Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Hackett (Final) [2022] NSWSC 885 Hearing dates: 4 & 5 July 2022 Date of orders: 8 July 2022 Decision date: 08 July 2022 Jurisdiction: Common Law Before: Davies J Decision: 1. Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006, order that the defendant be subject to an extended supervision order for a period of two years commencing 8 July 2022. 2. Pursuant to s 11 of the Act, direct that the defendant, for the period of the extended supervision order, comply with the conditions set out in the Schedule annexed to this judgment. See end of judgment for Schedule of Conditions of Supervision Catchwords: HIGH RISK OFFENDERS – extended supervision order – final hearing – application for further extended supervision order (ESO) for three-year period – defendant convicted of offences including serious sexual offence – subsequent sexual offending including offences against a young person – prior ESO for two year period - unstable mental health – history of substance use disorder – assessment of defendant's behaviour whilst under the ESO – whether alteration in risk – defendant breached former ESO but no serious offending or sexual reoffending – improvement in relation to substance use – where defendant still high-risk – whether further order should for two or three years - conditions of electronic monitoring and schedule of movements sought by plaintiff – where such conditions would not address defendant's risk factors – where conditions likely to be breached by defendant – inimical to rehabilitative object of the Act – more onerous conditions than former ESO not warranted – no basis shown for longer period than former ESO – ESO imposed for two-year period with conditions Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) ss 5, 5B, 5I, 9, 11 Crimes (Sentencing Procedure) Act 1999 (NSW) s 10A Mental Health (Forensic Provisions) Act 1990 (NSW) s 33(1) Terrorism (High Risk Offenders) Act 2017 (NSW) Cases Cited: State of New South Wales v Bugmy [2017] NSWSC 855 State of New South Wales v Green (Final) [2013] NSWSC 1003 State of New South Wales v Hackett (Preliminary) [2022] NSWSC 417 State of New South Wales v Hardy (Final) [2021] NSWSC 900 State of New South Wales v Matthews (AKA Hackett) (Final) [2019] NSWSC 1360 State of New South Wales v Matthews AKA Hackett (preliminary) [2019] NSWSC 770 State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813 Wilde v State of New South Wales [2015] NSWCA 28 Texts Cited: Nil Category: Principal judgment Parties: State of New South Wales (Plaintiff) Kain (aka Darren) Alexie Hackett (Defendant) Representation: Counsel: T Hammond (Plaintiff) B O'Reilly (Defendant) Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2022/41033 Publication restriction: Nil Judgment 1. The State of New South Wales seeks an extended supervision order (ESO) against the defendant for a period of three years pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the CHRO Act). On 8 April 2022, N Adams J ordered that the defendant was to be subject to an interim supervision order (ISO) for a period of 28 days commencing on the expiry of the defendant's then current ESO: State of New South Wales v Hackett (Preliminary) [2022] NSWSC 417. 2. The previous ESO had been ordered by Cavanagh J on 10 October 2019 for a period of two years commencing 10 October 2019: State of New South Wales v Matthews (AKA Hackett) (Final) [2019] NSWSC 1360. This followed the making of an ISO by Fagan J on 21 June 2019: State of New South Wales v Matthews AKA Hackett (preliminary) [2019] NSWSC 770. The ESO was suspended for a short time due to the defendant being imprisoned for breaches of that ESO. The result was that the ESO expired on 11 April 2022 and the ISO ordered by N Adams J commenced on that date. Extensions have been made which will expire on 10 July 2022. 3. The background and the details of the offending are set out in the three judgments previously mentioned. In particular, the judgment of N Adams J is comprehensive in relation to the background and material available up to the time of that judgment. I gratefully adopt her Honour's summary of the material in that regard, particularly because of the shortness of the time available by which an ESO must be made, if it is to be made. 4. It is sufficient to note that the defendant was born in 1973 and is currently 48 years of age. The index offences occurred in August 2004. The defendant was convicted of aggravated sexual assault in company, and detain in company without consent to obtain advantage (which occasioned actual bodily harm). A count of robbery in company was taken into account on a Form 1. For these offences the defendant was sentenced to eight years imprisonment with a non-parole period of six years. He was released on parole on 7 June 2011. 5. The circumstances of the offending, and of subsequent sexual offending in 2014, 2016 and 2017 are detailed in the judgment of N Adams J. The principal offence in August 2004 was a serious sex offence by reason of falling within s 5(1)(a)(ii) of the CHRO Act. The defendant concedes that he is a serious sex offender by virtue of ss 5 and 5B, and that he is a supervised offender for the purposes of s 5I. I am satisfied that the requirements in ss 5B(a), (b) and (c) have been met. 6. For the reasons given in his judgment, Cavanagh J was satisfied to a high degree of probability that on 10 October 2019 the defendant posed an unacceptable risk of committing another serious sex offence if not kept under supervision under the ESO his Honour imposed. I respectfully agree with his Honour's determination, for the reasons his Honour gave, and based on my assessment of the evidence before his Honour. 7. Despite that agreement, the present application is a fresh one, and it is necessary for the Court to reach a conclusion at the present time whether the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO. No question of issue estoppel and the capacity to relitigate matters arises, except in relation to s 5B(a) and (b) of the CHRO Act, and those matters are not contested: cf the discussion concerning the Terrorism (High Risk Offenders) Act 2017 (NSW) in State of New South Wales v Hardy (Final) [2021] NSWSC 900 at [210] ff. 8. Nevertheless, the focus of the present judgment is on the events that have occurred since that date to determine if the Court should be so satisfied now. That focus does not mean that the professional opinions given prior to October 2019 are not relevant for present purposes, but the present enquiry is more concerned with the defendant's behaviour whilst on the ESO imposed by Cavanagh J to ascertain if there has been an alteration in the risk referred to in s 5B(d) of the Act: see s 9(3)(f) of the Act. I have, however, had regard to various reports and matters that fall within s 9(3)(c), (d), (e) and (g) of the Act and which pre-date Cavanagh J's judgment. The prior ESO 1. The defendant did not oppose the making of the ESO by Cavanagh J. The issue on that application concerned some of the conditions sought to be imposed. I will return to that matter later in the judgment. 2. Despite the acceptance by the defendant that an ESO should be imposed, it was necessary for Cavanagh J to consider the evidence before him to reach a view about whether he was satisfied to a high degree of probability that the defendant posed an unacceptable risk of committing another serious offence if not kept under supervision under the order. His Honour so found, having considered a number of reports including those from the psychiatrists as directed by Fagan J when his Honour ordered an ISO. 3. In relation to the evidence of those psychiatrists, Dr Kerri Eagle and Dr Emma Collins, Cavanagh J said this: Report and evidence of Dr Kerri Eagle: s 9(3)(b), (e) … [33] Dr Eagle considered the defendant's mental illness and substance abuse disorder as severe. They would give rise to disinhibited, erratic and highly problematic sexual behaviours that frequently involve unsolicited sexual advances towards others. Further, she noted that the defendant had limited internal psychological mechanisms to regulate distress and emotional instability with which he had difficulty. He lived a chaotic lifestyle and his level of disorganisation was worsening rather than improving. The risk of sexual reoffending using the STATIC 99R was placed in the category of high risk/high need offenders. He was similarly placed in the highest risk category using the STABLE 2007. Dr Eagle considered that he would fall into the category of offenders who tend to reoffend sexually at three to four times at the rate of an average offender. She noted that he had consistently failed to comply with reporting requirements and treatment for his health needs. This meant that he would likely become non-compliant in the future without the level of support that he requires. The lack of any stability in his life including stable accommodation and stable influences increased the risk. Dr Eagle considered that the defendant's risk of committing a further serious offence, including one similar to the offence he committed in 2004, would be reduced under an ESO. Report and evidence of Dr Emma Collins: s 9(3)(b), (e) [34] Dr Emma Collins examined the defendant on 12 August 2019 and prepared a report dated 28 August 2019. She also gave oral evidence. Dr Collins was less convinced of the defendant's level of intellectual disability than Dr Eagle. However, she considered that the defendant did display some symptoms of psychosis, particularly in the context of drug use. He also suffered from a personality disorder. She felt that his self-reported mental health issues should be treated with caution, bearing in mind the results of the symptom validity testing. She noted that he received a score of eight on the STATIC–1990R which placed him in the well-above average risk level (iv)(b) for being charged or convicted of another sexual offence. The most problematic factors in terms of risk management comprised recent and possibly ongoing drug use, sexual preoccupation and potentially problematic sexual interest, mental health and personality disorder features. He always had difficulties across intimate and personal relationships. She opined that the defendant is a high risk sex offender and there is potential that he may commit a serious sexual offence in the future. However, based on his pattern of sexual offending, his offending has deescalated over time which suggests that the likelihood of serious sexual offending has reduced. 1. Justice Cavanagh also considered the Risk Assessment Report (RAR) prepared by Mr Samuel Ardasinski, a forensic psychologist, on 9 April 2019. His Honour said: Risk Assessment Report dated 9 April 2019: s 9(3)(d) [37] … According to the author of the report, Mr Ardasinski, a Forensic Psychologist, the defendant has been assessed as posing a high risk of future sexual offending. He has myriad criminogenic needs which indicate that the risk has been chronic for some time, although his period under supervision appears to suggest some progress. He identifies the defendant's main issue as the use of methamphetamine ice. Homelessness is also a significant issue for him. He considers that, if he is subject to an ESO, the mitigation of future risk may be enhanced by ongoing community supervision as well as participation in community-based programs and/or individual risk management sessions with the sex offender program. There is otherwise considerable agreement with the psychiatric reports for which I have already commented. 1. The defendant breached his former ESO. On 1 May 2020, he was charged with one count of enter enclosed land, and was convicted on 27 July 2020. He was dealt with under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). 2. On 3 May 2020, the defendant disclosed the use of methamphetamine to his DSO. He was referred for mental health assessment under s 33(1)(b) of the then Mental Health (Forensic Provisions) Act 1990 (NSW) and was admitted as an in-patient to a secure ward at Concord Hospital between 5 and 26 May 2020. 3. In August 2020 it was ascertained that the defendant had been using an interactive chat function on his mobile telephone, and that he had also not disclosed intimate relationships in which he had previously been engaged. 4. In relation to those breaches, the defendant was sentenced on 10 September 2020 to an aggregate term of imprisonment of 12 months with a non-parole period of six months. He was released on parole on 19 February 2021. 5. On 24 August 2021 an Extended Supervision Order - Completion Report was prepared for the Clinical Sub-Committee of the High Risk Offenders Assessment Committee by Senior Psychologists Ms Holly Cieplucha and Dr Richard Parker. The authors of the report said that it should be read in conjunction with the RAR of Mr Ardasinski of 9 April 2019 (referred to above at [12]). 6. The Executive Summary of the Completion Report relevantly said: According to actuarial instruments, Mr Hackett continues to fall in the Well Above Average risk category for sexual reoffending compared with other male sexual offenders. There has been little change in previously identified dynamic risk factors such that he continues to fall in the High risk category on a dynamic risk instrument for sexual offending. Capacity for Relationship Stability, General Social Rejection, Impulsivity, Poor Cognitive Problem Solving, Sex Drive/Preoccupation and Sex as Coping remain outstanding criminogenic needs. Whilst Mr Hackett has not engaged in any further form of sexual offending and none of his behaviours have approached the definition of serious offending under the Act, there is little evidence to suggest meaningful change has occurred over the course of the Order. There are a number of outstanding criminogenic needs that Mr Hackett would benefit from ongoing support with in order to manage his risk independently and as indicated above, the combination of his mental illness, personality dysfunction, cognitive limitations and substance use disorder continue to place him at risk of committing further sexual offences. It is therefore recommended that consideration be given to an application for a further Order when the current order expires. 1. In addition, the report said that in personal communication with the defendant's DSO, it was noted that there had been a lack of meaningful engagement, and that the defendant had only a superficial ability to comprehend his risk and to understand why certain situations and behaviours (eg casual sex and sex clubs) placed him at increased risk of offending. The defendant's mental health had fluctuated significantly, and his DSO observed that deterioration in his mental health generally appeared to correlate with times when he feared he had been caught doing something wrong. The report noted that at the interview with the defendant by the authors of the report, the defendant, with prompting, conceded that his level of sexual preoccupation had previously been problematic, but he denied it to be a concern at the time of the interview. The authors of the report said that the defendant demonstrated limited insight into issues relating to sexual self-regulation apart from acknowledging heightened risk when using illicit substances. 2. The report noted that apart from staff at the ESO team, Forensic Psychology Services (FPS), Community Mental Health, the Aids Council of New South Wales (ACON), and New Horizons, the defendant's personal support network was limited to his mother and one long-term friend. The defendant continued to demonstrate significant difficulty in establishing intimate and non-intimate relationships. He had constantly sought out impersonal connections and had used sex as a way to develop and maintain friendships rather than seeking to establish genuine emotional connections. 3. The report reviewed risk assessments using various protocols that had been employed on the defendant from 2019 to 2021. The assessment on these protocols was said to be in either the Well Above Average Risk category or the High Risk category. The one exception was when the STABLE-2007 was combined with STATIC-99R where the defendant's risk was said to be above average. 4. The report assessed that the following dynamic factors were relevant or potentially relevant when considering the defendant's risk of sexual offending: (a) Substance abuse (methamphetamine and unstable mental health); (b) Sexual preoccupation and use of sex as coping; (c) Impulsivity while unemployed and with an abundance of idle time; (d) Problems with intimate relationships, desire to be in one, and general social rejection; (e) Personality disorder and issues related to his trauma history as a child; and (f) Minimisation and denial which limits his level of insight and self-awareness. 1. In its conclusions, the report noted that although the defendant had reoffended since his release to the community (on 19 February 2021), there had been no evidence of sexual offending, and none of his behaviour had approached the definition of serious offending under the Act. The report concluded that the combination of the defendant's personality structure, mental illness, cognitive deficits and self-regulation issues continued to place him at risk of committing further sexual offences. 2. A RAR prepared by Ms Cieplucha and Dr Parker on 26 November 2021 reached similar conclusions to what was contained in the Completion Report concerning the defendant's criminogenic needs. The report noted that the defendant had had at least 12 admissions to mental health wards over the course of the previous ESO, and had been supported by Campbelltown, Croydon and Liverpool community mental health teams. The report said that, while many of his presentations had occurred in response to reported symptoms of psychosis, depression or suicidal ideation, they also appear to have been triggered by situational stressors, eg following phone searches conducted by ESO investigations team, stress related to accommodation, claims by bullying by his DSO, and following disclosure of substance abuse. There were suspicions amongst some doctors and hospital staff that the defendant might have been trying to present in a particular way for secondary gain, including obtaining a favourable outcome for future court attendances. 3. The report noted that the defendant was still prescribed depot antipsychotic medication, and that he was compliant with his treatment. 4. Between 19 February 2021 and 10 March 2021 the defendant was admitted to Cumberland Hospital for mental health concerns. Whilst there he tested positive to methamphetamines. He denied use of any illicit substances, and a follow up test returned a negative result. In October 2021 he returned a positive urinalysis for opiates and Benzodiazepine, for which he was issued a formal warning. He strenuously denied substance use, claiming that the test results were another "false positive". When interviewed, he claimed to have been abstinent since August 2020. He had previously admitted to using methamphetamine in May 2020 but had said nothing about consuming illicit drugs after that time. When he was subject to parole supervision in 2019, he was found to be in breach of his conditions on six occasions for drug-related offences including returning positive drug tests for methamphetamines and Benzodiazepines. 5. The authors of the report set out portions of the RAR prepared by Mr Ardasinski on 9 April 2019 as follows: Mr Hackett's most likely scenario for further sexual offending would involve his use of the methamphetamine 'Ice' (potentially fostering auditory hallucinations and/or paranoid delusions which may have some form of sexual component...), attendance at a public toilet or similar amenities block and masturbating to gain sexual gratification due to the state of arousal brought about by his Ice use and delusions. If an underage (or otherwise vulnerable) male were to enter the toilet block at the time, Mr Hackett may proposition him for sex, and dependent on the victim's level of resistance, may commit some form of 'hands on' indecent touching or expose the victim to pornography on his mobile phone in order to groom them into sexual contact...Ultimately, when Mr Hackett is under the influence of the methamphetamine 'Ice', there are myriad risks of sexual misbehaviour and misadventure. As was opined in his treatment report (Allen/Langton, 08/03/2011), the circumstances which led to the commission of Mr Hackett's first, and arguably most serious, sex offence, are less likely to recur - he was working as a male escort at the time, his client was the principal in the offending and Mr Hackett was a 'follower' in the commission of the offence. However, were Mr Hackett to begin to associate with criminal others and use 'Ice' within such a scenario, there remains the possibility by virtue of Mr Hackett's masochistic tendencies and sexual preoccupation, that he may become involved in something more serious again in the future''. Also noted in the SRP Treatment Report; "In situations where Mr Hackett feels lonely and anxious/fearful and he believes others hold control, he is more likely to commit a further sexual offence". The authors of the report then commented that based on a review of available information the scenarios set out by Mr Ardasinski remain the most likely scenarios for future sexual offending. 1. The report concluded that the overall totality of evidence suggested that the defendant fell in the Well Above Average risk category for sexual offending relative to other adult male sexual offenders. The report said: Although his pattern of sexual offending has de-escalated over time, there remains potential that he may commit a sexual offence in the future which could approach the threshold of a "serious sexual offence" as defined in the Crimes (High Risk Offenders) Act 2006. The Court-ordered expert reports 1. As a result of the judgment of N Adams J, the defendant was examined by Dr Sathish Dayalan, a forensic psychiatrist, on 16 May 2022, and by Dr Chelsey Dewson, a forensic psychologist, on 20 May 2022. Dr Dayalan 1. In relation to a diagnosis of the defendant's condition, Dr Dayalan said that the defendant had a complex psychiatric presentation, and noted that mental health professionals had varied in their opinions on his psychiatric diagnosis. Dr Dayalan detailed these various diagnoses in his report. 2. Dr Dayalan said that the defendant had personality traits that would be supportive of a diagnosis of borderline personality disorder. He noted that acute psychotic symptoms suffered by the defendant such as delusions, auditory hallucinations and thought disorder were often preceded by use of crystal methamphetamine. However, the defendant had continued to report psychotic symptoms when abstinent from substances. Dr Dayalan said that it was quite probable that the defendant suffered from schizophrenia, but that he appeared to be utilising that psychiatric diagnosis to absolve his responsibility for offending behaviour and to avert stressful circumstances. 3. Dr Dayalan thought that the defendant's history was indicative of him suffering from Stimulant Use Disorder that appeared to be in remission, presumably due to being on an ESO. Dr Dayalan noted assessments of the defendant's intellectual ability, where he had been assessed in 2007 of a mild intellectual disability but more recently where his intelligence quotient was said to be in the borderline to low average range. 4. Dr Dayalan assessed the defendant on the STATIC-99R and the STABLE-2007 protocols. His overall score on the STATIC-99R was 8 placing him in the Well Above Average Risk level. That was consistent with his previous assessments on that protocol. 5. On the STABLE-2007, Dr Dayalan said that the dynamic risk factors relevant to the defendant's risk formulation were capacity for relationship stability, general social rejection/loneliness, impulsivity, poor cognitive problem solving, negative emotionality, sex preoccupation, sex as coping, deviant sexual interests, and cooperation with supervision. Dr Dayalan said that some of those risk factors such as relationship stability, impulsivity, negative emotionality and general social rejection/loneliness could be attributed to the defendant's psychiatric conditions, specifically the borderline personality disorder, and the propensity for him to interpret events in a persecutory manner. Dr Dayalan said that the dynamic factors were unlikely to change drastically in the near future. 6. Dr Dayalan noted that the defendant's engagement in psychological treatment had been said to be superficial. He noted that in the past significant social influences had been identified as a dynamic risk factor, but the defendant's association with antisocial peers did not appear to feature in the recent clinical records. Dr Dayalan thought that this could well be attributed to the conditions of the ESO. He noted that the defendant had a close relationship with his mother and a female friend, both of whom were identified as a prosocial influence upon him. 7. Overall, Dr Dayalan assessed the defendant as having a high level of stable dynamic risks and needs. 8. Dr Dayalan did not regard the defendant as a reliable historian. 9. Dr Dayalan said that borderline personality disorder was usually chronic in nature. With ageing there was sometimes a reduction in overt impulsivity and suicidal behaviour, but emotional dysregulation and disturbed interpersonal relationships tended to persist. Dr Dayalan said that similarly, schizophrenia was a chronic condition, and tended to follow a relapsing and remitting course in most individuals. In the defendant's case, the reported ongoing psychotic symptoms despite compliance with treatment and use of substances, suggested that the schizophrenia was of a treatment refractory nature. Dr Dayalan said that schizophrenia was also commonly associated with progressive decline in cognition, and it is likely that his cognitive functioning would gradually deteriorate over the years. 10. Dr Dayalan noted that the defendant's Substance Use Disorder appeared to be in remission, but given the history of Substance Use Disorder, poor impulse control, psychiatric conditions and limited insight into the condition, the defendant would be regarded as at risk of relapse into substance use unless there were external restrictions in place. 11. Dr Dayalan considered that the defendant posed a risk of committing a serious sex offence as defined in the Act. He said the level risk could not be reliably predicted, and the level of the risk would vary depending upon the defendant's circumstances and the level of monitoring and support received. 12. Dr Dayalan said that the most likely scenario for the defendant to commit a serious sex offence would be in the context of using substances and in the company of another person who instigates him to engage in the offending behaviour. Deterioration in mental state due to non-compliance and/or psychosocial stressors with associated increase in impulsivity and impairment in judgment, would further contribute to the risk. 13. Dr Dayalan noted that although the defendant had breached his previous ESO, he had not committed a serious sex offence. He said there had not been an escalation of dynamic risk factors since the first ESO was ordered. He considered that the risk of committing a further serious sex offence could be managed in the community under an ESO. Dr Dewson 1. During the course of relating matters told to her by the defendant, Dr Dewson referred to the defendant as lacking insight about matters such as the challenges he encountered in relation to supervision compliance and into the risks that particular sexual behaviours posed. 2. Dr Dewson assessed the defendant on the STATIC-2002R protocol where he received a total score of 8. That placed him in the Well Above Average risk category for being charged or convicted of another sexual offence. 3. Dr Dewson also assessed the defendant on the Risk for Sexual Violence Protocol – Version 2 to assess his dynamic risk. The dynamic risk factors relevant to the defendant were his sexual violence history, psychological adjustment, mental disorder, social adjustment and manageability. 4. Dr Dewson said that, overall, the defendant presented as a high risk of general and sexual recidivistic behaviour. She said that although he had engaged in intensive sex offender treatment, he had since reoffended, and his engagement with FPS in recent times appeared to have been superficial. The defendant continued to maintain unhealthy attitudes towards sex, his mental health had been unstable, and he presented with hypersexuality. Dr Dewson said that it appeared the defendant had learned few internalised strategies to manage his risk, and for the most part had been reliant on external controls to moderate his behaviour. However, there appeared to have been some positive progress around his medication compliance and his motivation to abstain from prohibited substances. 5. Dr Dewson said it was difficult to determine what the most likely scenario of offending would involve, but it would most certainly be against a male. It was likely that any future offending would occur in the context of substance abuse and/or psychotic symptoms, where the defendant would likely target a stranger in a public space for masturbatory content. It was possible that this might involve him attempting to coerce a victim into a physical, sexual act, which would particularly concerning if that individual was in some way vulnerable. 6. Dr Dewson said that the defendant fell into the High Risk range for sexual reoffending. The primary factors relating to his risk of recidivism included substance abuse, unmanaged mental health, hypersexuality, unhealthy attitudes towards sex, intimacy deficits, and poor coping, including using sex to cope. 7. Dr Dewson was of the opinion that a period of community-based supervision would provide the defendant with additional structure and support, whilst also providing a degree of community safety through external management. Dr Dewson considered that, in the absence of an ESO, the defendant would have considerable difficulty adapting to community life, refraining from substance abuse and maintaining treatment compliance. Dr Dewson considered that the defendant's failure on his first ESO suggested dysregulation and supervision compliance difficulties. She said that, whilst he reoffended, the offences were not of a sexual nature, suggesting that the ESO went some way to managing risks associated with sexual violence. His breaches suggested difficulty regulating himself and, in the absence of a further order, this might result in an act of sexual violence. Submissions 1. Ms O'Reilly of counsel for the defendant submitted that the defendant had only committed one serious sex offence. That was in 2004 when the defendant was 31 years old. Although the defendant had subsequently offended, none of the offending constituted serious offences under the CHRO Act. Ms O'Reilly accepted that the defendant had breached his ESO on a number of occasions, but submitted that these breaches did not display a trajectory towards more serious offending. Rather they displayed entrenched personality and cognitive traits which would not resolve with a further order being made. 2. Ms O'Reilly pointed to what was said in the Completion Report, that the defendant had not engaged in further sexual offending, and that none of his behaviours had approached the definition of serious sexual offending. Ms O'Reilly also drew attention to what was said in the RAR of 26 November 2021, that the pattern of the defendant's offending had de-escalated over time. 3. Ms O'Reilly submitted that regard should also be had to the support the defendant is now receiving from the NDIS, to the fact that the defendant has been stable in accommodation for about 18 months and to the fact that he has established some pro-social contacts including at a church. She submitted that the defendant was compliant with his medication, that he can recognise when his mental health declines by his own self-referrals to hospitals, and that he had been abstinent from drugs from May 2020. Does the defendant pose an unacceptable risk? 1. It is apparent from a consideration of the reports which predate the making of the previous ESO, the Completion Report, the RAR prepared for the present application, and the reports of Dr Dayalan and Dr Dewson, that not a lot has changed in terms of the defendant's position and the assessment of the risk that he might commit another serious sex offence. 2. The factors identified by Mr Ardisinski in 2019 were these: ● Substance abuse and unstable mental health ● Sexual preoccupation and use of sex as coping ● Impulsivity ● Problems with intimate relationships ● Personality disorder ● Minimisation and denial which limits his level of insight and self-awareness 1. The defendant's criminogenic needs identified in the RAR of November 2021 were these: ● Sexual offences and sexualised behaviours which did not lead to charges ● Capacity for relationship stability, general social rejection and problems with non-intimate relationships ● Major mental illness, problems with stress and coping, problems with suicidal ideation ● Poor cognitive problem-solving skills ● Problems from child abuse ● Problems with substance abuse ● Sexual preoccupation and sex as coping ● Impulsivity and problems with employment ● Problems with self-awareness ● Co-operation with supervision 1. Dr Dayalan identified the following factors: ● Capacity for relationship stability ● General social rejection/loneliness ● Impulsivity ● Poor cognitive problem solving ● Negative emotionality ● Sex preoccupation ● Sex as coping ● Deviant sexual interests ● Co-operation with supervision 1. Although some of the factors were differently expressed, most of the matters have persisted throughout the period from 2019 to 2022. Further, they largely mirror a number of the matters identified in earlier reports of Professor David Greenburg of 2 November 2005, Dr Stephen Allnutt of 1 November 2005, the psychologist Mae Mahmoud of 16 June 2008, Dr Alexey Sidorov of 22 March 2017, Dr Gordon Elliott of 14 November 2018, Dr Claire Keating of 11 June 2019, Dr Emma Collins of 28 August 2019 and Dr Kerri Eagle of 28 August 2019. 2. There are some matters which tend to show some degree of reduction of the risk. The first is that the defendant has not committed another sex offence of any sort since 2017. That cannot be entirely attributed to the imposition of the first ESO because that did not commence until 2019. Nevertheless, since 2017 the defendant has been under one form of supervision or another, including the period of the first ESO. 3. The second matter is what was identified by Dr Dayalan as a change in one of the dynamic risk factors. That concerns the fact that in the past, the defendant had associated with anti-social peers. Dr Dayalan noted that that factor did not appear to feature in the recent clinical records. Dr Dayalan noted that the defendant has a close relationship with his mother and a female friend who have been identified as a pro-social influence upon him. I accept that the defendant also has some contact with a gay church (presumably the Metropolitan Community Church) which appears to be providing him with some support. Dr Dayalan noted, however, that the movement away from anti-social peers "could well be attributed to the conditions of ESO". 4. Thirdly, in relation to the support from the NDIS, both Dr Dewson and Dr Dayalan accepted that such support was beneficial because it helped to bring a degree of regulation into the defendant's life. That in itself was likely to diminish to some extent the problems that flow from the Borderline Personality Disorder. Such a condition can be ameliorated when a sufferer has more regulation in their life. I accept that the defendant's more stable accommodation and the support he receives from the NDIS have helped to inject some degree of regulation into the defendant's life. 5. Finally, the defendant appears to have been abstinent from drugs since either May or August 2020. 6. When having regard to those improvements, it cannot be overlooked that both Dr Dayalan and Dr Dewson considered that many of the improvements in the defendant's behaviour had come about because the ESO was in place: see pars [32], [35], [39], [46], [49] and [59] above. 7. Despite those improvements, the defendant's risk level still remains at well above average, and he has a high level of stable and dynamic risks and needs on all the protocols and instruments on which he has been assessed. Ms O'Reilly correctly points out that the various protocols do not assess the risk of committing a serious sex offence as defined in the CHRO Act; rather they assess the risk of general sexual offending. That is certainly the case, but the courts have accepted for the past 15 years that they are the best instruments available for assessing risk of serious sexual offending when interpreted by forensic psychiatrists and psychologists. 8. The more concerning matter in terms of risk is that, as I have said, most of the dynamic risk factors and criminogenic needs of the defendant that were present from before the time of the first ESO still remain. 9. The defendant's preoccupation with sex does not appear to be under any control, and the experts say that he lacks insight into the risks that come from that preoccupation. There was, for example, evidence from Detective Senior Constable Bell who was attached to the Extended Supervision Order Investigation Unit. Detective Senior Constable Bell was involved in making observations of the defendant during the term of his first ESO. His affidavit discloses that on four separate days in September 2021 the defendant was observed at a toilet block in a park in Moorebank, some ten kilometres from his home. The defendant was observed to be waiting outside the toilet and following other people into the toilet when they arrived. On some days this happened up to three times over a short period. Detective Senior Constable Bell was cross-examined to suggest that he had not established that the defendant was doing anything in breach of the ESO, and the suggestion was made that the defendant was simply there to attend to toilet needs. 10. The only reasonable inference that can be drawn from the account of the events is that the defendant was attempting to make sexual contact with other men at the toilet block. The relevance of that to the risk with which the Court is concerned relates to the offences committed by the defendant in 2014. Those offences are described in the judgment of N Adams J as follows: [21] The defendant was subsequently convicted in December 2014 for a separate series of sexual offences which took place on 25 June 2014: inciting a person 16 years or over to commit act of indecency; grooming a child for unlawful sexual activity; stalking/intimidating with intent to cause fear of physical or mental harm; behaving in an offensive manner in/near public place (two counts); and inciting a person under 16 years to commit act of indecency. The defendant was sentenced to 12 months imprisonment with a non-parole period of 9 months for these offences. [22] The statement of facts for these 2014 offences disclose that a 15-year-old boy (the first victim) entered a public toilet block at the Crescent Head Tourist Park at around 12.00pm on 25 June 2014 and observed the defendant and another man engaged in consensual oral intercourse. The victim entered a toilet cubicle and the other man left. Shortly afterwards, the defendant reached (and later looked) under the cubicle on two occasions to show the victim pornographic pictures on his mobile telephone, including a photo of a young girl aged about 7-10 years, and also invited the victim to join him in the shower cubicle. The victim left the toilet block and reported the matter to police. [23] The defendant left the area and approached a second victim at the greenkeepers shed, whereupon he sat down inside the shed and offered to fellate the victim. Police later located the defendant sitting in bushland nearby and arrested him. [24] It was the offending which occurred in the public toilet block which caused the defendant to become a registrable person under the CPOR Act. 1. Subsequently, as noted earlier, the defendant was charged with further sexual offences arising from two alleged incidents of public masturbation at Central Railway Station and Newtown Railway Station in 2016 and 2017 respectively. 2. What the events described by Detective Senior Constable Bell show is that the dynamic risk factors identified in relation to the defendant are resulting in the same sort of behaviour as gave rise to the sexual offences subsequent to the index offence. 3. There is the further factor that the defendant's various mental health issues are obviously not under control. The number of times he has presented to hospitals complaining of mental health issues (assuming that they were genuine issues and the reporting was not being done for secondary gain) gives weight to Dr Dayalan's view that the defendant's schizophrenia is somewhat refractory to treatment. Further, any stability and regulation that has developed in the defendant's life is of reasonably short duration, and its long-term effect cannot be known at this stage. As noted, the experts regarded the improvements which have been demonstrated to have likely come from the imposition of the ESO itself. 4. The persistence of almost all of the dynamic factors that inform the defendant's risk level points strongly to the conclusion that the position remains that the defendant poses an unacceptable risk of committing another serious sex offence if not kept under supervision under an order. I am satisfied of that to a high degree of probability. Length of the ESO 1. The plaintiff seeks an ESO for a period of three years. The defendant submitted that no basis has been shown for seeking a longer period than had been sought before Cavanagh J. 2. I agree that the length of the order should be for two years. No basis has been demonstrated by the plaintiff for a three-year order. The plaintiff sought only a two-year order from Cavanagh J and, in the meantime, there has been some small improvement in terms of the risk of the commission of a further serious sex offence. It is also not without significance that no actual sexual offending has occurred since 2014, with the offences in 2016 and 2017 constituting little more than street offences which did not involve any other person. In describing them in that way, I am not diminishing the fact that they are strong evidence of the defendant's preoccupation with sex, which is an undoubted risk factor. 3. I note that Dr Dayalan recommends that the order is made for two to three years to allow for ongoing interventions to minimise the defendant's risk of relapse into substances, improve emotional and behavioural regulation, and to help him to develop more appropriate approaches to identify sexual partners. Conditions 1. The plaintiff has proposed a set of conditions which include electronic monitoring and the provision of a schedule of movements by the defendant. The defendant challenged the necessity for these two aspects of the conditions. 2. In State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813 Hoeben CJ at CL said: [43] 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". [44] Important principles to be considered in relation to the imposition of conditions are: i. 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]; ii. in imposing conditions, the Court needs to strike a balance between competing considerations: Attorney General for NSW v Tillman at [68]; iii. 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]; iv. 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]. v. 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]. vi. 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. vii. 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]. viii. 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 plaintiff sought electronic monitoring and a schedule of movements when it applied for the earlier ESO. Both Fagan J at the preliminary stage and Cavanagh J at the final stage refused to impose such conditions. In that regard, Fagan J said: [20] The Court's concern with respect to imposing scheduling and monitoring is that whilst, it would not appear likely to contribute to any material reduction in risk of reoffending, based on the past conduct of the defendant, would give rise to restrictions on movement which would readily be infringed, exposing the defendant to prosecution under the High Risk Offenders Act and risk of further imprisonment. In effect, the constraints imposed by scheduling and monitoring would criminalise actions and movements which may of themselves be entirely innocent. The Court is reluctant to create this situation unless it is shown that scheduling and monitoring, which may lead to prosecution from departures from a schedule, is likely materially to contribute to reducing opportunities or situations which otherwise might lead to the defendant committing further offences. [21] The prospect of the defendant breaching scheduled constraints upon his movements, being prosecuted for breach and returned to prison, would be destructive of attempts to achieve reintegration and rehabilitation. If this prospect is raised without discernible, concrete likelihood of improved protection of the community, then it is not warranted. In this case I do not consider that cll 4 to 7, as proposed by the State, prescribing scheduling and monitoring are warranted. 1. Similarly, Cavanagh J said: [51] The defendant suffers from a mental illness, schizophrenia. The evidence adduced by the State tends not to support the proposition that electronic monitoring will reduce the risk of reoffending or, in any way, increase the safety of the community. I am particularly conscious of the defendant's mental illness and am concerned that electronic monitoring would impose an intolerable burden on him, with a real risk of re-offending in terms of breaching the condition, albeit innocently, which might expose him to criminal sanction. … [64] It is also important that a condition not be imposed upon the defendant with which he is unlikely to be capable of complying. The defendant suffers from schizophrenia and intellectual disability. The State's proposed scheduling conditions (rather than the somewhat less onerous dry scheduling condition) would, as the defendant submitted, likely set the defendant up to fail. … 1. I agree with those remarks of both Fagan J and Cavanagh J. There is no evidence to justify a conclusion that the imposition of electronic monitoring or the provision of a schedule of movements would assist in addressing issues relevant to the defendant's identified risk factors in relation to future commission of serious sexual offences: see in that regard State of New South Wales v Green (Final) [2013] NSWSC 1003 at [36]-[38] and Wilde v State of New South Wales [2015] NSWCA 28 at [45] and [54]. At best, those conditions would address only general criminal conduct. 2. Dr Dayalan's evidence was that the conditions proposed appeared to be very restrictive, and they were more likely to result in more breaches of the order than assist the defendant's long-term rehabilitation. Dr Dayalan also said that in his opinion, having a huge number of restrictions probably increases the defendant's anxiety about breaching the ESO. Dr Dayalan thought the defendant's risk of breaching the ESO was attributable to the impulsivity which was related to his psychiatric condition, but his cognitive impairment might play a role as well. In that way, Dr Dayalan said that having a huge set of conditions would probably increase the defendant's stress, which could increase a deterioration in his mental state, and that mental state has been identified as a risk factor. 3. I also have a serious concern that the imposition of these particular conditions would be likely to set the defendant up to fail because of his mental illness. I have regard to the fact that the breaches by the defendant during the first ESO did not involve sexual offences. The likelihood is that if these conditions were imposed, there would be breaches of the ESO by the defendant not relevantly related to the purpose of the ESO, which is to meet the risk of the commission of a serious sex offence. Whilst a schedule of movements and electronic monitoring would make it easier for the ESO team to keep track of the defendant both in real time and in retrospect, that is not the purpose of the imposition of the ESO: State of New South Wales v Bugmy [2017] NSWSC 855 at [89] and [96]. Further, an object of the Act is to encourage high risk sex offenders to undertake rehabilitation, and the likely breaches which would result if these conditions were imposed would be inimical to that rehabilitation. So much is clear from the defendant's, probably paranoid, fear of the police. 4. Electronic monitoring will not be a condition of the ESO, and a schedule of movements to be provided will mirror that which was imposed by Cavanagh J in conditions 4 to 7 of the earlier ESO; these have been described as dry scheduling. 5. Condition 24 provides that the defendant must not associate with any person or persons specified by a DSO. The plaintiff then seeks the following condition: 25. Without limiting condition 24, 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; or c. Associate with any person held in custody without prior approval of a DSO. 1. No particular reason is identified for the inclusion of condition 25(a). Although the defendant has had issues with alcohol in the past, the far more significant concern has been his use of illicit drugs, and methamphetamine in particular. No condition similar to condition 25(a) was included in the previous ESO and Mr Tim Hammond of counsel for the plaintiff submitted that the condition was directed towards ensuring that the defendant did not commit offences against vulnerable people, but he also accepted that there was no new evidence about any such matter since the first ESO was ordered. 2. Nothing in the defendant's history suggests that he might offend by taking advantage of somebody who was inebriated. The condition does not relate to any risk. 3. In relation to condition 25(c) Mr Hammond informed me that the reason for the inclusion of this condition was that the defendant had written a letter to a prisoner with sexually explicit material. In fact, the incident appears to be that reported in the report of Dr Dewson at par 34, where Dr Dewson relates a misconduct report when the defendant was a prisoner in November 2008. 4. Given that the event occurred when the defendant was in custody and occurred in 2008, there is no justification for the inclusion of such a term in the present conditions. 5. Condition 26 provides: The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary. 1. The corresponding condition in the prior ESO was condition 23 which provided: 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. No basis has been shown for the increase in the stringency of this condition. The condition ordered by Cavanagh J was entirely appropriate. 1. Condition 27 provides: The defendant must obtain written permission from a DSO prior to joining or affiliating with any club or organisation. 1. Mr Hammond accepted that this was a new condition, and said it was primarily aimed at allowing the DSO to make an assessment whether or not there were likely to be vulnerable people at risk in any club or association. 2. Nothing is said in the Risk Management Report about this matter. Further, the only club or organisation with which the defendant appears to have had any connection is the church at Petersham which he seems to attend via Zoom. There is no evidence or suggestion that he has associated with this church for purposes which would place any person at risk. 3. Part H of the Conditions contains two search and seizure conditions as follows: 42. 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 travelling 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. 43. 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. 1. By contrast, the search and seizure conditions in the prior ESO provide as follows: 29. If the DSO forms a reasonable opinion that a search (of the type referred to in sub-paragraphs (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 of behaviour or conduct associated with an increased risk of the defendant committing a serious offence; 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 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. 30. For the purposes of the above condition: (a) a search of the defendant means a garment search or a pat-down search. (b) to the extent practicable a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO. NOTE: "Garment search" means a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body. "Pat-down search" means a search of a person where the person's clothed body is touched. 31. During a search carried out pursuant to condition 29 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise: (a) the safety of residents or of staff at the defendant's approved address; (b) the welfare or safety of any member of the public or any other person; or (c) the defendant's compliance with this order; or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence. 32. The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use. 33. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions 29 and 32 above. 1. Mr Hammond submitted that conditions 42 and 43 appeared simpler and were probably easier for the defendant to understand than those contained in the prior ESO. Mr Hammond also said that he suspected the reason for the change was that conditions 42 and 43 were standard conditions. 2. Whilst it is certainly true that conditions 42 and 43 are expressed more simply, they impose a more stringent regime than was thought necessary in the past. They do not require the DSO to form any reasonable opinion or to have any reason at all for carrying out such a search. In my opinion, the safeguards in par 29(a)-(c) are appropriate to limit the power to search and inspect. Conditions in terms of conditions 29 to33 in the prior ESO should be substituted for conditions 42 and 43. Conclusion 1. Accordingly, I make the following orders: 1. Pursuant to sections 5B and 9(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), order that the defendant be subject to an Extended Supervision Order for a period of two years commencing 8 July 2022. 2. Pursuant to s 11 of the Act, during the period of the Extended Supervision Order, the defendant is to comply with the conditions in the Schedule to these reasons. SCHEDULE OF CONDITIONS OF SUPERVISION KAIN (AKA DARREN) ALEXIE HACKETT Departmental Supervising Officer (DSO) Corrective Services NSW (CSNSW) In these conditions: "CSNSW" means Corrective Services NSW. "Commissioner" means Commissioner for Corrective Services "Defendant" means Kain Alexie HACKETT also known as Darren HACKETT, the defendant in these proceedings and the subject of the order. "Electronic Identity" means each of the following: (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. 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. Schedule of Movements 4. 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 purposes and means of his travel to those places, and the dates of travel, but unconfined by any travel route or timetable. If so directed, 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). 5. The defendant must not deviate from his summary of anticipated movements except in an emergency, or unless as specified in paragraph 6 below. 6. It will not be a breach of condition 5 if the defendant departs from the summary but notifies his DSO of his change of plans before doing so, or as soon as is reasonably practicable afterwards. 7. The defendant must truthfully answer questions from his DSO, or any person supervising him, about where he is, where he is going and what he is doing. 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 allow a DSO to visit him at his approved address at any time and, for that purpose, to enter the premises at that address. 10. 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. 11. 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 12. The defendant must surrender any passports held by him to the Commissioner of CSNSW, must not be in possession of any passports, and must not attempt to apply for any passports. 13. The defendant must not leave New South Wales without the approval of the Commissioner of CSNSW. 14. The defendant must not frequent or visit any place or district specified by a DSO. 15. Without limiting condition 14 above, the defendant must not go to any of the following without the prior approval of a DSO: (a) Day-care centres, pre-schools and schools; (b) Amusement parlours, amusement parks and theme parks; (c) Cinemas; (d) Libraries and museums; (e) Camping grounds and caravan parks; (f) Children's playgrounds, parks, and areas with play equipment provided for the use of children; (g) Pools, playing fields and sporting facilities; (h) Concerts, theatre shows, movies, events and activities intended for the entertainment of children; and (i) Residences where the defendant knows that persons aged under 18 years ordinarily reside. 16. 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 17. 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. 18. The defendant must not start on his own initiative any job, volunteer work or educational course without the approval of a DSO. 19. 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. Part E: Drugs and alcohol 20. The defendant must not: (a) Possess or consume alcohol without the prior approval of a DSO; or (b) Possess or use prohibited drugs or drugs unlawfully obtained, or use drugs lawfully obtained other than as prescribed. 21. The defendant must submit to drug and alcohol testing. 22. 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 23. 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) 24. The defendant must not associate with any person or persons specified by a DSO. 25. Without limiting condition 24, the defendant must not associate with any people who he knows are consuming or under the influence of illegal drugs. 26. 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. Part G: Access to the internet and other electronic communication 27. 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). 28. The defendant must not use any alias, electronic identity, log-in name, name other than "Darren Hackett" or "Kain Hackett" 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. 29. The defendant must not own or be in possession of more than one mobile telephone or telecommunication device and one SIM card unless otherwise approved by a DSO. 30. The defendant must not use another person's mobile device except in an emergency (a situation requiring emergency services). 31. 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. 32. 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 passcodes used by the defendant and the nature and details of the internet connection, as directed. 33. The defendant must provide a DSO with all passwords, pin codes and passcodes used to access all electronic devices, electronic applications, internet sites and communication platforms of any kind. 34. The defendant must not use any coded or encrypted messaging application or service. 35. 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. 36. 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 Facebook, Instagram, Snapchat, YouTube, dating applications or websites, internet-based email, instant messaging services, online community services, multi-player video games and other telecommunications-based services including interactive chat, text or voice services. 37. 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. 38. The defendant must not delete, erase or alter any applications, email, text messages, any electronic message, call history, any data, internet search, internet or application search history, any application chat, communication history or other content from his phone, computer, tablet or any other electronic device without the prior approval of a DSO. 39. The defendant must not possess or use any software or application that is designed to "clean", erase, delete, encrypt, or hide content on his devices. Content includes but is not limited to files, internet browsing history, emails, social media activity, telephone call log, text messages and videos/photos. 40. The defendant must provide consent for his telephone provider and internet service provider to share information about his accounts with a DSO. Part H: Search and seizure 41. If the DSO forms a reasonable opinion that a search (of the type referred to in sub-paragraphs (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 of behaviour or conduct associated with an increased risk of the defendant committing a serious offence; 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 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. 42. For the purposes of the above condition: (a) a search of the defendant means a garment search or a pat-down search. (b) to the extent practicable a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO. NOTE: "Garment search" means a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body. "Pat-down search" means a search of a person where the person's clothed body is touched. 43. During a search carried out pursuant to condition 29 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, which the DSO reasonably suspects will compromise: (a) the safety of residents or of staff at the defendant's approved address; (b) the welfare or safety of any member of the public or any other person; or (c) the defendant's compliance with this order; or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence. 44. The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use. 45. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions 29 and 32 above. Part I: Access to pornographic, violent and classified material 46. The defendant must notify a DSO or CSNSW psychologist at the next practicable opportunity if he purchases, possesses, accesses, obtains, views, participates in or listens to material classified, or material that would be classified, as Refused Classification, X18+, Restricted Category 2 and Restricted Category 1, or any other material. Part J: Personal details and appearance 47. The defendant must not change his name from "Darren Hackett" or "Kain Hackett" or use any other name without notifying a DSO. 48. The defendant must not significantly change his appearance without the approval of a DSO. 49. 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. 50. 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 K: Medical intervention and treatment 51. 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. 52. If the defendant voluntarily presents at a medical facility in relation to his mental health, he must not leave unless he has been formally discharged by a medical staff member and provided a discharge summary. 53. The defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults. 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 take medications that are prescribed to him by his healthcare practitioners only in the manner prescribed. 56. The defendant must notify a DSO or CSNSW psychologist immediately if he ceases to take or declines to commence taking any medication as referred to in the above condition. 57. 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. 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. 59. The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him. ********** 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: 08 July 2022