Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Green (Final) [2013] NSWSC 1003 Hearing dates: 17 July 2013 Decision date: 26 July 2013 Jurisdiction: Common Law Before: R A Hulme J Decision: Extended supervision order made for a period of three years with conditions Catchwords: HIGH RISK SEX OFFENDER - application for extended supervision order - no dispute as to making of order - dispute as to duration and conditions - no question of principle Legislation Cited: Crimes Act 1900 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Cases Cited: New South Wales v KAS [2012] NSWSC 1139 New South Wales v Richardson (No 2) [2011] NSWSC 276 New South Wales v Thomas (Preliminary) [2011] NSWSC 118 New South Wales v Conway [2011] NSWSC 588 State of New South Wales v Green (Preliminary) [2013] NSWSC 637 State of New South Wales v Hill (No 4) [2010] NSWSC 1504 Category: Principal judgment Parties: State of New South Wales (Plaintiff) Leslie John Green (Defendant) Representation: Counsel: Ms G F Mahony (Plaintiff) Ms R Mathur (Defendant) Solicitors: Crown Solicitor's Office Legal Aid Commission of NSW File Number(s): 2013/112850 Judgment 1HIS HONOUR: The State of New South Wales (the State) applies for an extended supervision order for a period of 5 years in respect of Mr Leslie Green pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW). 2It is not disputed that Mr Green is a "sex offender" within the meaning of that term in s 4 of the Act: he is over the age of 18 and he has been sentenced to imprisonment following his conviction for serious sex offences punishable by imprisonment for 7 years or more, namely aggravated indecent assault (s 61M of the Crimes Act 1900 (NSW)). 3I am satisfied that Mr Green is also a "high risk sex offender" within the meaning of that term in s 5B in that he is sex offender in respect of whom there is a high degree of probability that he poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision. 4The test for determining whether a person poses an unacceptable risk of committing a serious sex offence pursuant to s 5B(2) (formerly s 9(2)) is, to some extent, clarified by s 5B(3) (formerly s 9(2A)). It has been the subject of definitive discussion in so many cases in this Court that repetition here is unnecessary. See, for example, New South Wales v Thomas (Preliminary) [2011] NSWSC 118; New South Wales v Conway [2011] NSWSC 588; New South Wales v KAS [2012] NSWSC 1139; and New South Wales v Richardson (No 2) [2011] NSWSC 276. 5There is substantial uniformity in the opinions of expert psychiatrists and psychologists that support the proposition that Mr Green is a high risk sex offender. Moreover, it was conceded by his counsel, Ms Mathur, that such a finding was open to be made. Given this state of affairs, I will not refer in detail to the histories obtained and the analyses carried out by the two court appointed psychiatrists and the other experts whose reports are before me. The opinions of the principal experts are encapsulated in the following. 6Dr Andrew Ellis, forensic psychiatrist, expressed the view in his report of 4 June 2013 that "Mr Green would fall into a group of persons with a risk [of] offending that is high, and greater than a theoretical average offender. Specific treatment and supervision would likely reduce this risk." 7Dr Jeremy O'Dea, forensic psychiatrist, expressed the view in his report of 6 June 2013 that "it would seem reasonable to consider that there would be a significantly high degree of probability that Mr Green would be likely to commit a further 'serious sex offence' ... in the community in the long term, in particular if ... treatment interventions were not successfully implemented." 8Mr Paul Sheehan, forensic psychologist, said in an affidavit affirmed recently, "In my risk assessment report of 25 January 2013, I assessed Mr Green as presenting a high risk of sexually re-offending relative to other adult male sexual offenders. In my view, there is no evidence to warrant any reduction in Mr Green's estimated risk at this time. I regard Mr Green's overall assessment of 'high risk' of sexual recidivism as continuing to be valid at the present time." Whether an order should be made: factors required to be considered under s 9(3) 9I do not propose to refer to each of the matters that are required to be taken into account pursuant to s 9(3) of the Crimes (High Risk Offenders) Act but will confine mention to those that appear to be of particular significance. I have, of course, turned my mind to each of the matters in 9(3)(a) to 9(3)(i). Criminal history 10The nature of Mr Green's past sexual offences is troubling. The first offence occurred on 20 June 2003 when he was aged 16. It occurred in bushland on the Central Coast of New South Wales. The seven year old victim and her friend were taking a dog for a walk. Mr Green engaged them in conversation and then took the victim into the bush away from her friend. He pushed her to the ground face down and sat on her. He then unzipped his pants before pulling down the girl's pants and underpants. He lay on top of her. She could feel his penis on her bottom and Mr Green moving up and down. She tried to call for help but he put his hand across her mouth causing her difficulty in breathing. Following this he stood up and allowed her to leave. She immediately reported the matter. Mr Green's semen was found on her underpants. 11For this offence Mr Green was sentenced in the District Court at Newcastle on 20 September 2005 for one count of aggravated indecent assault upon a child under the age of 10. He was sentenced to imprisonment for 3 years and 9 months with a non-parole period of 1 year 9 months. 12Sometime between 14 July and 31 October 2003 Mr Green visited the home of a friend. The friend's niece, who was nine years old, was visiting the home at the same time. He approached the niece when she was playing in a cubby house at the rear of the home and encouraged her to accompany him into nearby vacant bushland on the pretext of looking for tadpoles. After about 15 minutes in the bush he pushed her and she fell into bushes and suffered some scratches. He was not dealt with on the basis that there was a sexual element to the offence. 13The victim of this offence did not report the matter until 2007. Mr Green pleaded guilty to assault (s 61 of the Crimes Act) and on 13 February 2009 was sentenced in the District Court to a fixed term of imprisonment for 9 months. 14On 30 April 2008, Mr Green, then aged 21, sexually assaulted a 9 year old girl. She was asleep in a bedroom in the home of Mr Green's sister. Her brother and a male cousin were in the bedroom as well. The victim was awoken by Mr Green trying to remove her pants. She tried to call out but he placed his hand on her mouth and told her to be quiet. He then placed his penis on and around her vagina while she was lying on her stomach. When she turned onto her back he again placed his penis on and around her vagina. The assault ended when her brother woke and saw Mr Green on top of his sister. 15Mr Green was sentenced in the District Court on 13 February 2009 for two offences of aggravated indecent assault upon a child under the age of 10, one of the offences being taken into account when he was sentenced for the other. The sentence imposed was one of imprisonment for 4 years and 3 months with a non-parole period of 2 years 9 months. He served the full term of the sentence without parole and was released from custody on 12 May 2013. 16At the time of committing the first sexual offence in June 2003 Mr Green was on probation. At the time of committing the second sexual offence in April 2008 he was on parole. 17Mr Green has been dealt with for a number of other criminal offences. They include break enter and steal, robbery in company, possess prohibited drug, assault, assaulting and resisting police officers, and carrying a cutting weapon. All of these matters were dealt with in the Children's Court. Compliance with obligations whilst under supervision 18Mr Green has experienced a number of difficulties in complying with conditions of supervised liberty in the community. There were a number of breaches in 2002 and 2003 of orders made by the Children's Court. He breached parole which led to its revocation in 2007. He was re-released about three months later but then committed the second of the sexual offences in April 2008, whilst still subject to parole. 19Mr Green has been the subject of an interim supervision order since he was released from custody on 12 May 2013. That order was made by Barr AJ on 7 May 2013: State of New South Wales v Green (Preliminary) [2013] NSWSC 637. The written submissions for the plaintiff set out a number of incidents involving behaviour contrary to conditions of that order; although it must be noted that none were regarded as serious enough for him to be held in breach of the order. He was, however, served with a formal notice directing him not to display any threatening, intimidating or aggressive behaviour or to verbally abuse staff or fellow residents. Participation and response to treatment and rehabilitation programs 20There is voluminous material concerning Mr Green's participation in, and response to, various treatment and rehabilitation programs. It is appropriate, in considering this material, to say something about his background. 21He was born in Newcastle, the second eldest of five children. His father was described as a loving and protective man who fostered close family ties. He died suddenly when Mr Green was aged 10. His mother then sank into deep depression and neglected the family. 22Mr Green was devastated by the death of his father. The Department of Community Services became involved with the family and the children were put into various foster care arrangements. It was in the context of one of those placements that Mr Green was sexually abused by an adult male at around age 11 or 12. He began to rebel. He associated with undesirable peers. He became oppositional at school and became involved in bullying and fights, sometimes with knives. Unsurprisingly, this was the genesis of his criminal offending and alcohol and substance abuse issues which plagued his life for the next decade or more. The fact that he disengaged from education at about age 13 has not helped. He now has limited literacy and numeracy skills. 23Mr Green has claimed that illicit drug use was relevant to both occasions of his sexual offending. He has also claimed that he was ruminating about his previous experience of being sexually abused; he told Dr O'Dea that he was "thinking in my head that if it was okay to happen to me, it was okay to happen to other people". He admitted, as well, that he felt a sexual urge for the victim child on each occasion. 24Mr Green attended sex offender treatment programs whilst in juvenile detention following the first sexual offence. He told Dr O'Dea that "it was fucking bullshit". 25After his second release on parole in 2007 he completed a number of drug and alcohol rehabilitation programs, including spending three months in a residential facility. He relapsed soon afterwards and he continued to use illicit drugs during his subsequent time in custody from May 2008. 26Mr Green refused to engage in any sexual offender program during his last period in custody and that is why he ended up serving the entire term of the sentence. He offers by way of explanation that he did not want to disclose the nature of his offending for fear of retribution from other inmates. 27Since being released on 12 May 2013, Mr Green has enrolled with a methadone program and has commenced to engage with counselling. The detailed case notes indicate, however, that he has often demonstrated an attitude of quick-tempered confrontation and defiance. Psychiatric reports 28Dr O'Dea did not diagnose Mr Green as suffering from a major psychiatric illness, but said that his presentation was suggestive of a potentially significant mood disturbance, with an angry and elevated effect. He did not find a direct causal connection between his history of trauma and disadvantage (including being the victim of sexual abuse as a child) and his sex offending behaviours. There were signs of an evolving personality disorder. There was a potential for sexual attraction to female children that should be explored. To date, psychological treatments alone have been unsuccessful in managing Mr Green's risk of committing further sex offences. Dr O'Dea's view that there was a "significantly high" risk of Mr Green committing further serious sex offences has been noted earlier. 29Dr Ellis diagnosed in Mr Green the mental disorders of paedophilia and polysubstance dependence disorder. He also found that Mr Green met the criteria for antisocial personality disorder. He said that deviant sexual arousal is consistently identified as the most prominent risk factor for sexual reoffence and Mr Green's offences indicated this pattern of arousal. Antisocial personality orientation was another such factor which applied in this case. Unstable mood states were also relevant and should be a treatment target to reduce the likelihood of reoffending. Substance abuse, serving to disinhibit underlying sexual impulses and predisposition to disordered mental states, was a relevant factor. 30Dr Ellis also considered the type of possible sexual reoffence. In the light of the history, including the pattern of sexual arousal, the most likely type of victim would be a female child in a situation where they were alone or in a position of vulnerability. 31These were all factors that contributed to Dr Ellis expressing the opinion I have earlier mentioned; that Mr Green is in a group of persons with a risk of offending that is high. Other assessments concerning the likelihood of the defendant committing a further serious sex offence 32There are a number of other reports within this category. Those involved in the future assessment and treatment of Mr Green should not be misled by my not lengthening this judgment by referring to the detail contained within them. I simply confirm that I have taken the content of those reports into account but trust that the foregoing should be sufficient to explain the conclusions I have reached in this matter. Submissions for the State 33On the question of whether an extended supervision order should be made, and if so, its duration, it was put in written submissions by Ms Mahony, counsel for the State: The defendant has been assessed on many occasions in respect of his risk of re-offending since he first [committed] a sexual based offence. He has consistently been assessed as a moderate to high risk of re-offending and, based on the recent assessments by Dr O'Dea and Dr Ellis, he remains at that level. During his period in custody, as an adult, the defendant made no efforts to address his known risk issues, including his drug use, his anger management and his own reaction to the sexual assault he was subject to. Notwithstanding undertaking some rehabilitation as a juvenile, these underlying issues have not been properly addressed and he has re-offended following the conclusion of these matters. Dr Ellis opines that some of the defendant's present condition may not have been recognized and consequently addressed. The plaintiff submits that this Court could not be satisfied that the defendant has, at this present time, the capacity to address his risks of re-offending without significant support and structure that can only be provided by an ESO. Further, the assistance the plaintiff requires is not only to ensure the safety of the community, but to aide in a proper rehabilitation. Therefore any such order needs to be for the maximum period of 5 years. On this issue, Dr Ellis recommends 4 years but recognises that his psychiatric disorders are chronic and likely to persist beyond such a period. Dr O'Dea considers the full five years is required. 34There was nothing said in opposition to those submissions in respect of the need to make an order. 35I am satisfied that it is appropriate to order that Mr Green undergo a period of extended supervision pursuant to the Crimes (High Risk Offenders) Act. There remains, however, a dispute as to the conditions of such an order and its duration. Conditions 36Ms Mathur submitted on behalf of Mr Green that any conditions attaching to the order ought to specifically address issues relevant to currently identified risk factors in relation to future offending. Further, it was submitted that the conditions should be limited to addressing conduct regarding the risk of future serious sex offences as opposed to criminal offending generally. 37It was acknowledged that the primary object of the Act was concerned with ensuring the safety and protection of the community. But the other object of the Act specified in s 3 was to encourage offenders to undertake rehabilitation. Accordingly, it was submitted that conditions ought not be imposed that are unjustifiably onerous or simply punitive. 38I accept those submissions. 39Section 11 provides power for the Court to direct an offender to comply with such conditions as are considered appropriate. The section provides a non-exhaustive list of conditions that may be imposed. The discretion is broad but must, in my view, be exercised in conformity with the legislative purpose of the Act. 40A factor underlying the objection by counsel for Mr Green to a number of the proposed conditions is the very low level of his literacy skills. It was submitted that for this reason there was a need to both simplify and minimise the number of conditions he needs to read and recall. 41A psychologist with the Serious Offenders Assessment Unit of Corrective Services NSW recently made an assessment of Mr Green's literacy skills. She observed that there was some inconsistency in documented accounts of his skills. Her attempt to administer a test to measure his skills was frustrated by his refusal to complete it. She concluded that it was "currently difficult to precisely determine Mr Green's literacy levels. It appears likely that Mr Green's literacy levels are lower than average". 42Accepting that Mr Green has a low level of literacy, there remains a problem with the argument made about simplification by reducing the number of conditions. It is grounded upon the notion that many of the conditions granting authority in his supervising officer to give directions about specifically mentioned matters are unnecessary because there is also proposed a general requirement for Mr Green to comply with "any reasonable direction" (proposed condition 3). 43I am not convinced that this would simplify things for Mr Green. It would have the result that he has a document setting out certain requirements of the order. But he would then have a number of specific requirements by his supervisor that he would also have to understand and recall. 44In considering Ms Mathur's submissions I have also had regard to State of New South Wales v Hill (No 4) [2010] NSWSC 1504 in relation to the desirability of clarity in the conditions of supervision orders. Problems can occur when matters are left to interpretation about what is encompassed by a condition and what is not. 45In my view it would be preferable that the conditions about which concern was expressed be in writing as part of the formal order. It is not as if he will simply be given a document setting out the conditions of the order with the hope that he will read and understand it; I proceed upon an expectation that it will be read and explained to him, by his lawyers and by his supervising officer. And the written expression of the conditions will be available for use in reminding and reinforcing an understanding if that becomes necessary. Condition 5 - schedule of movements 46This condition would require Mr Green to notify his supervising officer in advance of his movements. There is no objection to that requirement but the concern is that under a similar condition of the interim supervision order the supervising officer has required him to specify "the precise route/street he takes from point A to point B on his nominated schedule of movements". It is proposed to add to the condition that it would be sufficient compliance with the condition for Mr Green to inform the supervising officer of the suburbs he intends to visit, the purpose of the visit, the time period, and the names of persons with whom he proposes to associate. 47I do not think the proposed addition to the condition is appropriate. Having read the case notes which set out in detail Mr Green's response to the interim supervision order over the past two months or so it is abundantly clear that his attitude has been one of defiance and, on occasion, breach. He has often pleased himself as to when he will attend to matters on his schedule and he has occasionally deviated from where he was approved to go. His attitude has been such that there should be discretion for his supervising officer to tighten, or relax, control on his movements (hopefully the latter) as time goes on. Much will depend upon Mr Green's willingness to accept the structure and stability in his life that is a large part of what is hoped for in advancing his rehabilitation. Condition 8 - requirement to answer as to his whereabouts and movements 48This proposed condition would require that Mr Green respond accurately to inquiries about his whereabouts and movements. There was no objection to the concept of him being asked about his whereabouts. But it was submitted that this is already covered by proposed condition 3 which is a general provision requiring Mr Green to comply with any reasonable direction. This is one of the conditions said to be unnecessary and should be deleted for the purpose of simplifying and minimising the conditions. In my view it is appropriate that this requirement not be left to interpretation by Mr Green and his supervising officer and should be stated explicitly. Condition 13 - curfew 49The proposed condition would require Mr Green to abide by a curfew "if directed" by his supervising officer. It was submitted that such a requirement was covered by the general provision in condition 3 and by condition 5. It was also put that an explicit curfew condition would be interpreted by the supervising officer as "a starting point" and might cause the officer to automatically adopt it without considering the need for it. There was no objection to the general proposition of a curfew being imposed. 50I note that the condition as framed leaves the matter to the discretion of the supervising officer. It must be assumed that the discretion will be exercised reasonably and that any curfew requirement will be reviewed as time goes on. 51A risk management report by Mr Ziggy Abedine, Senior Compliance and Monitoring Officer with the Community Compliance and Monitoring Group, includes support for the proposition that a curfew provision be included in the conditions of an order. It was suggested that a curfew could assist in providing structure and stability for an offender in Mr Green's situation. It would also be important in ensuring that there is an allocated time when he will be known to be at his approved place of residence, thereby being available for random visits and testing for illicit substances and alcohol. But Mr Abedine also says that a curfew requirement would be applied flexibly and there would be consideration over time as to whether it could be relaxed or removed. 52In my view, explicit reference to the possibility of a curfew requirement will likely aid clarity for both Mr Green and the supervising officer and should be included as a condition. Conditions 17 and 18 - informing employers of criminal history and existence of supervision order 53These conditions would require Mr Green to make an employer aware of his offending history and that he is subject to a supervision order, and its terms. And the supervising officer would also be permitted to disclose such information to an employer or prospective employer. 54The objection to these conditions was that there would be no risk because proposed condition 15, to which no objection is taken, would prohibit Mr Green engaging in any paid or unpaid work without approval. It was submitted that the proposed conditions would inhibit rehabilitation by acting as a deterrent to Mr Green seeking employment, or it would lead to possible stigmatisation and loss of employment. 55I accept the latter submissions. But a balancing exercise is involved. Whilst Mr Green might be engaged in work that would not ordinarily involve contact with or access to children, there is a possibility that an employer might unwittingly send him to a location where that might occur. The protective aim of imposing a supervision order would be better served, in my view, by including these conditions. I note that the conditions would not necessarily apply to all employment in which Mr Green might engage. The terms of the conditions include "if directed to do so" and "If the Departmental supervising officer considers it appropriate to do so". Condition 19 - non-association with specified persons 56This condition would permit the supervising officer to specify persons with whom Mr Green must not associate. The objection was based upon the same considerations underlying the objection to condition 8. For the same reasons indicated earlier, I consider that clarity is aided by including this condition. Condition 23 - written permission prior to joining a club or organisation 57The objection to this proposed condition is on the same basis as that for condition 8. Mr Sheehan suggests in his affidavit of 11 July 2013 that inclusion of this requirement as a specific condition is desirable for a number of reasons including assessment of risk in terms of the persons involved with the club or organisation (including the possibility of access to potential victims) and the activities with which the club or organisation undertakes. Inclusion of it as a specific condition rather than being left under the catchall of condition 3 is appropriate. Conditions 30-31 and 55-57 - computer and internet access and use 58Proposed conditions 30 and 31 relate to monitoring of Mr Green's use of computers and the internet. Proposed conditions 55 to 57 would require him to provide information about his internet service provider, internet connections, email addresses and the like. 59In opposing these conditions, the submission in relation to condition 8 was reiterated. Further, it was submitted that there was nothing to indicate that use of computers or the internet had anything to do with Mr Green's past offending or risk of further offending. Ms Mathur argued that these conditions amounted to an unwarranted intrusion on his liberty. Moreover, Mr Green's affidavit of 20 June 2013 includes that he does not know how to use computers; he does not know what email is, nor what Facebook and Twitter are. 60Mr Sheehan acknowledged that Mr Green may not engage in inappropriate activities with computers and the internet but regarded it as prudent for there to be a capacity to monitor his computer use and online activity. His experience is that persons with lesser literacy and intellectual capacity than Mr Green have engaged in inappropriate online activity. He argues, "if we are concerned to monitor an offender's physical location and activities, it follows that we should have equal regard to their virtual location and activities". 61I accept what has been put about the nature of Mr Green's past offending and the assessment of the risk of re-offending being most likely in similar circumstances. However, Mr Green has demonstrated a sexual interest in female children and there is a plethora of material accessible via the internet that might be attractive to a person with such interests. The concern I have is that accessing such material might counteract any gains that might be made in the treatment and counselling programs in which Mr Green will be partaking. The desirability of minimising that risk outweighs the matters raised in opposition to the conditions. Condition 32 - not to carry or possess a weapon 62It was submitted that there was nothing in the evidence to suggest a need for this condition. None of the sexual offending involved use of a weapon. 63I accept that there is nothing in Mr Green's history that indicates a propensity to armed violence or sexual offending. However, Dr O'Dea has referred to an evolving personality disorder and Dr Ellis made the diagnosis of antisocial personality disorder. Part of the problem identified with Mr Green's offending behaviour is disinhibition through substance abuse. There is evidence of Mr Green exhibiting aggressive behaviour towards staff where he is living at the moment. He told Dr Ellis of having fought with knives in the past. He also told him that "he would become very angry quickly in a workplace and feel like stabbing someone with a screwdriver". He was once found in gaol to be in possession of a sharpened weapon. While subject to the interim supervision order he purchased a knife "to utilize for butter/meats". 64Mr Sheehan says that "the condition prohibiting weapons is about extinguishing behaviour associated with antisociality, which in turn is an issue related to risk of sexual reoffending". 65There is enough, in my view, to warrant inclusion of this condition. Condition 34 - prohibition on photographing children 66Counsel for Mr Green sought an amendment to this condition so as to limit it to children "who are naked or in a state of undress". The State consented to that amendment. Condition 35(a) and 37(a) and (b) - search and seizure for the safety and welfare of others 67These proposed aspects of an overall search and seizure condition extend to permitting this to occur for the safety and welfare of any person at Mr Green's approved accommodation or of any member of the public. The objection was that this had nothing to do with the risk of sexual recidivism. 68Counsel for the State supported inclusion of these paragraphs in the conditions for the general promotion of Mr Green's rehabilitation. She noted that the condition could only be activated upon "reasonable belief" that a search was necessary; that is, it is not something that could occur on a whim. 69The matters I referred to in relation to proposed condition 32 are equally relevant here. It is also of some significance that during the course of the supervision order Mr Green may be required to live, as he is now, in a group home situation. These paragraphs should remain in the conditions. Condition 42 - assessment of what is required for treatment of potential for sex offending 70The proposal is that Mr Green undergo a comprehensive assessment to determine what is required for treatment in respect of his potential for sex offending. Counsel for Mr Green suggested that treatment should also address "issues arising from the sexual abuse experienced by the defendant when he was a child". 71Mr Sheehan argues that specification of this is unnecessary as it would be a consideration in the standard process of assessment. He added that "it is not helpful to reframe an offender as the victim, as this implies the absence of personal accountability and responsibility for managing future risk". 72The sexual abuse experienced at the age of 11 or 12 is claimed by Mr Green to have been on his mind at the time of committing the sexual offences. It is inconceivable that it would not be something explored at the time of the assessment process which the proposed condition will require. For that reason, it seems unnecessary to spell it out in the condition itself. Condition 58 - grievances to be put in writing 73An amendment was suggested by Mr Green's counsel so as to permit him to communicate any grievance with decisions of his supervising officer orally. The State consented and the amendment will be made. Duration 74The State initially sought that the order be for the maximum period permitted by the Act, namely 5 years. However, Ms Mahony indicated at the hearing of the application that the State would be content with 4 years. Counsel for Mr Green submitted that 3 years was a sufficient period. The shorter term would afford a greater incentive to Mr Green to approach his rehabilitation conscientiously. Reference was also made to the ability of the State to apply for a further extended supervision order if that was thought appropriate: s 10(3). 75Reference should also be made to the availability to either party of making an application to vary or revoke an extended supervision order: s 13. The power to revoke an order may be exercised if the Court is satisfied that circumstances have changed sufficiently to render the order unnecessary: s 13(1B). There is also a requirement for the Commissioner of Corrective Services to provide to the Attorney General a report on an offender at intervals of not more than 12 months and such a report must indicate whether the Commissioner considers the continuation of the order to be necessary and appropriate: s 13(2) and (3). 76Dr O'Dea said in his report that "any appropriate risk management program implemented should be long term and at least of 5 years duration". In his oral evidence he spoke of the need for long term treatment and said that active management of Mr Green's sexual deviance, and his abstinence from drugs and alcohol, will be required for longer than the suggested five years. But Dr O'Dea also agreed that within a period of three years the people assessing Mr Green should be in a better position to assess whether his risk of re-offending has been reduced to, I infer, a level which would not justify the making, or continuance, of an extended supervision order. 77Dr Ellis regarded four years as reasonable. He considered that 12 months will be required to secure stable accommodation and regular meaningful activity in the community. A further 24 months of regular treatment and medication with review would be necessary. A further period of 12 months would be required to monitor consolidation. He added that "the psychiatric disorders are chronic and likely to persist beyond any period of supervision, but may be better internally controlled at that point". Dr Ellis was asked about his four year suggestion and he responded, in part, "I don't think a period of three years is remarkably different in terms of assessing the risk, it may still be very similar to now or if there has been substantial progress there might be an alteration in that kind of profile of risk". The suggestion of four years in his report was partly influenced by Mr Green's previous "non-engagement with therapeutic programmes". There is some indication now of his preparedness to engage, although it must be recognised that it is very early days. 78Counsel for the State referred to some shortcomings in Mr Green's performance under the interim order and also to his previous breaches of parole and other court orders in maintaining that a period of four years was appropriate. 79The submissions by Ms Mathur should be accepted. The State has a remedy available if rehabilitation has not progressed to a stage where the risk to the community is sufficiently mitigated within three years. Orders 80I make the following orders: 1. Pursuant to s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 ('the Act'), order that the defendant be subject to an extended supervision order for a period of three years from the date of the order; 2. Pursuant to s 11 of the Act, direct that, for the period of the extended supervision order, the defendant comply with the conditions set out in the Schedule to these Orders; 3. Direct that access to the Court file in respect of any document shall not be granted without the leave of a Judge of the Court. 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 be given the opportunity to be heard. SCHEDULE CONDITIONS APPLICABLE TO EXTENDED SUPERVISION ORDER In the conditions of this extended supervision order: "Commissioner" means the Commissioner of Corrective Services NSW; "Corrective Services NSW" is a division of the Department; "Defendant" means Leslie John Green; "Department" means the Department of Attorney General and Justice; "Departmental supervising officer" means the corrective services officer authorised from time to time by the Commissioner to manage and supervise the defendant pursuant to the order; "Order" means this extended supervision order; and "The Act" means the Crimes (High Risk Offenders) Act 2006 (NSW). Reporting and monitoring obligations 1.For the duration of the supervision order, the defendant must accept the supervision of Corrective Services NSW. 2.The defendant must report personally once a week to the Departmental supervising officer or otherwise as directed by that officer. 3.The defendant must comply with any reasonable direction given by the Departmental supervising officer or any other corrective services officer who may from time to time be allocated to the defendant's case. 4.The defendant must wear such electronic monitoring equipment as may from time to time be directed by the Departmental supervising officer and comply with all instructions given by a corrective services officer in relation to the operation of such equipment, and must not tamper with or remove such equipment. 5.If directed by the Departmental supervising officer, the defendant must inform the Departmental supervising officer of his movements in advance by providing a schedule. The schedule must be: a.provided orally, with a written file note of any schedules and movements to be made on each occasion by the departmental supervising officer; b.for a period of 7 days ("the schedule period"), unless a shorter schedule period is approved by the Departmental supervising officer; and c.given to the Departmental supervising officer at least 3 days in advance of the schedule period. 6.The defendant must notify the Departmental supervising officer of any change to the schedule at least 24 hours in advance, unless a shorter period is approved by the Departmental supervising officer. 7.Condition 6 does not apply in the case of emergency, including if the defendant requires urgent medical attention, and he is unable to notify the Departmental supervising officer. 8.The defendant must respond accurately to the best of his knowledge and ability to all enquiries by his Departmental supervising officer, or any other corrective services officer who may from time to time be allocated to the defendant's case, about his whereabouts and movements generally. Accommodation 9.For the duration of the order the defendant must reside at accommodation approved by the Departmental supervising officer. 10.Except with the prior approval of the Departmental supervising officer, the defendant must not permit any person to reside either temporarily or on a permanent basis, for any period at the defendant's approved accommodation. 11.Except with the prior approval of the Departmental supervising officer, the defendant must not stay overnight, or for any other temporary period, at a place other than at the approved accommodation. 12.The defendant must accept visits at his approved accommodation, including visits without prior notice, by the Departmental supervising officer or any other corrective services officer who may from time to time be allocated to the defendant's case. 13.If directed by his Departmental supervising officer, the defendant must be at his approved accommodation between 9pm and 6am (or such other hours as may be specified by the Departmental supervising officer) unless his presence at another place during those hours has been approved by his Departmental supervising officer. 14.The defendant must not leave the State of New South Wales without the written permission of the Commissioner or his delegate. Restrictions on employment and other activities Employment 15.The defendant must not engage in volunteer work, practical training as part of an educational or vocational course, or paid or unpaid employment (including self employment) other than that which has been approved by the Departmental supervising officer. 16.The defendant must notify his Departmental supervising officer of: a.the nature of his employment or proposed employment; b.any offer of employment; c.the hours of work each day; d.the name of his employer or proposed employer; and e.the address of the premises where he is or will be employed. 17.Without limiting condition 3 above, if directed to do so by the Departmental supervising officer, the defendant must make his employer aware of his offending history and that he is subject to an extended supervision order and the terms of the order. 18.The defendant must agree that, if the Departmental supervising officer considers it appropriate to do so, the Departmental supervising officer may disclose to any prospective or actual employer of the defendant information relating to the defendant's criminal history and may notify such prospective or actual employer that the defendant is subject to an extended supervision order and the terms of the order. Non-association generally 19.The defendant must not associate with any persons specified by the Departmental supervising officer. 20.Without limiting condition 19 above, except with the prior permission of the Departmental supervising officer the defendant: a.must not knowingly associate with any person convicted of a "serious sex offence" or an "offence of a sexual nature" as defined by the Act (except in the course of living in the COSP Centre or other Departmental facility or attending the community-based maintenance program conducted by the Forensic Psychology Services section of Corrective Services NSW); b.must not contact or communicate by any means (directly or indirectly) with, or attempt to contact or communicate by any means (directly or indirectly) with, the victims of the sexual offences for which the defendant was sentenced on 20 September 2005 and 13 February 2009. 21.Should the defendant enter into a relationship with another person ("the other person"), involving sexual or intimate contact, he must notify the Departmental supervising officer at the earliest opportunity. The Departmental supervising officer may disclose the defendant's offence history to the other person if the officer is satisfied that to do so is necessary or desirable in the interests of the safety of the other person or any child of or related to that person, or who from time to time may be in that person's care, custody or control. 22.Should the defendant propose to befriend another person ("the other person") whom he knows to be the parent, guardian, or otherwise a person with care and control (for example, a teacher) of a child under the age of 16 years or whom he knows to be a sibling of child under that age, he must notify the Departmental supervising officer at the earliest opportunity. The Departmental supervising officer may disclose the defendant's offence history to the other person if the officer is satisfied that to do so is necessary or desirable in the interests of the safety of the children under the age of 16 years who are related to the other person, or who from time to time may be in the other person's care, custody or control. 23.The defendant must obtain written permission and approval in advance from his Departmental supervising officer prior to joining or affiliating with any club or organisation. 24.The defendant must not frequent or visit any place or district specified by the Departmental supervising officer. Non-association with children 25.The defendant must not: a.approach, associate with, or initiate, encourage, request or maintain any contact with a child under the age of 16 years; b.use any other person to approach, associate with, or initiate, encourage, request or maintain any contact with any child under the age of 16 years; c.attend any schools, pre-schools, day care centres, amusement parlours, amusement parks, theme parks, camping groups, caravan parks, children's playgrounds, parks and playing fields; or d.attend any such further place, where children or a child may from time to time be present, as the Departmental supervising officer may direct, unless the defendant: e.has prior written permission of the Departmental supervising officer; and f.is in the presence of an appropriate adult, being a person previously approved in writing by the Departmental supervising officer for the purpose of this condition. Alcohol and drugs 26.The defendant must not: a.possess or consume any alcohol (including any alcohol-based products such as methylated spirits); b.possess or consume any illicit drugs; c.possess any prescription medication other than prescription medication specifically prescribed to the defendant by a medical practitioner in the quantities prescribed, or abuse prescription medication or other forms of medication. 27.The defendant must submit to drug and alcohol testing as directed by the Departmental supervising officer or any other officer, who from time to time is allocated to his supervision. 28.The defendant must attend and participate in such programs and courses relating to drugs and alcohol (including residential programs), as directed by the Departmental supervising officer. 29.The defendant must not go to any licensed premises, excluding restaurants and cafes, but including hotels, bars, licensed clubs and racecourses, without the prior approval of the Departmental supervising officer. Access to the Internet and pornography 30.The defendant must comply with any direction made by the Departmental supervising officer regarding access to the internet by him, and without limitation the Departmental supervising officer may direct the defendant to use on any computer or other device (including mobile phone or tablet computer) a parental lock or other device or software that may restrict access to or permit access only to certain web sites. 31.If and as directed by the Departmental Supervising Officer, the defendant must: a.permit the Departmental supervising officer, and any person ("the technician") employed or engaged by or on behalf of the Department, to access and inspect any computer or other device (including mobile phone or tablet computer) used by or owned by the defendant, including the temporary removal of the computer or other device from his place of residence or his person for the purpose of inspection; b.take all available steps to permit the Departmental supervising officer and the technician to have access to and inspect any computer or other device (including mobile phone or tablet computer) used by or owned by the defendant; c.provide the Departmental supervising officer and the technician with any requested assistance to enable either or both of them to access and inspect any computer or other device (including mobile phone or tablet computer) owned or used by the defendant, including providing them with any required passwords; d.permit the Departmental supervising officer and the technician to make copies of any files or materials on any computer or other device (including mobile phone or tablet computer) used by or owned by the defendant that the Departmental Supervising Officer reasonably believes may be relevant to the management of the defendant's risk of re-offending. Access to weapons 32.The defendant must not, without reasonable excuse, have a weapon on his person or in his possession. Vehicles 33.The defendant must notify his Departmental supervising officer of the make, model, colour and registration number of any vehicle: a.owned by him; or b.driven or to be driven by him, whether hired or otherwise obtained for his use. Recording images 34.The defendant must not use or attempt to use equipment for the purposes of recording still or moving photographic images of persons reasonably known by the defendant to be the age of 16 years or under and who are naked or in a state of undress. Search and Seizure 35.If the Departmental supervising officer reasonably believes 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 at the defendant's approved accommodation; b.to monitor the defendant's compliance with the order; or c.because the Departmental supervising officer reasonably suspects the defendant of behaviour or conduct associated with an increased risk of the defendant committing a serious sex offence; then the Departmental supervising officer may direct, and the defendant must submit to: d.search and inspection of any part of, or any thing in, the defendant's approved accommodation; e.search and inspection of any part of, or any thing in, any vehicle owned, hired or driven by the defendant; and/or f.search and examination of his person in his approved accommodation. 36.For the purposes of condition 35f: a.a search of the defendant means either or both a garment search or a pat-down search. b.to the extent practicable a pat-down search will be conducted by a Departmental supervising officer of the same sex as the defendant, or by a corrective services officer of the same sex as the defendant under the direction of the Departmental supervising officer concerned 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. 37.During a search carried out pursuant to condition 35, the defendant must allow the Departmental supervising officer to seize any thing found in the defendant's approved accommodation, any vehicle owned, hired or driven by the defendant, or on the defendant's person, whether in the defendant's possession or not, which the Departmental supervising officer reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious sex offence, or which the Departmental supervising officer reasonably suspects will compromise: a.the safety of residents or of staff at the defendant's approved accommodation; b.the welfare or safety of any member of the public; or c.the defendant's compliance with the order; Personal details and appearance 38.The defendant must not change his name from Leslie John Green, or use any name other than Leslie John Green, without the prior approval of the Departmental supervising officer. 39.The defendant must not, without the approval of the Departmental supervising officer, change his appearance to the extent that he cannot be easily recognised. 40.If the defendant's proposed change of appearance is approved, he must allow himself to be photographed by or on behalf of the Departmental supervising officer. 41.The defendant must provide his Departmental supervising officer with information regarding any tattoos or permanent distinguishing marks that the defendant has (including details of any tattoo or mark that has been removed). Medical intervention treatment obligations 42.The defendant must undergo a comprehensive assessment, as recommended by a treating or consulting clinician, to determine what is required for treatment in respect of the defendant's potential for sex offending. 43.The defendant must accept psychological and psychiatric treatment as may be provided by a treating clinician. 44.The defendant must take any anti-psychotic, anti-libidinal (including SSRI's) or other prescribed medication if and as prescribed by a medical practitioner. The note at paragraph 49 below applies. 45.The defendant must not take any medication or substance which, to the defendant's knowledge, may affect the effectiveness of any medication prescribed under condition 44 being taken by the defendant, unless the defendant's treating medical practitioner prescribes such medication. 46.If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, he is to notify his Departmental supervising officer within 24 hours of ceasing to take the medication. 47.The defendant must attend medical consultations, physical examinations, pathology testing, and medical imaging as directed by a treating clinician. 48.If directed by his Departmental supervising officer, the defendant must accept and participate in maintenance or other rehabilitation programs as may be offered to him, including the maintenance program provided by the Forensic Psychology Services. 49.It is noted that the "reasonable directions" (in condition 3) and the participation in treatment (in conditions 43 and 44) do not include participation in treatment, or requiring the defendant to take any medication that may be prescribed, without his informed consent. Disclosure of information 50.The defendant must disclose to the Departmental supervising officer the identity of any treating or consulting clinician that he consults, as soon as reasonably practicable. 51.The defendant must consent to the disclosure of confidential medical information as between any treating or consulting clinician and the Departmental supervising officer. 52.The defendant must consent to his Departmental supervising officer and other officers from the Department (including from Corrective Services NSW) collecting and using all relevant information regarding the defendant's progress while subject to supervision, which may include confidential medical information disclosed in the course of his treatment. 53.The defendant must agree to the disclosure of all information between his Departmental supervising officer, other officers from the Department (including from Corrective Services NSW), and any treating or consulting clinicians. 54.The defendant must provide his Departmental supervising officer with details of any carriage service (within the meaning of the Telecommunications Act 1997 of the Commonwealth) used, or intended to be used, by the defendant. 55.The defendant must provide his Departmental supervising officer with details of any internet service provider or provider of a carriage service (within the meaning of the Telecommunications Act 1997 of the Commonwealth) used, or intended to be used, by the defendant. 56.The defendant must provide his Departmental supervising officer with details of the type of any internet connection used, or intended to be used, by the defendant, including whether the connection is a wireless, broadband, ADSL or dial-up connection. 57.The defendant must provide his Departmental supervising officer with details of any email addresses, internet user names, instant messaging user names, chat room user names or any other user name or identity used, or intended to be used, by the defendant through the internet or other electronic communication service. Review of grievance 58.In the event the defendant is aggrieved by any decision of the Departmental supervising officer, he may communicate his grievance orally to a third party, who will provide a written account of the grievance to the Commissioner of Corrective Services who is to consider his grievance and make appropriate directions as to supervision, if required. Review of order 59.At the expiration of 6 months from the date of this order (and at the end of each 6 monthly period thereafter, if the defendant is still then subject to electronic monitoring), the continued need for the defendant to wear electronic monitoring equipment will be reviewed by the Departmental supervising officer and, for this purpose, the Departmental supervising officer may consult with (either jointly or separately) any treating or consulting clinician and must consult with the defendant. 60.The conditions of this order shall be reviewed by the Commissioner: a.on each occasion a review is conducted under condition 59; and b.at the expiry of 12 months from the date on which a decision is made (if any) that the defendant is not required to wear electronic monitoring equipment and at the end of each 12 month period thereafter. The purpose of a review under this condition is for the Commissioner to consider any possible adjustments or variations of the conditions of the order and/or consideration by the State as to whether an application should be made to the Court to vary the conditions if considered appropriate. For the purposes of this review, the Commissioner may consult with (either jointly or separately) any treating or consulting clinician and the defendant. For the purpose of this condition, the Commissioner may act through an authorised officer. 61.Following a review under condition 59 or condition 60, the reviewer must notify the defendant in writing of the result of the review. ********** 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: 26 July 2013