Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813 Hearing dates: 10 December 2020 Decision date: 16 December 2020 Jurisdiction: Common Law Before: Hoeben CJ at CL Decision: (1) An order pursuant to s 7(4) of the Act: (a) appointing a qualified psychiatrist and a registered psychologist, to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and (b) directing the defendant to attend those examinations; (2) An order pursuant to s 10A of the Act that the defendant be subject to an Interim Supervision Order commencing 3 January 2021 ("the Interim Supervision Order"); (3) An order pursuant to s 10C(1) of the Act that the Interim Supervision Order be for a period of 28 days; and (4) An order pursuant to s 11 of the Act directing that the defendant, for the period of the Interim Supervision Order, comply with the conditions set out in the Schedule to this judgment. Catchwords: HIGH RISK OFFENDER – convictions for serious sexual and violence offences – application for Interim Supervision Order – defendant on parole for 10 months – defendant fully compliant with parole conditions – dispute as to conditions to be imposed in preliminary application – some conditions intrusive – community safety paramount. Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) Cases Cited: Attorney General for New South Wales v Tillman [2007] NSWCA 119 Attorney General for the State of New South Wales v Gallagher [2006] NSWSC 340 Attorney General for the State of New South Wales v Winters [2007] NSWSC 611 Attorney General for the State of NSW v Hayter [2007] NSWSC 983 Baldwin v State of New South Wales [2020] NSWCA 112 Cornwall v Attorney General for New South Wales [2007] NSWCA 374 Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 State of New South Wales v Bugmy [2017] NSWSC 855 State of New South Wales v Donovan [2015] NSWSC 1254 State of New South Wales v Green (Final) [2013] NSWSC 1003 State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 State of New South Wales v Loto [2018] NSWSC 1522 State of New South Wales v Simcock (Final) [2016] NSWSC 1805 State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 Wilde v State of New South Wales [2015] NSWCA 28 Winters v Attorney General of NSW [2008] NSWCA 33 Category: Principal judgment Parties: State of New South Wales – Plaintiff Brian Allan Wilkinson - Defendant Representation: Counsel: P Aitken – Plaintiff D Bhutani - Defendant Solicitors: Crown Solicitor for NSW – Plaintiff Legal Aid NSW - Defendant File Number(s): 2020/258044 Publication restriction: An order that access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access. JUDGMENT 1. HIS HONOUR: By an Amended Summons, filed 3 December 2020, the State of NSW (the State) seeks an Extended Supervision Order under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) for the supervision of the defendant (also known as "Brian Antney") for a period of two years from the date of the Order. 1. This judgment is directed to the preliminary orders sought pursuant to s 7(4) of the Act and the making of an Interim Supervision Order (ISO) for a period of 28 days from 3 January 2021. Factual background 1. The defendant was born in September 1962 and is currently aged 58. He is currently serving a sentence of 10 years and 6 months imprisonment for wounding with intent to cause grievous bodily harm. His sentence will expire on 3 January 2021. 2. The circumstances of the index offence were that on 26 June 2010, the defendant violently attacked a female stranger on a walking track in the Blue Mountains. After following the victim along the Florabella Pass, the defendant punched the victim, forcefully, twice to her face. She fell to the ground, whereupon the defendant covered her mouth and grabbed her by the throat. The defendant said "Stop screaming, stop screaming, if you struggle I'll kill you". The victim attempted to grab a knife carried by the defendant but her grip slipped to the blade and she received a large gash to the palm of her hand. 3. The defendant managed to wrestle the knife from the victim before grabbing her pony tail and swinging her around to face the ground. He threatened to kill her before jerking the knife into her jaw causing a large wound at her jaw line which immediately bled profusely. 4. The victim continued to struggle and regained her footing. The defendant backed off a short distance and the victim screamed at him loudly. The defendant turned, grabbed some of his belongings and ran back down the track. 5. The defendant has an extensive criminal history. The offences which involved violence and weapons can be summarised as follows. 6. In 1980, the defendant was convicted of three charges – abduct a 15 year old girl, escape from custody and possession of a knife with intent to murder. He was sentenced to a total of 2 years imprisonment. 7. In 1981, the defendant was convicted of common assault of a neighbour. The sentence was deferred on the defendant's own recognisance for 4 years with supervision. 8. In 1983, the defendant was convicted of robbery and assault with attempt to rob. He was sentenced to 3 years and 6 months imprisonment with a 12 months non-parole period. 9. In 1984, the defendant was convicted of maliciously inflicting grievous bodily harm with intent to have sexual intercourse. He was sentenced to imprisonment for 8 years with no non-parole period fixed. 10. In 1989, the defendant was convicted of detaining a person with intent to hold them for advantage. He was sentenced to 2 years imprisonment with a non-parole period of 18 months. 11. In 1993, the defendant was convicted of kidnapping and aggravated sexual assault. He was sentenced to imprisonment for 12 years and with a 9 year non-parole period. 12. In 1997, the defendant was charged with sexual intercourse and attempted sexual intercourse with a 13 year old. The offences allegedly occurred in 1992. He was acquitted by a jury. 13. In 2007, the defendant was convicted of possess/use a prohibited weapon without a permit. He was fined $100 plus court costs. 14. In 2008, the defendant was convicted of destroy/damage property, stalk/intimidate intending to cause fear of physical or mental harm and common assault. He was sentenced to imprisonment for 9 months, with a non-parole period with conditions of 6 months. 15. In 2009, the defendant was convicted of use carriage service to threaten serious harm. He was sentenced to 12 months imprisonment with a non-parole period of 6 months. 16. On 26 June 2010, the defendant committed the index offence and was sentenced to imprisonment for 10 years and 6 months, commencing 4 July 2010. 17. While in custody on his current sentence, the defendant has had two institutional charges, both involving failed drug tests. 18. The defendant was released on parole on 6 February 2020. 19. On 31 March 2020, the defendant failed a drug test. He tested positive for amphetamine and methamphetamine. Requirements of the legislation Purpose 1. The Act is designed to address the "almost intractable problem" of how "the criminal justice system should respond to the case of the prisoner who represents a serious danger to the community upon release" (State of New South Wales v Donovan [2015] NSWSC 1254 at [3]). 2. The primary object of the Act is "to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community" (s 3(1)). Another object of the Act is "to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation" (s 3(2)). It follows that ESOs are protective, not punitive (Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [5]). This protective purpose is "fundamental" (Attorney General for the State of New South Wales v Gallagher [2006] NSWSC 340 at [21]). Threshold requirements: s 5B 1. Section 5B of the Act provides that the Court can make an ESO only if: 1. the defendant is serving, or has served, a sentence of imprisonment for a serious offence; and 2. the defendant is a supervised offender within the meaning of s 5I; 3. an application is made in accordance with s 5I; and 4. the Supreme Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence if he or she is not kept under supervision. 1. The first three requirements are satisfied. The defendant is currently serving a sentence of imprisonment (which is defined in s 5I(3) to include being released on parole). He is therefore also a supervised offender within the meaning of s 5I. The application is made in accordance with s 5I. 2. The fourth threshold requirement is that the Court be satisfied, to a high degree of probability, that the defendant poses an unacceptable risk of committing a serious offence if he or she is not kept under supervision. "Unacceptable risk" 1. The expression "high degree of probability" indicates something beyond "more probable than not". The existence of the risk needs to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard (Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]). 2. While the Court must be satisfied to a high degree of probability that there is an unacceptable risk, that does not require the Court to conclude that the defendant is more likely than not to commit a serious offence (s 5D of the Act). 3. As to the meaning of the phrase "an unacceptable risk", the case law establishes the following: 1. What the court must find to be unacceptable is the "risk" of the offender "committing a serious sex offence if he or she is not kept under supervision" (Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (Lynn) at [51]). 2. The word "unacceptable" - which means, relevantly, "so far from a required standard, norm, expectation etc. as not to be allowed" - is one that "requires context in which, or parameters against which, the unacceptable risk can be measured" (Lynn at [50]). 3. While the Act does not specify "the precise parameters or standard or norm against which that determination [i.e. the determination whether an offender poses an unacceptable risk] is to be made", this "must be so" because "[a] determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made" (Lynn at [51]). 4. The determination whether an offender poses an unacceptable risk has to be understood in the context of the objects or purposes of the Act; in particular, its purpose in ensuring the safety and protection of the community (Lynn at [55]). 5. The right of an offender to his or her personal liberty at the expiry of a sentence of imprisonment is not relevant to the determination whether an offender poses an unacceptable risk. Nevertheless, as their Honours held, the intrusion on a subject's liberty and privacy are undoubtedly matters which the Court may take into account in its discretion (Lynn). 1. The "unacceptable risk" inquiry is not discretionary, but it does involve an evaluative balancing exercise. It involves consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate (State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71]). This was summarised recently by Rothman J in State of New South Wales v Loto [2018] NSWSC 1522 at [14]-[17]: "14 The ascertainment of a risk and its denotation as "unacceptable" occurs in the usual way. There are many areas of the law in which risk assessments are required to be undertaken and, generally, they identify and evaluate the possibility of an injury that may be sustained as a result of a possible (and often foreseeable) occurrence. In assessing risk and whether the risk is unacceptable, a court is required to deal with a matrix of considerations. 15 First, there is the probability or possibility that the risk will manifest. Secondly, there is the seriousness of the harm that will ensue if the risk were to manifest. 16 The matrix exists because of the need to balance the likelihood of the manifestation of the risk, on the one hand, and, on the other hand, the seriousness of the manifestation of that risk. Thus a risk, the consequences of which are catastrophic, may be unacceptable, even though the occurrence of that risk is only slightly possible. 17 On the other hand, where the manifestation of a risk involves minor injury, such as a contusion, even a high probability of its manifestation may not render the risk unacceptable..." Preliminary hearing 1. The Court's role at a preliminary hearing is similar to those governing the Court's power to make interim orders (Attorney General for the State of NSW v Hayter [2007] NSWSC 983 at [6]). The test as to whether the supporting documentation "if proved" would justify the ESO is "similar to the requirement for a prima facie case to be made out in committal proceedings" (State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11]). The Court does not weigh the documentation or predict the ultimate result. 2. The Court must have regard to the matters set out in s 9(3) of the Act in performing its task at the preliminary hearing (see Attorney General for New South Wales v Tillman). In dealing with interim orders, the Court should give weight to the avoidance of risk (Attorney General for the State of New South Wales v Winters [2007] NSWSC 611 at [7]). 3. The Court's task has been made simpler by the following concessions which were made for the preliminary hearing only by the defendant: 1. each of the threshold requirements in s 5B(a)-(c) of the Act are satisfied; 2. the defendant is in his final nine months of supervision for the purposes of s 6(1) of the Act; 3. the application is made in accordance with s 6(3)(a) and (b) of the Act; and 4. the defendant does not resist the orders for assessment nor the making of the ISO if the Court is satisfied that the matters alleged in the supporting documentation, if proved, would justify the making of an Extended Supervision Order (s 5B(d) of the Act. 1. The defendant submitted that the primary area of dispute at the preliminary hearing is what are the appropriate conditions to attach to the ISO? The risk posed by the defendant 1. The unacceptable risk needs to be established to a high degree of probability and it must be an unacceptable risk of committing another serious offence. 2. The evidence includes a Risk Assessment Report (RAR) prepared by Senior Psychologist, Mr Ardasinski, on 11 May 2020. The RAR includes the following: 1. the defendant has been assessed as posing a high risk of sexual re-offence and a high risk of violent re-offence using actuarial instruments, but his current dynamic risk is lower than that (Executive Summary, Ex BO-1 at 46). Specifically, Mr Ardasinski recorded the following results using actuarial instruments: 1. pursuant to the LSI-R, the defendant is in the "medium-high" category for risk and needs for general and violent reoffending (at [51]); 2. pursuant to the Violence Risk Scale (VRS), the defendant's pre-treatment risk of being convicted of further violent offences in 2016 was in the "high risk" range: at [52]-[53]; but when assessed in 2020 it was assessed as being in the "moderate risk" range: at [67]; 3. pursuant to the STATIC-99R, the defendant was in the "above average" risk range (as assessed in 2020: at [56]; 4. pursuant to the STABLE-2007, the defendant has a "high density of criminogenic needs" and, when this is combined with STATIC-99R, the defendant is in the "well above average risk level": at [61]; 5. pursuant to the VRAG-R, the defendant is in the "high risk" category: at [62]; 6. pursuant to the STATIC-2002R, the defendant is in the "above average" risk category: at [64]; 7. when STABLE-2007 and STATIC-2002R are combined, the defendant is in the highest risk category and, in accordance with Corrective Services policy, suggests that the defendant requires a high level of intervention and supervision: at [66]; 8. pursuant to the Risk of Sexual Violence Protocol, the defendant is in the "moderate/elevated risk category" for repeat sexual violence: at [68]. 1. the most likely scenario for further serious violence or sexual violence would involve [the defendant] perceiving that he had been disrespected, challenged or threatened by a female. If he were carrying a knife at the time, the offence might be spontaneous; however he might also engage in a premeditated attack in retaliation or as a 'pre-emptive strike' if he perceived that he was threatened: at [77]. 2. in Mr Ardasinski's opinion at [78], the totality of the evidence suggests that the defendant is in the moderate-high risk category for sexual offending and the moderate-high risk category for violent offending. Mr Ardasinski went on to say at [78]: "However, [the defendant] has now survived in the community for longer than he did in 2010 prior to the index violent offence, and has not come to Police attention. If [the defendant] continues on his more prosocial, compliant trajectory over the coming months until the expiry of his sentence, consideration must be given to the prospect that these assessment results may represent an over-estimate of [the defendant's] 'true' risk." 1. Mr Ardasinski considered that the defendant's risks were able to be managed in the community, since, with intensive supervision and the support of relevant agencies, the defendant is less likely to feel that he needs to resort to crime to survive, and his progress can be monitored and support boosted if it is determined that he is at increased risk: at [80]. 2. Mr Ardasinski concluded at [82]-[83]: "82 The goal of any ongoing case management would be to encourage the development and maintenance of a stable and sustainable lifestyle, so that newly formed habits can be maintained even when [the defendant] is not under any form of legal restraint. [The defendant] has commenced on a prosocial trajectory, and there is hope. His current community supervision regime ought to be able to support him to maintain that until his sentence expires. 83 In the event that no order is imposed, after 3/01/2021, [the defendant] would be at unconditional liberty. He would have no support from, or any monitoring by, CSNSW. He would be able to source further psychological assistance, to work through some of his trauma history, and engage an appropriate service provider to work on his substance abuse issues (which is the recommendation of his FPS therapist), however I consider it unlikely that [the defendant] would do so without the spectre of supervision and direction from CSNSW. Whether this would be considered 'unacceptable' ... is a matter to be determined by the Court." 1. In summary, the defendant has made considerable recent progress, which is to his credit, and there are grounds for optimism. Nevertheless, the State contends that, having regard to the full history and all the mandatory considerations described below, the matters alleged in the State's supporting documentation would, if proved, justify making an ESO, including the threshold requirement that the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a further serious offence if not kept under supervision. 2. The evidence, including reports from two court-appointed experts, would be considered further at a final hearing. Court's discretion and the criteria in s 9(4) 1. At the preliminary hearing and when considering whether in its discretion to grant an ISO, the Court must have regard to the matters set out in s 9(2)-(4). The evidence of the plaintiff in support of the application addresses those matters. 2. Dealing with those criteria in the context of this case: Safety of the community: s 9(2) 1. Provided the threshold requirement is satisfied (i.e. the unacceptable risk), this consideration operates in favour of making an ESO. It is the primary object of the Act and expressly stated to be the paramount consideration. Reports pursuant to s 7(4) of the Act: s 9(4)(b) 1. These reports have not yet been obtained. This consideration is not engaged at the preliminary hearing. The results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner: s 9(4)(c) 1. The opinions in the RAR have been summarised above. That opinion provides grounds for optimism but also discloses a significant risk. The results of any statistical or other assessment: s 9(4)(d) 1. The results of statistical or similar assessments, as they emerge from the RAR, have been summarised above. Any report prepared by Corrective Services as to the extent to which the offender can reasonably and practicably be managed in the community: s 9(3)(d1) 1. The State's evidence includes a Risk Management Report dated 17 June 2020: Ex BO-1 at 75. The report identified a number of risk management strategies and draws attention to limitations on those strategies. The report does not suggest that an ESO would be impracticable. Any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate, and the level of the offender's participation: s 9(4)(e) 1. The defendant has undertaken sex offender treatment programs on three occasions but has not completed the program. 2. In 1999, the defendant commenced the CUBIT program. Overall, his attendance and participation was satisfactory (Ex BO-1 at 117), although he had difficulties in managing his threatening and aggressive behaviour, leading to his discharge from the program (Ex BO-1 at 119). 3. In 2003, the defendant was admitted to the CUBIT program again but was discharged following allegations that he was fondling the genitals of other CUBIT participants: Ex BO-1 at 122. 4. On 3 September 2018, the defendant commenced the High Intensity Sex Offender Program (HISOP), the replacement to CUBIT. He was suspended twice for drug use and was ultimately discharged on 16 August 2019, following a positive drug test and his admission that he had been using Buprenorphine: Ex BO-1 at 147. The defendant was in his final week of treatment and the decision was made that he had progressed as far as he could in HISOP and did not need to return: Ex BO-1 at 147. The HISOP report following discharge included the following conclusion: "In order for [the defendant's] risk of reoffending to be managed successfully upon his release to the community he will need to continue to address his dynamic risk by utilizing and building the knowledge and strategies gained throughout treatment. [The defendant] has adequate insight into his patterns of unhelpful behaviour and is aware of appropriate strategies to manage his behaviour. However, he is at times ambivalent about modifying his behaviour or implementing these strategies. Any changes noted in [the defendant's] dynamic risk factors should alert him and his personal and professional support network to the potential need for intervention." Options available if the offender is kept in custody or is in the community that might reduce the likelihood of the offender re-offending over time: s 9(4)(e1) 1. There are no further options available to the defendant in custody that might reduce the likelihood of re-offending. 2. The RAR opines at [80] that, with intensive supervision and support in the community, the defendant is less likely to feel that he needs to resort to crime to survive. The likelihood that the offender will comply with the obligations of an extended supervision order: s 9(4)(e2) 1. The defendant's current compliance with his conditions of parole support a conclusion that the defendant is likely to comply with the obligations of an ESO, if one is made. The level of the offender's compliance with any obligations while on release on parole or while subject to an earlier ESO: s 9(4)(f) 1. While the defendant's criminal history includes poor compliance with parole obligations, the defendant's progress since released on parole pursuant to his current sentence is generally positive, save for the failed drug test on 31 March 2020 when he was seeking to relocate to Newcastle: Ex BO-1 at 347. Since that time, the defendant has passed drug tests on a number of occasions (Buman affidavit dated 2 September 2020). Apart from the failed drug test in March 2020, and an occasion involving concern about the defendant watching teenage girls inappropriately on 25 April 2020, Mr Buman reported no other incidents with the defendant's behaviour (Buman affidavit dated 2 September 2020). The level of the offenders' compliance with any obligations to which he has been subject under child protection, legislation: s 9(4)(g) 1. Not applicable. The offender's criminal history and any pattern of offending: s 9(4)(h) 1. The defendant's criminal history is described above. The views of the sentencing court at the time the sentence of imprisonment was imposed: s 9(4)(h1) 1. The sentencing judge described the index offence as "a vicious, cowardly and unprovoked attack on a vulnerable young woman" and found that it fell above the mid-range of objective seriousness: Ex BO-1 at 216. Her Honour said that he had not demonstrated true remorse or victim empathy and that she could make no positive findings in regard to rehabilitation or the likelihood of him re-offending: Ex BO-1 at 218. Discretion 1. Having been persuaded that there is an unacceptable risk of the defendant committing another serious offence if he is not kept under supervision or in custody, it is necessary to decide whether the Court's discretion should be exercised in favour of making an ISO. 2. The mandatory considerations are set out above. Some of them operate in the defendant's favour and some in favour of making an ESO. An additional important consideration at this discretionary stage is a consideration of the extent of the intrusion on the defendant's liberty, privacy and related freedoms. It is clear from what is said above that the evidence before the Court, if accepted at a final hearing, would warrant the Court exercising its discretion in favour of making an ESO. It follows, therefore, that the Court should make the preliminary orders contemplated by s 7(4) of the Act. Conditions of an Interim Supervision Order 1. Section 11 of the Act allows the Court to impose such conditions under a supervision order as the Court considers appropriate. This power is constrained by the scope of the Act: Winters v Attorney General of NSW [2008] NSWCA 33 at [19]. Assistance can be drawn from the purpose and statutory objects of the Act. The primary object of the Act, as provided for in s 3(1) is to provide for the extended supervision of such offenders "so as to ensure the safety and protection of the community". Subsection (2) provides that another object of the Act "is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation". 2. Important principles to be considered in relation to the imposition of conditions are: 1. having served a sentence of imprisonment for their offences, an offender has a right to personal liberty, however, this right is not absolute: State of New South Wales v Donovan at [83]; 2. in imposing conditions, the Court needs to strike a balance between competing considerations: Attorney General for NSW v Tillman at [68]; 3. a relevant consideration in imposing conditions is that a breach gives rise to a criminal penalty: State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36]; 4. conditions do not have to have a demonstrated link to past offending, but they should address the risk of future offending based on the scope, purpose and objects of the Act: Wilde v State of New South Wales [2015] NSWCA 28 at [53]. 5. conditions should not be designed toward future general criminal conduct, but instead focussed on mitigating the risk of a serious offence: State of New South Wales v Green (Final) [2013] NSWSC 1003 at [36]-[38]. 6. conditions must not be unjustifiably onerous or punitive, "nor should they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision": State of New South Wales v Bugmy [2017] NSWSC 855. 7. conditions "must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice": State of New South Wales v Ley Thomas Baker (No 2) at [36]. 8. to ensure a balance between the community interests and personal liberty, the Court should impose conditions that are the least intrusive possible (Lynn v State of New South Wales at [129]-[131]. 1. The defendant has now been on parole continuously for 10 months. During that time, he has achieved the following: 1. secured long term stable accommodation at the Newcastle Affordable Housing Boarding House. The caretaker has noted that he is a "model tenant" and a "positive influence on a few of the younger men"; 2. undergone regular sessions with the Forensic Psychology Service (FPS) and he appears to have a frank and open relationship with his psychologist; 3. has been under electronic monitoring and has shown good compliance; 4. has demonstrated a strong and ongoing desire to obtain full time employment, including signing up to several employment agencies; 5. engaged in healthy, pro-social and varied leisure activities such as bike riding, whale watching and photography; 6. despite a single failed drug test, the defendant has otherwise shown good compliance with abstinence from drugs and alcohol. This is particularly notable where other residents at the boarding house often drink to excess and have even on occasion damaged the defendant's property. Despite being faced with this challenge, the defendant has consciously decided to stay away; and 7. has developed a strong and open relationship with his Community Corrections Officer, Ms Howard. 1. It was common ground between the parties that the defendant's parole conditions were currently as follows: "You must submit to electronic monitoring and comply with all instructions given by your Officer in relation to the operation of monitoring systems inclusive of schedules and exclusion zones. You must abstain from alcohol. You must not use a prohibited drug or substance , except those that have been prescribed to you. You must, if directed by your Officer, participate in the following intervention: Forensic Psychology Services. You must not possess or use a firearm or any prohibited weapon. You must not contact, communicate with, walk, stalk, harass or intimidate the victim/s. You must not frequent or visit Blue Mountains City Council Local Government Area." Conditions to be imposed 1. The defendant agreed to comply with Conditions 1-4 put forward by the plaintiff. 2. The defendant opposed the "Schedule of Movements" put forward by the plaintiff and put forward three conditions of his own. The conditions put forward by the plaintiff were: "Schedule of Movements 5. If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start. 6. If the defendant wants to change anything in his schedule of movements once it is approved by a DSO, he must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period. 7. The defendant must not deviate from his approved schedule of movements except in an emergency." 1. The defendant put forward the following alternative conditions: "5. If directed by his DSO, the defendant is to provide an honest summary of his anticipated movements each week (or over successive weeks) limited to places he intends to travel to, the purpose and means of his travel to those places, and the dates of travel. Such a summary is to be provided on or before the Friday prior to each week (or as otherwise agreed between the defendant and his DSO). 6. Condition 5 is to apply for a maximum period of 12 months from the date of the making of this order. 7. If the defendant departs from any summary provided to his DSO in accordance with condition 5, the defendant must notify his DSO of his change of plans before doing so, unless in an emergency situation." 1. In the course of submissions, concerning the Schedule of Movements, it was put on behalf of the plaintiff that it would be premature to make a final decision as to conditions directed to a Schedule of Movements before the expert reports pursuant to s 7(4) of the Act had been obtained in relation to that subject. I can see considerable merit in that submission. In the meantime, I propose to impose the alternative conditions as to a Schedule of Movements put forward by the defendant, pending expert opinion on that issue. I have imposed the conditions put forward by the defendant with the exception of Condition 6 because they will be less disruptive to his current lifestyle. 2. The defendant agreed with Conditions, 8, 9, 11, 12 and 13 but opposed Condition 10 of the Conditions relating to Accommodation. The condition proposed by the plaintiff was: "10 The defendant must comply with rules or by-laws (or both) of any approved accommodation for the defendant." 1. The plaintiff submitted that compliance with Condition 10 was not designed to criminalise non-compliance by the defendant, but to ensure stability of accommodation to better re-integrate the defendant with the community. The defendant opposed Condition 10 on the basis that it would have the effect of imposing criminal liability on him should he fail to comply with any house rules in his approved accommodation. By way of illustration, the defendant noted that he could be facing a criminal charge carrying 5 years' imprisonment for using an electric blanket in his room. The defendant submitted that attaching criminal liability to such behaviour as observing accommodation rules was an over-reach and the condition should not be imposed. 2. I accept the submission by the defendant and Condition 10 will not be imposed as part of the ISO. 3. The defendant agreed to comply with Condition 14 but opposed Condition 15. These conditions related to Place and Travel Restrictions. 4. The condition proposed by the plaintiff was: "15 The defendant must not frequent or visit any place specified by a DSO." 1. The plaintiff pressed the imposition of that condition in that the condition addressed not only places where risk might be a relevant factor, but places where a previous victim might live or work (with the attendant risk that might flow from any such contact). The plaintiff submitted that the condition was broadly framed to allow discretion on the part of the DSO in circumstances where the index offending was opportunistic. 2. The defendant submitted that Condition 15 was drawn too broadly and gave to a DSO an unconstrained and unqualified power. The defendant proposed an alternative to Condition 15 as follows: "15 The defendant must not frequent or visit any place specified by a DSO if the DSO has reasonable grounds to think visiting that place will increase the defendant's risk of committing a serious offence or increase the risk of failing to comply with another condition of this order." 1. In my opinion, Condition 15 as put forward by the defendant should be imposed for the reasons given by the defendant. 2. The defendant agreed with Conditions 16, 17 and 18 under the heading "Employment, Finance and Education" but opposed Condition 19 put forward by the plaintiff. 3. Condition 19, as put forward by the plaintiff was: "19 The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by a DSO." 1. The plaintiff submitted that Condition 19 was intended to address a scenario where the defendant might lapse into undisclosed substance use. The withdrawal of large sums of unexplained cash would be monitored by such a condition. 2. The defendant submitted that Condition 19 was part of a general suite of conditions sought by the plaintiff which had little to do with his particular risk profile and was not appropriate. 3. Given the defendant's history of offending, there is force in the plaintiff's submission and Condition 19 as drawn by the plaintiff will be included in the ISO. 4. The defendant objected to Condition 25, which was directed to "Non-Association - Association with Children". Condition 25 was as follows: "25. The defendant must not associate with anyone who he knows or reasonably should know is under 18, other than incidental contact in a public place in the course of the duties of the minor; or with the written permission of a DSO and in accordance with any requirements reasonably determined by a DSO, including that the contact takes place in the presence of an adult who has been approved in writing by a DSO." 1. The defendant submitted that Condition 25 could result in an inadvertent breach. The defendant gave the example of the house rules at his current accommodation facility which allow for children to come and stay with their fathers. The defendant submitted that any contact with a visiting child, regardless of how fleeting, would result in a breach of the condition and he would be liable to a criminal penalty. 2. The plaintiff submitted that the Court would be entitled to assume Condition 25 would be enforced appropriately and would not include "fleeting contact". The plaintiff also noted that the wording of the condition referred to "association". The word "associate" is defined in the preamble to the schedule of conditions and that definition makes it clear that it means something significantly more than "fleeting contact". 3. I accept the submission of the plaintiff. Condition 25 will be included in the ISO. 4. The defendant objected to Condition 27(a). The condition is as follows: "27 Without limiting condition 26, the defendant must not: a. associate with any people who he knows are consuming or under the influence of alcohol without the prior approval of a DSO. ..." 1. The defendant submitted that Condition 27(a) was not appropriate for his current circumstances. This was because the residents at the boarding house are allowed to drink on certain evenings and the defendant has specifically gone out of his way to avoid interaction with them while they are drinking. The defendant submitted on the condition as it currently stands, any contact with a resident who had been drinking would result in a breach of Condition 27(a). 2. The defendant submitted that a more appropriate wording of the condition would be: "27 Without limiting Condition 26, the defendant must not: (a) associate, outside his approved address, with any people who he knows are consuming or under the influence of alcohol without the prior approval of a DSO." 1. The plaintiff did not accept the condition proposed by the defendant. This was because although it met the particular problem arising from the defendant's accommodation, it would allow association with people who were not simply in the same accommodation having a drink but people coming and visiting and consuming alcohol in the defendant's room. The plaintiff submitted that the DSO was well aware of the particular situation prevailing at the defendant's accommodation and would use common sense when applying Condition 27(a). 2. I agree with the submission of the plaintiff and that being aware of the situation, the DSO would act in a fair way towards the defendant. I propose to include Condition 27(a) in the ISO. 3. The defendant opposed the imposition of Conditions 29 and 30. Those conditions were: "29. If the defendant starts an intimate relationship with someone, he has to tell his DSO who may want to tell the person about his criminal history. 30. The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary." 1. The defendant submitted that Conditions 29 and 30 should be replaced with a single condition as follows: "If the defendant starts an intimate relationship with someone, he has to tell his DSO who may want that person to know about the defendant's criminal history. If so, the defendant's DSO is to give the defendant (within a reasonable timeframe as agreed between the DSO and the defendant) the opportunity to tell his new partner about his criminal history. If the defendant does not wish to, or fails to inform them within the agreed time, the DSO may want to tell the person about his criminal history." 1. The defendant submitted that the rationale behind the alternative condition was to allow him a reasonable opportunity to provide such delicate information to the other person. It was directed very much to privacy concerns in that it enabled the defendant to choose the place and manner of communicating such sensitive information. 2. The plaintiff submitted that the purpose of Conditions 29 and 30 was to deal with potentially risky situations and to prevent the object of the defendant's affections becoming a victim. This was important given the nature of the defendant's previous offending. 3. I have concluded that the condition proposed by the defendant should be preferred and that is the condition which will be inserted in the ISO. 4. The defendant objected to Condition 35 and suggested an alternative condition. The only difference between the two conditions was that in the defendant's condition, the words "as soon as practicable" have been added to the condition proposed by the defendant for notifying a DSO about a change in his online arrangements. 5. I have concluded that the change suggested by the defendant to Condition 35 is not unreasonable and should be included in the ISO. 6. The defendant objected to Condition 40 and proposed a different condition. Condition 40 as put forward by the plaintiff was: "40 The defendant must not use any third party coded or encrypted messaging application or service. The defendant must provide any code or encryption that he uses or has used, for any electronic data or any electronic communication if discovered on the defendant's electronic devices or accounts as a result of a search or a remote inspection." 1. The condition proposed by the defendant was: "40 The defendant must not use any third party coded or encrypted messaging application or service unless preapproved by his DSO. The defendant must provide any code or encryption that he uses or has used, for any electronic data or any electronic communication if discovered on the defendant's electronic devices or accounts as a result of a search or a remote inspection." 1. The plaintiff submitted that Condition 40 deals with encrypted messaging such as on "WhatsApp". There a person can without detection communicate with another person and can then erase their communication history and do so in a way which is both easy to set up and communicate and easy to conceal. The plaintiff characterised that capability as "particularly concerning". 2. The plaintiff submitted that Condition 40 did not prohibit the defendant from using an open service, open social media such as Facebook and using public settings. It did not prevent the defendant from using email, text messages or the telephone. The plaintiff submitted that it is not an unnecessarily restrictive condition. I agree and the condition put forward by the plaintiff will be included on the ISO. 3. The defendant opposed the imposition of Condition 45. This was because the form proposed by the plaintiff would allow an unconstrained power of search, far greater than is usually held by any law enforcement agency. The defendant proposed an alternate condition which he submitted still allowed for the DSO to perform a search if that officer held a reasonable opinion that a search was necessary, for reasons specified in the condition. 4. The condition submitted by the plaintiff was: "45. The defendant must submit to the search of his person and residence and the search and seizure of his vehicle, computer, electronic and communication device or any storage facility, garage, locker or commercial facility under his control." 1. The condition proposed by the defendant was: "45 If the DSO forms a reasonable opinion 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; The DSO must first inform the defendant of the reason for the search and then the DSO may direct, and the defendant must submit to: d. search and inspection of any part of, or anything in, the defendant's specific room at his 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." 1. In the course of submissions, the plaintiff put as an alternative the "Search and Seizure" condition which was approved by the Court of Appeal in Baldwin v State of New South Wales [2020] NSWCA 112 at [10]. That condition was: "39 If the DSO reasonably believes that a search (of the type referred to in sub-paragraph d to f 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 has either breached the conditions of this ESO or engaged in conduct associated with an increased risk of the defendant committing a serious offence; then the DSO may direct, and the defendant must consent to: d. search and inspection of any part of, or any thing in, the defendant's approved address; e. search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant; f. search and inspection of any part of, or any thing 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." 1. I have concluded that that the clause in Baldwin v State of New South Wales is appropriate and I did not understand either the defendant or the plaintiff to make submissions to the contrary. 2. The defendant objected to Condition 49 relating to "Personal Details and Appearance". Condition 49 was: "49 The defendant must not significantly change his appearance without the approval of a DSO." 1. The defendant submitted that it was difficult to see the justification for that condition and that in any event, much of what was required by Condition 49 was included in Condition 50, which provided as follows: "50 The defendant must let a DSO photograph him, dressed, within one week of the commencement of these conditions and following any significant change to his appearance." 1. The plaintiff submitted that these were standard conditions in ESO schedules. Their purpose was to permit surveillance. The plaintiff submitted that those conditions might also operate to address detection of offending and/or escalation in risky behaviours. The plaintiff submitted that these conditions were appropriate to address risk and were not unnecessarily restrictive, given that DSO prior approval must be obtained. 2. I have concluded that Condition 49 serves a useful purpose, is not particularly intrusive and should be included in the ISO. 3. The defendant opposed Condition 52 and suggested an alternative wording. Condition 52, as put forward by the plaintiff was: "52. The defendant must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by a DSO." 1. The alternative wording suggested by the defendant was: "52. The defendant must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as reasonably directed by a DSO." 1. I have concluded that the insertion of the additional words is appropriate and that Condition 52 in this form should be included in the ISO. 2. The defendant objected to Condition 53 and suggested an alternative wording. Condition 53, as put forward by the plaintiff was: "53. The defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults." 1. The alternative wording put forward by the defendant was: "53 The defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults if the consultation relates to his mental health or alcohol and/or substance use." 1. The defendant submitted that his physical health is irrelevant to previous offending and to the risk of future offending. He submitted that his problems had to do with mental health and substance abuse and that the condition should be restricted to those matters. 2. I agree with the submission by the defendant. 3. The defendant opposed the inclusion of Condition 54 put forward by the plaintiff. That condition was: "54 The defendant must attend, upon the direction of a DSO, any therapy sessions, support and treatment programs the subject of the direction." 1. The defendant submitted that because his mental health was the real issue, the matters set out in Condition 54 were already covered by Condition 52. 2. The plaintiff disagreed with that proposition and submitted that Condition 54 had a rehabilitation purpose and appropriately added to the requirements in Condition 52. 3. I agree that Condition 54 does have a rehabilitation purpose and should be included in the ISO. 4. The defendant objected to Condition 57 and suggested an alternative wording which would merge Conditions 57 and 58. 5. The wording of Conditions 57 and 58 put forward by the plaintiff was: "57 The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other. The defendant must also agree to his healthcare practitioners sharing information, including reports on his progress and information he has told them with his DSO in circumstances where the said healthcare practitioner reasonably believes that the collection, use or disclosure is necessary to lessen or prevent a serious threat to the life, health or safety of any individual, or to public health or safety or is otherwise relevant to the risk of serious offending by the defendant-Such reasonable belief does not need to be immediate or specified for information to be disclosed. 58. The defendant must agree to any information being shared between those persons and agencies that are involved in his supervision including, but not limited to, a DSO, NSWPF and CSNSW." 1. The alternate condition proposed by the defendant was: "57 The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them relating to his mental health and/or substance use with each other. The defendant must also agree to his healthcare practitioners sharing information, including reports on his progress and information he has told them relating to his mental health and/or substance use with his DSO in circumstances where the said healthcare practitioner reasonably believes that the collection, use or disclosure is necessary to lessen or prevent a serious threat to the life, health or safety of any individual, or to public health or safety or is otherwise relevant to the risk of serious offending by the defendant. Such reasonable belief does not need to be immediate or specified for information to be disclosed. Before sharing such information, the defendant's healthcare practitioner must first inform the defendant of the information to be shared." 1. The defendant had a further objection to the wording of Condition 58. The defendant submitted that the NSWPF and CSNSW were very large organisations and that there was no logical basis for why information concerning the defendant should be shared with persons who knew nothing about him. The defendant submitted that the provision as currently worded was too wide and should only refer to police in the ESO team but not beyond. 2. In the course of submissions relating to these conditions, it was accepted by counsel for the defendant that there was a potential for the defendant to have disclosed to a medical professional that his sexual urges had increased and/or that he had developed an obsessive preoccupation with a particular female. This may be a disclosure made to a doctor, whom the defendant was seeing for a physical ailment, not for mental and psychological issues. The communication of that information to other medical practitioners would be important for the defendant receiving appropriate treatment and would be particularly relevant to his risk of re-offending. 3. I have concluded that despite their intrusive nature, the suite of conditions put forward by the plaintiff are better able to pick up the sort of problem just referred to, i.e., the development of a criminogenic risk factor being communicated to one of the plaintiff's treating doctors. 4. Accordingly, the conditions put forward by the plaintiff will be inserted in the ISO. 5. However, in relation to Condition 58, I agree with the defendant's complaint that as currently formulated, the condition is too broad and should only refer to those members of the police force who are in an ESO team. 6. It follows from the above that the following orders should be made: 1. An order pursuant to s 7(4) of the Act: 1. appointing a qualified psychiatrist and a registered psychologist, to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and 2. directing the defendant to attend those examinations; 1. An order pursuant to s 10A of the Act that the defendant be subject to an Interim Supervision Order commencing 3 January 2021 ("the Interim Supervision Order"); 2. An order pursuant to s 10C(1) of the Act that the Interim Supervision Order be for a period of 28 days; and 3. An order pursuant to s 11 of the Act directing that the defendant, for the period of the Interim Supervision Order, comply with the conditions set out in the Schedule to this judgment. ********** ANNEXURE "A" SCHEDULE OF CONDITIONS OF SUPERVISION BRIAN ALLAN WILKINSON Departmental Supervising Officer (DSO) Corrective Services NSW (CSNSW) In these conditions: "CSNSW" means Corrective Services NSW. "Commissioner" means Commissioner for Corrective Services. "Defendant" means BRIAN ALLAN WILKINSON also known as BRIAN ANTNEY, the defendant in these proceedings and the subject of the order. "Electronic Identity" means each of the following: 1. (a) an email address, (b) a user name or other identity allowing access to an instant messaging service, (c) a user name or other identity allowing access to a chat room or social media on the internet, (d) any other user name or other identity allowing access to the internet or an electronic communication service. "DSO" means Departmental Supervising Officer, that is, any Corrective Services Officer supervising the defendant under the order. "Material" includes: 1. any written or printed material; 2. any picture, painting or drawing; 3. any carving, sculpture, statue or figure; 4. any photograph, film, video recording or other object or thing from which an image may be reproduced; 5. any computer data or the computer record or system containing the data; and 6. any other material or object on which an image or representation is recorded or from which an image or representation may be reproduced. "NSWPF" means NSW Police Force. "Associate" includes, but is not limited to, being in company with, or to communicate by any means (including by post, facsimile, telephone, email or any other form of electronic communication). "Search" includes: 1. A garment search, being a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body; and 2. A pat-down search, meaning a search of the defendant where the defendant's clothed body is touched. "Accommodation" includes a room occupied by the defendant in a boarding house, and any other room, premises or address over which he has control and access. Part A: Reporting and Monitoring Obligations Monitoring and Reporting 1. The defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions of a DSO. 2. Where a direction may conveniently be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service. 3. The defendant must truthfully answer questions from a DSO, or any other person supervising him, about where he is, where he is going, who he is with, what he is doing and the nature of his associations. Electronic Monitoring 4. The defendant must wear electronic monitoring equipment as directed by a DSO and must not tamper with, or remove, the equipment. Schedule of Movements 5. If directed by his DSO, the defendant is to provide an honest summary of his anticipated movements each week (or over successive weeks) limited to places he intends to travel to, the purpose and means of his travel to those places, and the dates of such travel. Such a summary is to be provided on or before the Friday prior to each week (or as otherwise agreed between the defendant and his DSO). 6. 7. If the defendant departs from any summary provided to his DSO in accordance with Condition 5, the defendant must notify his DSO of his change of plans before doing so unless in an emergency situation. Part B: Accommodation 8. The defendant must live at an address approved by a DSO and notify a DSO of any plan to change the defendant's address or living arrangements. 9. The defendant must be at his approved address between [10pm and 6am] unless other arrangements are approved by a DSO. 10. 11. The defendant must allow a DSO to visit him at and enter his approved address at any time and, for that purpose, to enter the premises at that address. 12. The defendant must not spend the night anywhere other than his approved address or any alternative approved addresses (if relevant) without the approval of a DSO. 13. The defendant must promptly notify a DSO of any visitor entering and remaining at his approved accommodation and must not permit any person to stay overnight, at his approved accommodation (other than persons who ordinarily reside at his approved accommodation), without the prior approval of a DSO. Part C: Place and travel restrictions 14. The defendant must surrender any passports held by him to the Commissioner, must not be in possession of any passports, and must not attempt to apply for any passports. 15. The defendant must not frequent or visit any place specified by a DSO if the DSO has reasonable grounds to think visiting that place will increase the defendant's risk of committing a serious offence or increase the risk of failing to comply with another condition of this Order. Part D: Employment, finance and education 16. The defendant must take all reasonable steps to participate in interventions as recommended by a DSO, including the development of a case management plan which may include employment, education, training or participation in personal development programs. 17. The defendant must not start on his own initiative any job, volunteer work or educational course without the prior approval of a DSO. 18. The defendant must notify a DSO of any intention to change his employment if practicable before the change occurs or otherwise at his or her next interview with a DSO. 19. The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by a DSO. Part E: Drugs and alcohol 20. The defendant must not use or possess prohibited drugs, or abuse drugs unlawfully obtained. 21. The defendant must not possess or consume alcohol without the permission of a DSO. 22. The defendant must submit to drug and alcohol testing. 23. The defendant must not enter any licensed premises including hotels, bars, racecourses and licensed clubs, but excluding cafes and restaurants, without the prior approval of a DSO. 24. The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as reasonably directed by a DSO, and must not discharge himself from such programs and courses without prior approval of a DSO. Part F: Non-association Association with Children 25. The defendant must not associate with anyone who he knows or reasonably should know is under 18, other than incidental contact in a public place in the course of the duties of the minor; or with the written permission of a DSO and in accordance with any requirements reasonably determined by a DSO, including that the contact takes place in the presence of an adult who has been approved in writing by a DSO. Associations with Others (not children) 26. The defendant must not associate with any person or persons (but not classes of persons) specified by a DSO. 27. Without limiting condition 26, the defendant must not: a. Associate with any people who he knows are consuming or under the influence of alcohol without the prior approval of a DSO. b. associate with any people who he knows are consuming or under the influence of illegal drugs. c. associate with any person held in custody without prior approval of a DSO. 28. The defendant must not engage the services of sex workers, without the prior approval of a DSO. 29. If the defendant starts an intimate relationship with someone, he has to tell his DSO who may want that person to know about the defendant's criminal history. If so, the defendant's DSO is to give the defendant (within a reasonable timeframe as agreed between the DSO and the defendant) the opportunity to tell his new partner about his criminal history. If the defendant does not wish to or fails to inform them within the agreed time, the DSO may want to tell the person about his criminal history. 30. 31. The defendant must obtain written permission from a DSO prior to joining or affiliating with any club or organisation. Part H: Weapons 32. The defendant must not possess or use any of the following: i. a prohibited weapon within the meaning of the Weapons Prohibition Act 1998. 33. Without limiting or altering condition 32, the defendant must not possess or use any of the following, without a DSO's prior approval: a. a knife, machete, sword or any other device that consists of a single-edged or multi-edged blade or spike that is designed or adapted to inflict violence, whether actual or threatened; b. any other implement made or adapted for use for causing injury to a person; c. anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property. Part I: Access to the internet and other electronic communication 34. The defendant must obey any reasonable direction by a DSO about communication, internet access and use of electronic devices (including, but not limited to, approval of devices used, method of communication, access to the internet and restrictions on deleting information). 35. The defendant must not use any alias, electronic identity, log-in name, name other than "Brian Wilkinson" or "Brian Antney", any email address other than those known to a DSO. The defendant must give a DSO a list of all devices, services and applications he uses to communicate with or to access the internet and advise a DSO of any change to the list as soon as practicable after it occurs. This includes phones, tablet devices, data storage devices or computers. 36. 37. The defendant must provide the details of telephone numbers, service provider account numbers, email addresses or other user names as well as any relevant passwords, pin codes and pass codes used by the defendant and the nature and details of the internet connection, as directed. 38. 39. 40. The defendant must not use any third party coded or encrypted messaging application or service. The defendant must provide any code or encryption that he uses or has used, for any electronic date or any electronic communication if discovered on the defendant's electronic devices or accounts as a result of a search or a remote inspection. 41. 42. The defendant must provide consent for a DSO (or any other person requested by a DSO) to remotely inspect any internet account used by the defendant, including any internet service provider account, email accounts and social media accounts, in monitoring compliance with this Order. 43. 44. Part J: Search and seizure 45. If the DSO reasonably believes that a search (of the type referred to in sub-paragraph d. to f .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 has either breached the conditions of this ESO or engaged in conduct associated with an increased risk of the defendant committing a serious offence; then the DSO may direct, and the defendant must consent to: d. search and inspection of any part of, or any thing in, the defendant's approved address; e. search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of the defendant; f. search and inspection of any part of, or any thing 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. 46. 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 this Order. Part K: Access to pornographic, violent and classified material 47. The defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification, X18+, Restricted Category 2 and Restricted Category 1, or any other material as directed by a DSO with respect to concerns related to risk of committing a serious offence. Part L: Personal details and appearance 48. The defendant must not change his name from "Brian Wilkinson" or "Brian Antney" or use any other name without notifying a DSO. 49. The defendant must not significantly change his appearance without the approval of a DSO. 50. The defendant must let a DSO photograph him, dressed, within one week of the commencement of these conditions and following any significant change to his appearance. 51. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide a DSO with such details. Part M: Medical intervention and treatment 52. The defendant must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as reasonably directed by a DSO. 53. The defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults if the consultation relates to his mental health or alcohol and/or substance use. 54. The defendant must attend, upon the direction of a DSO, any therapy sessions, disengagement services, support and treatment programs the subject of the direction. 55. The defendant must only take medications that are prescribed to him by his healthcare practitioners only in the manner prescribed. 56. The defendant must notify a DSO within 3 days if he ceases to take or declines to commence taking any medications that are prescribed to him by his healthcare practitioners. 57. The defendant must agree to his healthcare practitioners sharing information, including reports on his progress and information he has told them with each other. The defendant must also agree to his healthcare practitioners sharing information, including reports on his progress and information he has told them, with his DSO, in circumstances where the said healthcare practitioner reasonably believes that the collection, use or disclosure is necessary to lessen or prevent a serious threat to the life, health or safety of any individual or to public health or safety or is otherwise relevant to the risk of serious offending by the defendant. Such reasonable belief does not need to be immediate or specified for information to be disclosed. 58. The defendant must agree to any information being shared between those persons and agencies that are involved in his supervision including, but not limited to police officers working as part of an ESO team. 59. The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him if the disclosure is reasonably necessary. ********** 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: 16 December 2020