State of NSW v Hunt

Principles for the Evaluative task under the Unacceptable Risk Precondition

1. The unacceptable risk precondition requires the exercise of a discretionary judgment. The objects of the Act should be kept in mind when undertaking this evaluative task.
2. Intrusions on the defendant's right to liberty and privacy by the ordering of an ESO are not relevant considerations for the first stage analysis.
3. The Court must be satisfied as to the existence of the unacceptable risk to a standard higher than the civil standard, being "beyond more probably than not".
4. An "unacceptable risk" is one that is intolerable or far from normal expectations or required standards.
5. The Court is not required to determine that the risk of a person committing a serious offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious offence (s 5D). Basten JA held in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [126] that: "... The nature of the risk ... had to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition. The assessment must be based on an absence of protective measures. The criterion of unacceptability will no doubt depend upon these matters, together with a comparison, to the extent that the evidence permits, of what may be described as the background level of risk to the community ..."
6. Determining what is an "unacceptable risk'" includes a consideration of the type and nature of the offences that may be committed absent supervision and balancing those factors, if necessary, for example where there is a low risk of recidivism yet likely drastic consequences to the victim.
7. The Court may legitimately find a person poses an unacceptable risk for the purpose of the unacceptable risk test, even if the likelihood of them committing a further serious offence is determined to be low.

Matters relevant to the making of an ESO

1. Pursuant to s 9(3), in deciding whether or not to make an ESO (the power to make an order having been enlivened by the Court's satisfaction as to the unacceptable risk pre-condition), the Court must have regard to the factors set out in the subsection, in addition to any other matters it considers relevant.
2. It has been accepted on various occasions that the factors in s 9(3) are apt to inform the unacceptable risk test (State of New South Wales v Fisk [2013] NSWSC 364 at [22]; and State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [42]).

Consideration of s 9(3) factors

1. Apart from the additional reports which have been obtained, there has been no change to the information which was then available and referred to in the preliminary judgment. Accordingly, the information under the following headings remains the same as in the preliminary judgment.

The defendant's background

1. The defendant had a very difficult background and became a ward of the State when he was aged seven. He spent a number of his adolescent years in juvenile detention institutions where he was physically and sexually abused. He escaped from juvenile custody and hitchhiked around Australia and was essentially itinerant until he was 21 years old.
2. Although the defendant was married for 17 years and had three children from this union, he has been estranged from them for 20 years. He has had no contact with any other family members. He has continually engaged in criminal behaviour and substance abuse and it was common ground that he had no pro-social peers or support in the community.
3. The defendant is effectively illiterate with reading abilities in the lower extreme range. He also has significant physical disabilities, including a blood clot in his leg, high blood pressure, high cholesterol and Lupus.

Substance use

1. The defendant has a history of substance abuse and acknowledged daily use of speed and ice on the occasions that he was not in custody. He was able to abstain from drug abuse during the nine years he spent in custody between 1997 and 2006 but commenced amphetamine use within two days of his release, citing homelessness and a lack of support as contributing factors. Before going into custody in May 2011, he was using two to three grams of ice and amphetamines per day.
2. The defendant attributed much of his offending to his amphetamine use and recalled episodes of substance-induced psychosis. He acknowledged that his proclivity to engage in criminal activity was a way of supporting his substance use. He did not regard his alcohol consumption as a difficulty. He generally consumed three to four beers a week.

Criminal history and the views of the sentencing court

1. The defendant has an extensive criminal history, including multiple offences of a sexual nature. He has displayed a pattern of recurrent re-offending with increasingly short periods at liberty in between sentences. He served consecutive custodial sentences between 19 December 1997 and 6 May 2006 and spent periods in custody in 2007, 2008 and 2009. He was released to supervised parole on 24 March 2010. The defendant also had a lengthy criminal history of non-sexual offending commencing when he was aged ten in the early 1970s and continuing relatively unabated until his current sentence for the index offences. These offences included theft, dishonesty, drug abuse, driving offences, violence offences and property damage.

Earlier offending of a sexual nature

1. The defendant had three prior episodes of sexual offending against three female children before the index offences.
2. The defendant pleaded guilty to an offence of sexual intercourse without consent against a person under the age of 16. The offence was committed between 1 December 1984 and 31 January 1986. An offence of attempting to have sexual intercourse without consent against a person under the age of 16 was committed in 1985. The victim was the defendant's niece, who was seven or eight years of age at the time of the offending. She reported this offending to police in 1998 and the defendant was convicted and sentenced on 22 March 2000.
3. The first offence occurred when the defendant went to the victim's home for dinner. After the victim had gone to bed, the defendant came into her bedroom pulled down her underclothing, rubbed her in the area of her vagina and inserted a finger. He also exposed himself and rubbed his penis against her vagina. The offending stopped when the defendant was interrupted by his wife calling out from another room.
4. The second offence occurred while the defendant was riding on horseback with the victim. He inserted his hand under her clothing and attempted to insert his finger into her vagina while the horse was in motion.
5. The sentencing judge noted that the defendant was in a position, not only of authority as an adult, but also in a position of trust as a family member. Freeman DCJ sentenced the defendant to imprisonment for 4 years with a non-parole period of 1 year and 9 months.
6. The defendant pleaded guilty to an offence of sexual intercourse with a child aged between 10 and 16 committed against his son's 12 year old girlfriend. The offence occurred in June 1997. This was the third offence. The defendant was sentenced on 31 July 1998 by Shillington DCJ to a term of imprisonment of 4 years with a non-parole period of 3 years. He persuaded the victim to go to his tattoo shop and then enticed her to go to an unoccupied flat in the vicinity where he made sexual advances to her. The defendant offered her some speed which she drank. As a result, she became giddy, disoriented and started to scream and cry. Despite this, the defendant had penile vaginal intercourse with her. Shillington DCJ found that the offence was "quite clearly an extremely serious one involving a young girl and the use of a stupefying drug".
7. The defendant was charged with two counts of aggravated indecent assault against his 14 year old niece. On 17 November 1997, he travelled with the victim from Leeton to Narrandera on the pretext of going Christmas shopping. While at a lake, the defendant lay down a sleeping bag and pulled the victim down on top of his chest, fondled her breasts and nibbled her ears. The victim told the defendant she felt uncomfortable, got up and refused to sit back down.
8. Later that day, the victim and the defendant travelled to Griffith. While at a beach area near a lake, the defendant approached the victim from behind and placed a cloth containing a possible solvent on her face, causing her to pass out. The defendant fondled her breasts and touched her vaginal area. The victim recalled him pulling down her pants but could not recall what happened thereafter. On 5 March 1998 the defendant was convicted and sentenced to a minimum term of 9 months imprisonment with an additional term of 12 months.

The index offences

1. The index offences involved the following matters: 1. Four counts of aggravated indecent assault contrary to s 61M(2) of the Crimes Act 1900 (NSW) (Offences 2 to 5) and a further aggravated indecent assault contrary to s 66M(2) of the Crimes Act (taken into account on a Form 1) (Offence 6). 2. Two counts of sexual intercourse with a person between the age of 10 and 14 years contrary to s 66C(1) of the Crimes Act (offences 7 and 8). 3. One count of failing to comply with reporting conditions contrary to s 17(1) of the Registration Act (Offence 1/Sequence 1) and a further failure to comply with reporting conditions contrary to s 17(1) taken into account on a Form 1. These offences arose because the defendant failed to disclose his change of address, mobile number and place of employment to police. 4. The sexual offences were committed against two victims, E aged 11 and C aged 7, between 25 and 27 April 2011. The victims were sisters, and the daughters of VM. VM, E, C and VM's other children, were helping the defendant move into a warehouse in Rosebery. 5. The defendant was arrested and taken into custody on 5 May 2011. He pleaded guilty and was sentenced by Toner SC DCJ on 9 February 2012. The summary of the offences below is based on the sentencing remarks and the agreed statement of facts. 6. Offences 2 and 3 (sequence 4 and 5) occurred on 25 April 2011. E was lying on a couch in a "living room" in the warehouse with the defendant lying next to her. The others were in a different room. The defendant rubbed E's thigh with his hand and continued rubbing, moving his hand up her thigh and onto her vagina on the outside of her clothes and rubbed it for a few seconds (Offence 2/sequence 4). The defendant simultaneously grabbed E's hand with his other hand and placed it on his penis on the outside of his clothes for a few seconds. The defendant was wearing jeans. 7. Offence 4 (sequence 11) occurred on 26 April 2011, in the morning. The defendant gave E an old Game Boy to play with. Later that day, E sat next to the defendant on the same couch in the living room. The victim lay back on the couch, the defendant lay next to her and touched her vagina on the outside of her underwear before unzipping her pants and touching her vagina on the inside of her underwear. He moved his hand around the outside of her vagina before going further down. He then went closer to the inside and "touched around". E stated this occurred for about 5 to 10 minutes. The defendant stopped when interrupted by the victim's brother. 8. Offence 5 (sequence 7) occurred on 26 April 2011 at night. C was in one of the rooms in the warehouse with the defendant. The defendant pulled down C's pants and underpants to her ankles, and rubbed her vagina on the inside of her underwear with his hand. The offender said to C, "it's a secret, don't tell anyone". The victim could not recall how long this took but said the defendant stopped when she asked if she could "pull her pants up now?". 9. Offence 6 (sequence 8) occurred on 27 April 2011 around lunchtime. The defendant took E to a room at the back of a nearby warehouse. The victim told police that he took her to a room where nobody could hear her if she screamed. The defendant lay down and told the victim to lie down. He undid the button and zipper on her pants and pulled her underwear down slightly. He told her to "spread out your legs a bit". He began touching her vagina on the inside of her underwear with his finger. He used both hands touching her vagina and pulled her pubic hair. The victim told police that this hurt (taken into account on a Form 1). 10. Offence 7 (sequence 9) took place when the defendant then moved his body from the side to on top of the victim and moved his body down her body. He kissed the victim in the middle of her vagina inside her underwear and licked her vagina with his tongue. He asked the victim "do you like that?". 11. Offence 8 (sequence 10) occurred when the defendant then unzipped his pants, removed his penis from his underwear and penetrated the victim's vagina. The defendant ejaculated between the victim's thighs. The defendant told the victim not to tell anyone and he would give her Game Boy games and "tweeties" and build her a cubby house.
2. The sentencing judge imposed a total effective sentence of 9 years imprisonment with a non-parole period of 6 years 9 months. In sentencing the defendant, his Honour noted his "appalling" criminal history, including offending of a sexual nature in 1984, 1985 and 1997. His Honour considered this was of "particular significance" due to it being "disturbingly almost identical to" the index offences. His Honour stated: "His actions then were so similar to what occurred in these cases and also a series of offences including indecent assaults and sexual intercourse without consent which happened between December 1984 and December 1985."
3. His Honour noted that the defendant had experienced a sad and traumatic life and that his childhood appeared to be mostly loveless and lacking in any sensible constant adult supervision. His Honour had regard to the fact that the defendant was sexually abused as a child and that he was essentially itinerant. He noted that the defendant had been running from the law for many years and had "committed crime in just about every State of the Commonwealth". His Honour stated that he did not have the "faintest idea" what the defendant's prospects of rehabilitation were and thought that the "best predictor of his future was his past". His Honour had regard to the fact that there were courses the defendant could undertake in gaol and that the sentence he proposed was long enough for that to occur.
4. His Honour found that while some of the offences, such as the first three sexual offences were somewhat opportunistic, those against the child in the separate warehouse involved a significant degree of premeditation and planning.

The results of statistical or other assessment as to the likelihood of the defendant committing a further serious offence

Assessment by Rima Nasr, forensic psychologist, 6 February 2012

1. Ms Nasr prepared a report in February 2012, for the purpose of assisting the Court in sentencing the defendant for the index offences. Ms Nasr formed the view that the defendant was a man with poor sexual self regulation, particularly while disinhibited by the effects of illicit substances. She opined that a personality disorder was now likely manifesting itself primarily in anti-social traits. She expressed concern regarding the defendant's extreme institutionalisation, given that "almost his entire maturation occurred within the custodial environment". Ms Nasr added: "Mr Hunt has become institutionalised to such an extent that he is lacking many of the basic coping and independent living skills that are required for mature and stable community living. Furthermore, Mr Hunt appears to have engaged in substance use to self-medicate his distress, unpleasant and traumatising experiences, to such a degree that he relapses into a pattern of problematic substance use when under periods of increased stress."
2. Ms Nasr noted that gaol was the only place in which the defendant felt "comfortable". While he expressed a desire to no longer engage in criminal behaviour, Ms Nasr found that he had "limited insight into how to make this possible".
3. Ms Nasr administered both the Static-99 and the Risk for Sexual Violence Protocol ("RSVP"). As a result of this actuarial testing, the defendant was considered to represent an overall moderate to high risk of re-offending. Ms Nasr opined: "His risk would become most acute when he is lonely or feeling inadequate, disinhibited by substances, sexually aroused or motivated to achieve an outcome for his own benefit or when he has the opportunity. He acknowledged that he is mostly vulnerable when he has the opportunity and drug affected, such that he then becomes distorted and vulnerable to act on his inappropriate sexual urges or thoughts."
4. In terms of supervision Ms Nasr found: "Mr Hunt has a long history of incarceration that, to date has done little in terms of prevention. It is recommended that he will need a long period of community based supervision on parole in order to develop the skills he will need to survive in the community ... Mr Hunt will require a high level of supervision, coordinated support and comprehensive intervention if he is to be able to make a meaningful transition to the community and lead an offence-free life. Without this, his prognosis is poor ..."

High Intensity Sexual Offenders' Program (HISOP) Treatment Reports - 27 June 2019 by Tamara Sweller and 9 December 2019 by Kristy Murphy

1. Ms Sweller administered the Static-99R which resulted in a score 5, indicating the defendant's rate of recidivism was 2.7 times higher than that of the "typical" sex offender. Ms Sweller identified the following dynamic risk factors:
2. General Self-Regulation
3. The defendant's lifestyle revolved around general criminal behaviour (stealing, violence, drug use and dealing); he engaged in avoidance-based coping; abused drugs consistently; had a sense of entitlement and was impulsive. In treatment he developed insight into these issues, and it was noted it would be important for him to continue practising his coping and problem solving skills to avoid relapse into drug use and general criminal behaviour. Ms Sweller recommended that he should be encouraged to develop structure and routine in daily life, including employment and social activities and a healthy social network to increase his ability to maintain a generally healthy lifestyle.

Significant Social Influences

1. Ms Sweller noted that the defendant associated with others who engaged in criminal behaviour related to drug use and dealing, was estranged from his family and did not have friends from whom he could seek emotional support.

Sexual Self-Regulation

1. Ms Sweller found that this had posed a difficulty for the defendant in the past. He could not estimate the number of sexual partners in his life. Sex was an important part of his life. He thought about having sex with women he saw walking down the street and if he was not meeting his sexual wants in a relationship, would engage in extra-marital sexual encounters. He had casual sexual encounters, often with women to whom he sold drugs. His libido increased under the influence of drugs (especially methylamphetamine). He experienced sexual attraction to children, which had existed since his mid 20's and which he acted on when he was significantly abusing drugs, experiencing high levels of stress or was not meeting his sexual wants with adults.

Intimacy Deficits

1. Ms Sweller found that the defendant had a history of superficial relationships. She found that despite acknowledging feeling wanted, needed and trusted by children, the defendant did not meet the criteria for emotional identification with children.

Co-operation with Supervision

1. Ms Sweller found that the defendant had limited periods of time in the community between custodial sentences and that they were marked by a return to anti-social behaviour. His response to supervision was poor as reflected through failures to report, drug use and re-offending. Despite this, Ms Sweller noted the defendant was co-operative through the treatment process and acknowledged that his prior refusal to undertake treatment for his sex offending was a poor decision.
2. The defendant's score on the Stable-2007 was 14 suggesting a high density of criminogenic needs relative to other male sexual offenders.

Risk Assessment Report (RAR) by Samuel Ardasinski dated 30 September 2019

1. Mr Ardasinski interviewed the defendant for 90 minutes on 11 September 2019. He concluded that the defendant would likely meet the diagnostic threshold for a DSM-5 diagnosis of Paedophilia-Non-Exclusive Type (Primarily Attracted to Females). This diagnosis was based upon the defendant's acknowledgement of a history of deviant sexual interest (the defendant described it as an "attraction" to children). He had committed hands on sexual offences against pre-pubescent children in the past.
2. On 1 May the defendant was assessed on the LSI-R to be in the Medium-High range of recidivism. This test provides an indication of a level of risk of general and violent recidivism within 12 months post-release.
3. The defendant was assessed on the STATIC-99R on 4 September 2019 and received a score of five. This placed him as an above average risk of sexual recidivism.
4. In Mr Ardasinski's view, the defendant's score of 14 on the STABLE-2007 may have involved over-scoring. Nevertheless, he noted the defendant would still sit in the highest category of risk by his scoring. The areas of clinically significant concern for the defendant when considering the STABLE-2007 assessment were impulsivity, poor problem-solving skills and deviant sexual interest.
5. When Mr Ardasinski combined these assessments to generate a "composite assessment of risks/needs", the defendant was found to fall in the highest level of risk. Mr Ardasinski was of the opinion that the result of the combined assessments suggested that the defendant would require a Medium-High level of intervention and/or supervision.
6. Mr Ardasinski administered the defendant the Violence Risk Appraisal Guide - Revised ("VRAG-R"), a tool specifically designed to assess the risk of future violence in offenders. The defendant was classified as a high risk when compared to other violent offenders.
7. Mr Ardasinski noted that because the defendant fell in the same category on two distinct, though related, actuarial risk measures he could have increased confidence that the defendant truly presented as an above average risk of repeat sexual offending within the next five years.
8. Mr Ardasinski administered the RSVP on 11 September 2019. The results suggested that the defendant exhibited an Elevated/High level of risk for repeat sexual violence. Mr Ardasinski found that the overall totality of his actuarial testing suggested that the defendant fell in the Medium-High to High risk category for sexual offending.
9. Based upon the actuarial assessments, Mr Ardasinski identified the following dynamic risk factors as potentially relevant when considering the defendant's risk of sexual re-offending: 1. substance abuse and sex to cope with loneliness; 2. lack of interpersonal intimacy skills, lack of meaningful relationships, social isolation and loneliness and limited social support; 3. diverse and chronic deviant sexual interest; 4. a traumatic background with resultant attachment deficits and disordered personality; and 5. opportunistic offending when given access to children under 16.
10. Mr Ardasinski noted that the defendant had no extant family contact and his only friend was also a child sex offender on parole. Mr Ardasinski opined that the defendant would have professional support if under supervision, but not otherwise.
11. Mr Ardasinski opined that the defendant's most likely scenario for further sexual offending would involve him being left alone, unsupervised, with a known female child, likely being placed in a position of trust through his acquaintance with her parents. Mr Ardasinski also considered that the defendant might return to police attention for non-sexual offending before committing another sexual offence.

Rehabilitation programs in which the defendant has had an opportunity to participate

1. Until the commission of the index offences the defendant had refused to undertake psychological assessment in relation to his sex offending and was reluctant to discuss his offences. The defendant's refusal to participate in therapeutic programs contributed to a recommendation that he not be granted parole for those earlier offences.
2. In contrast to his previous periods of incarceration, the defendant proactively pursued entry into a sex offender program following the index offences. The defendant was found suitable for HISOP. He participated in HISOP between 3 September 2018 and 3 October 2019. His participation was the subject of a HISOP treatment report (HTR), dated 10 September 2019. There was also an addendum to that report (AHTR) which was based on his participation in the program between June 2019 and 3 October 2019.
3. The HTR noted that while the defendant had a history of poor co-operation with supervision and hostile attitudes towards authority, he presented as willing to engage in the treatment process. The HTR noted that the defendant learned about sex through his own abusive experiences which likely led him to develop beliefs about sex such as that children were sexual beings and engage in sexual behaviour with adults. The defendant acknowledged that sex was important to him and that he had a high libido. He stated that drug abuse (particularly amphetamines) increased his libido and lowered his inhibitions. He enjoyed sex more when he was on drugs.
4. The HTR stated that when the defendant perceived his life to be "spiralling", he tended to engage in self-destructive behaviour. The HTR noted that he was more likely to offend at times when his feelings of stress and being overwhelmed with life events were greater. He claimed that he had few sexual thoughts whilst incarcerated and no sexual thoughts about children. The HTR noted that if the defendant remained abstinent from drug use and engaged in a healthy lifestyle, or more generally, engaged in effective coping and problem solving and developed healthy and fulfilling adult relationships he would be more likely to manage his sexual wants appropriately.
5. During his periods of incarceration, the defendant had participated in various educational courses and programs, e.g. "Getting Smart" (12 sessions) and the EQUIPS Addiction program (20 sessions).

Reports prepared by Corrective Services as to the extent to which the defendant could be reasonably and practicably managed in the community and options, if any, that might reduce the likelihood of the defendant re-offending over time

1. Given the nature of the defendant's offending, Community Corrections indicated that child protection issues would be a significant case management component.
2. The defendant is currently registered with the Child Protection Register. An application is currently being made for a Child Protection Prohibition Order (CPPO). Mr Ardasinski was of the opinion that a CPPO would have less capacity to monitor the defendant's association with people who had young children than a ESO. He said: "A CPPO can set down what things an individual is not permitted to do, but it would be limited in its power to direct Mr Hunt to do anything (like remain abstinent from drug or alcohol use - since Police are limited in their powers to undertake breath analysis or drug testing except in certain circumstances, or to engage in interventions to target his criminogenic needs."
3. Mr Ardasinski noted that because the defendant was found to be in breach of his obligations under the Child Protection Register at the time of the index offences, a CPPO would be insufficient to moderate his risks at this stage.
4. Ms Cathryn Veal completed a RMR on 15 November 2019 and proposed a plan to address the defendant's criminogenic needs. Strategies such as regular interviews with the defendant, field visits, third party contacts, electronic monitoring, schedules and psychological intervention were all proposed as part of the risk management plan if the defendant were to be placed on an ESO.
5. The RAR also gave consideration to the type of risk management strategies that might assist in addressing the defendant's identified risk factors. It recommended: 1. Unannounced home visits and breath-analysis/urinalysis/drug-swabs testing; 2. a requirement to wear electronic monitoring and adhere to schedules of movements; 3. scrutiny of the defendant's social contacts; 4. being directed not to have any contact with children without appropriate supervision; and 5. referral to a community-based sex offender program (for maintenance).

The level of the defendant's compliance with parole conditions and the likelihood he would comply with the obligations under the ESO

1. The defendant had been known to Community Corrections since 1989 when he was previously subject to a 3 year supervised recognisance order. Since then, he had been supervised by Community Corrections, pursuant to several recognisances and parole orders. His response to supervision was noted to be "borderline" with reports of him becoming "haphazard in reporting" and using amphetamines.
2. The defendant was reported to have breached his parole in May 2010 following a positive drug test. Mr Ardasinski noted that he had avoided parole supervision by serving the entirety of previous sentences in custody. On the occasions that he had been subject to community based orders, he was "lack lustre" in his reporting and his adherence to directions to engage in offence-targeted interventions.
3. During the defendant's most recent period of incarceration, he did not present as a management problem. In previous periods of custody his behaviour had been noted to not always have been positive but that he did take responsibility for his behaviour.
4. As indicated, the defendant was released to parole on 24 December 2019. The conditions of his parole order require him to be subject to electronic monitoring and weekly schedules. There appears to have been no issues with the defendant's compliance with his parole conditions to date. He has expressed a level of anxiety in relation to his adjustment to functioning in the community and has advised Community Corrections that he was "overwhelmed" by the whole experience of being out of prison. He stated that he found the transition from custody, including technological changes, to be challenging. He commenced sex offender maintenance sessions with Forensic Psychology Services (FPS) and is attending Alcohol and Other Drugs (AOD) rehabilitation sessions with Odyssey House.
5. A recent Offender Integrated Management System (OIMS) Case Note Report expressed the following in relation to the defendant's progress upon his release: "Mr Hunt's case plan appears to be thorough and appropriate to his needs. It is positive how many support services have been enlisted so early into supervision and that Mr Hunt appears to have engaged with them well. Whilst at the ISC monitoring Mr Hunt's progress is made easier, however once he relocates case management will need to take into account his anxiety and risks with independent living. It is clear that drug use is a key risk factor and as such, having regular drug testing in the case plan is appropriate."

The reports received from the persons appointed under s 7(4) to conduct examinations of the offender and the level of the offender's participation in any such examination - s 9(3)(b)

1. Dr Furst and Dr Seidler unanimously opined that the defendant remains at high risk of reoffending. Both formed the view that the defendant met the criteria for Paedophilic Disorder on the basis of his sexual offending history and reported sexual attraction to female children. The experts were of the view that an ESO would provide an appropriate source of supervision support and intervention for the defendant.

Report of Dr Katie Seidler, forensic psychologist, 1 June 2020

1. Dr Seidler assessed the defendant for two hours and five minutes on 21 May 2020. During this interview, the defendant endorsed a "mild attraction" to pre-pubescent and post-pubescent girls. He acknowledged having had sexual thoughts about his victims but denied a pattern of generalised sexualised fantasy about underage children. He described having had strong attraction to the victim in the 1997 offences (his 14 year old niece) and reported that he had engaged in distorted thinking about this girl for some weeks before he offended. He stated this was his primary motivation in offending.
2. Dr Seidler formed the view that the defendant had a "reasonable grasp" of his risk and protective factors and recognised the need to proactively manage his risk to avoid future risk situations. However, she opined: "His knowledge of these factors is rather basic and could be more sophisticated, especially in relation to the intricacies of emotion and cognition management."
3. Dr Seidler administered a range of various risk assessment measures and determined that the defendant presented a risk that is in the Above Average or High range with respect to future sexual offending. On the Static-99R, the defendant received a score of five which placed him in the Above Average risk category. On the Static 2002R, the defendant obtained a score of seven, which is considered to represent risk in the Well Above Average Risk group. On the RSVP, the defendant represented a High risk of re-offending. She noted the primary contributors to the defendant's risk were his deviant sexual interests, significant intimacy and coping problems, and his antisocial and past illicit drug dependence. She stated: "He has made significant gains in some areas of dynamic need but this change is recent still and Mr Hunt has not yet had the opportunity to demonstrate sustained change in an uncontrolled environment, which is the primary reason why there has not been a further reduction in risk on the basis of the gains he has made through offence-focussed programming."
4. Dr Seidler expressed the opinion that the defendant continues to require supervision, support and intervention in the community in order to manage his risk. In her view, the defendant does not yet have the skills to manage his risk safely and independently. She noted: "... the change process is still in the early stages for Mr Hunt, especially as he has only been in the community now for a period of about six months, which has included residing in a "half-way house" run by Corrections and being subject to a Parole Order and then an ISO. As such, he will need ongoing support and intervention in order to continue to reduce his risk and manage his criminogenic needs proactively and positively."

Report of Dr Richard Furst, forensic psychiatrist, 7 June 2020

1. Dr Furst assessed the defendant for an hour on 18 May 2020. He opined that the defendant met the diagnostic criteria for Substance Use Disorder and Paedophilic Disorder. He expressed the view that the defendant's sexual deviance in the form of a paedophilic disorder led to his past offending.
2. On the Static-99R, administered by Dr Furst, the defendant scored three which was a reduction in his score taking into account the suggestion that the rate of re-offending declines beyond the age of 60. Dr Furst noted, however, that this score underestimated the defendant's true risk of re-offending in a sexual manner, given his clinical/dynamic profile and previous offence characteristics which indicated a form of paedophilic disorder. Dr Furst stated: "Sexual deviance, including paedophilic disorder are correlated with a higher risk of future sexual offending. Mr Hunt has also acted on such urges on a number of prior occasions, his first identified sexual offence being in 1984 and his most recent sexual offence involving victims who were sisters in 2011. He has little insight into the reasons behind his sexual offending and little evidence of victim empathy. He also appears to be impulsive and opportunistic in his offending patterns."
3. Dr Furst ultimately opined that the defendant would now be considered a medium-high risk of future reoffending. He noted that the restrictions, scheduling and monitoring inherent in the proposed ESO, coupled with additional support and therapeutic input, would hopefully provide the defendant with an opportunity to reintegrate into life in the community without relapse and re-offending.

Associate Professor Porter

1. Professor Porter carried out a neuropsychological assessment of the defendant. She noted that he was unable to answer questions about his early development, other than experiencing a mild hearing loss since he was a child. The defendant was not aware of ever being diagnosed with a developmental or acquired neurological or neuropsychological condition or a mental illness. The defendant reported attending "special classes" at school due to "learning difficulties". He had trouble learning to read and write. He said that because he "couldn't do it", he was not interested in school.
2. The defendant said that he was "okay" with basic maths on paper but was not good with "working out maths problems" in his head. The defendant reported multiple school changes throughout primary school and also questioned the quality of his learning experiences saying that he was often sent to "bigger" classes due to behavioural difficulties and sat at the back of the class "doing nothing".
3. The defendant said that he left school at the age of eight or nine years following a number of school suspensions and expulsions.
4. The defendant said that he was unsure of his family history in terms of any developmental delay, intellectual disability, learning difficulties or mental health problems. He said that he was physically and sexually abused as a child.
5. The defendant said that he was able to write his full name but not his address. He was able to recite the days of the week and most of the alphabet but left out "u" and "v". He reported some difficulties with reading menus at restaurants and tended to just ask for what he wanted. He was unable to look up telephone numbers for businesses unless he had the business name written down in front of him. He was unable to read or write lists, reminders, texts or emails. The defendant said that he used to ask for help when completing forms or reading important documents. He uses mobile phone applications such as "Note Player" to assist with reading some documentation and in terms of remembering appointments. The defendant said that he was able to follow a calendar, record dates and appointment times in a diary, purchase items with the correct money and roughly work out the correct change. He was able to budget and pay bills but he often telephoned the bank to assist.
6. On specific questioning, the defendant reported a number of head injuries leading to a loss of consciousness. He reported being knocked unconscious during fights as a child and also going down a steep hill and then a ramp on his pushbike, falling off and hitting his head and losing consciousness. On another occasion as a child, he recalled being knocked unconscious when he was hit on the head with a broomstick. He was unable to remember any particular symptoms he experienced after these events. He did remember being involved in a motorbike accident at age 18 when he was allegedly hit by a truck and was unconscious for 15-20 minutes. The defendant said that he did not go to hospital on this occasion because he had been abusing substances.
7. The defendant reported being involved in a car accident in 2006 when he was driving under the influence of substances and fell asleep at the wheel, subsequently crashing his motor vehicle into a lamp post.
8. When asked about his problems in cognitive functioning the defendant responded:

• memory (ongoing and worse than a decade ago);
• attention (ongoing and similar to a decade ago);
• hyperactivity/impulsivity (past);
• literacy difficulties.

1. The defendant described longstanding issues with "day to day" and "short term memory" which he attributed to his substance misuse. He described his memory as "very bad" and said for example "You can tell me something and then I will go out of the room, come back in and I won't remember". He went on to say that he thought he had short term memory problems but that his long term memory (for things in the distant past) was good.
2. The defendant reported having various jobs in the past including farming, panel beating, mechanic, carpet cleaning and as a tattoo artist. He described starting some of these businesses himself. He said that he was last employed in 2010.
3. Professor Porter administered standardised neuropsychological tests to the defendant. The results were as follows: "Intellectual Functioning The Wechsler Adult Intelligence Scale - Fourth Edition (WAIS-IV) was administered in order to evaluate Mr Hunt's cognitive and intellectual capabilities. Overall, on the WAIS-IV, Mr Hunt showed a low average level of intelligence, performing better than 18 percent of same-age peers. Verbal comprehension, nonverbal (or perceptual) reasoning, working memory and processing speed are the four indices that combine to derive a Full-Scale IQ on the WAIS-IV. Of note, there was significant scatter in Mr Hunt's performance across these four skills. His verbal comprehension was low average (better than 19 percent of same age peers), his working memory was borderline impaired (bottom 4 percent for his age) and his processing speed was low average to borderline impaired (bottom 10 percent for his age). These three areas of ability all represented a significant and unusual weakness relative to his average level of nonverbal reasoning (which was better than 63 percent of same age peers). ... Memory and Learning Select subtests from the Wechsler Memory Scale - Fourth Edition (WMS-IV) were administered to assess auditory and visual memory. Findings on the WMS-IV indicated auditory memory impairments, specifically poor encoding of prose passages and substantial memory decay after delay. Mr Hunt's auditory memory was greatly facilitated by repetition and elaboration of the material (semantic association). Auditory memory was borderline impaired overall (better than 4 percent of same age peers) and significantly and abnormally lower than expected based on his low average verbal IQ; prose memory was particularly poor and better than less than 2 percent of same age peers. Visual memory was somewhat inconsistent and ranged from borderline impaired to average. Mr Hunt's inattention and poor impulse control impacted on his performance during visual memory tasks on occasion, as visual memory tasks required copying complex designs and Mr Hunt was noted to make careless errors due to his poor planning and organisation. Literacy On the Wechsler Individual Achievement Test - 3rd Edition (WIAT-III), Mr Hunt displayed literacy skills equivalent to that of a 6 year, 4 month old in terms of his single word reading, spelling and non-word reading (or letter-to-sound rules). This is equivalent to a mild to moderate disability. On the Castles and Coltheart Reading test - Second Edition (CC-2), Mr Hunt showed very poor single word reading of regular words, irregular words and non-words. His performance was less than the second percentile (bottom two percent of peers). Similarly, on the Neale Analysis of Reading Ability - Third Edition (Neale-111), Mr Hunt's passage reading skills indicated impaired accuracy and rate of reading; both were around the level of a 6½ to 7 year old. Reading comprehension was around an 8½ year old level, but of note, this is only once words were read aloud for Mr Hunt in order to assist with his comprehension. ... Executive Functioning Mr Hunt showed poor planning and organisation skills on the Rey Complex Figure Test. In contrast, his verbal generation skills on the Controlled Oral Word Association Test (COWAT) were within normal limits for his age."

Satisfaction of criteria for relief sought

1. As a general principle, a good predictor of future risk are the acts done by a person in the past and the extent to which the factors underpinning that offending persist or may re-emerge.
2. The defendant has committed four sets of sexual offences against children involving five female victims between 1984 and 2011. This indicates that the defendant has not succeeded in controlling his sexual offending proclivity over the long term.
3. On the basis of the above material, I have been persuaded to a high degree of probability that the safety of the community is best served by the making of an ESO. I have reached that conclusion for the following reasons: 1. the nature of the defendant's past offending demonstrates he has the capacity to act both impulsively and with premeditation. He has isolated his victims and, in some cases, has used noxious or stupefying substances to subdue his victims and/or psychological coercion to manipulate and groom his younger victims; 2. the results of the actuarial testing and risk assessment tools. The defendant has been assessed as falling in the Medium-High to High risk range for further sexual offending. He also has a high level of criminogenic needs; 3. the views expressed by the experts that he meets the diagnostic criteria for paedophilia and is a chronic and versatile offender. The defendant himself has expressed his sexual attraction to children, stating this commenced in his mid-20s and increases when he is abusing substances; 4. the defendant's history of non-compliance with his parole and bail conditions and the fact the index offences were committed while in breach of his reporting obligations under the Registration Act; 5. the defendant is completely removed from any protective factors in the community and is isolated other than the support provided to him as part of his current ISO conditions. He is currently reliant on Community Corrections for assistance and has only recently transitioned to independent accommodation; and 6. the defendant has previously stated that he will abstain from illicit substances and is committed to rehabilitation yet has gone on to relapse and reoffend. He has been assessed as needing a high level of support and intervention in order to achieve this goal and remain offence free. While he has made considerable progress with his reintegration to date, the change process is still in the early stages and the experts opine he continues to need ongoing support and intervention in order to reduce his risk.
4. Given the matters outlined above, there is a real and unacceptable risk of the defendant committing another serious offence if not kept under supervision.
5. There is little evidence that the defendant can safely and/or effectively reintegrate into the community if not subject to supervision. In fact, to the contrary, the overwhelming message from those who have been involved in the defendant's progression through the justice system is that he is someone who requires intensive monitoring and supervision. The consistent theme is that without adequate community support and structure in place, there is a real and unacceptable risk that the defendant will re-offend.
6. Having regard to the paramount consideration of community safety, and the need to ensure the defendant's re-integration, both for the safety of the community and for his own rehabilitation, I am satisfied that, absent an ESO, there is a high probability that the defendant poses an unacceptable risk of committing another serious offence.
7. Dr Furst noted that the order sought by the plaintiff for a period of three years would provide a reasonable period of time to enable the defendant to find a more "pro-social routine away from drug using peers in the community, drug use and/or related or unrelated offending including sexual offending". I am of the opinion that given the defendant's institutionalisation and his sexual deviance, a three year order is appropriate. The defendant has agreed that a period of three years is appropriate.

Conclusion as to ESO

1. The defendant's criminal history and background provide evidence of an entrenched pattern of sexual offending and sexual deviance that is likely to persist for the foreseeable future. It is for those reasons and what is set out above, that I have concluded that it is in the interests of the safety of the community that an ESO be made for a period of three years.
2. As indicated, the defendant did not challenge the finding by the Court that an ESO should be made.

The defendant's evidence

1. In his affidavit, the defendant deposed that he had moved into his current address on 22 May this year where he lives alone. He has purchased a Harley Davidson motorbike. Before then, he was living in the Integrated Support Unit at Campbelltown.
2. Taking into account both his time with the Integrated Support Unit and living on his own, the defendant has been living in the community for about seven months. He explained how he used his mobile phone, a travel app and other methodologies to prepare his Schedule of Movements (the Schedule).
3. The defendant's literacy skills are a real problem and disadvantage to him. The defendant cannot read. As his affidavit states, he is able to recognise simple words but not much beyond that. Since returning to the community, he has used a number of programs on his phone to assist him to understand written words.
4. He uses a travel app which allows him to speak to his phone to put in a destination. The program will then advise him how to travel to the destination and the time it will take to get there. He then inputs this information into the notes app on his phone and tells his phone to email the information to his DSO so that it can form part of the Schedule.
5. The defendant regards this as an onerous and time consuming process that risks a technical failure and misinterpretation. The defendant says that he is concerned that information regarding travel times can vary due to traffic issues. This causes him anxiety about changing travel times and the risk which it poses to him of not being able to maintain his schedule. He becomes particularly concerned when he uses public transport.
6. He explained how he had been allowed by his DSO to have some "approved places" which he is allowed to visit without approval. These include his local Aldi supermarket, chemist, bakery and fast food outlet. Instead of putting those places on his Schedule, he is able to just ring the Electronic Monitoring Room and tell them he is going to one of those locations. He does not have a computer and only uses his phone. He said that he is worried about using his phone as it is new to him and he is not very familiar with how the internet works and cannot read what is on the screen. He is anxious because he might breach his order by accidentally pressing something on his phone which he is not allowed to access.
7. He explained how he had been given a number of written directions while subject to the ISO. These directions were read out to him by his DSO and then he signed them. HeHe noted that so far he had been told not to associate with a particular person, not to lend his motorbike, not to have anyone sit on his motorbike, not to have anyone in his unit and not to enter anyone else's unit without first obtaining permission.
8. He has joined the Men's Shed at Liverpool and attends on Wednesdays. He has been there on three or four occasions. Before doing so, he complied with directions and obtained the permission of his DSO. He has enjoyed meeting new people and will continue to attend.
9. He deposed to becoming a member of the Ulysses Motor Cycle Club. That is a motor cycle club for senior citizens.
10. In relation to his return to the community, the defendant said in his affidavit: "I have learned a lot about myself and things that are risk factors for me for re-offending. I understand that I need assistance and I have found that supervision has provided me with some structure and accountability. I am happy to maintain this but I am concerned that certain parts of the orders which relate to my problem with literacy increase my risk of non-compliance and failure. I am very keen to succeed and to prove to the Court and to myself that I can do it."

Ms Grabham's evidence

1. Ms Grabham is employed by Corrective Services NSW within the Department of Community Services as a member of a High Risk Offender Applications and Operational Governance Office of the Extended Supervision Order Team (ESO Team). She has been in that role since 18 March 2019.
2. Ms Grabham has not dealt directly with the defendant but understood that his reading abilities were in the lower extreme range with his reading and comprehension skills being previously assessed at between second and third grade level while his spelling was assessed as being at kindergarten level.
3. Ms Grabham deposed that offenders with identified literacy issues were regularly supervised by the ESO Team. She deposed that the ESO Team has experience in managing defendants who might experience difficulties in understanding the conditions to an ESO. She said that in such cases a "plain English" document is often utilised to ensure that a defendant understands the conditions to which he or she is subject.
4. Ms Grabham set out a number of further measures which could be used to ensure that a defendant understands the conditions to which he or she is subject: 1. all conditions can be verbally explained to the defendant by a DSO including examples; 2. at each reporting appointment a verbal reminder to the defendant by a DSO can be provided regarding his or conditions, again using examples where required; 3. either an audio and/or visual recording of the conditions will be completed by a DSO or ESO Team member and saved to a defendant's most used device (generally a mobile phone) so that a defendant can access this at any time to check what his or her conditions are and what is expected of them; 4. during all audio/and or visual recordings the defendant will be asked if he or she understands the conditions, examples, directions or warnings issued. If a defendant states that he or she does not understand, a further recording will be completed providing additional examples or information until a defendant states that they do understand; 5. if directions are issued based on a defendant's conditions they will also be communicated verbally and via audio and/or visual recording and saved to a defendant's most commonly used device; 6. if warnings are issued based on a defendant's conditions they will be communicated verbally and via audio and/or visual recording and saved to a defendant's most commonly used device; 7. visual aids can also be supplied to a defendant to ensure that he or she has reminders of conditions both at his or her residential address and on a defendant's most commonly used device (photographed or stored); 8. historically Corrective Services has utilised a capacity to engage the services of an external agency experienced in working with persons who have disabilities and literacy issues; 9. defendants are encouraged to utilise applications on their commonly used devices to assist in making the completion of schedules; 10. all ESO Team members and stakeholders who communicate with a defendant regularly, such as the External Electronic Monitoring Group (EEMG) are provided with an information sheet regarding a defendant to ensure they also know who to appropriately communicate necessary information to, where a defendant has literacy issues; and 11. visual aids can also be provided to a defendant as an additional reminder of conditions, directions and warnings.
5. In cross-examination, Ms Grabham gave evidence that of all of those available methods of dealing with the problem, the ESO Team had only used measures (a) and (b) of those set out above. Ms Grabham gave evidence that this was because those measures had been effective with the defendant in that he was progressing well with the preparation of schedules and that no further assistance was needed. (In his evidence, the defendant explained that when he was having difficulty using his phone so as to prepare schedules, assistance had been provided by his DSO whom he saw at least once a week.)

Conditions

1. Pursuant to s 11 of the Act, the Court has the power to impose a condition that the Court considers "appropriate". In Wilde v State of New South Wales [2015] NSWCA 28, the Court of Appeal stated at [53]: "... Section 11 does not require that there be a specific demonstrated link to the past offending which is the basis of the order made under the Act. Rather, the court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order."
2. In Lynn v State of New South Wales, the Court of Appeal found that a balancing exercise was required so that the Court will impose the least intrusive conditions, consistent with its assessment of the risk posed by the defendant and a further assessment as to what conditions are likely to be effective, with the interests of the defendant in liberty and privacy being properly treated as relevant considerations in ensuring that unjustifiable conditions are not imposed.
3. As often happens in these matters, where there is no dispute as to whether an ESO should be made, there is a dispute as to the form of particular conditions. In this case there is a dispute about three conditions, despite attempts by the parties to resolve all issues.
4. There is no issue between the parties as to the form of conditions 1-3 under the heading "Monitoring and Reporting". There was originally a dispute as to the form of condition 3, but this was resolved. Condition 3 will now read: "3 The defendant must comply with any reasonable direction given by his DSO or their delegate from CSNSW, for the enforcement and implementation of the ISO/ESO or any condition of the Order. Noting the defendant's difficulties with literacy, directions must be given orally (either in person or by telephone) and confirmed in writing (unless it is impractical to give an oral direction). Confirmation in writing may be given electronically including by SMS or other messaging service. If it is impractical to issue an oral direction, a written direction will only be effective if the defendant's DSO or their delegate from CSNSW satisfies themselves that the defendant understands the direction, taking into account the defendant's difficulties with literacy. Standing directions are to be reviewed and discussed between the DSO and the defendant on a regular basis having regard to the defendant's difficulties with literacy."
5. Importantly, the defendant accepted that he would undergo electronic monitoring for the three years during which the ESO would be operative.
6. Where the dispute has arisen is in relation to Conditions 5, 6 and 7. Those proposed by the defendant are: "Movements and Approved Places 5. Through the defendant's DSO, CSNSW will keep a list of each approved place which the defendant can attend between 6:00am and 9:00pm, (or as otherwise specified), without prior notification to the DSO ("Approved Place"). The DSO may specify in the list any activities the defendant can or cannot do at any Approved Place. 6. When attending an Approved Place, the defendant must go directly to the Approved Place from his home. 7. If the defendant wants to attend a place that is not an Approved Place, he must: a. Seek approval from his DSO 3 days in advance to attend that place; b. Tell his DSO when he will attend that place; c. Provide any other information sought by the DSO about his attendance at that place."
7. The conditions proposed by the plaintiff are: "Schedule of Movements 5. If directed the defendant must with appropriate assistance from his DSO having regard to his literacy difficulties, provide a weekly plan (called a "Schedule of Movements") and this is to be provided three days before it is due to start. 6. If the defendant wants to change anything in his Schedule of Movements once it is approved by his DSO, he must tell his DSO about the change 24 hours in advance unless the DSO approves a shorter period. 7. The defendant must not deviate from his approved Schedule of Movements except in an emergency, or if there is a reasonable explanation for the deviation which is provided either orally or in writing to his DSO or any other person supervising him as soon as possible and in any other case not later than 24 hours after the deviation."
8. The plaintiff submitted that its proposed Conditions 5, 6 and 7 were flexible enough to address any literacy concerns or memory difficulties confronting the defendant. The plaintiff referred to the cooperation between the defendant and his DSO in relation to the preparation of the Schedule. The plaintiff also noted the flexibility in Condition 5 in that it only became operative "if directed". The plaintiff submitted that such wording provided a discretion which would in due course allow the Scheduling condition to be removed if it was thought that it was no longer required, for example, if the defendant had progressed in being able to better look after himself and engage with the community. The plaintiff submitted that it could also be removed if significant difficulties were to arise because of the defendant's literacy problems.
9. The plaintiff submitted that the Scheduling requirement had been operative for over seven months and, according to Ms Grabham, was working well. The plaintiff noted that it was only recently that the defendant had moved into independent accommodation. The plaintiff submitted that it was still "early days" in the defendant learning to be independent in the community and to properly plan the use of his time. It was too early to completely change from the current Scheduling arrangement to that which was proposed on behalf of the defendant, i.e. no Scheduling but a list of approved places which the defendant could attend without seeking permission from his DSO or anyone else.
10. The plaintiff submitted that although the practicalities involved in Scheduling were somewhat cumbersome, they had been operating effectively for seven months. The proposal by the defendant was at best experimental and to put it into practice at such an early time, may be asking too much of him.
11. The plaintiff noted that there were already some locations which had been pre-approved, e.g. certain shops and certain medical institutions. The defendant was able to attend these locations without seeking permission.
12. The plaintiff submitted that as the defendant became more experienced in preparing his Schedules and better at organising his day, there could be an increase in the number of pre-approved locations to which he could go.
13. In relation to the current system of Scheduling, the plaintiff directed the Court's attention to the annexures to the affidavit of Ms Grabham which showed that the Schedules which the defendant was preparing with the help of his DSO were relatively simple documents. Their main function was to allow the defendant to appropriately plan his day so that he was engaged in useful and beneficial activities.
14. The plaintiff submitted that the schedules were not only directed to monitoring the defendant's movement but were also intended to provide him with some assistance in learning to properly structure his time, attend the sort of activities to which he had referred in his affidavit and make connections in the community. The intention of the Schedules was to assist the defendant in structuring his days so that he had a stable lifestyle which was something that was important in managing his dynamic risk factors. The plaintiff submitted that this was another aspect of what the Scheduling was attempting to achieve.
15. The plaintiff was concerned that by having a list of approved locations with no structural scope connecting them, in circumstances where the defendant could attend any of those places or activities at any time, would not provide the guidance or assistance which the defendant would otherwise gain from planning and thinking about how he was going to structure his day or his week and discussing those matters with his DSO.
16. The plaintiff noted that set out in the Risk Management Report were the various stages of electronic monitoring (see p 156 of Exhibit SN1). The first stage is where the defendant is currently positioned and includes restrictive schedules. Subsequent stages allow more responsibility and freedom of activity.
17. In time it is intended that these restrictive Schedules would be relaxed and there would be scope to include pre-approved places which the defendant could visit as part of his scheduled activities. It is intended that as the defendant proceeded through the various stages, the scheduling requirements would be eased or cease entirely. The plaintiff submitted that at this early stage in the defendant's interaction with the community, he still needed to be at that restrictive level of monitoring until he gained more skills and was better able to independently manage his risk factors and live more safely in the community.
18. The plaintiff noted that as set out in the evidence of Ms Grabham, the defendant meets regularly with his DSO on at least a weekly basis and if any difficulties were to arise in relation to scheduling, which involved his memory or literacy, discussions with his DSO would be the most effective forum to deal with such difficulties. That would allow amendments to the Schedules to deal with any unexpected difficulties which the defendant might experience. The plaintiff submitted that seeking to amend the present system and set up a different regime would be more likely to cause confusion and place the defendant at greater risk of breaching his Schedules and therefore the conditions of his ESO.
19. On behalf of the defendant it was submitted that what he was seeking was not some freewheeling ability to go wherever he pleased. The defendant noted that when he wished to go to a non-approved place, he was required to seek approval three days in advance from his DSO. He must tell the DSO where he is going and provide any other information which the DSO might seek. The defendant noted that under Condition 8, about which there is no dispute, he was required, at all times, to tell his DSO truthfully where he was, where he was going and what he was doing. The defendant further noted that there was no dispute that the ESO would be operative for three years and that for the entirety of that three years, the defendant would be subjected to electronic monitoring. The defendant submitted that when considering the proposed wording those concessions needed to be kept in mind.
20. The defendant submitted that the problem which currently arises is the difficulty which he experiences in preparing the Schedules, given his substantial literacy difficulties and memory problems.
21. The defendant submitted that until Professor Porter prepared her report, there had been no comprehensive psychological/psychiatric examination of him. Professor Porter had raised the possibility of organic brain damage and it was not simply a matter of a person who cannot read. There were difficulties as well with his processing capabilities and with his ability to retain information once he had heard or read it. These were the sort of things which in the context of the defendant being required to produce a Schedule, would make that task particularly difficult. In summary, the defendant was concerned that his problems might well be more extensive than those associated with an inability to read and remember things.
22. The defendant submitted, that as pointed out in his affidavit, he had become anxious that he might make a mistake with his Schedules in the sense of underestimating the time it would take him to travel to certain locations and thereby being in breach of the conditions of the ESO and attracting criminal sanctions. The defendant submitted that a structured routine did not necessarily require a Schedule to be produced. He submitted that a structured routine could also be encapsulated in a process whereby a number of approved locations were identified which he could visit without specifically seeking permission from his DSO.

Consideration

1. A significant difficulty confronting the defendant is that he has over the years become largely institutionalised and has had very little direct contact with the community. This is as a result of his substantial periods of incarceration. This year is the first time that he has been part of the community for a substantial period of time (over seven months) without resorting to crime and the consumption of illegal substances. A significant part of the regime to which he is subject and which appears to have assisted in preventing any criminal relapse is the preparation of the weekly Schedule which is the product of cooperation between him and his DSO.
2. Importantly, he has only just recently taken up his own independent accommodation. As set out in his affidavit while being somewhat liberating for him, it has also made the object of him living more independently in the community harder to achieve. This is because of necessity he has had to become more self-reliant. An important part of that process towards self-reliance is the use of a weekly schedule which of necessity forces the defendant to plan his day and to indicate to his DSO when he is leaving his accommodation, where he is travelling and for what reason.
3. While I appreciate the force of the defendant's submissions, I have concluded that it is too early in the defendant's process of moving to greater independence but also establishing ties with the community, for there to be such a large change to the defendant's daily life. This would be the inevitable effect of the implementation of the changes in conditions sought by him.
4. As Ms Grabham indicated in her evidence, the defendant's move towards greater independence and contact with the community is a dynamic one so that as the defendant develops more skills and greater independence, the restrictions currently imposed upon him and his lifestyle can be modified and reduced.
5. It is for this reason that I have acceded to the plaintiff's submissions and it is Conditions 5, 6 and 7 as proposed by the plaintiff which will be included in the ESO.

Final Relief

1. The Court orders pursuant to ss 5B and 9(1)(a) of the Act: 1. That the defendant be subject to an Extended Supervision Order for a period of 3 years, commencing 4 August 2020. 2. 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 in Annexure "A" attached to this judgment; 3. An order that access to the Supreme Court file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court and if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

PLAINTIFF'S PROPOSED SCHEDULE OF CONDITIONS OF SUPERVISION

ROBERT JOHN HUNT Department Supervising Officer (DSO) Corrective Services NSW (CSNSW) Part A: Reporting and Monitoring Obligations Monitoring and Reporting

1. The defendant must accept the supervision of CSNSW until the end of the Order.
2. The defendant must report to the DSO or any other person supervising him as directed by the DSO.
3. The defendant must comply with any reasonable direction given by his DSO or their delegate from CSNSW, for the enforcement and implementation of the ISO/ESO or any condition of the Order. Noting the defendant's difficulties with literacy, directions must be given orally (either in person or by telephone) and confirmed in writing (unless it is impractical to give an oral direction). Confirmation in writing may be given electronically including by SMS or other messaging service. If it is impractical to issue an oral direction, a written direction will only be effective if the defendant's DSO or their delegate from CSNSW satisfies themselves that the defendant understands the direction, taking into account the defendant's difficulties with literacy. Standing directions are to be reviewed and discussed on a regular basis between the DSO and the defendant, having regard to the defendant's difficulties with literacy. Electronic Monitoring
4. The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him. Schedule of Movements
5. If directed, the defendant must, with appropriate assistance from his DSO having regard to his literacy difficulties, provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start.
6. If the defendant wants to change anything in his schedule of movements once it is approved by his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period.
7. The defendant must not deviate from his approved schedule of movements except in an emergency, or if there is a reasonable explanation for the deviation which is provided either orally or in writing to his DSO or any other person supervising him as soon as possible and in any other case not later than 24 hours after the deviation.
8. The defendant must truthfully answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing. Part B: Accommodation
9. The defendant must live at an address approved by his DSO.
10. The defendant must allow his DSO or their delegate from CSNSW to visit him at his approved address and, for that purpose, may enter the premises at that address: a. at any time the defendant is scheduled to be there between 6.00 am and 9.00 pm; b. no more than twice in 24 hours; unless the defendant's DSO reasonably believes it is necessary for the safety and welfare of residents or staff or persons present at the defendant's approved address, or his DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence, in which case the defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time he is present at his approved address.
11. If directed by his DSO, the defendant must be at his approved address between 9pm and 6am.
12. The defendant must promptly notify his DSO, in person, via text message or by telephone, of any visitor entering and remaining at his approved address unless that visitor is an "approved visitor" and must not permit any person to stay overnight at his approved address without the prior approval of his DSO. For the purpose of this condition, the DSO may give or withdraw pre-approval from time to time for a list of "approved visitors" who may enter and remain at the defendant's approved address without a requirement for him to notify his DSO on each occasion of that person entering and remaining at an approved address. Part C: Place and travel restrictions
13. The defendant must not leave New South Wales without the approval of the Commissioner of CSNSW.
14. The defendant must surrender any passports held by the defendant to the Commissioner of CSNSW.
15. The defendant must not go to a place if his DSO tells him he cannot go there.
16. Without limiting condition 15 above, without prior approval of his DSO, the defendant must not go to any: 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. Concerts, theatre shows, movies, events and activities intended for the entertainment of children; i. Residences where the defendant knows that persons under 18 ordinarily reside; or j. Internet cafes or other businesses which provide public access to the internet using a computer provided by that business either for payment or for no charge (other than employment agencies). Part D: Employment, finance and education
17. If the defendant is unemployed, the defendant must take all reasonable steps to make himself available for employment, education, training or participation in a personal development program as directed by the DSO. The defendant is not required to make himself available for employment if his health does not permit it and he is eligible for a government financial benefit (for example, the Centrelink disability support pension).
18. The defendant must not start any job, volunteer work or educational course without the prior approval of his DSO. Where possible, an assessment of whether this activity will be approved, will be completed within seven days.
19. The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by his DSO. Part E: Drugs and alcohol
20. The defendant must not: a. [deleted] b. possess or use illegal drugs or use prescription medication other than as prescribed.
21. The defendant must submit to testing for drugs as directed by his DSO.
22. [deleted]
23. The defendant must attend and participate in programmes and courses for drug rehabilitation as reasonably directed by his DSO, and must not discharge himself from such programs and courses without prior approval of his DSO. Part F: Non-association Association with Children
24. The defendant must not approach or have contact with anyone who he knows or reasonably should know is under 18 years of age unless his DSO tells him he can, and he is with someone who has been approved in writing by his DSO. Incidental and brief (or momentary) contact with a person under the age of 18 in the ordinary course of life such as contact with a shop assistant when he is making a genuine purchase is not a breach of this condition. Associations with Others (not children)
25. The defendant must not associate with any individuals that his DSO tells him not to. The DSO must provide the defendant with sufficient information regarding the identity of the specified person to allow the defendant to comply with this condition.
26. The defendant must not knowingly associate with any person(s) that he reasonably believes is consuming or under the influence of illegal drugs.
27. If the defendant starts a relationship or friendship with someone (sexual, intimate or otherwise), and the defendant knows or reasonably believes that this person is the parent or guardian or has the care and control of a child or children under 18 years, he has to tell his DSO as soon as practicable, the name of that person and truthfully answer any questions that the DSO asks regarding that relationship or friendship. Having assessed the nature and progress of the relationship, and the potential impact of disclosure on the defendant's rehabilitation, the DSO may tell the person about the defendant's criminal history if it relevant to the defendant's risk. The DSO will notify the defendant of the intended disclosure and the defendant must permit it.
28. The defendant must obtain written permission from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service. Where possible, an assessment of whether this activity will be approved will be completed within seven days. Part G: Access to the internet and other electronic communication
29. The defendant must give his DSO a list of all devices he uses to communicate with or to access the internet as soon as practicable within 24 hours of obtaining the device or joining the service or application, such list to be provided orally or in writing. This includes phones, tablet devices, data storage devices or computers (the Devices). This also includes the details of telephone numbers, service provider account numbers, email addresses, login names or other user names and relevant passwords and codes, used by the defendant as well as the nature and details of the internet connection, as directed.
30. The DSO (or any other person requested by the DSO) may remotely inspect any internet account used by the defendant, including the defendant's email addresses, social media accounts in monitoring compliance with this Order.
31. The defendant must obey any reasonable directions by his DSO about the use of the Devices including but not limited to : a. producing his Devices if requested to do so by the DSO; and b. prohibiting the defendant deleting records on the Devices regarding searches carried out using search engines, websites accessed, text messages sent and received, emails sent and received, and data downloaded.
32. The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO.
33. The defendant must advise the DSO of any change to the inventory of Devices listed in condition 30 within 24 hours. Part H: Search and seizure
34. If the DSO forms a reasonable suspicion that a search (of the type referred to in sub-paragraphs d. to g. below) is necessary: a. for the safety and welfare of residents or staff or persons present at the defendant's approved address; b. to monitor the defendant's compliance with this order; or c. because the DSO reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious offence; then the DSO must inform the defendant of the basis for that suspicion and, having done so, may direct, and the defendant must submit to: d. search and inspection of any part of, or anything in, the defendant's approved address; e. search and inspection of any part of, or anything in, any vehicle owned, hired by or under the control of the defendant; f. search and inspection of any part of, or anything in, any storage facility, including a garage, locker or commercial facility owned, hired by or under the control of the defendant; and/or g. search and examination of his person.
35. For the purposes of the above condition: a. a search of the defendant means a garment search or a pat-down search. b. to the extent practicable a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO. NOTE: "Garment search" means 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. "Pat-down search" means a search of a person where the person's clothed body is touched.
36. During a search carried out pursuant to condition 34 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO believes on reasonable grounds will compromise: a. the safety of residents or of staff at the defendant's approved address; b. the welfare or safety of any member of the public or any other person; or c. the defendant's compliance with this order; or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence. If the DSO does not hold that reasonable belief or suspicion, then the items must not be seized.
37. The defendant must allow CSNSW to search any Device that he may use. The power to search includes but is not limited to: a. CSNSW inspecting his Device's logs, text messages sent and received, emails sent and received, images or data downloaded and records regarding searches using search engines and websites accessed; b. CSNSW photographing text messages or images or screenshots on his Device and downloading data from the Devices using hardware and software that CSNSW determines is necessary to carry out that download; c. CSNSW seizing the Device for the purposes of examination and or preservation of evidence in connection with suspected breaches of interim or extended supervision orders made by the court or any other criminal offence punishable by a maximum of 2 years or more imprisonment.
38. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions 34 to 36 above. Part I: Personal details and appearance
39. The defendant must not change his name from "Robert John Hunt" or use any other name without the approval of his DSO, with the exception of: "Robert" "Robert Hunt" "Mr Hunt"
40. The defendant must not use any alias, log-in name, or a name other than the names above (or, if that name is unavailable, a name which includes the names above in it) or use any email address other than those known to the DSO under condition 30 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email, without the prior approval of his DSO.
41. The defendant must not significantly change his appearance without the approval of his DSO.
42. The defendant must let CSNSW photograph him.
43. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details within 7 days. Part J: Medical intervention and treatment
44. The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults.
45. The defendant must attend all psychological and psychiatric assessments, therapy, support, rehabilitation and treatment that his DSO tells him to attend, unless he provides a reasonable excuse to his DSO for his non-attendance.
46. [deleted].
47. The defendant must notify his DSO immediately if he ceases to take or declines to commence taking any medication prescribed to him.
48. The defendant must agree to his healthcare practitioners sharing information with the DSO as to the fact of his attendance at appointments and his overall progress in therapy or counselling including the practitioner's general opinion as to the development of his insight into offending risk factors and attitudes to reduce his risk of offending.
49. The defendant must agree to his healthcare practitioners sharing information with the DSO as to the fact of his attendance at appointments and his overall progress in therapy or counselling including, the practitioner's general opinion as to the development of his insight into offending risk factors and attitudes to reduce his risk of offending. NOTE: It is understood that a relationship of trust and confidentiality with healthcare practitioners is fundamental to the defendant's engagement with and treatment by his healthcare practitioners.
50. The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him, if deemed necessary by the DSO as related to the defendant's risk of committing a serious offence.

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: 03 August 2020