Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Jubb (Preliminary) [2024] NSWSC 780 Hearing dates: 20 June 2024 Date of orders: 27 June 2024 Decision date: 27 June 2024 Jurisdiction: Common Law Before: Wilson J Decision: Preliminary hearing order: Expert reports (1) An order pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"): (a) Appointing two qualified psychiatrists or registered psychologists (or any combination of such persons) as agreed between the parties to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and (b) Directing the defendant to attend those examinations. Interim relief (2) An order pursuant to s 10A of the Act, that the defendant be subject to an interim supervision order from 28 June 2024 ("the interim supervision order"); (3) An order pursuant to s 10C(1) of the Act, that the interim supervision order be for a period of 28 days; and (4) An order pursuant to s 11 of the Act, directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule to this Judgment. Ancillary relief (5) An order that access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access. (6) The matter is listed before the High Risk Offender List Judge on 4 July 2024 to fix a date for the final hearing of this application, and set a timetable for the filing and service of evidence and submissions. Catchwords: HIGH RISK OFFENDER – high risk sex offender – application for extended supervision order – preliminary proceedings – concession as to statutory basis to make interim order without admissions as to final disposition of application – dispute confined to appropriateness of some conditions Legislation Cited: Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) Child Protection (Offenders Registration) Act 2000 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Category: Principal judgment Parties: State of New South Wales (Plaintiff) Gavin Matthew Jubb (Defendant) Representation: Counsel: P Aitken (Plaintiff) A Hughes (Defendant) Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2024/133097 Publication restriction: Nil JUDGMENT 1. By summons filed on 8 April 2024, the State of New South Wales asks the Court to impose an extended supervision order ("ESO") upon the defendant, Gavin Jubb, pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act"). The preliminary proceedings came before the Court for determination on 20 June 2024. The preliminary application 1. The State's preliminary application is for the defendant to be assessed by two experts appointed by the Court for that purpose pursuant to s 7(4) of the Act, and for him to be made subject to an interim supervision order ("ISO") pursuant to s 10A, to take effect on 28 June 2024 at the expiration of an existing ESO. 2. Without concessions as to the ultimate disposition of the matter, the defendant does not oppose the making of the preliminary orders, on the basis that the Court is satisfied pursuant to s 10A(b) of the Act that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. 3. For the purposes of the preliminary proceedings the defendant concedes that he is a serious sexual and violent offender as defined by ss 5 and 5A of the Act; that he is a supervised offender for the purposes of s 5I; and that he is within the final 9 months of custody or supervision for the purposes of s 6(1). The issue at the preliminary hearing was confined to the appropriateness of certain conditions to the ISO that were sought by the State. 4. For the reasons that follow, the Court is satisfied to a high degree of probability that, if proved, the material provided at this preliminary stage establishes that the defendant poses an unacceptable risk of committing a serious offence if not kept under supervision under the order the State asks the Court to impose. The Evidence 1. The State read and relied upon two affidavits of Alexandra Burkitt, of 8 April 2024 and 3 May 2024. Ms Burkitt produced a volume of documentary evidence, Ex. AB1, by the first of the affidavits. The following is drawn from that material. It is not in dispute. Relevant History 1. At the age of 29, in 2010, the defendant committed sexual offences against three separate boys, aged 12 or 13 years old, each of whom had an intellectual disability and was, on two of the relevant occasions, in the defendant's care. The offences were grooming a child for unlawful sexual activity, aggravated indecent assault, committing an act of indecency, inciting a child to commit an act of indecency, and committing and attempting to commit aggravated acts of indecency. These crimes are serious sexual offences for the purposes of the present application. Following his conviction, the defendant served a term of 2 years and 10 months, with a non-parole period ("NPP") of 1 year and 9 months. The overall sentence expired on 19 October 2015. 2. Subsequently, the defendant was made subject to the Child Protection (Offenders Registration) Act 2000 (NSW) ("the CPOR Act"), signing a relevant document of acknowledgment in May 2017. In March 2018 the defendant was charged with two offences of failing to comply with reporting obligations, contrary to s 17(1) of the CPOR Act. The offences were discovered following a visit by supervising police officers to the defendant's place of work and residence, where it was discovered that he was residing with a 17 year old boy, with other, younger, children regularly visiting his accommodation. In May 2018 a term of 8 months imprisonment was imposed upon him, suspended pursuant to the now repealed s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW). 3. The defendant breached the s 12 order almost immediately, and was called up, with a term of 8 months imprisonment imposed. A NPP of 6 months was fixed. 4. On 5 June 2018 a Child Protection Prohibition Order ("CPPO") was imposed on the defendant which prohibited him from being in the company of any person aged under 18 years, communicating or encouraging communication with such persons, or undertaking any employment that brought him into contact with persons under that age. He breached the order almost immediately, by continuing to live and work at his place of employment, where children lived and worked, and failing to report that fact to the authorities. An overall sentence of 12 months imprisonment was imposed upon the defendant with a 9 month NPP for these charges, brought against him in June 2018. These offences are also of direct relevance to the statutory basis of the present application, being offences of a sexual nature. 5. Because of this background the State sought and was granted an ISO on 6 March 2019, under which the supervision of the defendant commenced on 11 March 2019. 6. Less than a month later, on 2 April 2019, the defendant was again charged with further breaches of the CPPO, and gaoled. During his imprisonment the final ESO was made by R A Hulme J, although its operation was suspended pending the defendant's release from prison: State of New South Wales v Jubb (Final) [2019] NSWSC 709 ("the 2019 decision"). Whilst in custody the defendant was found to have had multiple telephone conversations with a 16 year old boy; he was charged under s 13(1) of the Child Protection (Offenders Prohibition Orders) Act 2004 ("the CPOPO Act") and sentenced to a term of 18 months imprisonment with a NPP of 13 months, the total term expiring on 1 October 2020. 7. The most recent convictions against the defendant are from 13 July 2022 and relate to six breaches of the ESO imposed in 2019. The defendant had deliberate contact with persons aged under 18 on three occasions, and had an association with parents of children on three occasions. He failed to disclose these contacts, and took some measures to conceal his association with the mother of a boy, being the same boy he had contacted when in custody. A term of 2 years imprisonment with a NPP of 14 months was imposed. The sentence expires on 11 July 2024. 8. The circumstances of the defendant's offending are detailed in the 2019 decision, and are not further described here. 9. Also found in the 2019 decision is a discussion of the conclusions reached by the experts appointed by the Court in 2019 to examine the defendant, Dr Adam Martin, a forensic psychiatrist, and Ms Jenny Howell, a psychologist, the reports of both being part of the evidence in these proceedings. His Honour Justice R A Hulme noted the following information, at [20] – [23] of the 2019 decision: "Both experts supported a diagnosis of paedophilic disorder. They were of the view that Mr Jubb had an interest in adolescent male children. Dr Martin described it in the following terms: 'It's generally considered to be a chronic vulnerability, so by definition, longer than I think six months but more than likely it's a lifelong time. It's something you wouldn't expect a person to grow out of.' Ms Howell essentially agreed: 'Yes, it's primary sexual interest so it's usually lifelong. In his report, Dr Martin was asked to address the question of whether Mr Jubb poses a risk of committing a further serious offence. His response included: '[In] my opinion, it is reasonable to say that his risk is significant. I concur with the comments generally made by Ms Tulloh and Cieplucha in relation to future risk of sexual offending. There are a number of protective factors in his case which include that the sexual offending against the boys occurred in an isolated manner apparently and did not involve extreme violence. He does not have an anti-social personality and there is no suggestion of other sexual deviance such as sexual sadism. He does not have a substance abuse disorder. He does not have a major mental disorder. He apparently has some supports and has been able to maintain friendships and an intimate relationship with an adult male. Within the limitations of a relatively brief and crosssectional assessment, he appeared comfortable with his sexuality and was able to articulate the wrongfulness of sexual behaviour involving children. He was open to engaging in psychotherapy in relation to sex offending. He has a reasonable employment record apparently. He is of reasonable intelligence. The main concern that I have is that he has not engaged in lengthy psychotherapy in relation to sex offending and has been considered "untreated". There may be an element of minimisation and denial which are common cognitive distortions among people who offend sexually. There have been a number of breaches of his supervisory orders which raise some concern in relation to his insight, understanding of legal requirements and restrictions, and possibly lack of regard for such requirements. The alleged multiple phone calls with a 15-year old male in contravention to the order is worrying. It is plausible and likely that the risk of offending will be reduced with further supervision, especially with appropriate psychological therapy and support and help with engaging in age-appropriate relationships, and finding appropriate accommodation and employment.' Ms Howell's response to the same question included: 'Mr Jubb's risk of committing a further serious offence falls in the Average Risk category based on Static-99R actuarial assessment. Clinical assessment together with Mr Jubb's dynamic risk factors and incomplete treatment participation suggests his overall risk could be higher than an average risk to re-offend. He participated in sex offender programs in custody and in the community, however, he did not complete the High Intensity Sex Offender Program (HISOP) (previously known as CUBIT) and his participation with the Pastoral Counselling Institute consisted of participation in five one hour assessment for treatment sessions. Incomplete treatment is an acknowledged high risk factor for future offending. Risk is dynamic and prone to fluctuation in response to personal and environmental factors. Mr Jubb's risk could abate over time, alternatively, his risk may escalate in the event he is unable to obtain employment and meaningful connections to the community. He has very limited family support and experiences loneliness and isolation which may act as stressors for further offending'." 1. On 29 January 2024, Samuel Ardasinski, forensic psychologist, prepared a risk assessment report in relation to the possible application of an ESO in respect of the defendant. Some positive progress is noted by Mr Ardaskinski, who found that the defendant now demonstrates only a moderate level of criminogenic needs relative to other male adult sex offenders. 2. Noting that the defendant was released onto the present ESO untreated (as he did not complete a high-intensity treatment programme in custody and there were no publicly funded appropriate group treatment programmes for sex offenders in the community), Mr Ardasinski believes there have been some advances made, although risk remains. He observed that, "In my opinion, Mr Jubb's account of his offences, and of his subsequent breaches of the CPR, CPPO and his ESO, appear plausible and he has made considerable progress to moderate his risk of reoffence by embarking on a new lifestyle which allows for his sexual needs to be met […] I feel that Mr Jubb more closely resembles an 'opportunistic' (or 'mundane') offender than a 'committed offender'. I believe that by limiting opportunities for Mr Jubb to return to "an unsocial life" (his term), and his having ample consensual sexual outlets within the confines of the Sydney gay community, his risk is significantly diminished." 1. Although some caution must always adhere to consideration of the product of risk assessment tools, assessment of the risk posed by the defendant utilising actuarial tools suggest that he continues to present a risk to the community. The "score" returned by the administration of the STATIC-99R tool, being 4, suggests a rate of recidivism 1.94 times higher than that of the "typical" sex offender. An even higher score – that of 6 – was returned by the administration of the STATIC-2002R tool, giving an estimated rate of recidivism of about two-and-a-half times that of the "typical" sex offender. Mr Ardasinski concluded that, "[…] this combined assessment of risks/needs level would suggest Mr Jubb would still require a moderate level of intervention and/or supervision […]". 1. Mr Ardasinski believes that the defendant is reasonably well-integrated with employment and a small circle of friends with whom he corresponds via text or using the internet, as well as a friend who he sees in person semi-regularly. There remains a concern, however, that a deviant sexual preference is, potentially, a critical risk factor. The defendant himself asserts that his lifestyle is so different now compared to 2010 when he offended, that his risk is non-existent. 2. Mr Ardasinski opines that the defendant has "a moderate-high loading of protective factors that would inoculate against risk", principally his employment, his "prosocial sexual interests and prosocial sexual identity", the solid therapeutic relationships which are in place, and the defendant's motivation to manage risk. Whilst a manifestation of the risk of sexual violence "remains quite realistic", Mr Ardasinski believes that the defendant's current lifestyle is far removed from the conditions that would precipitate sexual violence, and will remain so if he continues to maintain a stable and fulfilling lifestyle. The totality of the evidence suggests to Mr Ardasinski that the defendant currently falls in the "moderate risk category" for sexual offending relative to other adult male offenders. 3. On 15 February 2024, Claire Harlender, Community Corrections Officer, prepared a risk management report in relation to the defendant. Like Mr Ardasinski, Ms Harlender thought that the defendant continued to demonstrate stability. He moved to privately rented accommodation in October 2023 and has: "… made active steps towards increasing his social activities with adult individuals, as well as engaging in a new lifestyle that assists him to socialise with like-minded individuals within the LGBT community and have his sexual needs met in a healthy and consensual space." 1. The defendant also has the continuing support of family, although at some distance, with his mother, resident in Victoria, being his closest contact. 2. Ms Harlender recorded the steady progress made by the defendant, with Electronic Monitoring Equipment removed on 1 November 2020. 3. Following the 2022 breaches of the order, which included undisclosed communications with a child, and the defendant's return to custody, it is considered that, on release, he has been compliant with the order. On release from prison the defendant engaged well with his supervisor, and with ongoing therapy. He interacts with his treating psychologist in a manner assessed to be both open and genuine. 4. Approval was given in February 2024 to the defendant to download applications to his phone such as dating applications, and social media; and the requirement to submit to scheduling was removed on 5 February 2024, the same date that he progressed to "Stage 3" of Electronic Monitoring. These changes give him more freedom, whilst also allowing his supervisor to be made aware of his movements generally, should any particular movement be a cause for concern. 5. For the future management of risk, Ms Harlender proposes that the defendant maintain a programme of weekly contact with his supervisor, meeting in the community, at his home, or at a Community Corrections office. Focus would be on the management of impulsivity, interpersonal relationships, self-awareness and responses to high risk environments, intended to assist the defendant to develop and maintain personal problem solving skills. 6. A case plan will be developed focusing on community based intervention, monitoring and verification. Compliance checks will be conducted including by covert surveillance, device and house searches, and regular meetings with staff from the NSW Police ESO Investigations Team. Ongoing psychological therapy will be maintained. 7. Ms Harlender recommends the imposition of the following conditions to adequately mitigate risk. 8. Electronic monitoring should be available, to allow supervisors to monitor the defendant's movements and activities, establishing exclusion zones as necessary with the capacity to ascertain observance. Place and travel restrictions are thought necessary to prevent the defendant from attending unsuitable places. Restrictions on his accommodation are suggested, to ensure that living arrangements are suitable and subject to approval. Non-association conditions would allow supervisors to prevent the defendant from being in the company of children, or others who might heighten the risk of offending. Restrictions on the use of the internet and electronic communications are seen as important in light of his earlier use of such media to gain access to children. Powers of search and seizure will permit supervisors to ensure that the defendant remains compliant with the conditions of any order. Conditions preventing the defendant from changing his identifying information or materially altering his appearance will assist those supervising the defendant to monitor him and his activities. The capacity to direct the defendant to engage with appropriate medical intervention and therapy is regarded as important, as is the defendant's continuing engagement with a treating psychologist. 9. The risk management plan will be reviewed twice monthly and updated or altered as necessary. Conclusion as to Orders 1. Whilst the defendant has clearly made significant progress, for which he is to be commended, on the evidence before the Court at this preliminary stage he continues to pose a risk to others, notably to children, unless a supervisory regime is maintained. I am satisfied that the preliminary orders should be made. The next question is the nature of the conditions of the ISO to be imposed. At Issue 1. As noted above, for the purposes of the preliminary orders only, the defendant does not take issue with the State's case; he does, however, dispute the need for 6 of the conditions of the ISO which the State seeks to have imposed. The condition sought by reference to its number in the list of conditions attaching to the application, the nature of the defendant's objection to the condition, and the State's position on the dispute is set out below. No Condition Sought Nature of Objection State's Position 4 If directed by a DSO the defendant must wear electronic monitoring equipment and must not tamper with, or remove, the equipment. Not presently necessary. Should only be imposed in the event of future breach of ESO conditions. The plaintiff presses the condition in its current form. 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. Not presently necessary. Should only be imposed in the event of future breach of ESO conditions. The plaintiff presses the condition in its current form and opposes any amendment to the condition. 8 The defendant must live at an address approved by a departmental supervising officer ("DSO") and notify a DSO of any intention to change the defendant's address or living arrangements. Delays in approval are causing the defendant to miss out on rental opportunities. A requirement that the approval take place within 24-48 hours of a request should be added. The plaintiff opposes the proposed amendment, but is willing to endeavour to respond within 4 business days. Without limiting condition 16 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; 15 (d) Libraries and museums; Condition is overbroad, and some categories lack justification. Cinemas; libraries and museums; playing fields and sporting facilities should be removed. References to parks should be reformulated to limit it to parks where children are likely to be. Any specific concerns can be addressed via condition 14. The plaintiff opposes the proposed amendment. (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) Residencies where the defendant knows that persons aged under 18 years ordinarily reside. Suggest combining conditions [17] and [19]: 19 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 offence. Before any disclosure is made, the defendant must first be informed and given the opportunity to make the disclosure himself. If the defendant makes the disclosure himself, the defendant must permit the DSO to confirm whether accurate information has been disclosed. Unnecessary in light of condition 17. If the defendant associates on a social basis with a person who he knows is the parent or guardian or has care and control of a child under the age of 18 years, he must notify the DSO as soon as possible of that association. The DSO may want to tell the person of the defendant's criminal history if it is reasonably necessary. 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 offence. Before any disclosure is made, the defendant must first be informed and given the opportunity to make the disclosure himself. If the defendant makes the disclosure himself, the defendant must permit the DSO to confirm whether accurate information has been disclosed. 30 The defendant must agree to his healthcare practitioners sharing information with each other and with his DSO. Condition ought to be limited to limit disruption to therapeutic relationships by making such sharing conditional upon a link to rehabilitation and risk of committing a serious offence. The defendant must agree to his healthcare practitioners sharing information with each other and with his DSO to the extent that it is relevant to his risk of reoffending or rehabilitation. (Parties agreed to the wording of this condition after the hearing) 31 The defendant must agree to any information obtained under condition [30] being shared between those persons and agencies that are involved in his supervision including but not limited to his DSO and CSNSW. Conditions ought to be limited to limit disruption to therapeutic relationships by making such sharing conditional upon a link to rehabilitation and risk of committing a serious offence. Suggested amendment: The defendant must agree to any information being shared between those persons and agencies that are involved with his supervision including, but not limited to, a DSO, NSWPF and CSNSW to the extent that it is relevant to his risk of reoffending or rehabilitation. Proposed Condition 4 – Electronic Monitoring 1. The proposed condition would allow the defendant's supervisors to direct the defendant to submit to electronic monitoring. The defendant is currently the subject of electronic monitoring, which was most recently reimposed on 11 September 2023 following breaches of the order in 2022. He was also subject to electronic monitoring at an earlier time until it was removed in November 2020. The State argues that electronic monitoring should remain; the defendant disputes the necessity of the condition, given the progress he has made. 2. It is accepted that electronic monitoring is a useful tool in monitoring the movements of persons subject to an ISO or ESO. However, the defendant appears to have made significant progress, particularly over the last six months. He has maintained full and continuous employment. He has acquired suitable accommodation in the private rental market and maintained his lease. He has developed a small network of adult friends with whom he interacts. He maintains contact with family. His conduct has been appropriate. Having regard to that progress, and the assessment of risk made by Mr Ardasinski, I am not persuaded that electronic monitoring is necessary to ensure the safety of the community. 3. The defendant is well aware of the consequences of any breach of an ISO or ESO, having served a number of sentences of imprisonment related to breaches of protective orders; that experience will no doubt operate as a significant motivation towards compliance. Although without the ease or constancy that electronic monitoring allows, the defendant's movements can be monitored to a degree by those supervising him utilising the powers provided by other conditions – by surveillance, inquiries with employers and others, and by inspections or searches of devices and home. Those mechanisms give some measure of confidence that any breach of, for example, a place restriction, is likely to be detected, to the defendant's peril. 4. If there were to be a future breach, the defendant can of course be charged criminally and thereby made subject to the requirements of the criminal justice system, including by forfeiting his liberty. If some breach were to be regarded as too trivial to warrant prosecution, but of sufficient seriousness as to necessitate the reintroduction of electronic monitoring, s 13(1) of the Act provides a power for the Court to vary an order. It is open to the State to seek such a variation if necessary. 5. Rehabilitation is one of the objects of the Act. Where there has been rehabilitation, and a corresponding reduction in risk, it is useful in achieving a defendant's continuing rehabilitation if that person sees some recognition of his or her efforts, assuming recognition can be given without compromising community safety. In my assessment, it can be given here, by acknowledging that the defendant's progress has sufficiently mitigated the risk he poses as to allow for a reduction in the level of scrutiny to which he is subject. Electronic monitoring is not required in the Court's conclusion. Proposed Condition 5 – Scheduling 1. The proposed condition 5 would permit a DSO to require the defendant to submit a regular schedule of movements, three days prior to the commencement of the period. Although the defendant is not presently subject to a requirement for scheduling, the State argues that the condition allows for its reintroduction should the need arise, need being assessed by reference to the level of the defendant's compliance with the orders. When in operation, the submission of schedules permits the DSO to assess the level of risk associated with any proposed activity, and also to use the schedule as a tool to encourage appropriate activities. The defendant, whilst accepting that there may be a need for scheduling from time to time, submits that it should only be reimposed in the event of a breach of the ISO. 2. Whilst the defendant's submission is not without merit, in the absence of electronic monitoring proposed condition 5 should be imposed. I accept the State's submission that scheduling is a useful tool which, having regard to the defendant's history of breaching orders made for the protection of children, may need to be implemented again in the future. If the defendant remains fully compliant with the restrictions he is and will be subject to, it is difficult to conceive of a situation that would call for the reimposition of scheduling. However, particularly given that those supervising the defendant will not have the power to direct him to accept electronic monitoring without seeking a variation of the order, condition 5 will allow an immediate response to any manifestation of an elevated risk that warrants a higher level of supervision. This increased level of scrutiny is made possible by scheduling requirements. Condition 8 1. Condition 8 relates to the need for approval of any accommodation the defendant may occupy from time to time. The State submits, and the Court accepts, that it is essential that the DSO is able to vet any proposed place of residence for the defendant, as some locales will be high risk and unsuitable. The defendant accepts this, but feels disadvantaged in the current rental climate, which is not favourable to tenants, by the delay sometimes involved in the assessment process. He would like the Court to require approval to be determined within a defined period, specified as 24 or 48 hours from the request for approval of any new residence. The State is concerned that, since the approval process can involve external agencies, such as the NSW Police, over which the DSO has no control, it may not be possible to meet a short specified timeframe in which approvals are to be given. 2. Following the hearing of the matter the parties advised the Court that the State was prepared to endeavour to finalise approval within 4 business days. 3. One can see merit in the positions of both parties. There must be capacity for the DSO to assess the suitability of any proposed place of residence for the defendant, and to involve other agencies as necessary to ensure that the best information is available to those assessing risk. That process may not be a speedy one. It is also reasonable to expect that the process is undertaken without undue delay, since delay could mean that the defendant loses the opportunity to take up otherwise suitable rental accommodation. That is a significant disadvantage in a difficult rental market. 4. The Court is, however, loathe to put a specified timeframe against condition 8, even the suggested period of 4 working days, as it may be made unworkable. What can be required is that all possible expedition is employed by those involved in the process, to ensure that the defendant is not needlessly shut out of suitable accommodation. Noting the goal of approval within 4 working days, and further noting that those undertaking this task should endeavour to meet that goal, the condition will read: 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. In the event of a notification being made a DSO must employ all possible expedition in determining the question of approval. Condition 15 1. Condition 15 is a place restriction condition that the defendant argues is too broadly worded, with the consequence that he is prevented from going to parks, cinemas, libraries and museums, those being places where children may, but equally may not, congregate. The State submits that the condition is required to ensure that the defendant does not loiter in places where children typically congregate. 2. Whilst the Court accepts that there is nothing inherently anti-social in a visit to a museum, for example, it does not require an overly vivid imagination to foresee the potential risk in the defendant's attendance at such a place. Whilst cinemas, libraries, museums, and sporting fields are not necessarily designed for the primary use of children in the way that a day-care centre, for example, is, these are facilities that are routinely used by children, in school or other less formal groupings. The condition suggested by the State does not prevent the defendant from having access to such facilities – it simply requires him to do so with sufficient forethought as to secure permission for his attendance in advance. He can attend an exhibition at a museum, see a movie, visit a library to borrow books, or play in a soccer team at a sporting field, if he secures approval prior to doing so. Although the requirement is no doubt inconvenient, and makes spontaneity impossible, it is not a blanket ban on the defendant having access to the benefits of these facilities. I do not propose to amend that aspect of the condition. 3. As to the contention that the defendant is prevented from walking through a park, such as Hyde Park in Sydney, or hiking in a National Park, I accept that the unqualified use of the word "park" has a very broad effect, and could include municipal parks and areas designated as a National Park – but only where the particular park has children's play equipment. Noting that a DSO has the power to issue a place restriction under condition 14 that could be utilised if, for example, the closest municipal park to the defendant's residence is one where an installation of children's play equipment sees regular use by children, the condition will be given greater clarity as follows: Without limiting conditions 14 and 16, 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 other areas with play equipment provided for the use of children; not including municipal or National parks where no such play equipment is situated; g. Pools, playing fields and sporting facilities; h. Concerts, theatre shows, movies, events and activities intended for the entertainment of children; and i. Residencies where the defendant knows that persons aged under 18 years ordinarily reside. Condition 19 1. This condition permits a DSO to ensure that persons with whom the defendant socialises are aware of his criminal history if necessary to mitigate risk. The defendant submits that it is not necessary, as condition 17 covers the area. The State suggested merging the conditions. 2. In my view there is a degree of repetition in conditions 17 and 19, but condition 19 is wider in operation and is to be preferred. It is capable of encompassing the target group of condition 17, and also permits a DSO to ensure that any disclosure made by the defendant is full and accurate. With some re-drafting, proposed condition 19 only will apply, in these terms: The defendant must agree to a DSO disclosing his criminal history to another person, including persons with whom the defendant associates on a social basis, or whom the defendant knows is a parent or guardian of a child under the age of 18 years if the disclosure is reasonably necessary to address a risk of the commission of a serious offence. Before any disclosure is made, the defendant must first be informed and given the opportunity to make the disclosure himself. If the defendant makes the disclosure himself, the defendant must permit the DSO to confirm whether accurate information has been disclosed. Conditions 30 and 31 1. These conditions govern information concerning medical and other therapeutic treatment being shared between treating professionals and a DSO. The defendant argues that it is or could be unnecessarily disruptive to necessary treatment, and information should only be shared if a treating health professional judges it to be necessary. The State is concerned that practitioners treating the defendant will not necessarily have the skills or experience to make a risk assessment in the same way as a DSO, and the safety of the community cannot be left to the potentially unqualified control of individuals outside the risk management process. 2. Whilst the defendant's concerns are acknowledged, and the potential for invasive disclosures is noted with these conditions, I accept that a treating clinician, whilst no doubt expert in his or her field, is not to be expected to possess experience or qualifications in the area of risk assessment and mitigation. Condition 31 will be imposed as sought. The parties advised the Court following the hearing of this matter that agreement had been reached as to the wording of condition 30; it will be imposed in the terms agreed. Conclusion 1. For these reasons the Court will make the preliminary orders sought, with the conditions to the ISO set out below. To ensure the discussion as to conditions in this judgment can be understood, the numbering of conditions used in the conditions attaching to the Summons will be retained. Orders Preliminary hearing order: Expert reports 1. An order pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"): 1. Appointing two qualified psychiatrists or registered psychologists (or any combination of such persons) as agreed between the parties to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and 2. Directing the defendant to attend those examinations. Interim relief 1. An order pursuant to s 10A of the Act, that the defendant be subject to an interim supervision order from 28 June 2024 ("the interim supervision order"); 2. An order pursuant to s 10C(1) of the Act, that the interim supervision order be for a period of 28 days; and 3. An order pursuant to s 11 of the Act, directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule to this Judgment. Ancillary relief 1. An order that access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access. 2. The matter is listed before the High Risk Offender List Judge on 4 July 2024 to fix a date for the final hearing of this application, and set a timetable for the filing and service of evidence and submissions. Addendum 1 July 2024 1. On 28 June 2024, the applicant's solicitor advised of a factual error made in relation to the electronic monitoring regime of the defendant. Under the slip rule, amendments were made at [33]-[35]. ********** schedule of conditions of supervision gavin MATTHEW jubb Departmental Supervising Officer (DSO) Corrective Services NSW (CSNSW) In these conditions: "CSNSW" means Corrective Services NSW. "Commissioner" means Commissioner for Corrective Services "Defendant" means Gavin Matthew JUBB, the defendant in these proceedings and the subject of the order. "Electronic Identity" means each of the following: 1. an email address, 2. a user name or other identity allowing access to an instant messaging service, 3. a user name or other identity allowing access to a chat room or social media on the internet, 4. 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: 1. where he is or has been; 2. where he is going; 3. who he is with or has been with; 4. what he is doing or has been doing; and 5. the nature of his associations. Electronic Monitoring 1. DELETED Schedule of Movements 1. 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. 2. 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. 3. The defendant must not deviate from his approved schedule of movements except in an emergency. Part B: Accommodation 1. 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. In the event of a notification being made a DSO must employ all possible expedition in determining the question of approval. 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 not spend the night anywhere other than his approved address or any alternative approved addresses (if relevant) without the approval of a DSO. 4. The defendant must not permit any person under the age of 18 to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO. Part C: Place and travel restrictions 1. 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. 2. The defendant must not leave New South Wales without the approval of the Commissioner of CSNSW. 3. The defendant must not frequent or visit any place or district specified by a DSO. 4. Without limiting conditions 14 and 16, the defendant must not go to any of the following without the prior approval of a DSO: 1. Day-care centres, pre-schools and schools; 2. Amusement parlours, amusement parks and theme parks; 3. Cinemas; 4. Libraries and museums; 5. Camping grounds and caravan parks; 6. Children's playgrounds, parks, and areas with play equipment provided for the use of children; not including municipal or National parks where no such play equipment is situated; 7. Pools, playing fields and sporting facilities; 8. Concerts, theatre shows, movies, events and activities intended for the entertainment of children; and 9. Residences where the defendant knows that persons aged under 18 years ordinarily reside. Part D: Non-association Association with Children 1. 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. 2. DELETED – see condition 19 Associations with Others (not children) 1. The defendant must not associate with any person or persons specified by a DSO. 2. The defendant must agree to a DSO disclosing his criminal history to another person, including persons with whom the defendant associates on a social basis, or whom the defendant knows is a parent or guardian of a child under the age of 18 years if the disclosure is reasonably necessary to address a risk of the commission of a serious offence. Before any disclosure is made, the defendant must first be informed and given the opportunity to make the disclosure himself. If the defendant makes the disclosure himself, the defendant must permit the DSO to confirm whether accurate information has been disclosed. Part E: Access to the internet and other electronic communication 1. 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 and applications used, method of communication, access to the internet, user and internet provider information, allowing remote access and restrictions on deleting information. Part F: Search and seizure 1. The defendant must submit to the search of his person as well as 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. 2. 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 G: Access to pornographic, violent and classified material 1. The defendant must notify his DSO within a reasonable time after he has purchased, accessed, obtained, viewed or listened to pornographic material. (23A) The defendant must obey all reasonable directions of his DSO in relation to the access of material identified in condition [23] above. Part H: Personal details and appearance 1. The defendant must not change his name from "Gavin Matthew JUBB" or use any other name without notifying a DSO. 2. The defendant must not significantly change his appearance without the approval of a DSO. 3. 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. 4. 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 I: Medical intervention and treatment 1. The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults. 2. The defendant must attend psychological and psychiatric assessments, therapy, support and treatment as directed by his DSO. 3. The defendant must agree to his healthcare practitioners sharing information with each other and with his DSO to the extent that it is relevant to his risk of reoffending or rehabilitation. 4. The defendant must agree to any information obtained under condition [30] being shared between those persons and agencies that are involved in his supervision including but not limited to his DSO and CSNSW. Amendments 01 July 2024 - See addendum 1 July 2024. 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: 01 July 2024