Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Hyde (Preliminary) [2022] NSWSC 540 Hearing dates: 2 May 2022 Date of orders: 5 May 2022 Decision date: 05 May 2022 Jurisdiction: Common Law Before: Schmidt AJ Decision: The State to file and serve short minutes of orders reflecting the conclusions by 4pm tomorrow, 6 May 2022. Catchwords: HIGH RISK OFFENDERS — application for interim supervision order and for examination by court-appointed psychiatrists/psychologists — nature of statutory test — whether defendant poses an unacceptable risk of further serious offending if not subject to ongoing supervision where he has committed only one serious sex offence — risk established — how appropriate conditions should be devised — orders made Legislation Cited: Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) Crimes Act 1900 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW) Criminal Code Act (Cth) Cases Cited: Attorney General for the State of New South Wales v Tillman [2007] NSWCA 119 Attorney-General for NSW v Winters [2007] NSWSC 611 Cornwall v Attorney General for New South Wales [2007] NSWCA 374 Hughes v National Trustees Executors and Agency Co of Asia Ltd (1979) 143 CLR 134; [1979] HCA 2 Lynn v State of New South Wales [2016] 91 NSWLR 636; NSWCA 57 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 State of New South Wales v CD (Preliminary) [2021] NSWSC 1396 State of New South Wales v DK [2018] NSWSC 1947 State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280 State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041 State of New South Wales v Grooms (Final) [2019] NSWSC 353 State of New South Wales v Lynn [2013] NSWSC 1147 State of New South Wales v Mills (No 2) [2017] NSWSC 1442 State of New South Wales v Paton [2020] NSWSC 1707 State of New South Wales v Simcock (Final) [2016] NSWSC 1805 State of New South Wales v Single {2019] NSWSC 176 State of New South Wales v Thurston [2017] NSWSC 1760 Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 Category: Principal judgment Parties: State of New South Wales (Plaintiff) Mathew Leslie Hyde (Defendant) Representation: Counsel: M Dalla-Pozza (Plaintiff) D Bhutani (Defendant) Solicitors: Crown Solicitors (Plaintiff Legal Aid (Defendant) File Number(s): 2022/59540 Judgment 1. The State seeks a 3-year extended supervision and other orders under the Crimes (High Risk Offenders) Act 2006 (NSW) in respect of Mr Hyde, who it is claimed poses an unacceptable risk of committing another serious offence if he is not kept under supervision in the community. He is a 35-year-old man of indigenous background who was granted parole on 14 December 2021 in respect of a sentence imposed upon him by Buscombe DCJ in 2017 for his most recent six offences, one of them a serious sex offence under s 4 of the High Risk Offenders Act, which he committed in 2015. His sentence is due to expire on 19 May 2022. 2. This judgment is concerned with the application for interim orders under s 10A of the High Risk Offenders Act, which were opposed. An order under s 7(4) of the Act for Mr Hyde's assessment by two qualified psychiatrists and/or psychologists is also sought. But if not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the application must be dismissed without making such orders: s 7(5). 3. The interim orders can only be made after a preliminary hearing if it appears both that Mr Hyde's current custody or supervision will expire before the proceedings are determined and that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order: s 10A. 4. Mr Hyde is presently on parole under supervision in the community and is thus a "supervised offender": ss 5B(b) and 5I. Even after his parole ends he will be bound by child protection orders made in January 2022 by the Local Court under s 5 of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW). They regulate his contact with children under 18 years of age both in person and online. Breach of those orders, which have a term of 5 years, involves a criminal offence attracting penalties of a fine of $11,000 and/or two years imprisonment. 5. Mr Hyde has never committed a "serious violence offence", as defined in s 5A of the High Risk Offenders Act and only one "serious sexual offence", which is defined in s 5 of the Act to include offences against specified provisions of the Criminal Code Act (Cth). They include s 474.26, using a carriage service to procure a person under the age of 16 for sexual activity. Mr Hyde's 2015 s 474.26 offence, to which he pleaded guilty, involved a 15-year-old child. 6. Mr Hyde also still has outstanding charges for offences it is alleged he committed while in custody, of stalk/intimidate contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) and carry out sexual act without consent contrary to s 61KE(a) of the Crimes Act 1900 (NSW). They are due to be heard on 16 May, but if established will not fall within the definition of serious sex offending. Issues 1. There is no issue that: 1. The preliminary jurisdictional requirements imposed by s 5B and the time limit arising under s 6 of the High Risk Offenders Act have been met. 2. The standard of proof which the State must meet on this application is greater than that applicable to civil matters, but less than that required in proof of a criminal offence: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]. 3. What arises for determination has to be approached on the assumption that what the State relies on is accepted, the Court at this stage not being involved in weighing that documentation, predicting the ultimate result of the application, or considering what evidence Mr Hyde might call: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98]. 4. "Unacceptability of risk involves considerations of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate", as Wilson J explained in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71]. 5. In making this determination "the safety of the community must be the paramount consideration": s 9(2) High Risk Offenders Act. 6. The Court must also have regard to the matters specified in s 9(3), as well as other relevant matters. 1. In issue is whether the Court can be satisfied on the material on which the Crown relies, to the necessary high degree of probability, that Mr Hyde poses an unacceptable risk of committing another serious offence if not kept under the supervision sought: s 5B(d). 2. The nature of the statutory test is also in issue, as are the conditions to be imposed, if the Court is satisfied that extended supervision orders should be made. 3. The State seeks orders in similar terms to those which would be made on final hearing, while on Mr Hyde's case, the conditions should replicate his current conditions of parole, for similar reasons to those given by Lonergan J in State of New South Wales v CD (Preliminary) [2021] NSWSC 1396 at [6]. 4. In that case the need for interim orders was conceded, in the context of CD's repeated offences of sexual intercourse with a 15 year-old victim. CD was an offender younger than Mr Hyde and closer in age to his victim. He had also, however, had a childhood marred by significant educational disruption, instability in caregivers, trauma, domestic violence, neglect, and abuse, as well as ongoing mental health problems. 5. The need for interim orders was not here conceded, however. Mr Hyde has committed only one serious sexual offence and, on his case, despite the materials relied on it could not be concluded that he posed an unacceptable risk of committing further serious offences. But if that conclusion was reached, standard conditions of the kind which the State sought would not be imposed at this interim stage. Instead, his conditions of parole, which were providing adequately for his supervision in the community would be continued until the application for final orders is determined. Conclusion 1. For reasons which follow I am satisfied that the State has met the onus which falls upon it and that interim orders must be made, albeit not in terms which entirely reflect those for which either the State or Mr Hyde contended. The nature of the statutory test 1. On the State's approach, determining whether Mr Hyde poses an unacceptable risk is not a "stringent test" at this preliminary stage: State of NSW v Lynn [2013] NSWSC 1147 at [18]. Further, at this stage it is appropriate to give weight to risk avoidance: Attorney General for the State of New South Wales v Winters [2007] NSWSC 611. And, as it was put orally, at this stage "the legislation is slanted heavily in favour of" the State's application. 2. That is disputed by Mr Hyde, who contends that the test to be applied at both the preliminary and final stages is the same, albeit at the preliminary stage it must be undertaken on assumed facts: State of New South Wales v Thurston [2017] NSWSC 1760 at [19]-[20]. It also does not involve a finding that a prima facie case has been established: State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041 at [17]; State of New South Wales v DK [2018] NSWSC 1947 at [11]. 3. I am satisfied that Mr Hyde's submission must be accepted. 4. It has often been observed that putting an unwarranted gloss on a statutory test should be avoided: Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [70]; Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 at 209; and Hughes v National Trustees Executors and Agency Co of Asia Ltd (1979) 143 CLR 134; [1979] HCA 2 at 158. 5. What is required on this application is a decision made under s 10A of the High Risk Offenders Act about whether "the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order". That is not a predictive exercise and does not turn on a determination that "the risk of an offender committing a serious offence is more likely than not": s 5D. It turns only on whether the matters relied on at this stage satisfy the Court "to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order": s 5B(d). 6. The term "unacceptable risk" is not defined, but a finding of the existence of such a risk is the gateway to the power to make an order, "which applies to an assessment of likelihood ('unacceptable risk') in the absence of any supervision": State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280 at [24]. That evaluation is directed to the assessment of risk in the context of making the community secure from harm, as opposed to guaranteeing its safety and protection, because not every risk which an offender poses is an unacceptable one: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [61]. 7. In considering whether the State has met its onus, that Mr Hyde has only ever committed one serious sexual offence is thus a relevant consideration, as it was in Simcock, where there had only ever been one serious violence offence committed. But that does not preclude the conclusion that on all of the matters which arise to be considered, the State has met its onus and the statutory test has been satisfied. Should interim orders be made? 1. Under s 9(3) of the High Risk Offenders Act whether the orders should be made depends on consideration of matters the Court considers relevant, as well as of: (b) the reports received from the persons appointed under section 7 (4) to conduct examinations of the offender, and the level of the offender's participation in any such examination, (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, (e1) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time, (e2) the likelihood that the offender will comply with the obligations of an extended supervision order, (f) without limiting paragraph (e2), the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order, (g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004, (h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will commit a further serious offence. 1. That Mr Hyde might intend to leave New South Wales permanently or temporarily is not, however, to be considered in determining whether or not to make an extended supervision order: s 9(4). 2. For Mr Hyde it was contended to be relevant that the serious sexual offence which he had committed carried a maximum penalty of 14 years imprisonment, that falling at the lower end of penalties for such offending. I do not accept that this is a relevant consideration. 3. The Parliament has specified in s 5 of the High Risk Offenders Act the offences which fall within the definition of a serious sex offence. It has not provided for any distinction to be drawn between the specified offences, irrespective of the maximum penalty which they each attract. They include, in any event, specified offences under the Crimes Act which are punishable by imprisonment for 7 years or more: s 5(1)(a). That includes offences under s 61I of the Crimes Act. 4. It appears that Mr Hyde's 2015 s 61I offence was not a serious sex offence because his victim was an adult, and he did not commit that offence in circumstances of aggravation: s 5(1)(a)(ii) High Risk Offenders Act. Nevertheless, that offence remains a necessary consideration on this application, together with the rest of his criminal record, in determining whether the State has met the onus which falls upon it: s 9(h). The circumstances in which Mr Hyde was released on parole 1. Mr Hyde was released on parole in December 2021, well after he became eligible for parole. His sentence for his 2015 offences, to all of which he entered pleas of guilty, are due to expire in May 2022. They were: * a common assault contrary to s 61 of the Crimes Act, attracting a maximum penalty of 2 years imprisonment; * sexual intercourse without consent contrary to s 61I of the Crimes Act, attracting a maximum penalty of 14 years imprisonment and a standard non parole period of 7 years; * an act of indecent assault contrary to s 61L of the Crimes Act, attracting a maximum penalty of 5 years imprisonment; * using a carriage service to solicit child pornography contrary to s 474.19 of the Criminal Code Act, attracting a maximum penalty of 15 years imprisonment; * using a carriage service to procure a person under the age of 16 for sexual activity contrary to s 474.26 of the Criminal Code Act, attracting a maximum penalty of 7 years imprisonment; and * using a carriage service to transmit an indecent communication to a person to a person under 16 years contrary to s 474.27A of the Criminal Code Act, attracting a maximum penalty of 15 years imprisonment. 1. The three State offences involved separate victims and the Commonwealth offences the one 15-year-old girl. At the time of this offending, Mr Hyde was aged 29 and already had an extensive criminal record, which had commenced when he was aged 18. He had spent the majority of the intervening years in custody. 2. In his unreported sentencing decision of 5 July 2017, Buscombe DCJ noted that the sentence for Mr Hyde's most recent prior offence had expired only some four months before the 2015 offences for which he was being sentenced. While his prior offending did not involve offences of a sexual nature, the agreed facts revealed that he had threatened to kill the victim of his sexual intercourse offence, JC, if she did not beg for her life. 3. That offence involved Mr Hyde grabbing JC from behind at about 2.05 am on 21 September, while she was walking home across a football ground, talking on her phone to her boyfriend. He grabbed her in a bear hug and threw her to the ground, saying "turn off your phone or I'll stab you" and then inserted two fingers inside her anus, before rolling her onto her back. She pleaded with him to let her go and finally managed to run away and contact her boyfriend and police, even though Mr Hyde initially rode after her on his bike. He was arrested the following day. 4. On 19 September at about 11pm Mr Hyde had ridden past the victim EW on his bike, stopped and put his hands under her skirt between her legs and ran his hand hard up her body up to her belly button, over her vagina. This assault was reported that night to police. At 2.05 am the same night, on 20 September, Mr Hyde had slapped the victim KC on the buttocks, as she was walking to her motel, causing her to stumble. He then turned and rode his bike towards her, and they recognised each other. He then apologised to her, but she later made a complaint. 5. Buscombe DCJ explained Mr Hyde's history and referred to a psychiatric report from Dr Reutens on which he had relied. Dr Reutens noted that at the time of Mr Hyde's offending he thought that he would be best contained in prison and that he was institutionalised. She considered that he was significantly disaffected and at risk of reoffending, given his sense of injustice and resentment. 6. While some limited evidence of remorse was found, Buscombe DCJ considered Mr Hyde's prospects of rehabilitation to be guarded, observing that he had previously had chances to rehabilitate himself, which he had not taken. His Honour also considered that on release he would require considerable supervision in the community, if he was to have any hope of remaining offence free. 7. His Honour also noted that Mr Hyde's risk category relative to other offenders at risk of sexual offending recidivism had been assessed to be high. 8. The sentences imposed on Mr Hyde for the Commonwealth offences were fully concurrent, dating from the date of his arrest, the sentence imposed for the serious sex offence being 3 years and 2 months, the transmit indecent communications offence 2 years and the solicit child pornography offence also 3 years and 2 months. An aggregate sentence of 5 years and 8 months with a non-parole period of 3 years and 6 months commencing on 20 September 2016 was imposed for the State offences, the result a total sentence of 6 years and 8 months with a non-parole period of 4 years and 6 months. 9. Mr Hyde was not released on parole when he became eligible in March 2020, because of various problems to which I will return. After release on parole revocation was considered, because of problems in relation to accommodation, but not found to be necessary. He thus presently remains in the community subject to conditions: "1. You must be of good behaviour. 2. You must not commit any offences. 3. You must adapt to normal lawful community life. 4. You must report: a) to a community corrections officer at a time and place directed, or b) if you have not been given a direction, to a Community Corrections office within 7 days of your release. 5. You must report to a community corrections officer at the times and places directed by the officer*. 6. You must comply with all reasonable directions from a community corrections officer about: a) the place where you will live b) participating in programs, treatment, interventions or other related activities c) participating in employment, education, training or other related activities d) not undertaking specified employment, education, training, volunteer, leisure or other activities e) not associating with specified people f) not visiting or frequenting specified places or areas g) ceasing drug use h) ceasing or reducing alcohol use i) drug and alcohol testing j) monitoring your compliance with the parole order k) giving consent to third parties to provide information to the officer that is relevant to your compliance with the parole order. 7. You must comply with any other reasonable directions from a community corrections officer. 8. You must permit a community corrections officer to visit you at the place where you live at any time, and permit the officer to enter the premises when they visit you. 9. You must notify a community corrections officer if you change your address, contact details or employment. You must do this before the change occurs if practicable, or within 7 days of the change occurring. 10. You must not leave New South Wales without permission from a community corrections manager. 11. You must not leave Australia without permission from the State Parole Authority. 12. You must submit a schedule of proposed activities to a community corrections officer for approval if directed to do so by the officer. 13. You must submit to electronic monitoring. 14. You must comply with all reasonable directions from a community corrections officer or electronic monitoring officer about electronic monitoring. 15. You must not remove, tamper with, damage or disable your electronic monitoring equipment." 1. It is relevant that Mr Hyde continues successfully to pursue drug treatment and has not offended further since his release on parole. The concession that Mr Hyde poses a risk of further offending 1. Mr Hyde has a considerable prior criminal record of other offending, as well as a traumatic personal history. It is not in issue that if he continues to pursue his past pattern of behaviour, it is likely that he will be involved in further criminal offending. That concession was properly made. 2. It is not only Mr Hyde's prior serious sex offence which must be considered, but also his prior criminal history and his pattern of offending: s 9(3)(h) High Risk Offenders Act. Mr Hyde's personal history 1. On the case advanced for Mr Hyde, he has been brutalised by his life experiences. That may well be accepted on his repeatedly reported history. Various documents suggest that Mr Hyde was failed very badly by the adults in his life while he was a child, as well as by society, which should have ensured that he received the care and education which all children deserve, but which he was denied. 2. Mr Hyde: 1. is the eldest of 12, children including step-siblings. He suffered a very difficult upbringing near Tamworth, especially after his parents separated when he was aged 7. He essentially became homeless at age 12. He also suffered considerable violence at the hands of his stepfather; was sexually assaulted by an older family member; witnessed domestic violence; came across his father immediately following a suicide attempt; and himself pursued self-mutilation and attempted suicides; 2. lived on the streets at times as well as at some times with his grandmother. The result was that his schooling was very disrupted until he left in year 10. He has had limited employment as an adult; 3. has a history of substance abuse from age 12 when he first used marijuana and became involved in intravenous drug use. He commenced drinking alcohol heavily in his teenage years, as well as using drugs such as amphetamines, methamphetamine, morphine, OxyContin and fentanyl; 4. reports consuming thirty cans of Jim Beam or two cartons of beer and half a bottle of spirits each day and in custody at times even consuming methadone that other prisoners had vomited up; 5. was involved in a significant relationship which came to an end in 2006 after the still birth of his second child. His former partner later took out an apprehended violence order against him and a court order still prevents him seeing his son, a victim of some of his offending; 6. has been diagnosed as meeting diagnostic criteria of borderline personality disorder, antisocial personality disorder and polysubstance abuse disorder. A diagnosis of post-traumatic stress disorder has also been advanced; 7. has for the last 15 years spent all but two in total in custody, on average returning to custody every 102 days. He is essentially institutionalised; and 8. is currently in a relationship and until recently was living at the Integrated Support Centre, accommodation only available to him for a limited time. He is subject to electronic monitoring and had unsuccessfully sought rental accommodation, even though he receives Centrelink benefits, because there were problems resulting from his record. He is engaging with the Forensic Psychology Services and receiving treatment for his drug problems and presently living in a motel with his partner. Mr Hyde's criminal record 1. Mr Hyde's record began with offences committed in October 2004 for goods in custody and possessing ammunition without a licence, for which he was placed on a 2-year bond. There was further offending which involved breaches of the bond, as well as breach of bail orders, which resulted in his imprisonment. Further offending attracted custodial sentences in 2006, which were confirmed on appeal. 2. By 2007 his offences included: 1. a conviction for assault occasioning actual bodily harm after his 2-year-old son was found suffering superficial burns from a lighter, as well as bruising to his head, grazes to his temple and chin, swollen lips and mouth, contusions, and a displaced tooth; and 2. a conviction for intimidate police officer; stalk/intimidate with intent to cause fear; common assault; contravene ADVO after he threatened to kill his former partner and their son if his partner left him; after she obtained an ADVO, threatening to use a gun and later residing in a place which breached the ADVO; and then making threats against police officers who later searched him. 1. Mr Hyde's offending worsened over time. His record includes offences of goods in custody, domestic and other violence, driving, firearms, knife, breach of AVO orders, influencing witnesses, using carriage services to menace, stalk/intimidate, as well as drug and sexual offences. 2. While in custody before his release on parole in 2021, Mr Hyde also had 19 institutional misconduct charges for intimidation, violence and drug taking and he was also charged with the two outstanding offences involving female corrections officers. The serious sex offence 1. The 2015 serious sex offence and the other two Criminal Code Act offences came to light after Mr Hyde's arrest on the State charges, when his mobile phone was examined. 2. That disclosed over 300 communications with his 15-year-old victim, who he had met on a phone dating site, some sexually explicit. He had sent her pornographic material and also asked her to send him explicit photographs, with the result that the victim sent him several images of her underwear and vagina and others in which she was naked or partly naked. There was also a video of Mr Hyde masturbating. 3. Mr Hyde also asked her to send him photos of her 8-year-old sister when in the bath or showering or getting dressed, which she refused to do. Reports 1. Reflective of his long record there are many reports in evidence, including psychiatric reports from 2007, 2010 and 2012, as well as many reports about past revocations of bail, breaches of bail conditions, as well as reports about incidents in custody and misconduct reports. They evidence Mr Hyde's continuing disregard for conditions which should have helped him avoid further offending. 2. It is not necessary to explain all of them, but reports concerning Mr Hyde's state at the time of his 2015 offending and explanations which he later gave about his circumstances and his attitude to his sexual offending, must be referred to, relevant as they are to the assessment of the risk which he poses. The 2017 pre-sentence reports 1. In his 2017 pre-sentence report prepared at a time when Mr Hyde was unemployed and on remand, it was noted that: * Mr Hyde had twice been placed in residential rehabilitation and been removed for non-compliance; * he had cited substance abuse as a major contributing factor to his offending and that a desire to re-enter custody had been a motivation for his offences; * while he agreed to participate in programs, he denied any sexual preoccupation and that nothing would make him change his behaviour. He was then assessed of presenting a high risk of sexual reoffending, compared to other male sexual offenders; and * his history while under supervision in custody and in the community had for the most part been unsatisfactory, and he still had unresolved drug dependency issues. The January 2020 pre-release report 1. Despite the pleas entered for his 2015 offences, in this report it was noted that Mr Hyde then did not take responsibility for his offending, claiming not to have been aware of his 15 year-old victim's age, she having told him she was over the age of 18 and attributing his other offending to the effects of his drug abuse. He also claimed that this offending was out of character and that he preferred to serve his whole sentence, rather than engaging in any programs in custody. 2. Mr Hyde's history of making inappropriate comments towards female correctional staff and deteriorating behaviour towards them was noted, as well as his then 17 institutional misconduct charges and ongoing refusal to participate in employment, educational programs, or offence related programs. 3. It was noted that accommodation with family members in Tamworth was not available to Mr Hyde, with the result his stated preference to remain in custody for the remainder of his sentence and an unwillingness to accept any referral for other housing. Despite this in January 2020 he had signed the terms and conditions for the Nunyara COSP centre in Sydney. 4. Mr Hyde was assessed as posing a high risk of committing a further sex offence and his resulting proposed supervision plan was outlined, as well as proposed conditions of parole. 5. But he was not released when he became eligible. The January 2021 pre-release report 1. Disturbingly, this report noted that Mr Hyde had stated on further interview that in 2015 he had anticipated committing his sexual intercourse without consent offence, killing his victim and then suiciding, as an act of retribution towards the State Parole Authority, after a disagreement with his Community Corrections Officer, who he believed had disclosed his intravenous use of illicit substances to his mother, resulting in ongoing negative perceptions. 2. Mr Hyde also then believed that this would bring about change in parole supervision processes, which he later recognised was an irrational attempt to justify the motive for his offending and involved reckless, self-destructive, careless and dangerous behaviour. At that time, he still did not anticipate ceasing his use of illicit drugs, but later accepted monthly Buvidal treatment and had since spoken of remaining substance free in the long term. 3. It was noted that Mr Hyde's assessment remained that he posed a high risk of further sexual offending, he still not having undertaken the appropriate sex offenders' program. Further, that despite his past treatment for anxiety and depression and assessment of both borderline personality and anti-social personality disorder and a polysubstance abuse disorder, he was not receiving any treatment from Justice Health and did not perceive that he required further assistance. 4. It was observed that Mr Hyde then struggled to verbalise empathy with his victims but appeared distressed when discussing details of his offending and stated that he had to live and think about his actions and that he was not that kind of person. But he accepted that he had made comments that he would have killed his victim if she had not begged for her life. 5. While Mr Hyde remained opposed to participating in custodial based programs, he had participated in referral for post release participation in such programs, as well as drug treatment. It was noted that on assessment for participation in a sex offenders' program in 2017 and 2020 he had not achieved the required C minimum security classification and his unwillingness to participate had also made his participation in custody before release unlikely. He had also been assessed as suitable for drug programs in which he was unable to participate because of his housing placement. He had that year also refused to participate in a health program. 6. Because Mr Hyde then remained a B medium security classification inmate, he was also not eligible for pre-release leave. All options canvassed for his post release accommodation in the Tamworth area had not produced positive outcomes, because of the nature of his offences, staff safety concerns and his refusal to consent to referrals. Residence with family members was also not available. His staunch attitude was then noted to be a preference to remaining in custody, rather than being released to accommodation outside Tamworth, where he believed he had prospects of employment. 7. Mr Hyde's proposed supervision plan in the community was explained, as well as his proposed conditions of parole, given that his sex offending remained unaddressed and where his victims lived. The March 2021 update pre-release report 1. This report noted that Mr Hyde remained a B medium security inmate; that he was still participating in the Buvidal injection program and that he disagreed with his identification as a prospective candidate for an extended supervision order, about which he had by then been advised. He was still not interested in participating in the High Intensity Sex Offenders program. 2. Family members remained unwilling to offer Mr Hyde accommodation after release and placement elsewhere had not been identified. He was then assessed to pose a medium-high risk of reoffending and plans for his supervision, if released, were again outlined. The May 2021 update pre-release report 1. This report noted that Mr Hyde still remained a B medium security inmate, but that an incident with a female corrections officer was being considered and threats to kill officers made after he was placed into segregation were noted. 2. Problems with Mr Hyde participating in the High Intensity Sex Offenders and other programs were explained, as were plans for his release from custody. The assessment that he was at medium-high risk of reoffending remained. The August 2021 update pre-release report 1. This report noted that Mr Hyde had regressed in custodial classification, then being classified as an A-2 maximum security inmate, which had impeded his entry into various programs. There were also pending charges in relation to alleged offences committed while in custody, but recent improvement in his behaviour was noted. 2. The charges and his risk of reoffending had also adversely affected his placement in accommodation in the community. Plans for his release were, however, outlined, including electronic monitoring, curfews and drug and alcohol abstention. The 6 January 2022 risk assessment report 1. This report was prepared after the psychologist Mr Parker had spoken to Mr Hyde by phone. Despite considering that he had received unfair treatment in custody, he was found to be cooperative on interview, with stable mood, no suggestion of psychosis, mood disorder, substance abuse or intellectual disability. 2. The report noted that since first admission in custody at age 20, Mr Hyde had spent a total of 13 years in custody and only two in the community, with his longest single period being 261 days and on average, 102 days out of custody. His compliance was then considered to have been satisfactory and he reported being content with his ongoing treatment, which he considered the most important factor in his current sobriety. 3. Mr Hyde then reported a good stable state, there was no suggestion of intellectual disability, and his psychiatric diagnoses were noted, as was his criminal record. 4. While in custody Mr Hyde had still not received various treatment or participated in programs because of his security classification, which remained too high, and his ongoing poor behaviour. He had, however, been free of illegal drugs for 3 years and was still receiving monthly Buprenorphine treatment, which he planned to continue, this being the longest period he had been without using illicit drugs. Still Mr Parker considered that this masked, rather than treated his drug problems. 5. Mr Hyde then considered that living in Sydney would be a major obstacle to a life without crime and still hoped to move to the upper Hunter, where he considered his supports were. 6. The pre-release report which indicated that Mr Hyde continued to claim that his victim had lied about being over the age of 18 was noted, with the conclusion that he then continued to fail to take responsibility for this offending, committed at a time when he was under the influence of methamphetamines. 7. The later report where he did not shy away from his offending, about which he was distressed and said that he had to think and live with his actions, which included comments that he would have killed his victim if she had not begged for her life, was also noted. He did not then attribute the offending to substance abuse but referred to his then difficult circumstances, coupled with a desire to commit suicide. 8. The limitations of risk assessment were explained, it not being scientifically possible to accurately predict whether or not an individual offender will or will not reoffend. Mr Hyde was assessed to pose a medium/high risk of reoffending under the LSI-R score, applied to all offenders sentenced in NSW to more than 6 months custody, 67% of those assessed at that level returning to custody within 2 years. 9. The Static-99R assessment tool, which has moderate predictive accuracy, resulted in a recidivism assessment falling well above average risk, with 98.5% of other male sex offenders in the normative sample scoring lower than Mr Hyde and only 0.3% higher. Recidivism rates of individuals with his score are expected to be 7.3 times higher than a "typical" sex offender. 10. The Stable-2007 tool placed Mr Hyde in the high risk category relative to other male sexual offenders, he scoring highly in relation to hostility towards women, general social rejection, lack of concern for others, negative emotionality and sexual drive/preoccupation. 11. The overall risk posed from combination of the Static-99 and Stable-2007 tools resulted in an assessment that placed him with other violent offenders, 76% of whom had reoffended violently within 5 years and 87% within 12. 12. Mr Hyde's relevant crimogenic needs were identified to be antisocial attitudes and associated sexual preoccupation, problem solving and substance abuse, which were explained. His pattern of offending was examined and concluded to reflect an escalation of offending against random women and a 15 year-old girl, reflective of weakening connections with conventional society as the result of his ongoing incarceration and unsuccessful forays into the community. 13. His offending with the 15 year old was considered to have been likely motivated by a desire for connection, while avoiding the potential for rejection and they and his attacks on random women, committed during a period of substantial drug abuse. The most likely scenario for his future offending was identified to be when he was emotionally distressed, a common event, when he resorted to drug abuse which heightened his risk of further offending. The January 2022 risk management report 1. This report noted that since release Mr Hyde appeared to be responding well to supervision, although there had been but little time to assess his adjustment to normal community life. He was compliant with electronic monitoring and schedule provisions, as well as abstinence from drugs and undertaking Buvidal treatments. 2. His high risk assessment resulted in weekly contact with his supervisor as well as monthly home visits, with a focus on having him engage with a treating psychologist and counselling and monitoring his compliance with conditions with third parties such as treatment providers, his partner and police. Recommended conditions were also explained. Interim extended supervision orders must be made 1. There is no question that Mr Hyde poses a real risk of further offending, but whether he poses an unacceptable risk of committing further serious offending, is more difficult to determine. On balance I have been persuaded that the material relied on establishes, to the necessary degree, that he does. 2. In Lynn (2016) it was observed at [126] that this assessment must have regard to past conduct, the seriousness of possible future conduct and the period over which the risk may come to fruition, based on an absence of protective measures and to the extent that the evidence permits, of the background level of risk. 3. The evidence I have discussed shed considerable light on all of these matters. 4. Unacceptable risk was not established in Simcock, also a case involving only one serious offence, in that case of violence. There it was the unusual nature of the circumstances that surrounded the commission of the index offence which led to the conclusion that there could be a repeat of them was highly unlikely. That, together with evidence that pointed to some positive change in the defendant's attitude, as well as having completed the EQIP program, led to the conclusion that the statutory test had not been satisfied: at [76]-[78]. 5. In this case, it must be accepted, a very different picture is presented by Mr Hyde, other than in relation to his adherence to the conditions of his parole, albeit for a limited period, to this point. 6. Mr Hyde's serious sex offence also has to be considered in the context in which it was committed, together with two other offences involving the same 15 year-old victim, as well as in the context of his sex offences involving three other victims. They were seemingly committed in order to ensure his return to custody, on one account Mr Hyde later gave. But most disturbingly, on another later account, he committed the most serious of those offences with a priorly formed intention of killing that victim and then himself, in order to make a point about the terms of his then parole. It was only the victim begging for her life, which on his account deflected him from carrying out that intention. 7. That is an account which it is simply impossible to overlook in arriving at a conclusion about what here lies in issue. 8. It is that evidence, together with Mr Hyde's lengthy prior criminal record, which includes offences of violence and repeated threats to kill others, as well as his ongoing record of misconduct while in custody, including pertinently towards female corrections officers, where his ability to commit further sexual offences was obviously curtailed by his custodial setting, which have finally persuaded me that Mr Hyde does pose an unacceptable risk of committing a further serious offence. 9. As I have explained, Mr Hyde's pattern has been one of considerably worsening offending over time. After his parole ends, if unsupervised he will be without the support, assistance, and supervision which he is presently receiving, which clearly are helping him remain offence free in the community, at least to this point. Not having either the accommodation and support of others that Mr Hyde would clearly prefer to have, or the support, which is presently available to him while on parole, that he is likely to commit further offences in order to ensure his return to custody, as he has in the past, is a very real risk. 10. Further, all the evidence I have discussed establishes, I am also regrettably satisfied, that it is more probable than not that Mr Hyde's likely future criminality will include further serious offending if he does not have the support which he would also be provided if interim orders are made. 11. No one can, of course, predict the future and so there remains a possibility that with continuation of the drug treatment he is receiving, that Mr Hyde will not offend further, even without ongoing supervision. But the conditions of his parole are clearly also supportive of his adherence to that treatment, which is a very important aspect of what has helped prevent a lapse, to this point, into further offending. 12. In arriving at a conclusion about the State's application, the safety of the public must be the paramount consideration. That can only result in the conclusion that the risk which Mr Hyde poses of further serious offending if not kept under supervision is an unacceptable one. 13. It is also important not to overlook the other object specified in s 3 of the High Risk Offenders Act, encouraging high risk offenders to undertake rehabilitation. That is clearly important in Mr Hyde's case. 14. As I explained, the evidence establishes that not only the adults in his life, but society failed Mr Hyde while he was a child. As an adult he has pursued a worsening criminal path. But it seems that it is one which he is capable of ceasing, by continuing to address his drug taking and the other factors involved in his offending. 15. Mr Hyde is now old enough and has the intelligence to be able to understand that not having taken advantage of programs available in custody which could have assisted him in his rehabilitation, that there is still other help which will be available to him while he is subject to the interim orders which will be made, in addition to ongoing drug treatment, which will also assist him to remain offence free and eventually, able to live normally in the community without ongoing supervision. 16. That will not be achieved by a reversion to Mr Hyde's previous pattern of increasingly serious criminal behaviour, including further serious offending, which is the likely result if supervision ceases at this point. 17. As was submitted for Mr Hyde, the legislative scheme does not provide for a pseudo system of parole. Nevertheless, under the interim supervision I am satisfied that the evidence establishes he requires, given the unacceptable risk of further serious offending which he otherwise poses, he will be helped to ensure that he does not commit further offences and is not returned to custody before any final hearing. 18. It is for him to make best use of that assistance. 19. But I am well satisfied that the State has established to the requisite degree, on the assumptions which must be made at this interim stage, that the risk that Mr Hyde will commit further serious offences if not supervised as the orders will require, is an unacceptable one. What conditions should be imposed? 1. It emerged at the hearing that there were problems with the orders for which both parties contended, which resulted in them giving further consideration to what they each proposed. For example, in the State's case conditions were proposed which gave rise to the possibility of a conflict with the Local Court's child protection orders and in Mr Hyde's case, adoption of a parole condition requiring him to "adapt to normal lawful community life." Neither could sensibly be imposed as a condition of an interim order, breach of which would involve criminal offending. 2. Despite this further consideration appropriate conditions were not agreed, although some common ground was found. 3. What the State finally proposed was: 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. Same as defendant condition 7(a). 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. Same as defendant condition 7(b) 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 Same as defendant condition 7(c) 7. The defendant must not deviate from his approved schedule of movements except in an emergency. Same as defendant condition 7(d) Part B: Accommodation 8. The defendant must live at an address approved by a DSO and notify a DSO of any intention 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. The defendant must comply with rules or by-laws (or both) of any approved accommodation for the defendant. 11. The defendant must allow a DSO to visit him at his approved address at any time and, for that purpose, to enter the premises at that address. Defendant condition 3 consented to: "The defendant must allow a DSO to visit him at 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 address and must not permit any person to stay overnight, at his approved address (other than persons who ordinarily reside at his approved address), 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 leave New South Wales without the approval of the Commissioner of CSNSW. Same as defendant condition 5 16. The defendant must not frequent or visit any place or district specified by a DSO. Defendant condition 2(f) consented to: "The defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions, about: • not visiting or frequenting specified places or areas" 17. The defendant must not attend any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment, without the prior approval of a DSO. Part D: Employment, finance and education 18. 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. 19. The defendant must not start on his own initiative any job, volunteer work or educational course without the approval of a DSO. 20. The defendant must notify a DSO of any intention to change his employment if practicable before the change occurs or otherwise at his next interview with a DSO. 21. 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 22. The defendant must not use prohibited drugs, or abuse drugs unlawfully obtained. Defendant condition 2(g) consented to: "The defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions, about: • ceasing drug use." Defendant condition 9 consented to: "The defendant must not possess or use prohibited drugs or drugs unlawfully obtained." Defendant conditions appear to be duplicative. 23. The defendant must not: a) Possess or consume alcohol without the prior approval of a DSO. b) Possess or use prohibited drugs or drugs unlawfully obtained. Defendant condition 8 is consented to, if amended to: "The defendant must not possess or consume alcohol without the prior approval of a DSO." 24. The defendant must submit to drug and alcohol testing. 25. The defendant must not enter any licensed premises including hotels, bars, racecourses and licenced clubs, but excluding cafes and restaurants, without the prior approval of a DSO. 26. 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 Associations with Children 27. 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. Same as defendant condition 12. 28. The defendant must not associate with any person or persons specified by a DSO. Defendant condition 2(e) consented to: "The defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions, about: • not associating with specified people." 29. Without limiting condition 28 32, 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. 30. The defendant must not engage the services of sex workers, without the prior approval of a DSO. 31. The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary. Before disclosing the defendant's criminal history, a DSO must first inform the defendant of their intention to disclose his criminal history and the reason for the disclosure. 32. The defendant must obtain written permission from a DSO prior to joining or affiliating with any club or organisation. Part H: Weapons 33. The defendant must not possess or use any of the following, without a DSO's prior approval: a. a knife (other than in his own residence for ordinary household purposes), 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 "[MATHEW LESLIE HYDE]" or 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 immediately. This includes phones, tablet devices, data storage devices or computers. 36. The defendant must only use an electronic device which has the ability to access the internet after the device has been disclosed to a DSO and the device has been seen and approved for use by a DSO. 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. The defendant must provide a DSO with all passwords, pin codes and pass codes used to access all electronic devices, electronic applications, internet sites and communication platforms of any kind. 39. The defendant must not use any coded or encrypted messaging application or service. 40. The defendant must provide any code or encryption 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. 41. The defendant must not access, join and/or connect to any social networking service or application without the prior approval of a DSO, including, but not limited to, use of internet-based email, instant messaging services, online community services, multi player video games and other telecommunications- based services including text and voice services. 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. The defendant must not delete or alter any applications, email, text messages, any electronic message, call history, any data, internet search, internet or application search history, any application chat or communication history from his phone, computer, tablet or any other electronic device without the prior consent of a DSO. 44. The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with a DSO. Part J: Search and seizure 45. The defendant must submit to the search of any item or place in his possession or under his control, including his residence, any vehicle in which he is traveling or which is under his effective control, any computer, electronic and communication device, or any storage facility, garage, locker or commercial facility; and to the seizure of any object located during the search. 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. 47A The Defendant must seek the approval of his DSO prior to purchasing accessing, obtaining, viewing or listening to any violent or pornographic material or publication. 47B The Defendant must not purchase, access, obtain, view or listen to any violent or pornographic material or publication specified by his DSO. Part L: Personal details and appearance 48. The defendant must not change his name from "Mathew Leslie Hyde" 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 directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction, including for the purposes of a Mental Health Care Plan or Community Treatment Order. Same as defendant condition 10. 53. The defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults. 54. The defendant must take medications that are prescribed to him by his healthcare practitioners only in the manner prescribed. 55. The defendant must notify a DSO immediately if he ceases to take or declines to commence taking any medication as referred to in the above condition. 56. The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with a DSO. 57. 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. 58. The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him. OTHER CONDITIONS: The State does not seek the following conditions proposed by defence: Condition 6: "The defendant must not leave Australia without permission from the Commissioner of CSNSW". Condition 11: "The defendant must not contact, communicate with, watch, stalk, harass or intimidate the victim/s". Condition 13: "You must comply with all conditions and requirements of the Child Protection Register."" 1. What Mr Hyde finally proposed was: "1. The defendant must report to a DSO at the times and places directed by the officer; 2. The defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions, about: a) the place where he will live b) participating in programs, treatment, interventions or other related activities c) participating in employment, education, training or other related activities d) not undertaking specified employment, education, training, volunteer, leisure or other activities e) not associating with specified people f) not visiting or frequenting specified places or areas g) ceasing drug use h) ceasing or reducing alcohol use i) drug and alcohol testing j) monitoring your compliance with the parole order k) giving consent to third parties to provide information to the officer that is relevant to your compliance with the parole order. 3. The defendant must allow a DSO to visit him at his approved address at any time and, for that purpose, to enter the premises at that address. 4. The defendant must notify a DSO if he changes address, contact details or employment. He must do this before the change occurs if practicable, or within 7 days of the change occurring, unless a DSO approves a shorter period. 5. The defendant must not leave New South Wales without the approval of the Commissioner of CSNSW. 6. The defendant must not leave Australia without permission from the Commissioner of CSNSW. 7. The defendant must: a) Wear electronic monitoring equipment as directed by a DSO and must not tamper wish, or remove, the equipment; b) 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; c) 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 short period; d) The defendant must not deviate from his approved schedule of movements except in an emergency. 8. The defendant must not consume alcohol without the prior approval of a DSO. 9. The defendant must not possess or use prohibited drugs or drugs unlawfully obtained. 10. The defendant must, if so directed by a DSO, undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these), including any therapy sessions, support and treatment programs the subject of the direction, including for the purposes of a Mental Health Care Plan or Community Treatment Order. 11. The defendant must not contact, communicate with, watch, stalk, harass or intimidate the victim/s. 12. 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 present of an adult who has been approved in writing by a DSO. 13. You must comply with all conditions and requirements of the Child Protection Register." 1. The parties made further detailed written submissions about the differences remaining between them. This included, in the State's case: 1. an acceptance that there was no material difference between what it and Mr Hyde proposed in relation to some conditions and that it was content for the wording he proposed to be adopted in some cases, while still contending that was "unnecessary"; 2. in some cases it being urged that some conditions were "best included" in sections of the document which it, rather than Mr Hyde suggested; 3. in some cases that what Mr Hyde proposed was more onerous than what it proposed and so more likely to be breached and thus should not be imposed; and 4. that some conditions proposed by Mr Hyde were not sought to be imposed upon him. 1. The case Mr Hyde advanced included that: 1. it was relevant that the conditions he proposed were simpler in language and number and did not enliven any additional risk to the community; 2. it was relevant that he had a good understanding of and compliance with his parole conditions, which the conditions he urged reflected; 3. change in those conditions increased the likelihood of his inadvertent breach of the interim order; 4. given his good compliance a stricter regime of supervision was not necessary in order to achieve the statutory objectives and given his past compliance problems, the Court should encourage his positive progress; and 5. the conditions also had to be understood in the context of the child protection orders which also bound him. 1. What remains in issue must be resolved in light of the requirements of s 11 of the High Risk Offenders Act, which empowers the Court to make both interim and final supervision orders on conditions that the Court considers appropriate, including as to the matters there specified in s 11(1): (a) to permit any corrective services officer to visit the offender at the offender's residential address at any time and, for that purpose, to enter the premises at that address, or (a1) to permit any corrective services officer to access any computer or related equipment that is at the offender's residential address or in the possession of the offender, or (b) to make periodic reports to a corrective services officer, or (c) to notify a corrective services officer of any change in his or her address, or (d) to participate in treatment and rehabilitation programs, or (e) to wear electronic monitoring equipment, or (ea) to reside at an address approved by the Commissioner of Corrective Services, or (f) not to reside in or resort to specified locations or classes of locations, or (g) not to associate or make contact with specified persons or classes of persons, or (h) not to engage in specified conduct or classes of conduct, or (i) not to engage in specified employment or classes of employment, or (j) not to change his or her name, or (k) to report to police and provide information to police about the conditions imposed on the extended supervision order or interim supervision order and the offender's residential address, or (l) to comply with any obligation that could be imposed on the offender under Part 3 of the Child Protection (Offenders Registration) Act 2000 if the offender were a registrable person within the meaning of that Act and were not the subject of an interim supervision order or an extended supervision order, or (m) to comply with specified requirements in connection with the offender's access to and use of the internet, or (n) to provide any corrective services officer with requested information in relation to any employment or any financial affairs of the offender. 1. The need to determine what is appropriate does not permit simple adoption of conditions proposed, either on a particular application or of standardised conditions, without consideration of a defendant's peculiar circumstances, even on an application for interim orders. 2. Further, the exercise of this discretion must be governed by the objects specified in s 3 of the High Risk Offenders Act, ensuring the safety and protection of the community and encouraging high risk offenders to undertake rehabilitation, two sides of one coin, as the State submitted. Conditions which support rehabilitation will, after all, reduce the risk of further offending and thus can only reduce the risk which an offender poses to the community. 3. The Act also does not permit the Court to defer giving consideration of conditions appropriate to the particular case, until experts are appointed by orders made under s 7 of the High Risk Offenders Act, who could advise on an appropriate form of orders, the final form of orders being the most important question for the Court, as was submitted for the State. 4. After all, in Lynn it was observed that arriving at conditions "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.": at [129]. 5. That exercise must be undertaken both when interim and final orders are made, when the circumstances which arise for consideration may be relevantly different. At the interim stage, of necessity, consideration will have to be given to whether conditions of parole are being adhered to, if the offender is then in the community. 6. It was the State's case that the evidence suggested that in Mr Hyde's case the parole conditions were not working, there having been a breach of parole report, even though his parole was not revoked as a result. That was in issue. Further, that on the evidence the Court could not be satisfied that even until final orders were made, continuing the parole conditions would achieve either protection of members of the community, or rehabilitating Mr Hyde. 7. Mr Hyde contended that the problem he had experienced with accommodation should be understood as involving an initial teething problem with the conditions of his parole, not involving any breach. 8. The evidence is that since released on parole in December 2021 Mr Hyde has not committed any offences. That he breached his accommodation condition has not been clearly established. 9. Mr Hyde may have been compliant with that condition, given that he was obliged only to comply with reasonable directions given about his accommodation. The accommodation he was offered in a motel in Wollongong did not permit him to live with his partner, as he was able to do in Campbelltown, where he was also then successfully continuing his drug treatment. 10. That may help explain why the Parole Board did not consider that his behaviour in refusing to move to the Wollongong motel and instead moving into a motel at Campbelltown, where he continues to reside without any suggested ongoing parole breach, warranted the revocation of his parole. But the reasons for that decision are not known. In the circumstances, however, that his refusal to move to the Wollongong motel was in all of the circumstances unreasonable and thus a breach of his parole, is not readily apparent. 11. Mr Hyde relied on Lonergan J's conclusion in CD that the conditions there ordered should correlate to the parole conditions to which he was currently subject, the orders being made on 1 November 2021, and he having been subject to them since his release to parole on 14 October 2021. There her Honour explained: "6 The reasons for this approach are in summary, first, the current parole conditions directly and adequately address any risk to the community presented by the defendant. Secondly, and significantly, they have a simplicity and clarity which the constellation of conditions proposed by the plaintiff do not. Thirdly, they are not overly paternalistic or inflexibly prescriptive. Fourthly, they are able to be understood and followed and they seem to have been functioning adequately over the last two weeks. Fifthly and importantly, they do not tend to unnecessarily criminalise uncontroversial and irrelevant elements of potential behaviour by the defendant. Sixthly, they tend to facilitate the necessary pursuit of the objects of the Act, the primary object of course being protection of the community, but the secondary object of rehabilitation of the offender which in turn has a role in increasing and improving the potential safety of the community." 1. In this case I have concluded that there is also merit in the continuation of conditions akin to those by which Mr Hyde has been bound by his parole since December 2021, which unlike his previous pattern, it appears that he has adhered to, while continuing his drug treatment and without further offending. They do thus appear to have been effective to this point in protecting the community and potentially assisting him in rehabilitation. 2. I also accept that it is relevant that they are ones which Mr Hyde himself seeks to have continued at this interim stage, rather than having new conditions imposed which may again have to be altered if final orders are made. 3. But it may also not be overlooked that interim orders are directed to the risk of further serious offending which the evidence has established a defendant poses and that breach of the resulting conditions imposed will have a different impact than breach of conditions of parole. Namely, that under s 12 of the High Risk Offenders Act the consequence of a failure to comply with the requirements of an interim order expose the defendant to a maximum penalty of 5 years imprisonment. 4. Having considered the evidence and the competing cases advanced, I am thus satisfied that it would not be an appropriate exercise of the discretion to impose a condition on Mr Hyde the meaning of which is uncertain, or which poses unnecessary difficulty for compliance. The argument that compliance would be reasonably monitored, so that breaches of conditions would not unnecessarily be pursued, no doubt reflects the proper exercise of a prosecutorial discretion. 5. But in my view the starting point must still be the imposition of conditions which are not only likely to be readily understood by both Mr Hyde and those who must enforce them, but which do not give rise to real risks of inadvertent non-compliance and are ones which he is motivated to adhere to, that being consistent with both objects of the High Risk Offenders Act. 6. In the result I have concluded that the conditions must be modelled on those proposed by Mr Hyde, but adjusted to remove conditions appropriate for bail, but not an interim supervision order and to add conditions which the State urged, which I accept are necessary at this interim stage, albeit in some cases amended as Mr Hyde contended. They include provisions in relation to Mr Hyde's appearance and identity and medical treatment. 7. I note that while in submissions directed to condition 18 proposed by the State reference was made to observations in State of New South Wales v Mills (No 2) [2017] NSWSC 1442 at [75], condition 2(c), which deals with employment, is that which Mr Hyde himself proposed. 8. While Mr Hyde proposed a condition in the same terms as the State proposed in relation to association with children, condition 27, it was also submitted that such a condition would not be imposed, given the terms of the Child Protection Prohibition order by which he is already bound. I agree and so have not included that condition. 9. I have not included a condition in relation to not associating with anyone consuming alcohol or entering licensed premises. There are no such conditions imposed by the terms of Mr Hyde's parole, which rather requires him to adapt to normal community life. Sensibly that must include being in the presence of others who are consuming alcohol, which he is prohibited from doing both by the conditions of his parole and by the interim order, unless authorised. 10. I have also accepted amendments proposed by Mr Hyde to some conditions, to give him rights to a certain degree of privacy and to have regard to observations by in State of New South Wales v Paton [2020] NSWSC 1707 at [49], State of New South Wales v Single [2019] NSWSC 176 at [51] and State of New South Wales v Grooms (Final) [2019] NSWSC 353 at [106]. 11. I have redrafted the weapons condition to ensure that Mr Hyde is permitted to use a knife when eating, which common sense requires that he be able to do. But given the nature of his serious sex offending, I accept that the conditions must regulate his access to and use of electronic devices and services. 12. I have not, however, imposed a condition in relation to violent and pornographic material. There were accepted difficulties with what the State originally proposed and, it seems to me, different problems with precluding Mr Hyde watching anything which could be described to be "violent", let alone material which may be described to be "pornographic", as the State urged. That reflects what is lawfully available in the community to be viewed, even on television. The conditions 1. The conditions I am satisfied should be imposed are: 1. The defendant must report to a DSO at the times and places directed by the officer; 2. The defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions, which may be given electronically, about: 1. the place where he will live, unless a DSO approves him staying elsewhere for a specified time; 2. participating in programs, treatment, interventions and other related activities, including for drug and alcohol rehabilitation and the development of a case management plan; 3. participating in proposed employment, education, training or other related activities; 4. not undertaking specified employment, education, training, volunteer, leisure or other activities; 5. not associating with specified people; 6. not visiting or frequenting specified places or areas; 7. ceasing drug use; 8. ceasing or reducing alcohol use; 9. complying with a curfew; 10. giving consent to third parties to provide information to a DSO that is relevant to his compliance with this order; 11. proposed visitors to his home, of whom he must first notify a DSO; 12. 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; and 13. providing information relating to his financial affairs, including income and expenditure. 1. The defendant must truthfully answer a DSO's questions, or those of 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. 2. The defendant must allow a DSO to visit him at his approved address at any time and, for that purpose, to enter the premises at that address. 3. The defendant must notify a DSO if he changes address, contact details or employment, if practicable before the change occurs and if not, immediately afterwards. 4. The defendant must not leave New South Wales without the approval of the Commissioner of CSNSW. 5. The defendant must: 1. wear electronic monitoring equipment as directed by a DSO and must not tamper with, or remove, the equipment; 2. if directed, provide a weekly plan (called a schedule of movements) 3 days before it is due to start for approval; 3. if he wants to change anything in his schedule of movements after it is approved by a DSO, seek approval of the change 24 hours in advance, unless a DSO approves a short period; and 4. not deviate from his approved schedule of movements except in an emergency. 1. The defendant must not possess or consume alcohol without the prior approval of a DSO. 2. The defendant must not possess or use prohibited drugs or drugs unlawfully obtained or associate with any people he knows are consuming or under the influence of illegal drugs. 3. The defendant must, if directed by a DSO, undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these), including any therapy sessions, support and treatment programs the subject of the direction, including for the purposes of a Mental Health Care Plan or Community Treatment Order. 4. The defendant must agree to a DSO disclosing his criminal history to another person, if the disclosure is reasonably necessary to address a risk of the commission of a serious violence or sexual offence. Before any disclosure is made, the defendant must first be informed and given the opportunity to make the disclosure himself. 5. The defendant must not possess or use: 1. a knife, other than in his home for ordinary household purposes or when away from home, when using cutlery to eat; 2. a machete, sword or any other device that consists of a single or multi edged blade or spike designed or adapted to be used to inflict violence, actual or threatened; 3. any other implement made or adapted to be used to cause injury to a person; and 4. anything intended or adapted to be used to injure a person or damage property. 1. The defendant must: 1. not use any alias, electronic identity, log-in name, name other than "[MATHEW LESLIE HYDE]" or any email address other than those known to a DSO; 2. only use an electronic device which has the ability to access the internet after the device has been disclosed to a DSO and the device has been seen and approved for use by a DSO; 3. provide the details of telephone numbers, service provider account numbers, email addresses or other usernames, as well as any relevant passwords, pin codes and pass codes he uses and the nature and details of his internet connection, as directed by a DSO; 4. provide a DSO with all passwords, pin codes and pass codes used to access all electronic devices, electronic applications, internet sites and communication platforms of any kind; 5. not use any coded or encrypted messaging application or service; 6. provide any code or encryption 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; 7. not access, join and/or connect to any social networking service or application without the prior approval of a DSO, including, but not limited to, use of internet-based email, instant messaging services, online community services, multi-player video games and other telecommunications- based services including text and voice services; 8. 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; 9. 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 immediately. This includes phones, tablet devices, data storage devices or computers; and 10. not delete or alter any applications, email, text messages, any electronic message, call history, any data, internet search, internet or application search history, any application chat or communication history from his phone, computer, tablet or any other electronic device, without the prior consent of a DSO. 1. If the DSO reasonably suspects that a search of the defendant's person or residence, or any vehicle in which he is travelling or which is under his effective control, or any computer, electronic and communication device, or any storage facility, garage, locker, or commercial facility under his control, is necessary to confirm his continuing compliance with this order, the DSO must inform the defendant of the basis of that suspicion. The defendant must then submit to that search or those searches that may be carried out by a DSO or on behalf of a DSO. 2. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure carried out under this Order. 3. The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, that is relevant to his risk of reoffending or his rehabilitation, including reports on his progress and attendance, and information he has told them, with each other and with a DSO. 4. The defendant must agree to any information, that is relevant to his risk of reoffending or his rehabilitation, being shared between those persons and agencies that are involved in his supervision including, but not limited to, a DSO, NSWPF and CSNSW. 5. The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him, if relevant to his risk of re- offending or his rehabilitation. 6. The defendant must: 1. not change his name from "Mathew Leslie Hyde" or use any other name without notifying a DSO; 2. not significantly change his appearance without the approval of a DSO; 3. let a DSO photograph him, dressed, within one week of the commencement of these conditions and after any significant change to his appearance; and 4. if he changes the details of any current form of identification or obtains further forms of identification, provide a DSO with such details. 1. The defendant must; 1. notify a DSO of the identity and address of any healthcare practitioner that he consults; 2. take medications that are prescribed to him by his healthcare practitioners only in the manner prescribed; 3. notify a DSO immediately if he ceases to take or declines to commence taking any prescribed medication; and 4. agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with a DSO. Orders 1. For the reasons given I now order that the State file and serve short minutes of orders reflecting these conclusions by 4pm tomorrow, 6 May 2022, so that they can be entered. ********** 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: 05 May 2022