State of NSW v WXN1

Should an ESO be made?

1. Section 9 of the HRO Act provides for the relevant considerations to which the Court must have regard when considering the exercise of its discretion to make an ESO.
2. The discretionary decision provided for in s 9(1) of the HRO Act is a binary one. That is, the Court either makes an ESO or else dismisses the plaintiff's application. In exercising that discretion, the paramount consideration for the Court is the safety of the community, see s 9(2). Further, the Court must consider the matters set out in s 9(3) of the HRO Act.
3. Here, the defendant concedes that the Court should exercise its discretion to make an ESO and does not submit that the plaintiff's application should be dismissed.
4. In my view, such a concession is a sufficient basis upon which the Court can act. As I have previously said, because this is a civil proceeding, where a party is represented by counsel and the party consents to orders, the Court is entitled to take such consent as being an admission of all necessary facts and pre‑conditions underlying the Court's exercise of its powers. Moreover, an examination of all of the material provided to the Court overwhelmingly demonstrates that the only rationally available course for the Court is to make an ESO. It would be, in light of that unchallenged material, perverse for the Court to do anything else.

Conditions of the ESO

1. The Court's discretionary power to impose the conditions that are part of an ESO is provided for by s 11 of the HRO Act. By that section, the Court can impose conditions which are appropriate. The discretion is a broad one, which is to be exercised having regard to the objects, scope and purpose of the HRO Act.
2. The appropriate conditions include those which are designed to mitigate the risks which attach to the defendant. Conditions which only relate to the offences previously committed by the defendant are not, on that account, or for that reason alone, appropriate: see Wilde v State of New South Wales [2015] NSWCA 28 at [47] - [54]. One object of the HRO Act is to encourage a defendant to undertake rehabilitation. Conditions may appropriately be addressed to that object. Here, the parties have agreed on all but two of the appropriate conditions to attach to the ESO. In those circumstances, the Court's consideration of these undisputed conditions as being appropriate can be brief.
3. The two conditions which remain in dispute are Conditions 20 and 52.
4. Condition 20 relates to employment, training, education and personal development. The plaintiff contended that the Condition was justified upon the basis that it addressed the defendant's risk of further offending and was appropriately regarded as a non-intrusive and beneficial condition. The plaintiff accepted that there was ambiguity in its phrasing, but contended that the Departmental Supervising Officer ("DSO") could be relied upon to act reasonably in any given circumstance. The defendant submitted that, as expressed, the condition was ambiguous and that it was, at the least, open to an interpretation that the defendant could be forced to work in a job or undertake education or training in circumstances where he did not have the aptitude, education, training or skills for that job. The defendant submitted that, on one interpretation of the condition in question, he would nevertheless be compelled to participate because otherwise he would be in breach of the ESO.
5. I have concluded that the condition as proposed is ambiguous and may result in an unacceptable risk of inappropriate directions being given by the DSO. I have also concluded that the condition is not addressed to any future risk of offending in respect to any further serious sex offence. However, employment, education, training and personal development programmes, where appropriate, are self-evidently likely to assist the achievement of the defendant's rehabilitation and the rehabilitation objective in s 3(2) of the HRO Act. An appropriate condition will be imposed in the following terms: "If the defendant is unemployed, he is obliged to use reasonable endeavours to engage in employment or undertake education or training, or participate in a personal development programme as reasonably directed by a DSO; providing that any such direction is expressed to take account of, and by reference to, the skills, abilities and capacity of the defendant to engage in the specified employment and to undertake the specified education or training."
6. Condition 52, the second condition which remains in dispute, relates to the sharing of health and medical information. The defendant objects to the condition, essentially on the basis of privacy concerns. He submits that there is likely to be health and medical information which does not relate to any risk management issue and should not be made available to those charged with his supervision.
7. The plaintiff presses for the condition on the basis that the likelihood is that any of the defendant's health and medical conditions, and the information relating to them, would be likely to affect any condition of stress or anxiety to which the defendant is prone. This information would therefore, in the plaintiff's submission, affect the capacity of the supervising officers to give appropriate directions to the defendant.
8. I am unconvinced that the condition should be expressed as the plaintiff proposes, because that would provide, as it seems to me, for it to receive all health and medical information without restriction. However, there is clearly good reason for it to have appropriate health and medical information. Accordingly, an appropriate condition, in lieu of the presently proposed Condition 52, will be imposed, namely: "The defendant must agree to his general practitioner and any treating psychologist, psychiatrist, counsellor or other mental health practitioner sharing information, including reports on his progress, with each other and with his DSO and any other person involved in his supervision, where those practitioners consider such information to be relevant to his ongoing risk management and rehabilitation."
9. I am satisfied that all of the other conditions which are undisputed, are such as to address and mitigate the risks attached to the defendant personally, as well as to encourage the defendant to undertake rehabilitation. In addition, the Conditions 20 and 52, to which I have just referred, are also of the same kind.
10. Accordingly, I conclude that the conditions set forth in the Further Amended Summons, together with Conditions 20 and 52 as referred to in this judgment, are appropriate conditions within the meaning of s 11 of the HRO Act and should be imposed by the Court.

Term of an ESO

1. The power of the Court to fix the length of an ESO is contained in s 10 of the HRO Act. That section provides for a maximum period of five years. That specification of the period is at large and unconstrained by any other legislative provision. The length of an ESO must be determined as being appropriate by reference to the promotion and consistency of the objects of the Act, which are contained in s 3 of the HRO Act.
2. In these proceedings the plaintiff submits that a period of three years for the ESO is the appropriate period. The defendant agrees. I regard that period as appropriate and, accordingly, the ESO will be fixed for that period from today.

Orders

1. I make the following orders: 1. Direct the plaintiff to file on or before 2pm, Friday 31 July 2020, a Second Further Amended Summons containing the conditions in their final form, which reflect the agreement between the parties and these reasons for judgment. 2. Direct that at the time the plaintiff files such Second Further Amended Summons, that a copy is sent to my Chambers by email. 3. Upon the receipt of that Second Further Amended Summons, the following orders will be made in Chambers: 1. an order pursuant to section 5B and s 91A of the Crimes (High Risk Offenders) Act 2006, that the defendant be subject to a high risk offender extended supervision order for a period of three years from 31 July 2020. 2. an order pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006, that the defendant comply, for the period of the Extended Supervision Order, with the conditions set out in Schedule A to the Second Further Amended Summons. 1. Grant the parties liberty to apply.

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: 31 July 2020