of intoxication with alcohol and other drugs in his personality, specific sexually deviant urges and fantasies may form part of the overall sex offending behaviours, and should be further explored, and treated as appropriate, as part of his overall psychiatric risk management." 36Dr Ellis diagnosed the defendant as suffering from a Substance Use Disorder and an Anti Social Personality Disorder. However, more significant were his provisional diagnoses of the Paraphiliac Disorder, and Sexual Sadism Disorder. In this regard he reported (at page 9): "The information available from the witness statements and facts determined at trial are strongly suggestive of a sadistic paraphiliac drive contributing to both offences. Particularly to the most recent offence...the reported length of time between consumption of alcohol and heroin, beginning the offence, the complexity of the behaviour and continuing in this behaviour are not consistent with overwhelming intoxication. The similarity with the previous offence...indicates the potential for an underlying arousal to pain, humiliation and suffering of others. At clinical interview recurrent sadistic urges and fantasy were not consistently endorsed. This may indicate a lack of conscious awareness of underlying fantasy or unwillingness to report. " 37Even allowing for the progress made by the defendant during his period of parole, and taking into account all of the matters to which I have referred, I am satisfied that the defendant poses an unacceptable risk to the community of committing a further serious sex offence in the event he is not kept under supervision. As such, he is a high risk sex offender within the meaning of s. 5B(2). The making of an extended supervision order will result in the defendant having available to him various forms of support through which he will be able to address those outstanding issues to which Dr Ellis and Dr O'Dea referred. One obvious effect of the absence of an order would be that the defendant would be within the community without supervision, and without resort to such support. I do not regard that prospect as being at all beneficial, be it to the defendant himself or to the community at large. 38For all of these reasons I am satisfied, to a high degree of probability, that the defendant poses an unacceptable risk of committing a further serious sex offence if he is not kept under supervision. The making of the order sought is therefore appropriate.

THE TERM OF THE ORDER 39Section 10 of the Act is in the following terms: 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. (2) An offender's obligations under an extended supervision order are suspended while the offender is in lawful custody, whether under this or any other Act or law. (3) Nothing in this section prevents the Supreme Court from making a second or subsequent extended supervision order against the same offender. 40Counsel for the plaintiff submitted that a term of 5 years was supported by both Dr Ellis and Dr O'Dea. It was further submitted that during the period in which the applicant was at liberty on parole, there was a "continual pattern of dysfunction and poor relations" on the part of the defendant. In support of this submission, counsel took me to various case notes concerning the defendant's management after being released on parole which, it was submitted, demonstrated aspects of the his behaviour and personality which would not be acceptable to the broader community. 41Counsel for the plaintiff expressly acknowledged the opinion of Mr Ardasinski that it may take "a further 2 to 3 years" for the defendant to realise his goal of maintaining a stable and sustainable lifestyle. Counsel accepted that this opinion was contrary to the proposition that an order for a term of 5 years was necessary. Notwithstanding that observation, counsel maintained that the appropriate term was 5years. 42The essence of the submission of counsel for the defendant was that a period of 2 to 3 years was, of itself, substantial, and was appropriate in the circumstances of the present case. Counsel relied, in particular, upon the progress which had been made by the defendant during his period of parole, notwithstanding the breach which led him to be returned to custody. 43Both Dr O'Dea (at paragraph 89 of his report) and Dr Ellis (at page 14 of his report) supported the making of an order for 5 years. However, as previously noted, Mr Ardasinski recommended a period which was substantially less. As the acting senior Psychologist in the Serious Offenders Assessment Unit of the Department of Corrective Services New South Wales, Mr Ardasinsky is obviously a person who has significant experience in the psychological assessment of sexual offenders. His opinions are, therefore, necessarily deserving of some weight. 44The instances of the defendant's behaviour to which I was taken by counsel for the plaintiff in the course of her submissions, and which were said to support the necessity for a term of 5 years, generally occurred within a short period of the defendant's initial release on parole. Whilst the instances demonstrated some shortcomings in the defendant's approach, demeanour and presentation, they may be explicable on the basis that they occurred at a time when the defendant was necessarily adjusting to reintegrating into the community following a lengthy custodial sentence. Although that material demonstrates some instances of unsatisfactory behaviour on the part of the defendant, the suggestion that they established a "continual pattern" of such behaviour appeared to overstate the matter. 45Further, and notwithstanding the breach of his conditions of parole which saw him taken back into custody, the risk management report of Mr Ardasinski provides considerable support for the conclusion that, generally speaking, the defendant's overall progress during his period of parole was satisfactory. In particular, Mr Ardasinski (at paragraph 45 of his affidavit) noted that the defendant had been "effectively managing his risk whilst on parole." That opinion was obviously expressed in the full knowledge of the circumstances of the breach of parole which saw the defendant taken back into custody. 46Further, Mr Ardasinski noted (at paragraph 50): "While he is working full-time, it would appear that Mr Cusack no longer has an abundance of idle time which puts him at risk of engaging in daytime drinking, binging on drugs and alcohol, or associating with criminal associates in pubs with whom he has previously used illicit drugs." 47Subsequently, in paragraph 59, Mr Ardasinski said: "...His parole performance over the past year and a half suggests that he has by and large, maintained a more stable lifestyle in the community than at any other time in his adult life to date. The goal would be to encourage further development and maintenance of his sustainable lifestyle, without alcohol or other drug abuse and with the continued formation of appropriate interpersonal relationships so that new habits can be formed that might endure beyond supervision." 48In my view, these opinions provide support for reducing the length of any order to a period of less than 5 years. A period of 3 years remains significant. It will provide an opportunity for the defendant to continue his progress. In the event that the present predictions as to that progress are not fulfilled, it is open to the plaintiff to make a further application to extend the order. 49For these reasons, and balancing all of the competing considerations, I have concluded that an order for 3 years is appropriate.

THE CONDITIONS ATTACHING TO THE ORDER 50A proper basis must be demonstrated to support the inclusion of any condition of the proposed order. In order to demonstrate that proper basis, it will usually be necessary that any proposed condition be related to the mitigation of the unacceptable risk that I have found is made out: see State of New South Wales v Burns [2014] NSWSC1014, at [59] citing State of New South Wales v Ali [2010] NSWSC 1045 at [88]. With these matters in mind I turn to consider the conditions which remained in issue between the parties.

Notification to the police 51Counsel for the plaintiff submitted that the underlying purpose of the proposed condition requiring the defendant to report to the police and notify them of the order was to ensure that there was a "whole community approach to assist in preventing recidivism ". Counsel for the defendant pointed out that the Act does not require an offender to report the terms of any order to the police. He submitted that it was open to the plaintiff to provide the local police with a copy of any order made if it was deemed necessary to do so. 52I am not satisfied that a proper basis for the inclusion of this condition has been demonstrated. The relevance of such a proposed condition to the mitigation of the risk is marginal at best, particularly in circumstances where the police do not have the primary responsibility for ensuring that the defendant complies with the conditions of any order. It is open to the plaintiff to make arrangements for the local police to be advised of the order and its terms but in my view no obligation should be imposed upon the defendant in that respect.

Electronic monitoring of the defendant 53The evidence given by Mr Abedine before me centred upon this proposed condition. Mr Abedine agreed (at T8 L5) that the necessity for electronic monitoring was based on "historical" as opposed to "dynamic" factors. He explained (T8 L12 and following) that all sex offenders were subject to electronic monitoring at the early stages of supervision and that in the case of the defendant the need for such monitoring would be reviewed every two months. 54Leaving aside the defendant's categorisation as a sex offender, Mr Abedine pointed specifically to the defendant's past issues with alcohol abuse as being factors which supported the necessity for electronic monitoring. In this regard he said (T8 L34-39): "He has a history of alcohol abuse and access to alcohol is a factor in his risk for reoffending. Access to alcohol is an issue and monitoring that access would definitely be beneficial in his management. So places like licensed premises, if he were to enter into a licensed premises on a regular basis and Corrective Services would be alerted to that fact if he was subject to electronic monitoring." 55Mr Abedine said (T9 L29-33) that electronic monitoring went (as he put it) "hand in hand" with the proposed condition requiring the defendant to provide a schedule of his movements in advance. He explained (T9 L30-37): "...Having the schedule of movements would assist the Community Corrections Officer in identifying locations where Mr Cusack would attend in advance and would then be able to conduct field observations whilst Mr Cusack is in the community. ...He would need to advise of his movements in advance and the electronic monitoring staff can monitor Mr Cusack's movements and if he has, for the lack of a better term deviated from that particular schedule, it would alert staff as to the deviation and they would then need to ascertain where he has deviated to and whether or not that is applicable to his risk. " 56Counsel for the plaintiff pressed for the inclusion of the condition requiring electronic monitoring. It was submitted that it was an important tool in the ongoing management of the defendant and that it was a more efficient way of ensuring that relevant conditions attaching to the order were being complied with. 57Counsel for the plaintiff also submitted that the underlying reason for the inclusion of this condition was preventative, rather than punitive, in nature. She submitted that electronic monitoring had an important role to play in reducing the risk of re-offending because it provided the authorities with an opportunity to take action to halt risk behaviour before it occurred. It was submitted that this may, in turn, cause an offender to reflect upon his actions, knowing that they will be monitored. 58Counsel for the defendant relied, in particular, on the evidence which established the progress which had been made by the defendant when on parole. Counsel emphasised that such progress was achieved in the absence of any electronic monitoring. He also relied on the fact that since his release, the defendant had continued that progress without incident, although he accepted that in this latter period the defendant had in fact been electronically monitored. 59In the preliminary hearing before Hall J on 4 June 2014, the defendant gave evidence (at T16 and following) of the difficulties that he had experienced with the electronic monitoring equipment since he had commenced employment. He explained, amongst other things, that he was working in the construction industry (where I note he continues to work) and was required to work under ground from time to time, which caused difficulties with the operation of the relevant equipment. 60In my view, there is evidence in the plaintiff's own case which runs contrary to a conclusion that electronic monitoring of the defendant is warranted. In particular, Mr Ardasinski said in his report (at 59): "Electronic monitoring may be recommended, however this would not be seen as contributing any further to a reduction in Mr Cusack's risk of repeat offending due to his history of offending against acquaintances. Since Mr Cusack has responded positively to the conditions of supervision to date without electronic monitoring, it was considered that imposing such a condition would be a significant step backwards and, based on the trajectory of Mr Cusack's offending in the past, electronic monitoring would likely be a less effective strategy for reducing risk of re-offence and many of the strategies having been imposed to date: random breathalysing use on home visits, random and targeted urine analysis, monitoring of the stability of Mr Cusack's situation through reporting and phone contacts, and access to psychological support" (my emphasis). 61Other conditions sought by the plaintiff address the issue of monitoring the defendant's movements. For example, conditions 8 to 10 of Part A require the defendant to provide, in advance, a proposed schedule of his movements. Assuming the defendant's compliance with that condition, this is not a case in which there will be no means whatsoever by which to monitor his movements. In my view, the issue is properly addressed by that condition, and by the ability of the authorities (as outlined in the oral evidence of Mr Abedine), to implement measures, by reference the schedule provided, to monitor the defendant's whereabouts. 62For these reasons, the proposed condition requiring electronic monitoring should not be included. Those conditions requiring the provision, in advance, of a schedule of the defendant's movements will remain.

Obedience of instructions of the residential facility 63One of the proposed conditions requires the defendant to obey all reasonable instructions of any residential facility in which he resides, so as to ensure the good order of the facility and the safety and welfare of residents, staff and visitors. 64Counsel for the plaintiff submitted that the inclusion of this condition was not unreasonable. Whilst acknowledging that it was wide in its terms, it was submitted that its essence was to ensure the "good order" of the residential facility. Counsel for the defendant submitted that it was inappropriate to impose a criminal sanction for the failure to comply with the direction of staff at a residential facility. Those matters he submitted, were internal issues for the facility and should not give rise to a criminal offence. 65Whilst there is some force in the submissions of counsel for the defendant, I am satisfied that this condition is sufficiently relevant to the mitigation of the identified risk to warrant its inclusion.

The curfew 66Condition 6 of Part B imposes a curfew on the defendant from 9pm to 6am. The condition is capable of variation at any time to facilitate, for example, the defendant's employment. It has in fact been varied so as to allow the defendant to depart for his employment before 6am each day. 67In my view, the inclusion of a condition imposing a curfew is wholly appropriate. There is obviously sufficient flexibility to allow that condition to be amended so as to meet the defendant's requirements in terms of any employment he might undertake. 68For these reasons, it is appropriate for the condition to remain.

Possession and use of firearms and prohibited weapons 69Section 7A of the Firearms Act 1966 creates an offence of possession of a firearm without being authorised to do so by a licence or permit. It can, in my view, be safely assumed that any application by the defendant for a licence under that Act would not be successful. A similar provision in respect of prohibited weapons is contained in s. 7 of the Weapons Prohibition Act 1998. 70I am unable to accept the submission of counsel for the plaintiff that conditions prohibiting the defendant's possession of firearms and weapons are necessary so as to bring them "within the purview" of the proposed order. Such conditions are, in my view, not necessary when the conduct to which they are directed is the subject of criminal sanction in any event.

Possession of medication other than that prescribed 71Once again, the conduct to which this condition is directed is the subject of criminal sanction prescribed by s. 16 of the Poisons and Therapeutic Goods Act 1966. For similar reasons to those expressed in [69]-[70] above, I do not regard this condition as necessary in the circumstances.

Participation in recommended courses and programs 72The issue raised by counsel for the defendant in respect of this proposed condition was limited to the requirement that the defendant attend residential programs if it were thought appropriate for him to do so. The principal objection arose from the possibility that attendance at such a program may interfere with the defendant's work commitments. Counsel pointed out that there was no evidence at the present time which would suggest that such a program was likely to be necessary. 73Counsel for the plaintiff submitted, quite simply, that if matters reached a point where a residential program was considered appropriate to ensure the defendant's ongoing rehabilitation, it should take precedence over is employment commitments. 74I accept that there is no evidence at present which might indicate any requirement for the defendant to enter into any residential program. However it is difficult, if not impossible, to determine whether this will remain the position. In the event that a need did arise, it is important that there be an appropriate condition requiring the defendant to enter into any programs, including residential programs, as thought appropriate by those who are supervising him. 75For these reasons, this condition should remain.

The requirement to take prescribed medication 76This proposed condition does not impose a blanket requirement upon the defendant to take prescribed medication. Rather, its operation is subject to the defendant's informed consent. 77Counsel for the defendant informed the court that, on his instructions, the defendant had undertaken his own research in relation to various forms of medication and had concluded that did not wish to take them. However, counsel acknowledged that the defendant's position was protected by the qualification regarding his informed consent. 78In these circumstances, and having regard to the issue to which the condition is directed, it should remain.

CONCLUSION 79The above reasons deal with the entirety of the issues which were the subject of submissions before me. My determination of the conditions attaching to the order will require some amendment of the form of the proposed conditions which were annexed to the amended summons. 80In these circumstances, I make the following order: (1)The parties are to bring in Short Minutes of Order by 4:00pm on 25 August 2014 reflecting the conclusions expressed in this judgment.

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: 25 August 2014

At a glance

Court

Decision date

Before

Source

Judgment (18 paragraphs)

Parties

Cases Cited (3)