Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Galanis [2015] NSWSC 133 Hearing dates: 25 February 2015 Date of orders: 06 March 2015 Decision date: 06 March 2015 Jurisdiction: Common Law Before: Campbell J Decision: My orders are: Under s 5C Crimes (High Risk Offenders) Act 2006 (NSW) William Galanis is subject to a high risk sex offender extended supervision order for a period of three years and six months from 6th March 2015 (pursuant to s 10(1) of the said Act) and expiring on 5th September 2018. Under s 11 of the said Act, William Galanis is directed to comply with the conditions set out in Schedule A to these orders for the duration of Order 1. Direct that access to the Court file and any document filed or tendered in support or opposition to the State's application shall not be granted without leave of a Judge of this 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. The State of New South Wales is permitted to provide the reports of Dr Andrew Ellis and Dr Anthony Samuels furnished to the Court under s 7(4) of the Act and the transcript of their oral testimony to: Any medical practitioner or psychologist involved in the treatment or rehabilitation of William Galanis; and The departmental supervising officer responsible for the supervision of William Galanis under these orders. Catchwords: CRIMINAL LAW – final order for an Extended Supervision Order – pursuant to Crimes (High Risk Offenders) Act 2006 Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) Cases Cited: Attorney General for New South Wales v Tillman [2007] NSWCA 119; Cornwell v Attorney General for New South Wales [2007] NSWCA 374; State of New South Wales v Fisk [2013] NSWSC 364; State of New South Wales v Richardson (No 2) [2011] NSWSC 276; Wilde v State of New South Wales [2015]NSWCA 28 Category: Principal judgment Parties: State of New South Wales (Plaintiff) William Galanis (Defendant) Representation: Counsel: David Kell (State of New South Wales) Sharyn Hall (Defendant) Solicitors: Crown Solicitors Office (State of New South Wales) File Number(s): 2014/00332297 Judgment 1. The State of New South Wales (the State) is applying for a high risk sex offender extended supervision order under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) in respect of Bill (William) Galanis. Mr Galanis opposes the order and, if he is unsuccessful in that opposition opposes some of the conditions sought by the State. In particular, Mr Galanis opposes a condition requiring him to wear electronic monitoring equipment and a requirement that he provide the officers responsible for his supervision with a periodic schedule of his intended movements. He also opposes an order authorising the State to release psychiatric evidence provided to the Court to his treating doctors and Corrective Services NSW, the officers of which will be responsible for the administration of any order. 2. Mr Galanis also argues that it is unnecessary in the circumstances of the case that any order I am persuaded to make should have the maximum permissible duration of five years. Background 1. As contemplated by the legislation, an interim supervision order was imposed by Hall J on 4th December 2014 (State of New South Wales v Galanis (unreported)). That order was renewed, by consent, by Button J on 2nd February 2015. It expired on 3rd March 2015. 2. Hall J's order commenced on 9th December 2014. Under s 10C(2) the Court is empowered to renew an interim supervision order "from time to time" but not so as to exceed "periods totalling more than three months". At the conclusion of the hearing before me on 25th February 2015, by consent, I further renewed the interim supervision order so that it expires on 8th March 2015. Serious sex offender and unacceptable risk 1. Upon his plea of guilty in the District Court on 23rd May 2006, Mr Galanis was convicted and sentenced by Murrell SC DCJ (as her Honour then was) for two counts of sexual intercourse under s 61I Crimes Act 1900 (NSW) and a third count of assault occasioning actual bodily harm. The total effective sentence imposed by the sentencing judge commenced on 10th June 2005 and expired on 6th December 2014 allowing for the accumulation and concurrency fixed by her Honour. This is a period of nine years and six months. The effective non-parole period ran from 10th June 2005 to 9th December 2011, totalling six years and six months. Mr Galanis was not released to parole until 26th September 2012. 2. Four further offences being three counts of indecent assault and one count of assault occasioning actual bodily harm against the victim were included on a Form 1, and taken into account when the sentencing judge dealt with Mr Galanis. 3. At the time of the offending, the victim was a child, 15 years and 4 months of age. Accordingly, each of the offences contrary to s 61I Crimes Act was a serious sex offence within the meaning of s 5 of the Act because each was punishable by imprisonment for more than 7 years, namely 14 years, and the victim was then a child. Ms S Hall of Counsel who appears for Mr Galanis accepts that this is so. 4. An order for Mr Galanis' extended supervision under the Act can be made "if and only if [he] is a high risk sex offender" (s 5B). Section 5B(2) is in the following terms: An offender is a high risk sex offender if the offender is a sex offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision. A risk may be unacceptable even if the chance of it materialising is not "more likely than not" (s 5B(3)). 1. If made, an extended supervision order may not exceed 5 years from the date on which it commences: s 10. 2. The application was made by summons filed on 11th November 2014. It complies with s 6(2) of the Act, in that it was made within the last six months of Mr Galanis' "current custody or supervision". He was then serving the sentences imposed by Murrell DCJ by release on parole (s 5I). The application otherwise complies with the requirements of s 6 of the Act. History of past sexual offending 1. It is appropriate to say something more about the facts of Mr Galanis' past sexual offending. His first offending of a sexual nature occurred when he was 16 years of age, as was his victim. She was unknown to him. He noticed her on a train on the evening of 10th June 1983. He followed his victim off the train. It was dark. On a public street, he grabbed her from behind, touching her breast and vaginal area through her clothing. He pushed the struggling victim to the ground lying on top of her moving up and down simulating sexual intercourse. He was interrupted by passers-by which allowed the victim to escape. The absconding offender was intercepted by police who arrested him. During a lawful interview with arresting officers he admitted that he decided to sexually assault the victim while she was sitting opposite him on the train. When asked to explain his offending he said "I can't explain that; for kicks". 2. The second offence was committed on 5th January 1986 when the offender was 18. It took a similar form. The victim was walking close to her home. Mr Galanis ran towards her grabbing her around her shoulders. He fondled her breasts and vagina area through her clothing. The victims screams startled the offender who let go and she escaped. He was arrested soon after. He explained to a probation officer who was preparing a pre-sentence report that his offending was an impulse he could not control at the time. As I explain later in these reasons, these early offences occurred before the manifestation of the paranoid schizophrenia from which he now suffers. 3. The serious offending for which he was sentenced by Murrell DCJ occurred between 23rd and 26th April 2005. As the medical evidence referred to below shows, by this time he had been diagnosed with paranoid schizophrenia. Mr Galanis was 37 and the victim, as I have said, 15. They had met before. On 24th April 2015, the victim visited Mr Galanis at his home where they smoked cannabis together. The victim rebuffed Mr Galanis' attempts to kiss her. By agreement they met again later that evening and returned to Mr Galanis home where he drugged her with alcohol, pills and some unidentified powder. After she passed out, the offender sexually assaulted her, biting her in the process. He sexually assaulted her again by means of penile intercourse against her will, this time while she was awake and struggling with him. He attempted to "keep her quiet" by giving her cash. He pleaded guilty only after the matter had been listed for trial in the District Court. Determination of the application 1. In deciding whether or not to make an extended supervision order, I am required to have regard to the matters set out in s 9(3) of the Act. I am entitled to have regard to other relevant matters not expressly mentioned in that subsection. 2. In exercising the Court's powers under the Act, I bear in mind its objects as set out in s 3: The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community. Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation. 1. Clearly protection of the community must be given primacy. Rehabilitation is another important, but by implication, secondary, object. 2. In accordance with the decision of the Court of Appeal in Attorney General for New South Wales v Tillman [2007] NSWCA 119, it is important to bear in mind that the legislation "is protective rather than punitive in its intent" (at [5]). The threshold question is whether Mr Galanis is a high risk sexual offender. I have set out the statutory test at [8] above. 3. The statutory formula "a high degree of probability" imposes a more stringent standard of proof than the usual civil standard: State of New South Wales v Richardson (No 2) [2011] NSWSC 276 at [90]. This more stringent standard of proof doubtless reflects the severe curtailment of the civil liberties of a person who, by definition, has been adequately punished for his crime. At the same time, the object of protection of the community will justify this extraordinary curtailment of an individual's usual civil liberties where the Court is satisfied to that high degree of probability that the offender does pose an unacceptable risk of committing a serious sexual offence if he or she is not kept under supervision. 4. Having considered the evidence in light of the requirements of s 9(3), for the reasons expressed below, I am satisfied that I should make an extended supervision order under s 5C of the Act. Reasons The application of s 9 of the Act 1. In statutory order, the first matter is the safety of the community. This, after all, is the primary purpose of the legislation. However, the context of s 9(3) seems to be directed to what the other evidence shows about the risk, if there is one, posed by Mr Galanis; after all, a person might be completely rehabilitated. The question of community safety is best considered in the light of the evidence relevant to other s 9 considerations, which I will address more or less in turn. 2. Mr Galanis was examined under s 7(4) of the Act by two consultant psychiatrists, Dr Anthony Samuels and Dr Andrew Ellis. Dr Samuels' report of 5th February 2015 is Exhibit A and Dr Ellis' report of 13th February 2015 is Exhibit B. Both experts gave oral testimony at the hearing. Their evidence and other psychiatric evidence, clearly establish that Mr Galanis is a long-time-sufferer from schizophrenia (see PN-1 generally). The longitudinal history 1. It is convenient to refer to some of the past reports now. Dr C Costa was Mr Galanis' local medical officer for many years. In a report of 13th July 2005 he said he had been treating him "for his underlying psychiatric condition". He said that Mr Galanis "needs psychiatric treatment on an ongoing basis – although he does not always accept that situation". The relevant history commenced in 1991 when Mr Galanis was displaying aggressive behaviour. He admitted to a feeling that "something had been wrong for a long time". The diagnosis of paranoid schizophrenia was not made until 2002 when he complained of "paranoia and depression for a long time". He had insomnia and was anxious during the day. Dr Costa referred Mr Galanis to a psychiatrist, Dr G Takes, who diagnosed schizophrenic disorder with auditory hallucinations, delusions of reference and persecutory delusions. Dr Costa said (PN-1, p228): Subsequently he continued intermittent review by Dr Takes and not responding to Risperdal and he was changed to 5mg Zeprexa atypical anti psychotic to be taken at night (sic). There were no major changes and he has no insight into his condition but at that time no florid psychosis. He is not very compliant with medications but he does show significant improvement at times when he is compliant. Dr Costa regarded the disorder as "severe". 1. Examining him on behalf of the Director of Public Prosecutions in May 2006, Dr Olav Nielsen, who had access to the report of Dr Costa and that of Dr Tran (see [23]), expressed the opinion that it was likely that Mr Galanis was suffering from an underlying schizophrenic illness. His responses at his interview with Dr Nielsen were "consistent with inflexible thinking and blunting in emotional responses often observed in people with schizophrenia". Dr Nielsen expressed the view that Mr Galanis was fit to plead, and stand trial. 2. Dr Tran was Mr Galanis' treating psychiatrist in his capacity as a Justice Health Staff Specialist. He provided reports dated 24th September 2005 and 18th November 2005. Dr Tran received a history of "stressing out" and auditory hallucinations. He agreed with the diagnosis of chronic schizophrenia because the persistence of psychotic symptoms after his detoxification from illicit drugs whilst in custody. His condition was not adequately controlled by a single antipsychotic. He did not consider Mr Galanis to be "dangerous at present". This was subject to his continuing abstinence. 3. In his second report of 18th November 2005, Dr Tran observed that Mr Galanis' symptoms had been "persistent despite intensive pharmacotherapy, i.e. adequate trials of different antipsychotics. His less than satisfactory response to treatment could be attributed to the prolonged period of untreated psychosis, which is usually a poor prognostic indicator."(PN-1, p 218) The s 7(4) psychiatric evidence 1. Returning to the s 7(4) reports, it is evident to me that notwithstanding that Mr Galanis is currently seeing a psychiatrist once every six months, and taking a dose of Risperdal of 1 mg per day, his response to that treatment remains "less than satisfactory". He is probably under-medicated. In oral evidence (T 14.5) Dr Ellis referred to a history given by Mr Galanis of auditory hallucinations which he said were voices from the Greek gods. Dr Ellis noticed from his behaviour during the examination that Mr Galanis was actually experiencing hallucinations late in the interview (T 14.20). Dr Ellis regarded the current dose of antipsychotic medication as insufficient to achieve good remission of symptoms in an adult male. On the other hand, Dr Samuels was not as dogmatic about the inadequacy of the dose of Risperdal currently prescribed for Mr Galanis. He would have expected a higher dose but "it depends on metabolism and some people respond quite well on low doses" (T 46.35). Mr Galanis did not exhibit signs of psychosis on examination by Dr Samuels. But there is no inconsistency between the experts. Dr Samuels explained that symptoms may fluctuate (T 57.40-58.5). 2. Dr Ellis identified Mr Galanis as presenting a high risk of sexual re-offending as compared to groups of people who re-offend (T 17.5-10). There are essentially three reasons for this. First, schizophrenia is identified in the scientific literature as an independent risk factor for sexual offending especially when unmedicated, or insufficiently medicated. In this situation disinhibited behaviour, impulsivity and deviant sexual arousal may possibly interact. Secondly, Mr Galanis has an antisocial personality disorder. This disorder produces a self-centred attitude which in Mr Galanis' case is likely to be exacerbated by the grandiosity associated with schizophrenia. Thirdly, Mr Galanis has a history of previous substance abuse, which at present is apparently controlled by his supervision on parole, pursuant to the current interim orders. If he relapses, and with his mental illness and personality disorder "may serve to disinhibit underlying sexual arousal towards objectification, violence and humiliation and worsen control of his mental illness" (Exhibit B p 14). 3. Dr Samuels' opinion is largely to the same effect. In his opinion, Mr Galanis does pose a risk of committing a further serious sexual offence (Exhibit A, p 19). He agreed that Mr Galanis suffers from schizophrenia, currently treated by a low dose of an atypical antipsychotic, against a background of previous substance misuse. But Dr Samuels put more emphasis upon what he regarded as Mr Galanis' "severe personality disorder" (T 46.25) which leads him to have little regard for his victims, and to deny past offending (T 46.5). He is unlikely to overcome this condition; it may ameliorate over time, but it is not amenable to treatment (T 47.15 – 48.30). 4. It is also important to appreciate, that, in giving his history to the psychiatrists Mr Galanis denied responsibility for committing his past sexual offences maintaining that the intercourse, in the most serious case, was consensual. He regarded his victims as persons interested in seeking compensation who colluded with the police for that purpose. He was not very forthcoming with Dr Samuels, exhibiting the attitude that as he had already seen a psychiatrist (Dr Ellis) it was unnecessary to see a second. This denial of responsibility of his offending is of significant concern in the present context. Statistical Assessment 1. Dr Samuels (Exhibit A, pp 19 – 20) set out the results of his "broad- based approach" to arriving at what he termed a "Professional Structured Clinical Judgment". This included administration of the actuarially based Static–99R on which Mr Galanis scored 7, which places him in the high risk offender group relative to other sexual offenders. Applying the Risk of Sexual Violence Protocol (RSVP), Mr Galanis' profile was in keeping with offenders representing such a higher risk. Dr Samuels concluded: On the basis of my clinical assessment, anamnestic review, review of static, dynamic and protective factors, review of actuarial risk factors, and also taking into account structured professional guidelines, it is my view that Mr Galanis remains at high risk of committing a further sexual offence. 1. Ms Narcisa Sutton undertook an assessment of Mr Galanis' risk of reoffending on behalf of Corrective Services NSW (CSNSW) as detailed in her report on 29th July 2014. Worryingly Mr Galanis refused to participate saying "I'd rather just have my day in court" (PN-1 p 26). Necessarily, therefore, her assessment was restricted to the papers and she conducted a very thorough review of the large file maintained in relation to Mr Galanis by CSNSW. Like Dr Samuels after her, she undertook an actuarial assessment to assess the so-called static risk factors and followed RSVP to assess the dynamic factors. I have carefully considered her results. Like Dr Samuel she scored 7 for Mr Galanis on the Static–99R which placed him in the same higher risk category. Statistically, she said, the recidivism rate of offenders in this category is around 5.2 times higher than the expected rate for "typical offenders" (PN-1 p 38). She found "some risk factors in all domains covered by the RSVP" (PN-1 p 43) which, in my view, corroborates the Static-99R result. She summarised her views as follows: Mr Galanis appears to have made progress in treatment in terms of his awareness of the factors and processes that put him at risk of sexual offending, including a sense of entitlement, negative attitudes towards women, and problems with stress and coping. However it is a concern that Mr Galanis appears to have retreated to a position where he blames Australian society and the police for his frequent brushes with the law, seemingly overlooking his agency in the commission of offences, including those he [pleaded] guilty to. Furthermore, the risk strategy he has adopted i.e. a very restricted lifestyle, is not sustainable in the long term (PN-1 p 44). I accept this evidence. Other psychiatric evidence 1. I have referred to some, but not all, of the other psychiatric and psychological assessments introduced into evidence above at [21]-[24]. I do not propose to descend into the detail of all of it. In my review of them they tend to favour the need for an order. One is of particular note. Dr Ian Pettit, a psychiatrist, prepared a report dated 11th February 1986 for Mr Galanis' sentencing at Campsie Local Court in respect of the indecent assault charge committed when he was 18 years old. As I have found, at that time his paranoid schizophrenia had not made itself manifest. Dr Pettit was unable to make a diagnosis of a "formal mental illness". However, he found him to be "impulsive" and preoccupied with sex. With the benefit of hindsight these may have been manifestations of his undiagnosed antisocial personality disorder. However, notwithstanding the absence of a firm diagnosis Dr Pettit expressed the following view: I believe that Bill Galanis is at risk of committing another offence of the same or a similar nature unless he receives vigorous treatment. The vigorous treatment suggested was a combination of behaviour therapy "and intense psycho-therapy" (PN-1 page 253). Section 9(3)(d1) and rehabilitation 1. A Risk Management Report for the purpose of s 9(3)(d1) of the Act was prepared on 15th August 2014 by Ms Joyleen Nowrot, a community corrections officer with CSNSW. Ms Nowrot's view is that, subject to the imposition of appropriate conditions detailed in her report (most of which are not disputed, as I have said, should an extended supervision order be made), Mr Galanis can be reasonably and practicably managed in the community. Amongst other important observations she recorded that he was, generally speaking, compliant with his parole conditions. He had returned no positive results in periodic drug and alcohol testing; he was complying with prescribed treatment for his schizophrenia (she was unaware of any acute or psychotic or effective symptoms, however see Dr Ellis' views); he had participated in the custody based intensive treatment program in a satisfactory way, but it was unclear if he would implement behavioural change; and he had ceased to obtain benefit from individual maintenance counselling with forensic psychology services (he has now been discharged from that treatment). Generally the report is supportive of an order being made. 2. As I have said, Mr Galanis has complied with the requirements of such rehabilitation programs as he has been offered. The extent to which he has benefited from the CUBIT program and the ongoing maintenance is highly questionable given his ongoing denial of responsibility for his offending. His participation indicated he understood the concepts and could participate in the program, but it is unlikely he has obtained any lasting benefit along the road to rehabilitation, at this stage. This may be a function of his mental illness and antisocial personality disorder. Compliance with parole and supervision orders 1. Mr Galanis had a poor record of complying with supervision orders of various types and good behaviour bonds imposed as punishment in earlier years. On 24th August 2000, he was ordered to perform 200 hours of community service work following his conviction for a serious traffic offence. He did not comply with the order and a warrant for his arrest was issued. In May 2001 he received two s 12 bonds, again for serious traffic offences. He responded poorly to supervision, failing to report as directed and was uncooperative when he did. Again in August 2002 a supervised s 12 bond was imposed for another serious driving offence. During its currency he was permitted to travel to Vietnam for a period of three months, but breached the conditions of the bond by failing to return to Australia as required. On 22nd November 2004 he was convicted of the offence of assault occasioning actual bodily harm. He was sentenced to 9 months imprisonment having a non-parole period of 3 months. He was serving this parole when he committed the serious sexual offences in April 2005. 2. He has, however, been largely compliant with his conditions of parole since his release from gaol on 26th September 2012. And he has mostly complied with the conditions of the interim supervision order since his term of imprisonment expired. However, in written submissions, the State have pointed to evidence showing that since that the 16th of September 2014 there appear to have been 56 compliance issues, including failures to take calls from supervisors on 22 occasions. He has not breached the conditions of the interim order since being given a formal written warning on 26th January 2015 (see affidavit Ms Nowrot, 25th February 2015). Even so, his recalcitrance supports the other substantial evidence indicating the need for ongoing close supervision. General criminal record 1. As can be inferred from what I have just written, in addition to his serious sexual offences and offences of a sexual nature, he has a general criminal record which includes a series of serious traffic offences. This general criminal record is possibly reflective of his anti-social personality disorder. Again, this past record bolsters the case for extended supervision. Views of Murrell DCJ 1. When sentencing him for the serious 2005 offences (on 4th August 2006) Judge Murrell said of Mr Galanis (PN-1 p 68): It is always very difficult in the case of individuals with dual diagnosis to be confident that they can remain both substance free and under treatment for mental illness once they are released into the community. The history seems to be that the offender himself has not always adhered to his mental health treatment. That is very common with schizophrenics. It is unfortunate that the offender's underlying mental illness has been greatly exacerbated by his substance abuse problem. No doubt, the two have combined over a number of years to render him at times barely functional. There is evidence before the Court – which I accept – that the offender will continue to be a risk to the community while he remains mentally ill and self-medicating with illicit substances I consider that, once he is released, the offender will need a high level of intervention in the community over a very long period of time if there is to be a reasonable prospect of stabilising him in terms of drug dependency and mental health. Even within the prison setting, he has, at times, proven treatment resistant. On the evidence I have heard and read, it seems to me that her Honour's observations remain, largely, apposite. True, the evidence indicates, to his credit, that he has remained abstinent of illicit drugs since his release from full-time custody. However, it has now emerged, especially through the evidence of Dr Ellis and Dr Samuels that he also suffers from anti-social personality disorder, which cannot be treated but may ameliorate as he grows older. Moreover, I accept the evidence of Dr Ellis, as I have said, that his psychotic condition remains undertreated and there is evidence that he fails to take his medication from time to time. On Dr Ellis' evidence he remains psychotic, suffering auditory hallucinations. The combination of the undertreated schizophrenia and the anti-social personality disorder bespeak the need for "a high level of intervention in the community over a very long period of time" as Murrell DCJ foresaw. Other relevant information 1. As has been pointed out by a number of the persons who have prepared reports in relation to this matter, Mr Galanis' history of past sexual offending has been opportunistic, rather than premeditated. This causes me concern given the evidence I have accepted about the nature of his mental illness and his anti-social personality disorder. It is also concerning that he has had a recent poor history of not responding to supervisors telephone calls. Close supervision ought to greatly reduce the opportunity of further offending at times when his undertreated schizophrenia might render him disinhibited or impulsive. 2. He is unable, so-far, to genuinely accept responsibility for his past offending and has a pre-disposition to blame the victim for what occurred. This may be a function of his personality disorder. Before me Dr Samuels gave evidence that persons with anti-social personality disorders of the type afflicting Mr Galanis can learn from experience. It is unlikely that any innate change in their personality function will occur, but "they realise what works and what doesn't work" (T 55.35). Again, these considerations point to a likelihood of further sexual offending in future. 3. His record (PN-1 p 3-18) extends to a number of allegations of other sexual offences. Of some he was acquitted; others were withdrawn. I have not taken these matters into account as part of Mr Galanis' criminal record. I record, however, for the purpose of the Static-99R actuarial assessment carried out by Dr Samuels and Ms Sutton (as is evident from their reports) charges as well as convictions are taken into account (T 49.25). However, this is only one tool in a psychiatrist's kit for assessing these matters, or to put it more formally, as Dr Samuels did, only part of a combined approach. In my opinion this approach involves no unfairness to an offender. 4. Mr Galanis remains interested in sex. He has viewed pornography on the internet, and contacts women overseas on Skype. I am concerned that his artificially restricted lifestyle will fail to contain his sexual impulses leading him to offend again. Finding 1. I am satisfied to the requisite high degree of probability that Mr Galanis poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision. Conditions 1. The amended summons filed on 24th February 2015 seeks the imposition of 47 conditions. Of them Mr Galanis contests condition 4 requiring him to wear electronic monitoring equipment and conditions 5 to 7 requiring him to provide, if asked, a weekly schedule of movements. An additional order was sought at the hearing to permit the State to provide the psychiatric and psychological evidence obtained in this litigation to CSNSW for passing on to Mr Galanis' treating psychiatrist for his or her information. This can be seen as amplification of conditions 42 to 47 concerning medical intervention and disclosure which are not disputed by Mr Galanis per se, however he disputes this additional order. I will deal with the question of duration after I have dealt with these issues. 2. Section 11 of the Act empowers the Court to make an extended supervision order directing an offender to comply with such conditions as the Court considers appropriate. Express powers are listed, but not so as to limit the power of the Court to impose conditions. Among the Court's express powers is a power to direct the offender to wear electronic monitoring equipment: s 11(e). 3. In Wilde v State of New South Wales [2015] NSWCA 28, when dealing with the scope of the statutory power conferred by s 11, the Court of Appeal introduced a broad test, departing from a narrower approach previously adopted in decisions of the Common Law Division: see for example State of New South Wales v Fisk [2013] NSWSC 364 at [96] and [99]. The unanimous Court (Beazley P; McColl JA; Ward JA) said at [53] – [54]: Care always needs to be taken with use of language which is different from the statutory text. Section 11 does not require that there must be a specific demonstrated link to the past offending which is the basis of the order made under the Act. Rather, the court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order. As the cases to which we have referred correctly state, it is not appropriate for the court under s 11 to impose conditions on a person directed to general future criminal conduct. Having pointed out at [47] that the broad discretion conferred by s 11 "must be exercised having regard to the scope and purpose of the Act and its objects" their Honours went on to say at [49]: The statutory objects listed in s 3 are twofold: the safety and protection of the community and encouraging high risk offenders to undertake rehabilitation. However, it is apparent from the language of s 3 that the listed objects do not exhaustively delineate the scope and purposes of the Act. This is apparent, in particular, from the language of subs (2), which refers to encouraging rehabilitation as being "another object of this Act". Thus, whilst s 3(2) specifies that an object of the Act is to encourage offenders to undertake rehabilitation, the scope and purpose of the Act is such that it would be permissible for the court, if it considered it appropriate, to impose a condition directed to facilitating rehabilitation, even if that did not require the offender personally to "undertake" rehabilitative steps as is envisioned in the statutory object in s 3(2). It may be appropriate in a particular case to impose conditions that may reduce risk factors relevant to the particular type of offending to which the order made under s 11 relates. 1. In Cornwell v Attorney General for New South Wales [2007] NSWCA 374 at [36], the Court said: One issue as to the terms of the order was whether there should be a requirement that the appellant wear an electronic monitoring device. In our opinion, it is appropriate to give weight to the consideration of the safety of the community in determining what conditions to impose, and to take a cautious approach. Should the Probation and Parole Service at any time consider that the device is not necessary or counter-productive, then the order should give the flexibility of dispensation with the requirement. Accordingly, it should be a condition of the order that the appellant wear such a device, if and as directed by a Probation and Parole Officer. … 38 In our opinion, again taking a cautious approach, there should be such a requirement. (Emphasis added) 1. The emphasised portion of this quote gives guidance on how I should approach the question of whether it is appropriate to impose a condition requiring Mr Galanis to wear an electronic monitoring device. I note in passing here, as in Cornwall, the condition proposed incorporates a degree of flexibility in application in as much as it is in the following terms: The defendant must wear electronic monitoring equipment as directed by the DSO or an officer of CS NSW. (Emphasis added) Thus it seeks to incorporate the same degree of flexibility reducing, or at least having the potential to reduce, the onerous nature of the proposed requirement when by his conduct Mr Galanis demonstrates that this particular protective measure is no longer necessary. 1. Moreover, in Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [121] the Court said: An electronic monitoring device will certainly assist in tracking the respondent's movements as well as deter him from risking committing the offence of breach of conditions of a supervision order. I appreciate that this is an essentially factual observation by the Court. However, it implies a statement of principle consistent with the objects and purpose of the legislation which is relevant here. I record in passing that s 12 makes it an offence for a person to fail to comply with the requirements of an extended supervision order. The penalties for breach include a term of imprisonment of two years. 1. Mr Galanis opposed this condition and the requirement to provide a schedule of movements by advancing essentially three arguments. First, both are unnecessarily onerous, and to that extent are punitive rather than protective of the community; secondly, given he had adopted a lifestyle that seeks to avoid going out and about, close monitoring of his movements was unnecessary; and thirdly, the interests of his rehabilitation would be advanced if he was given some responsibility for his own actions. 2. It is convenient to deal with electronic monitoring and the schedule of movements together because the evidence before me suggests they are complementary requirements (T 23.50 – 26.25 by Dr Ellis; T 47.25 – 48.5 by Dr Samuels). From the point of view of the psychiatrists these conditions taken together provide an incentive for the offender to comply with conditions in relation to rehabilitation. I observe that Mr Galanis has rather given up on that. At the same time there is a risk that these conditions may "heighten" persecutory beliefs in a person suffering from paranoid schizophrenia (see T 27.25 – 28.45 by Dr Ellis). 3. It is not only about encouragement to rehabilitation; it must also be recognised that electronic monitoring and scheduling of movements, as the Court of Appeal observed in Tillman may deter an offender from risking the consequences of breaching the conditions of a supervision order. In this sense, these conditions are fundamentally protective of the community, which gives effect to the primary object and purpose of the legislation. 4. Ms Nowrot's report explains the need for electronic monitoring and schedules of movement in detail: PN-1 pp 50-51. The advantages of monitoring movements and assessing suitability of proposed movements are obvious. In her affidavit affirmed on 25th February 2015, she described these measures as a "critical tool in the supervision and management of the defendant". Their importance is in deterring Mr Galanis in engaging in any high risk behaviour. So far she has not found it necessary to disapprove of any of Mr Galanis' movements proposed in any schedule other than a request that he be permitted to leave the country. He is wearing a device as a condition of the interim order, not happily it seems. 5. Mr Paul Yeomans is the senior electronic monitoring officer of the external and electronic monitoring group within Corrective Services NSW. In his affidavit, also affirmed on 25th February 2015, he described electronic monitoring as a tool to support the case management process enabling checks to be kept on an offender's whereabouts, including checks that the offender is complying with the schedule of movements. Moreover since January 2015 all offenders subject to electronic monitoring have been provided with new equipment known as the "Tracker". It is plastic, lightweight, slim-fitting and water resistant so it can be worn in the shower "or even in a swimming pool" (affidavit at [21]). The advantage in convenience terms from the offender's point of view is that he is no longer required to carry with him a GPS unit referred to as a "star unit", which is roughly the size of a soft drink can. The tracker does however need to be charged. A mobile charging dock, which can be pre-charged is provided and can be easily fitted for charging purposes wherever the offender is. 6. As I said already Ms Sutton was concerned that Mr Galanis has adopted what she regards as "a rigid risk management strategy i.e. limiting his social activities". In her opinion, this reclusive lifestyle is "not viable as a single risk management strategy in the long term" (PN-1 35–36). With respect, this seems clearly correct. 7. Notwithstanding the difficulties that Mr Galanis' mental illness and personality disorder pose to the prospect of real and sustained rehabilitation, the combination of a schedule of movements and electronic monitoring may both encourage him into positive and productive social engagement and protect the community by enabling his departmental supervising officer to legitimately monitor his whereabouts. 8. I also think it appropriate that the psychiatric evidence led in this case should be disclosed to Mr Galanis' treating doctors. I appreciate he is against this. But it seems to me that both protection of his community and his prospects of rehabilitation would be furthered if his treating doctors have the benefit of the views of Dr Ellis and Dr Samuels, in particular those of Dr Ellis in relation to the adequacy of the current treatment regime. Naturally, this question must be left to the therapeutic discretion of the treating doctors. However those doctors should be given the opportunity of reconsidering the regime in the light of the views of their independent colleagues who have provided assistance to the Court. A second opinion is always likely to be of benefit to the doctor primarily responsible for the management of a patient, even if it is not adopted. 9. For these reasons I am satisfied having regard to the scope, purpose and object of the Act, it is appropriate to impose these conditions so as to address what I have found to be the unacceptable risk of Mr Galanis committing a serious sex offence if he is not kept under supervision. Duration 1. The State argued that the extended supervision order should be for the maximum term of 5 years: s 10(1A). I bear in mind that a second or subsequent extended supervision order may be made against the same offender: s 10(3). Ms Hall of Counsel argues that a lesser duration is warranted, principally for the purpose of promoting Mr Galanis' rehabilitation. As she put it in oral argument (T 73.10): Having served a lengthy sentence, having been on parole, being subject to an order, I submit Mr Galanis, if he is to be subject to the order, which it is anticipated he will be, then it is really about giving him something to aim for in terms of encouraging that rehabilitation. She also put it in terms of leaving "a light at the tunnel" (T 73.5). 1. Dr Ellis and Dr Samuels both supported an order of five years duration. I think it fairly summarises the evidence of both that they considered a long period of time necessary to establish a proper regime of treatment and rehabilitation, which given his mental illness and personality disorder was likely to follow a protracted course. 2. Mr Galanis has complied with the requirements demanded of him in custody and on parole in relation to his rehabilitation. It is quite clear, whether because of his mental illness and personality disorder, or otherwise, despite his compliance he is not rehabilitated. This follows from the considerations I have already referred to; that he has failed to accept responsibility for his offending; has little insight into why it occurred; and his tendency to blame his victims. Acknowledging that the primary purpose of the legislation is protective and certainly not punitive, one can well understand that an offender would find the conditions of a supervision order unbearably onerous. And this may be counter-productive in terms of achieving the objects and purposes of the Act. 3. I think there is something in Ms Hall's "light at the end of the tunnel" argument. I acknowledge that the offender's mental illness and personality disorder may of themselves be matters that make him dangerous. In fixing the duration of the order, one should not be arbitrary. From Dr Samuels' evidence, I infer that a person with Mr Galanis' conditions may "learn what works", even if he cannot be cured or really changed. I would have thought that a period of three years and six months is adequate, in the first instance, to achieve the purpose of an order, if real gains in terms of rehabilitation, or education, can be made during that period. I am not confident that they can, and if this pessimism proves well-founded, doubtless a further application will be made. 4. My orders are: 1. Under s 5C Crimes (High Risk Offenders) Act 2006 William Galanis is subject to a high risk sex offender extended supervision order for a period of three years and six months from 6th March 2015 (pursuant to s 10(1) of the said Act) and expiring on 5th September 2018. 2. Under s 11 of the said Act, William Galanis is directed to comply with the conditions set out in Schedule A to these orders for the duration of order 1. 3. Direct that access to the Court file and any document filed or tendered in support or opposition to the State's application shall not be granted without leave of a Judge of this 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. 4. The State of New South Wales is permitted to provide the reports of Dr Andrew Ellis and Dr Anthony Samuels furnished to the Court under s 7(4) of the Act and the transcript of their oral testimony to: 1. Any medical practitioner or psychologist involved in the treatment or rehabilitation of William Galanis; and 2. The departmental supervising officer responsible for the supervision of William Galanis under these orders. ********** SCHEDULE "A" CONDITIONS EXTENDED SUPERVISION ORDER WILLIAM GALANIS 9 MARCH 2015 Departmental Supervising Officer (DSO) Corrective Services NSW (CSNSW) Monitoring and Reporting The defendant must accept the supervision of Corrective Services NSW (CSNSW) until the end of the Order. The defendant must report to the Department Supervising Officer (DSO) or any other person nominated by them if told to. The defendant must follow all reasonable directions by his DSO or anyone else who might be supervising him. Electronic Monitoring 4. The defendant must wear electronic monitoring equipment as directed by the DSO or an Officer of CSNSW. Schedule of Movements If he is asked for a schedule, 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. If the defendant wants to change his weekly plan after he has given it to his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period or in the case of an emergency. The defendant must truthfully answer questions from his DSO, or anyone else supervising him, about where he is and where he is going. Accommodation The defendant must live at an address approved by his DSO. The defendant must be at his approved address between 11pm and 7am unless other arrangements are approved by his DSO. 10. The defendant must allow an Officer of CSNSW to visit him at his approved addressat any time. The defendant must not spend the night anywhere other than his approved address without the approval of his DSO. The defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO. Restrictions on movements 13. The defendant must not leave New South Wales without the approval of CSNSW. The defendant must surrender any passports held by the defendant to the Commissioner. The defendant must not go to a place if his DSO tells him he cannot go there. The defendant must not go to schools, amusement parlours, amusement parks and theme parks unless he has prior written approval of the DSO, and he is with an appropriate adult who has been approved in writing by the DSO. The defendant must not attend any brothels, disorderly houses (as declared under Part 2 of the Restricted Premises Act 1943), adult bookstores, sex shops, topless bars, strip parlous, massage parlours, adult theatres or any place where sexually explicit material or entertainment is available. Employment Education & Finance If the defendant is unemployed, the defendant must enter available employment if and as directed by the DSO or make himself available for employment, education, training or participation in a personal development program as directed by the DSO. The defendant cannot start any job, volunteer work or educational course without the approval of his DSO. Drugs and Alcohol The defendant must not possess or use alcohol or illegal drugs, and he must not possess or use prescription medication other than as prescribed. The defendant must submit to testing for drugs and alcohol if asked by his DSO. The defendant must not enter any licensed premises without the approval of his DSO. The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as directed by his DSO, and must not discharge himself from such programs and courses without the prior approval of his DSO. Association with Children 24. The defendant must not approach or have contact without anyone who he knows isunder 18 unless his DSO tells him he can, and he has someone his DSO has approved in advance with him. Associations with Others (not children) The defendant must not associate with people that his DSO tells him not to. The defendant must not associate with any people who are consuming or who are manifestly under the influence of illegal drugs or who are manifestly intoxicated by alcohol. The defendant must not engage the services of sex workers. If the defendant starts a relationship with someone, he has to tell his DSO who may want to tell the person about his criminal history. 29. The defendant must obtain written permission from the DSO prior to joining,attending or communicating with any club or organisation, including any internetbased social networking service, including web-based, email, instant messagingservices and online community services ("internet based social networking services''). Access to the Internet & Telecommunications Devices The defendant must tell his DSO of any devices he uses to communicate with or to access the internet. This includes phones, tablet devices, data storage devices or computers. This may include the details of telephone numbers, service provider account numbers, email addresses or other user names used by the defendant and the nature and details of the internet connection. The defendant must obey any reasonable directions by his DSO about the use of phones, computers and his access to the internet. Search and Seizure 32. If the DSO 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 or persons present at thedefendant's approved address; b. to monitor the defendant's compliance with this order; or c. because the DSO reasonably suspects the defendant of behaviour or conductassociated with an increased risk of the defendant committing a seriousoffence; then the DSO may direct, and the defendant must submit to: d. search and inspection of any part of, or any thing in, the defendant'sapproved address; e. search and inspection of any part of, or any thing in, any vehicle owned, hiredby or under the control of the defendant; f. search and inspection of any part of, or any thing in, any storage facility,including a garage, locker or commercial facility owned, hired by or under thecontrol of the defendant; and/or g. search and examination of his person. 33. For the purposes of the above condition: a. a search of the defendant means a garment search or a pat-down search. b. to the extent practicable a pat-down search will be conducted by a DSO of the same sex as the defendant, or by an Officer of CSNSW of the same sex as the defendant under the direction of the DSO. NOTE: "Garment search" means a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body. "Pat-down search" means a search of a person where the person's clothed body is touched. 34. During a search carried out pursuant to condition 35 above, the defendant mustallow the DSO to seize anything found in, whether in the defendant's possession ornot, which the DSO reasonably suspects will compromise: a. the safety of residents or of staff at the defendant's approved address; b. the welfare or safety of any member of the public or any other person; or c the defendant's compliance with this order; or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of the defendant committing a serious offence. The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use. The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions 35 to 38 above. Access to Pornographic, Violent and Classified Material 37. The defendant must not purchase, possess, access, obtain, view, participate in orlisten to material classified or material that would be classified as RefusedClassification, X18+, R18+, Restricted Category 2 and Restricted Category 1, or anyother material as directed by the DSO. Personal Details and Appearance The defendant must not change his name from William Galanis or Bill Galanis or use any other name without the approval of his DSO. The defendant must not change his appearance without the approval of his DSO. The defendant must let CSNSW photograph him. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details. Medical Intervention & Disclosure The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults. The defendant must attend all psychological and psychiatric assessments and treatment that his DSO tells him to attend. The defendant must take all medications that are prescribed to him by his healthcare practitioners. If the defendant knowingly ceases to take medication that has been prescribed, either on a temporary or permanent basis, the defendant is to notify the DSO within 24 hours of ceasing to take the medication. The defendant must agree to his healthcare practitioners sharing information including reports on his progress and information he has told them with each other and with his DSO. The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to his DSO and CSNSW. Amendments 09 March 2015 - Date of Orders changed from "5 March 2015" to "6 March 2015" Date of Judgment changed from "5 March 2015" to "6 March 2015" 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: 09 March 2015