State of NSW v Hunt

Supreme Court of NSW|2020-04-15|Before: Hoeben CJ

Solicitors: Crown Solicitor for NSW - Plaintiff Legal Aid NSW - Defendant File Number(s): 2020/65483

Nature of proceedings By an Amended Summons (the Summons) filed on 15 April 2020, the State of New South Wales (the plaintiff) seeks an extended supervision order (ESO) of 3 years under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) in relation to Mr Robert John Hunt (the defendant). The conditions proposed by the plaintiff are set out in the schedule to the Amended Summons.

The defendant is aged 59. He was released to parole on 24 December 2019, having been in continuous custody since 5 May 2011. He was sentenced to imprisonment for 6 years and 9 months, with an additional term of 2 years and 3 months for a series of sexual offences committed against two female victims aged 11 and 7 years. At the same time, he was sentenced for an offence of failing to comply with reporting conditions under the Child Protection (Offender Registration) Act 2000 (NSW) (the Registration Act).
The defendant's head sentence is due to expire on 4 May 2020. He is presently residing at the Integrated Support Centre (ISC) in Campbelltown.

The Act and threshold requirements

The relevant law for the determination of an ESO application is the Act. The primary object of the Act is protective (s 3(1)). The secondary object of the Act is to encourage high risk offenders to undertake rehabilitation (s 3(2)). In determining whether to make an ESO, the safety of the community must be the paramount consideration of the Court (s 9(2)).
The defendant accepted that in order to make orders 1-3 in the Summons it was necessary for the Court to be satisfied of two matters: 1. that the current custody or supervision of the defendant will expire before the proceedings are determined; 2. that the matters alleged in the supporting document would, if proved, justify the making of an ESO (s 10A(b) of the Act).
The defendant accepted that at the preliminary stage, it is not necessary for the Court to be satisfied that the matters alleged in the supporting documentation will be proved. The defendant also accepted that the Court is not required to weigh up the documentation or resolve inconsistencies or uncertainties which appear in the evidence nor is it necessary for the Court to predict the ultimate result. The Court is only required to be satisfied that, if the matters in the supporting documentation are proved, an ISO would be justified, taking into account the elevated standard of proof of a "high degree of probability" (ss 5B and 5C of the Act).
There was no issue that the defendant's current custody will expire before the proceedings are determined.

Principles relevant to the Unacceptable Risk Precondition

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. The Court must be satisfied as to the existence of the "unacceptable risk" to a standard higher than the civil standard of proof (Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]). An "unacceptable risk" is one that is intolerable or far from normal expectations or required standards.
Determining what is an "unacceptable risk" involves a consideration of the type and nature of the offence that may be committed, absent supervision and balancing those factors. The Court may legitimately find that a person constitutes an unacceptable risk for the purpose of the unacceptable risk test, even if the likelihood of the person committing a further serious offence is determined to be low.

The Unacceptable Risk Precondition in this case

The plaintiff contended that the Court could be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if he is not kept under supervision having regard to: 1. The serious nature of the defendant's past offending and his history of sexual recidivism; 2. the results of the actuarial testing and risk assessment tools which assessed the defendant as falling in the Medium-High to High risk range for further sexual offending; 3. the views expressed by the RAR writer that the defendant would likely meet the diagnostic criteria for paedophilia; 4. the defendant's history of non-compliance with his parole and bail conditions and the fact that the index offences were committed while in breach of his reporting obligations under the Registration Act; and 5. the defendant's limited period of supervised parole.
Given the concession properly made by the defendant and by reference to the above considerations, I am satisfied that the matters alleged by the plaintiff in the supporting documentation would, if proved, justify the making of an ESO.

The preliminary hearing

A purpose of the preliminary hearing is to allow the Court to filter out unmeritorious applications at an early stage. Another purpose is to give the Court the benefit of independent expert opinion before making a final decision.
The task of the Court is not to weigh up the documentation or predict the ultimate result or to consider what evidence the defendant might call at the final hearing. The test has been described as akin to the prima facie case test applied by magistrates in committal proceedings.
In State of New South Wales v Elomar (No 2) [2018] NSWSC 1034, Rothman J at [7] rejected a submission that "prima facie" proof is required of the "matters alleged" and explained that "matters alleged" in s 10A of the Act referred to the facts sought to be established by the plaintiff not the conclusion to be drawn from them. The approach of Rothman J was endorsed by R A Hulme J in State of NSW v Golding (Preliminary) [2018] NSWSC 1041 and Latham J in State of New South Wales v Strong, Robert [2018] NSWSC 1113.
Pursuant to s 9(3) of the Act, in deciding whether or not to make an ESO, the Court must have regard to the factors set out in the subsection, in addition to any other matters it considers relevant.
In the preliminary hearing context, the plaintiff must satisfy the Court that the matters alleged in the supporting documentation address the s 9(3) factors which would, if proved, justify the making of an ESO.
Although the concession by the defendant was properly made, it is still necessary for this Court to be satisfied that all statutory preconditions have been met before orders are made. The submissions of counsel for the plaintiff provide an analysis of the evidence that is before the Court and set out how the evidence satisfies all the legislative requirements. On the basis of my examination of the evidence, and a consideration of the uncontested submissions of the plaintiff, I am satisfied that the orders sought by the plaintiff should be made. Relevant factual issues, which support that conclusion, are as follows.

The defendant's background

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.
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.
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

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.
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

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

The defendant had three prior episodes of sexual offending against three female children before the index offences.
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.
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.
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.
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.
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".
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.
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

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 Roseberry. 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.
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."
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.
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

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."
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".
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."
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

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:
General Self-Regulation
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

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

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

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

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.
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

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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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

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.
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.
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.
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.
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

Given the nature of the defendant's offending, Community Corrections indicated that child protection issues would be a significant case management component.
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."
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.
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.
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

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.
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.
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.
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.
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."
It follows from the above analysis of the s 9(3) factors that should the plaintiff prove those matters to the necessary standard an unacceptable risk would exist and the Court would be justified in making an ESO. There was no dispute on that issue. The contest insofar as the making of an ISO is concerned was the form of the conditions with which the defendant would have to comply during the period of the ISO.

Conditions of Supervision

The defendant, while acknowledging that an ESO would be a protective factor for him and provide additional motivation for general compliance and wellbeing, submitted that the imposition of overly restrictive or unnecessary conditions could actually exacerbate the risk to the community. On behalf of the defendant, it was submitted that the Court when determining whether certain conditions were necessary or required modification, was required to engage in the kind of balancing exercise discussed in Lynn v State of New South Wales [2016] NSWCA 57; 91 NSWLR 636 at [129]-[130] where Basten JA said: "129 The second step, not reached until the court is comfortably satisfied that the offender presents a heightened risk of further offending, absent supervision, involves a determination of what conditions may be imposed with the purpose of diminishing the risk to an acceptable level. It is self-evident that this will involve a "balancing" exercise, in the sense that the court will seek to impose the least intrusive conditions consistent with its assessment of the risk and a further assessment as to what kind of conditions are likely to be effective. If the evidence suggested that effective supervision (described as "adequate supervision" in s 5G(1)) would not be provided by an extended supervision order, the State might consider an application for a continuing detention order: none was sought in the present case. 130 The submission that this step engages a balancing exercise involving possible intrusions on the applicant's liberty and privacy should be accepted and they will properly be treated as relevant considerations in ensuring that unjustifiable conditions are not imposed."
Considerable agreement as to the conditions to be imposed was reached between the parties. However, there remained a dispute as to the reasonableness of some of the conditions proposed by the plaintiff.

Proposed condition 8

The defendant submitted that the primary object of the Act is to provide for extended supervision and continuing detention of High Risk Sex Offenders so as to ensure the safety and protection of the community. He submitted that there was no statutory warrant under the Act to abrogate the presumption against self-incrimination.
In support of that proposition, the defendant relied upon Petty and Maiden v The Queen [1991] HCA 34; 173 CLR 95 at 99 where the plurality (Mason CJ, Deane, Toohey and McHugh JJ) said: "A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played. That is a fundamental rule of the common law which, subject to some specific statutory modifications, is applied in the administration of the criminal law in this country. An incident of that right of silence is that no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information. To draw such an adverse inference would be to erode the right of silence or to render it valueless. ..."
The defendant submitted that proposed condition 8 should be amended accordingly. He submitted that in the event that the defendant exercised his common law right to silence, that was a matter which could be the subject of further application by the plaintiff as it saw fit.
The condition proposed by the defendant was as follows: "8 Subject to an exercise of his right to silence and not to incriminate himself, the defendant must truthfully answer questions from his DSO or their delegate from CSNSW about where he is, where he is going and what he is doing. Prior to answering a question the defendant is entitled to a reasonable period to obtain legal advice if he wishes regarding any questions asked and he is entitled to exercise his right not to answer questions."
The plaintiff relied upon the analysis of a similar issue by Beech-Jones J in State of New South Wales v Baldwin [2019] NSWSC 1882 (Baldwin). There, the proposition raised on behalf of the defendant was: "19 ... It was otherwise submitted that the proposed conditions that were sought were generally too onerous and should not be imposed, and in one particular respect, infringed his privilege against self-incrimination such that there was no power to impose them. ... 58 I have already referred to s 11 of the HRO Act, which confers the power to impose conditions. As noted, it is necessary to address the terms of the proposed conditions before ultimately deciding whether or not to make the ESO. As I will explain, one matter of principle emerged concerning whether s 11 authorises the imposition of a condition that infringes in a particular respect on an offender's privilege against self-incrimination. ... 78 Leaving aside whether these proposed conditions impermissibly infringe Mr Baldwin's privilege against self-incrimination, Dr Lucy submitted that they were unworkable and intrusive such as they should not be imposed. ... 82 ... As proposed conditions 39 to 42 require an offender to take a step, that is provide consent, which may lead to the discovery of evidence that exposes him to prosecution for an offence, specifically an offence of contravening s 12 of the HRO Act, then they purport to abrogate the offender's privilege against self-incrimination (see Environment Protection Authority v Caltex (1993) 178 CLR 477 at 502 and Meneses v Directed Electronics Pty Ltd [2019] FCAFC 190 at [90]). 83 In relation to the second step in Dr Lucy's argument, the privilege against self-incrimination is clearly a relevant right, privilege or immunity that is subject to a principle of construction taken to be part of the "principle of legality"; namely, that an intention to abrogate it must be "clearly manifested by unmistakable and unambiguous language" (see Coco v The Queen (1994) 179 CLR 427 at 437; [1994] HCA 15; Electrolux Home Products Pty Limited v Australian Workers' Union (2004) 221 CLR 309 at [21]; [2004] HCA 40; and X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 at [86] to [87] per Hayne and Bell JJ). Dr Lucy submitted that there was no such clear intention manifested in the HRO Act. Counsel for the State, Ms Climo, submitted to the contrary. 84 A consideration of the principle of legality and its application to these types of conditions has been undertaken in other cases in this Court to which I was referred; namely, State of New South Wales v John Raymond Holschier [2016] NSWSC 234 at [42] ("Holschier"); State of New South Wales v Steven Single [2019] NSWSC 176 at [37] to [51]; ("Single"), and State of New South Wales v Grooms (Final) [2019] NSWSC 353 at [103] to [113] ("Grooms"). In each of those cases the contention that the imposition of conditions, such as proposed conditions 39 to 42, where there was no specific authorisation for such conditions to be found in s 11 was contrary to the principle of legality was rejected ([id]). 85 Dr Lucy submitted that those cases should be distinguished because, in each case the argument proceeded on what was contended to be the false premise that these conditions are analogous to search warrants and thus the Court did not address the matter on the basis that such conditions purport to abrogate the privilege against self-incrimination (see, for example, Single at [44]). Dr Lucy submitted that the necessity for a clear statement is that much stronger once it is appreciated that it is the privilege against self-incrimination that is being abrogated; or, alternatively, at least once it is appreciated that it is that privilege that is abrogated then at the very least a different analysis is warranted. 86 I am doubtful that the former contention is correct in that by treating the conditions as akin to a search warrant both Single and Grooms were addressing the proposed conditions on the basis that the offender's property rights and personal integrity were violated. If there is a hierarchy of fundamental rights in this context, something I am doubtful of, those rights stand in at least equal importance to the privilege against self-incrimination. However, I accept there is considerable force in the alternative submission; namely, that once it is appreciated that it is the privilege against self-incrimination that is being abrogated by the proposed conditions, then a different analysis is, or at least may be, warranted. Accordingly, I will address Dr Lucy's argument on the basis that it is not contrary to Holschier, Single and Grooms. 87 As noted, Ms Climo's contention was that the HRO Act necessarily abrogated any privilege against self-incrimination that might otherwise be claimed by an offender to resist the imposition of a particular condition imposed under s 11. 88 The terms of s 11 are set out above. The relevant power is to provide that the ESO "may direct an offender to comply with such conditions as the Supreme Court considers appropriate". The balance of the section specifies particular forms of conditions that may be imposed, but s 11 makes it clear that they expressly do not limit the general scope of the power that is conferred. 89 As noted, a number of the particular subsections of s 11 are specifically directed to require the provision of information by the offender which could incriminate them, or to require the provision of consent by the offender to some form of search which could yield incriminating evidence. Thus, s 11(1)(c) authorises the imposition of a condition requiring the offender provide periodic reports. Section 11(1)(n) authorises the imposition of a condition requiring the provision of information in relation to employment or financial affairs. Section 11(1)(a1) authorises a condition that requires an offender to grant permission to access a computer in their premises or in their possession. The potential for that to yield incriminating evidence is obvious. Section 11(1)(a) specifically authorises the imposition of a condition requiring an offender to permit a "visit" by a corrective services officer to their residential premises and to permit the officer to "enter" those premises. This provision specifically authorises a condition requiring the offender to consent to what might otherwise be a trespass. The potential for an officer who so visits and enters to observe evidence that could incriminate an offender is obvious. Further, s 11(1)(l) authorises conditions which impose "any obligation" that could be imposed on an offender under Part 3 of the Child Protection (Offenders Registration) Act if the offender were a registrable person. I have already noted that those obligations include a requirement to provide information. Again, that could clearly include material that is potentially incriminating, such as the details of any car they own or possess. 90 Section 16 of the Child Protection (Offenders Registration) Act confers on police officers a power of entry and inspection of the residential premises of a registrable person for the purposes of verifying any relevant information reported by the registrable person. Unlike proposed conditions 39 to 42, that power is akin to a search warrant in that it does not operate to require a registrable person to consent to such an entry or inspection. In those circumstances, I am doubtful that provision answers the description of "any obligation that could be imposed on the offender" within the meaning of s 11(1)(l) of the HRO Act, and thus it can be put aside. 91 Nevertheless, it follows that various subsections of s 11(1) specifically and unambiguously authorise the imposition of conditions that, to a large extent, necessarily abrogate any privilege against self-incrimination that might otherwise be invoked by a relevant offender. Nevertheless, Dr Lucy submitted that the HRO Act should only be construed as abrogating the privilege to the extent expressly contemplated by those subsections and no more (citing Gemmell v Le Roi Homestyle Cookies Pty Limited (in liq) (2014) 46 VR 583 at [63]). However, as noted, the specific subsections of s 11(1) are expressly stated to not limit the general power to impose conditions. Further, given the context and the balance of the provisions of the HRO Act, I do not accept that there is somehow preserved some small residual aspect of the privilege against self-incrimination that cuts across the power to impose conditions that are "appropriate". 92 As noted, s 12 creates an offence for failing to comply with s 11. Section 12 does not contain any provision contemplating that there is a reasonable excuse or similar for failing to comply with a condition. More importantly, it must be remembered that the HRO Act creates a post-parole detention and supervision regime whose primary object is the safety and protection of the community. It puts that scheme into effect by co-opting the judicial arm of government into the process of prospective risk assessment but, nevertheless, leaves the administration of the HRO Act, including the post-parole supervision of the offenders, to Corrective Services. Such a regime of supervision, with its primary object of community safety, is incompatible with the offender retaining a privilege of self-incrimination to avoid the disclosure of information or evidence as to their compliance or non-compliance with the conditions under which they are being supervised."
The analysis of Beech-Jones J in Baldwin was considered by R A Hulme J in State of New South Wales v Ambrym (Preliminary) [2020] NSWSC 298 (Ambrym). There, a similar point concerning the abrogation of the privilege against self-incrimination arose. R A Hulme J said: "49 Counsel for the State referred to the judgment of Beech-Jones J in State of New South Wales v Baldwin [2019] NSWSC 1882. In that case his Honour was also met with a submission that a proposed condition sought to abrogate a privilege against self-incrimination. His Honour dealt with that in a way that I find persuasive: see [91]-[92]. 50 I am satisfied that proposed condition 8 is appropriate given that it is designed to empower the DSO to be provided with truthful answers by Mr Ambrym as to his whereabouts and movements. This is an essential aspect of monitoring risk."
Counsel for the plaintiff also submitted that condition 8 as proposed by the defendant was in practical terms unworkable. Built into it was the potential for considerable delay while legal advice was sought. Such inevitable delay would defeat the purpose of proposed condition 8 in that the opportunity to properly monitor the activities of the defendant would be lost.
For the reasons given by Beech-Jones J in Baldwin and by R A Hulme J in Ambrym, I am of the opinion that condition 8 as proposed by the plaintiff is authorised by s 11(1) of the Act. This is despite the fact that it does have the effect of abrogating the privilege against self-incrimination on the part of the defendant.
Accordingly, I include in the conditions to be imposed by the ICO condition 8 in the following terms: "8 The defendant must truthfully answer questions from his DSO or another person supervising him, about where he is, where he is going and what he is doing."

Proposed condition 11

Condition 11 as proposed by the plaintiff is: "11 If directed by his DSO, the defendant must be at his approved address between 9pm and 6am unless other arrangements are approved by his DSO."
The defendant submitted that this proposed condition should be deleted. In making that submission, he relied upon the general principle that conditions included in an ISO/ESO must be those which are reasonably necessary, and only those which are reasonably necessary. The defendant submitted that proposed condition 7, which required him not to deviate from his schedule of movements without consent, covered the same subject matter as proposed condition 11 and thus rendered proposed condition 11 otiose. The defendant submitted that on the evidence before the Court, there was no suggestion that his offending, and therefore his risk of offending, occurred at any particular time of day, or had occurred in the past at any particular time of day so that the imposition of a curfew would reduce the risk of him reoffending.
The plaintiff submitted that the schedule of movements in proposed condition 7 would probably alter over time and may well be relaxed. By providing a provision for a curfew condition independently of proposed condition 7 would allow the DSO greater flexibility in relaxing the schedule of movements.
The plaintiff submitted that there was also need from a risk management perspective to monitor more closely the defendant's movements at night. This was against a background of the defendant being a person who had a significant substance abuse history. There remained a concern that if he was not monitored at night, at least in the beginning of the supervision period, he might be inclined to stay away from his home at night and thereby be more susceptible to or able to access illicit substances.
The plaintiff noted that there was a further degree of flexibility incorporated in proposed condition 11 in that the curfew condition would only apply if directed by the DSO. The plaintiff noted that the defendant had been in custody for a significant period of time and it was only relatively recently that he had been released to parole. The plaintiff submitted that in those circumstances, it was necessary for there to be significant structure and supervision at this early point in time until the defendant's position in the community became more settled.
I agree with the defendant that a proper reading of proposed condition 7 makes the need for proposed condition 11 unnecessary. That, however, does require a careful reading of proposed condition 7 and there is room for ambiguity and misunderstanding. To avoid such an eventuality, proposed condition 11 should be included in the ISO conditions. Proposed condition 11 is in simple terms and can be readily understood by the defendant. I would not, however, include the qualification at the end of the proposed condition which I regard as unnecessary.
I also agree with the plaintiff's submission as to the need for a curfew generally, given the close link between the defendant's offending and his substance abuse. Drug transactions often take place at night, as does the abuse of drugs. I also accept that the imposition of a curfew at an early point in the defendant's supervision is important. Accordingly, I include proposed condition 11 as modified in the defendant's ISO conditions.

Proposed condition 18

The issue between the parties is: The plaintiff's condition: "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."
The defendant's condition: "18 The defendant must not start any job, volunteer work or education course without providing notice to his DSO either oral or written, seven days before commencing that job, volunteer work or educational course."
The defendant submitted that the thrust of the condition put forward by him was to remove the need for specific approval. He submitted that seven days notice was a reasonable period during which the DSO could make inquiries concerning any job, volunteer work or educational course. The defendant submitted that the difficulty with the condition put forward by the plaintiff was the likelihood of a longer period than seven days being required for the DSO to make inquiries.
The defendant submitted that the qualification "where possible" provided little comfort for him in circumstances where the need to apply for jobs is something which is necessarily part of his rehabilitation. There is often a need for a person seeking a job to have some degree of certainty in respect of the application and to be in a position to accept such a position if offered. The defendant submitted that the qualification put forward by the plaintiff meant that if, for whatever reason, it was not possible for approval to be given within seven days, he would effectively be left in a position where he did not know whether he was entitled to take up the position or even inform those who might be offering the job, of his ability to take it up. The defendant submitted that in those circumstances, seven days notice was an appropriate approach to take and would allow the DSO ample time to consider what was being put forward and to take appropriate steps in the event that there was a difficulty.
The defendant submitted that because he was functionally illiterate, the only sort of work likely to be open to him would be manual work and work of that kind normally required a person to fill the position quickly. He submitted that in real terms the requirement for an approval might well prevent him from obtaining employment even if he were successful in being offered a job.
The plaintiff submitted that providing notice rather than seeking approval would not be suitable for the defendant given the nature of his offending. The plaintiff submitted that there would be a need for a risk assessment to be undertaken before the defendant started any job, volunteer work or educational course to simply ensure that the associations were appropriate and that he was not going to have any unsupervised access to children or come into contact with children. The plaintiff submitted that although certainty in being able to take up employment, if offered, was important, there was a concern that if the defendant were to accept a job and then provide notice to the DSO who determined that the job was not appropriate, the defendant would be faced with the embarrassment of contacting the employer and declining the position.
The plaintiff submitted that by not accepting a position until approval was given would prevent that situation from occurring and would allow the appropriate risk assessments to be conducted. The plaintiff submitted that this was the reason for including in the proposed wording that "where possible", such an assessment would be made within seven days. The Court was advised that ordinarily an approval could be given quite quickly and within less than seven days.
I accept that because the defendant is functionally illiterate and has significant health issues, his prospects of obtaining employment are poor. Even if he were to be successful, the job would almost certainly be of a manual kind. As was submitted on his behalf, jobs of that kind do not really allow for any significant delay in accepting them. Volunteer work, however, is in a different category and there would certainly be more leeway from a volunteer organisation if there were some delay before the defendant could commence such work. Given his standard of literacy, an educational course other than learning to read and write would not be a realistic prospect for him. Taking all those matters into account, but also being mindful of the defendant's prior offending, I propose to include in the conditions a requirement that the defendant obtain the prior approval of his DSO before commencing one of the nominated activities.

Proposed conditions 20, 21 and 22

The issue between the parties is whether some limitation should be imposed on the defendant which would prevent him possessing or using alcohol and entering licensed premises. It was common ground that there was no evidence to suggest that the ingestion of alcohol on the part of the defendant was related to his offending. The defendant submitted that the proposed conditions which would prohibit him from attending hotels, bars, race courses, licensed clubs etc but excluding cafes and restaurants, would not have any real effect on reducing the risk of him reoffending but would still be quite restrictive. The defendant submitted that there was no evidence as to why such a condition would be required in circumstances where amphetamine use was the problem.
The plaintiff submitted that although there was no history of ongoing problems with alcohol, there was a concern that the risk of the defendant reoffending became acute when he was disinhibited by the taking of drugs. The plaintiff submitted that alcohol could also have a disinhibiting effect on people and might lead to him reoffending thereby having the same effect as his consumption of illicit substances.
I have concluded on the basis of the evidence currently available, that a condition preventing the defendant from consuming alcohol or entering licensed premises, in the absence of any evidence of there being an alcohol problem, is unreasonable. In reaching that conclusion, I am mindful of the principle that the imposition of conditions should be limited to those which are reasonably necessary. The conditions sought to be imposed here are not reasonably necessary.
It follows that I am only prepared to impose the following conditions: "20 The defendant must not 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]."

Proposed condition 28

The competing positions of the parties is as follows: Plaintiff's condition: "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 will be approved will be completed within seven days." Defendant's condition: "28 The defendant must provide seven days notice to his DSO prior to joining or using any internet or mobile based social networking service or joining or affiliating with any club or organisation."
The defendant submitted that in the reports relied upon by the plaintiff, it was suggested that he might obtain some benefit from activities such as joining a men's shed, or something along those lines. Accordingly, access to such organisations should be made relatively easy for him. The defendant submitted that the giving of seven days notice rather than waiting for approval was reasonable, particularly when joining such a group might be of therapeutic value to him. The defendant submitted that seven days notice provided adequate flexibility for the DSO to take investigatory steps. The defendant submitted that it was not reasonable to require that he wait for the approval of the DSO before he could attempt to reconnect with the community.
The plaintiff accepted that it would be useful for the defendant to join various clubs and associations so that he could address his need not to be socially isolated and this would be encouraged by the DSO. The plaintiff submitted that the concern was the same as that expressed in relation to proposed condition 18, i.e. there was a need to be able to conduct a risk assessment before any approval was given. The plaintiff submitted that another consideration was not wanting to put the defendant in a position where he joined a club or social group but had to withdraw if approval was not given, or if some issue arose within that seven day notice period.
The plaintiff submitted that in relation to social networking, there was an obvious risk that the defendant might be able to gain access to children and use online services as a form of grooming. For that reason, and as a form of risk management, the DSO would want to be able to approve any social networking site before the defendant joined it.
The plaintiff also noted that despite the fact that the defendant was functionally illiterate, when it came to online grooming and communicating with children, the level of literacy might not need to be of a high level. The plaintiff also noted that the defendant had completed some computer courses and had apparently been able to write letters to his children.
I propose to impose proposed condition 28 as relied upon by the plaintiff. While it is important that the defendant develop and establish social contacts in the community, there was no particular urgency identified which would require the defendant to joint a club or other social group without the approval of the DSO if such approval was not forthcoming within seven days. The question of approval was particularly important in the context of social networking despite the defendant's literacy problems. There is considerable potential for the defendant to reoffend unless his access to a club, internet based social network or similar organisations is carefully assessed before approval is given.

Proposed condition 36

The form of this proposed condition has been agreed between the parties. Accordingly, the form of the proposed condition to be imposed under the ISO is: "36 During a search carried out pursuant to condition 33 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 comprise: 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."

Proposed condition 37

This is a condition which gives the right to Corrective Services NSW (CSNSW) to search any device which the defendant might have. The issue between the parties is whether the words "or any other criminal offence punishable by a maximum of two years or more imprisonment" should be added to a requirement to allow a search of any computer device to which the defendant had access.
The defendant submitted that the inclusion of the words "seizing of a device in connection with suspected breaches of interim or extended supervision order made by the Court or any other criminal offence punishable by a maximum of 2 years or more imprisonment" was unnecessary. This was because any suspected breach of an interim or extended supervision order was likely to cover such a matter and be dealt with pursuant to s 12 of the Act.
The plaintiff submitted that while it might be correct that a breach of an ISO/ESO would catch those offences, there was a concern that there might still be matters not covered by a condition. The plaintiff submitted that the wording at the end of the proposed condition was intended to catch other offences that might not have been contemplated by the breach of either an ISO or an ESO.
I propose to impose a condition in accordance with the plaintiff's submissions. This is because the proposed condition may well be able to pick up an offence which is not necessarily caught by s 12 of the Act.
Accordingly, proposed condition 37 as put forward by the plaintiff will be included in the ISO: "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 date from the Devices using hardware and software that CSNSW determines is necessary to carry out that downloaded; 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."

Proposed conditions 46 and 47

The plaintiff pressed for the imposition of the following conditions: "46 The defendant must take all medications that are prescribed to him by his healthcare practitioners, only in the manner prescribed. 47 The defendant must notify his DSO immediately if he ceases to take or declines to commence taking any medication as referred to in the above conditions."
The defendant pressed for the inclusion of a single condition: "47 The defendant must notify his DSO immediately if he ceases to take or declines to commence taking any medication prescribed to him."
The issue between the parties was that the plaintiff wanted its proposed conditions 46 and 47 included in the ISO. The defendant relied only upon its proposed condition 47.
The defendant submitted that the requirement that he take all medications that are prescribed for him was a matter which infringed upon his personal autonomy. The defendant submitted that the particular issue to which the conditions were directed was adequately covered in his proposed condition 47. The defendant submitted that it was a matter for him, even in the case of prescription drugs, as to what drugs he took. The defendant accepted that it might or might not be the case that some concern would arise if he was not taking his prescribed medications. He submitted that the plaintiff was going too far when it required him to take those drugs as a specific condition. The defendant submitted that if there were a particular issue about a prescribed medication that he was not taking, then under his proposed condition 47 the DSO would be notified about it and in that circumstance could elect to take action about it.
The defendant submitted that a breach of one of these conditions gave rise to a criminal penalty and accordingly it was reasonable that if he, for whatever reason, did not wish to take a particular medication he could refrain from doing so. He submitted that this is not something for which he should be criminally punished and there remained scope for the DSO to maintain monitoring in the circumstances in accordance with his proposed condition 47.
The plaintiff submitted that proposed conditions 46 and 47 had to be read together. The plaintiff submitted that in relation to proposed condition 46, not only did it require the defendant to take prescribed medication, but he must take the medication only in the manner that is prescribed. The plaintiff submitted that where there is a defendant who had a significant substance abuse history in relation to drugs, there was a concern that any medication that he did take should be closely monitored and his adherence to only taking it as prescribed was something that the DSO would seek to scrutinise. This was why the condition is sought in conjunction with proposed condition 47.
I am of the opinion that conditions 46 and 47 as sought by the plaintiff go too far. As was raised in argument, if the defendant was not complying with condition 47, he would almost certainly by that time be in breach of condition 46. Moreover, I cannot see the need for imposing such an onerous requirement as is set out in condition 46 in circumstances where there is an obligation on the part of the defendant to notify the DSO immediately if he ceases to take or declines to commence taking any medication prescribed for him. On this issue, I prefer the condition 47 proposed by the defendant.

ISO conditions

As a result of the above analysis and the agreement reached between the plaintiff and the defendant, the ISO which I will impose includes conditions as set out in the schedule to this judgment.

Orders

I make the following orders: 1. Pursuant to s 7(4) of the Act: 1. I appoint two qualified psychiatrists and/or psychologists (or any combination of two such persons) as agreed by the parties to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Court on the results of those examinations by a date fixed by the Court. 2. I direct the defendant to attend those examinations. 1. Pursuant to s 10A of the Act, the defendant is to be subject to an Interim Supervision Order to date from 4 May 2020. 2. Pursuant to s 10C(1) of the Act, the Interim Supervision Order is for a period of 28 days, unless renewed on further application by the plaintiff for another period of 28 days or the proceedings are finally determined. 3. Pursuant to s 11 of the Act, I direct that the defendant for the period of the Interim Supervision Order comply with the conditions set out in the schedule attached to this judgment. 4. Access to the Court's file for any documents shall not be granted to a non-party without leave of a judge of the Court and prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.

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

The defendant must accept the supervision of CSNSW until the end of the Order.
The defendant must report to the DSO or any other person supervising him as directed by the DSO.
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. Electronic Monitoring
The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him. Schedule of Movements
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.
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.
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.
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
The defendant must live at an address approved by his DSO.
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.
If directed by his DSO, the defendant must be at his approved address between 9pm and 6am.
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
The defendant must not leave New South Wales without the approval of the Commissioner of CSNSW.
The defendant must surrender any passports held by the defendant to the Commissioner of CSNSW.
The defendant must not go to a place if his DSO tells him he cannot go there.
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
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).
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.
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
The defendant must not: a. [deleted] b. possess or use illegal drugs or use prescription medication other than as prescribed.
The defendant must submit to testing for drugs as directed by his DSO.
[deleted]
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
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)
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.
The defendant must not knowingly associate with any person(s) that he reasonably believes is consuming or under the influence of illegal drugs.
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.
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
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.
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.
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.
The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO.
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
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.
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.
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.
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.
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
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"
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.
The defendant must not significantly change his appearance without the approval of his DSO.
The defendant must let CSNSW photograph him.
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
The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults.
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.
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The defendant must notify his DSO immediately if he ceases to take or declines to commence taking any medication prescribed to him.
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.
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.
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.

I certify that this and the 46 preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice Hoeben, Chief Judge at Common Law. Morna Lynch Associate Date: 30 April 2020 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: 30 April 2020

Child Protection (Offender Registration) Act 2000(NSW)

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Judgment (35 paragraphs)

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