Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Merkel [2017] NSWSC 998 Hearing dates: 10 July 2017 Date of orders: 10 July 2017 Decision date: 10 July 2017 Jurisdiction: Common Law Before: Fagan J Decision: 1. Pursuant to s 5C and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is to be subject to a high risk sex offender extended supervision order for a period of 3 years from 10 July 2017. 2. Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW) the defendant is directed for the period of the extended supervision order to comply with the conditions in Schedule A to these orders. 3. The reports of Dr Jonathan Adams dated 3 July 2017 and Chelsey Dewson dated 28 June 2017 may be provided by the plaintiff to Corrective Services New South Wales, to any agency involved in the defendant's supervision and to the defendant's treating clinicians and healthcare practitioners. 4. Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) it is prohibited to publish or disclose the content of this judgment or any evidence given in these proceedings tending to identify the defendant with the offences alleged to have been committed by him on 28 July 2004 for which he is to stand trial on 25 September 2017 on grounds that it is necessary to make such an order for the integrity of the administration of justice and to ensure there is no negative publicity which may compromise the jury's deliberations in the forthcoming trial. 5. Order 4 is to remain in force until the conclusion of proceedings against the defendant upon the indictment on which he is to be tried in the District Court on 25 September 2017. Legislation Cited: Child Protection (Offenders Registration) Act 2000 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Crimes Act 1900 (NSW) Category: Principal judgment Parties: State of New South Wales (plaintiff) John Martin Merkel (defendant) Representation: Counsel: Mr Ian Fraser/Ms Alexandra Rose (plaintiff) Mr Anton Hughes (defendant) Solicitors: Mr Jamie McLachlan, Crown Solicitor's Office (plaintiff) Ms Sophie Coulson, Legal Aid Commission of New South Wales (defendant) File Number(s): 2017/153620 Publication restriction: Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) it is prohibited to publish or disclose the content of this judgment or any evidence given in these proceedings tending to identify the defendant with the offences alleged to have been committed by him on 28 July 2004 for which he is to stand trial on 25 September 2017 on grounds that it is necessary to make such an order for the integrity of the administration of justice and to ensure there is no negative publicity which may compromise the jury's deliberations in the forthcoming trial. The order is to remain in force until the conclusion of proceedings against the defendant upon the indictment on which he is to be tried in the District Court on 25 September 2017. Judgment 1. The plaintiff has applied to the Court by summons for an extended supervision order in respect of John Martin Merkel, pursuant to section 9 of the Crimes (High Risk Offenders) Act 2006 (NSW). Circumstances which attract the jurisdiction of the Court to make an extended supervision order. 1. The defendant is a 34-year-old man presently on parole under a sentence imposed by the District Court of New South Wales on 12 December 2008. On that date he pleaded guilty to a charge of assault with intent to have sexual intercourse with a six-year-old, girl contrary to s 66B of the Crimes Act 1900 (NSW). The offence was committed at Port Macquarie on 3 June 2008 against the daughter of a woman with whom the defendant had recently commenced an intimate relationship. 2. At the time of committing this offence the defendant was a registrable person under the Child Protection (Offenders Registration) Act 2000 (NSW). He had been notified of his registration under that Act, in accordance with the statutory requirements, on 21 September 2007. As a registrable person, he was required to notify police of any change of address and to notify the names and ages of any children with whom he resided. He was also required to provide police with details of any motor vehicle regularly driven by him. He had breached those obligations on about 3 June 2008, at the time of the commission of the offence against section 66B. He pleaded guilty to an offence in that respect as well. 3. He was sentenced to six months imprisonment for the failure to report, commencing from the date of his arrest on the more serious charge, which was 3 June 2008. His sentence for the section 66B offence was nine years with a non-parole period of six years, accumulated by three months with the sentence for failure to report. Thus the longest sentence commenced on 3 September 2008, its non-parole period expired on 2 September 2014, and the parole period will expire on 2 September 2017. 4. The defendant was released to parole on 30 September 2015. For the next six months he resided in the Nunyara facility, being an accommodation establishment operated by staff of the Community Offender Support Programme. Since about May 2016 he has lived in his own accommodation, a boarding house in Glebe. He is assisted with requirements of daily living by support staff of the Community Justice Programme, House with No Steps. He receives from the support workers of that organisation about 30 hours of attention per week. 5. Since his release on 30 September 2015 the defendant has been subject to strict parole conditions, including that he not be in the company of any persons under 16 years of age unless accompanied by a responsible adult and that he must not engage in written or electronic communication with any person under 16 years of age except as approved by an officer of the Extended Supervision Team of Corrective Services. 6. His compliance with the terms of his parole and his cooperation with officers of the Community Offender Support Programme in the first six months after his release was poor. It was reported that he was, during that period, argumentative and defensive with Community Corrections officers with whom he was obliged to maintain contact. He established Facebook contact with a 13-year-old girl, and persisted with this despite directions to desist from it and warnings. Since the first half of 2016 and up to the present date, according to reports of Community Corrections officers, his compliance with parole and his relations with Community Corrections officers have improved. 7. The offence of 3 June 2008, against s 66B of the Crimes Act, was punishable by a maximum sentence of 25 years. It was a "serious sex offence" within the definition of that term in s 4 of the Crimes (High Risk Offenders) Act. It follows that the defendant is a "sex offender" as that term is defined in s 4. As the defendant is currently under supervision on parole and is within the last six months of his parole period the Court's powers to make an extended supervision order are enlivened. See s 5I and s 6(2) of the Act. By force of s 5B the Court may make such an order "if satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision." Defendant's early background 1. According to a Department of Juvenile Justice report dated 25 September 2001, prepared in connection with charges which he faced at that time, the defendant commenced to "display destructive behaviours directed towards people and objects from approximately three years of age" and he continued such behaviour at least up to the date of the Juvenile Justice report of September 2001. The report disclosed that in 1990, at age six, he was assessed as having significantly below average intellectual capacity to the point of being mildly intellectually disabled. He was asked to leave the primary school which he first attended, after year 3, due to behavioural problems including abuse of teachers and other students. At a specialist education unit to which he was transferred it is said, "his negative behaviour escalated, with John physically assaulting a teacher". 2. He commenced secondary education at another specialist education unit but was suspended in 1996, part way through year 8, for aggressive and abusive outbursts towards staff and students. He was transferred to another school, which was specially adapted to accommodate children with severe behavioural problems. Apparently he improved there, between 1996 and March 1998, but then he reverted to outbursts and violence upon being returned to a mainstream high school. 3. He was given a long suspension from school in term 4 of 1998, at age 15 years, for verbal threats to staff. He did not return to school. Thereafter the defendant was sporadically employed in labouring and other unskilled work. He commenced to use amphetamines, cannabis and alcohol from the age of 15 years, according to his own self-report to, amongst others, the forensic psychiatrist and psychologist who were appointed to assess him under s 7 of the Crimes (High Risk Offenders) Act, by order of Fullerton J made 5 June 2017. Criminal history 1. In recounting his criminal history I will address only the principal occurrences and not every last detail. On 24 November 2000, at age 17, the defendant had sexual intercourse with a thirteen-year-girl, contrary to section 66C of the Crimes Act. The prosecution accepted that he had believed the girl was older than in fact she was. She was the girlfriend of his brother, who was two years younger. He pleaded guilty to this charge and on 15 November 2001 he was sentenced to 18 months' probation. 2. On 14 January 2004, at age 20 years, he sexually assaulted a 10-year-old girl, at Wodonga, Victoria. He and his flat mate were staying overnight in the home of a friend, where there were also present a young woman and her nephew and niece, the 10-year-old. The defendant digitally penetrated this child's vagina, exposed his penis to her, masturbated in her presence, and forced her hand on to his penis. This offence was not dealt with in the Victorian County Court until 1 November 2010, by which time Mr Merkel was in prison in New South Wales, serving the sentence to which I have already referred for his sexual offences of 3 June 2008. 3. By the time he came to be sentenced in Victoria, at age 27 years, the defendant had been diagnosed with a condition in which tumours were detected in his kidneys, aorta, right pulmonary artery, neck, and pharynx. Some, at least, of these tumours were malignant. The sentencing judge in Victoria took his medical condition into account. Its medical term is paraganglioma. The learned sentencing judge was required to fix a sentence within a very much lower range under the Victorian statute than is available for comparable offending under the Crimes Act of this State. A total effective sentence of two years was fixed, and the Victorian County Court judge suspended this entirely. 4. It is alleged that on 28 July 2004, that is, some six months after the offence just referred to, at age 20 years, the defendant had sexual intercourse with a girl of six years, contrary to s 66A of the Crimes Act; that he further attempted to have sexual intercourse with her, contrary to s 66B and that he indecently assaulted this complainant, contrary to s 61M(2). For these offences the maximum penalties at the time when they were allegedly committed are 25 years, 25 years and 10 years respectively. The mother of this complainant was in a relationship with the defendant at the time when this is said to have occurred, in Albury. 5. The complainant was normally in the care of her grandmother. On the day in question it is alleged the complainant was temporarily being minded by the defendant, who took her to his own residence, digitally penetrated her attempted penile penetration and then masturbated next to her, and ejaculated over her leg. The complainant has alleged that she had initially run from the defendant and then resisted him but that he threatened to harm her and her mother if she continued resistance. Consequently, she succumbed. She has alleged that he pressed a pillow over her head, apparently to smother her screaming and calling out. 6. The complainant reported all of this to her grandmother the next day, and the police were informed. It appears that when interviewed the complainant (as mentioned, a child of six years) did not support what she had told her grandmother. Nevertheless the police took her jeans as evidence. They examined them forensically but not until August 2005. The reason for the delay in examining the physical evidence is not apparent on the material before the Court on the present application. 7. There was a further delay in the police investigation of these complaints, up to August 2007. At that time the defendant was serving a prison term for further offences, which I will mention shortly. He was interviewed with respect to the events of July 2004 whilst he was in custody at Junee. Also in August 2007 DNA profiling and comparison was carried out, which, it is said, has established that the jeans which the child had been wearing at the time of the events of which she complained bore stains of semen which has been matched to the defendant. 8. The complainant is now 19 years old. She has been interviewed by police and apparently she will be the Crown's principal witness. The defendant has been committed for trial on the charges arising out of these allegations to commence on 25 September 2017. 9. On 24 October 2006, at age 22 years, the defendant drove a motor vehicle whilst disqualified and was charged. He failed to appear to answer this charge, and was convicted of it on 29 January 2007. A warrant issued, upon which, in due course, he was arrested. On 5 June 2007 he was sentenced to 10 months imprisonment with a non-parole period of four months, expiring 4 October 2007. 10. He was subsequently convicted of failing, on 6 June 2007, to report in accordance with his obligations under the Child Protection (Offenders Registration) Act. For that he was sentenced to three months imprisonment, to be served concurrently with the sentence relating to his driving whilst disqualified. 11. Whilst serving his sentence for driving whilst disqualified the defendant was interviewed by police concerning the allegations of 28 July 2004 (as referred to at [18]). A report of Community Corrections from late 2015 is to the effect that soon after the release of the defendant on parole for the offences committed at Port Macquarie on 3 June 2008 (namely, in October 2015) the defendant sought to have his Community Corrections officer enquire of police whether a "plea deal" could be done in relation to the 28 July 2004 allegations of sexual assault at Albury. In making this enquiry the defendant expressed to the Community Corrections officer his anxiety not to be returned to prison. Apparently such discussions regarding a plea have not taken place, or if they have there is no intimation in the papers before me as to their outcome. As mentioned, he is to proceed to trial on 25 September this year. In the meantime he has been granted conditional bail. One of the conditions is that he should not enter the city of Albury. 12. After the sentence of imprisonment for driving whilst disqualified had expired the next event in sequence in the defendant's criminal history was the commission of the offences at Port Macquarie on 3 June 2008, and his imprisonment for those offences as already related, upon which he was released to parole on 30 September 2015. Corrective Services' current assessment of risk of recidivism 1. A risk assessment report concerning the defendant has been prepared by Mr S Ardasinski and Ms Cherice Cieblucha, psychologists in the Serious Offenders Assessment Unit of Corrective Services, New South Wales. Their report is dated 9 January 2017. The executive summary of their assessment of Mr Merkel is as follows: "Mr Merkel is a 32-year-old Australian male who has committed a number of sexual offences since he was a juvenile, including a serious sexual offence in 2008. He committed this offence in Port Macquarie, against a six-year-old female child, while the victim's mother was on the phone in another room of the residence. He had entered into a relationship with the victim's mother, without informing his community supervisors or updating the child protection register. He has been convicted of three offences of a sexual nature since 2000, and been charged with others, including currently outstanding charges. Based on the available information, and according to a number of different risk assessment instruments, Mr Merkel presents an overall high risk of sexual offending relative to other male sexual offenders. His risk of repeat sexual offending would be most significantly increased in situations in which he is in a relationship which provides him access to children, [if] he experiences sexual frustration or preoccupation for a period of time, or [if he] is otherwise stressed and feels he needs sex in order to feel 'normal'. A return to drug use may also increase Mr Merkel's risk of committing further sexual offences. Mr Merkel is considered treated. He participated in a high intensity treatment programme aimed at addressing his sexual offending, in 2014 – 2015, including the custodial portion of his current sentence. He has continued this participation in community based sex offender programmes since his release to supervised parole. Mr Merkel has also completed programmes of lesser intensity, to address his substance abuse history, in 2014. Mr Merkel has previously been diagnosed with cognitive impairment, in the intellectual disability range, and he had been afforded disability specific assistance since his most recent release from custody. He has also been diagnosed with cancer with a terminal course." 1. The executive summary continues with statements to the effect that mitigation of future risk may be enhanced by ongoing community supervision. The report provides the results of the application by its authors of commonly used actuarial assessments for cases such as the present, addressing both static risk factors and dynamic risk factors. With respect to the former, it was found that on a standard test he scored 8, in circumstances where it is generally accepted that scores above 6 indicate "well above average" risk of re-offending. With respect to dynamic factors his score on the standard test was 14, placing him in the high risk category relative to other male sexual offenders. 2. The authors of the report noted the limitations of making an assessment of a person such as the defendant based purely upon taking together the results of these static and dynamic risk evaluations. Accordingly, they undertook what they term "a structured professional judgment," which involved a narrative assessment of the defendant's characteristics under various headings. Their report in this respect is extremely thorough and considered. Their conclusions include, at paragraph 60, that the level of supervision appropriate to the defendant under an extended supervision order, if one should be made, would be "on a par with that which he is currently receiving (by way of supervised parole) since he is being supervised by the [Extended Supervision Order] team on his parole order". 3. Addressing the question of how the defendant might fare without supervision the authors noted, at paragraph 63, "There is a poor precedent set for how Mr Merkel self-manages his risk in the community". The concluding paragraph of the report, 64, is in the following terms: "Due to his entrenched antisocial and antiauthority attitudes and lengthy history of sexual offending, in the longer term Mr Merkel may fail to demonstrate the level of motivation to ameliorate his eventual participation in actions that contribute to high risk situations as occurred in 2008 when he committed the index offence." 1. In paragraphs 19 and 20 of the report the authors have summarised the defendant's response to community supervision prior to the term of imprisonment which was imposed for his offences of June 2008. They have also summarised his compliance with the conditions of his incarceration whilst serving the non-parole period of that imprisonment. In these paragraphs the authors report numerous instances of non-compliance and difficulties in accepting supervision, whilst acknowledging that his conduct improved in the last three months prior to his release to parole. At paragraphs 29, 31 and 32 the authors have provided some detail of the programmes that the defendant has undertaken to address his tendency to sexual offending. 2. On 22 February 2017 a report was prepared by Ms E McConnell concerning how the defendant might appropriately be managed by Community Corrections under an extended supervision order. The conclusions of this report are largely reflected in the 53 conditions of such an order which the plaintiff now seeks, as set out in Schedule A to the summons. Opinions of court appointed psychiatric assessors 1. On 5 June 2017 Fullerton J ordered, pursuant to s 7 of the Crimes (High Risk Offenders) Act that reports on the defendant be prepared by Dr Jonathan Adams, psychiatrist, and Ms Chelsey Dewson, a clinical psychologist. Dr Adams, in a report of 3 July 2017, made an evaluation which he himself stated is "broadly consistent" with the opinion of Dr Ardarinski and Ms Cieblucha. At page 3 of that report Dr Adams stated: "In my view, it is reasonable to conclude that Mr Merkel's sexual violence history is chronic, given the period of time over which he offended. I believe it is also reasonable to conclude he manifests the sexual violence risk factor of physical coercion, given the description of the offending behaviour." 1. The doctor further stated that: "The repeated nature of his sexual offending towards prepubescent children, and apparent similarity with the victims involved makes an underlying diagnosis of paedophilic disorder a likely consideration." 1. In oral evidence the doctor stated that he was unable to be more definitive about this diagnosis absent the opportunity to observe or receive reports upon the behaviour of the defendant over a longer period. Subject to that limitation, the view he expresses is of significant relevance to the assessment the Court is required to make on the present application. 2. The doctor expressed the view that the defendant "manifests a significant loading of risk factors associated within an increased risk of sexual violence and, hence, further serious sex offending". He stated that, "At present it appears the defendant's violence risk is reasonably managed, which decreases the risk of him engaging in further problematic behaviour" but he said, "Nevertheless it is my view that if Mr Merkel was not supported by this assertive management plan" (referring to his management under the present conditions of his parole) "his risk of engaging in further problematic behaviour, including potentially a serious sex offence, would be significantly increased". 3. The doctor set out a number of factors which would be likely to increase the risk of this occurring and expressed the view that it was reasonable to suggest his sexual violence risk factors would come to the fore if he were no longer to receive the level of assistance from the Criminal Justice Programme and the level of monitoring from Corrective Services which he currently has under the terms of his parole. 4. Ms Dewson, in a report of 28 June 2017, at paragraph 91, expressed the view that the defendant "poses a high risk of re-offending". She considers, as stated at paragraph 104, that his risk can be managed in the community under an extended supervision order. In her view, a period of supervision and support would allow the defendant to consolidate treatment gains, whilst also providing external management to assist the defendant in the regulation of his behaviour. Her recommendation is for a period of extended supervision of at least two years. 5. She described this as: "The period necessary for a person to consolidate gains from self-regulation and supervision in order to set patterns of behaviour which will reduce and mitigate the risk of further offending." 1. Without any disrespect to Ms Dewson, I do not consider it necessary to quote further from her report, which is broadly to the same effect as the assessments of the psychologists working within Corrective Services, and Dr Adamson. The defendant's case 1. Counsel for the defendant cross-examined both Dr Adams and Ms Dewson. One significant point of the cross-examination was to question whether they had adequately taken into account the limitations which are imposed upon him by his current state of physical health. In addition to the paraganglioma he has an injury to his cervical spine and unspecified disorders for which he consults a cardiologist and a gastroenterologist. He takes a number of prescribed medications including powerful anelgesics. 2. Both Dr Adams and Ms Dewson consider that his present poor health and the prognosis of continued decline are neutral factors. On the one hand, they were of the view that the defendant was caused by his expectation of a shortened life span due to his current illness to be motivated toward trying to lead a moral and lawful life for the remainder of his years. On the other hand, this was offset by the risk that if he is inclined towards sexual misconduct with very young girls, as has occurred in the past, he may feel disinhibited by reason of seeing himself as having little now to lose in view of his very poor prognosis. 3. Ms Dewson noted that his lethargy and lack of energy due to the illness may reduce his libido but that, on the other hand, it is likely to cause him to remain socially withdrawn and to inhibit him from engaging in employment, which are factors tending to heighten the inclination towards sexual offending. These offsetting considerations led both experts to view his declining health and the poor prognosis offered to him by his treating doctors as a circumstance which does not affect their recommendation for continued supervision, and does not alter their assessment of his ongoing high risk of re-offending. 4. On the defendant's behalf, his counsel urged that conditions and circumstances indicating a reduced risk of re-offending were the defendant's current sobriety and abstinence from drugs and his compliance in the past year with parole conditions. I take those things into account but I also consider that the sobriety has likely been achieved through ongoing monitoring, of a close nature, by Community Corrections officers under the parole conditions. His continuing tight parole conditions are probably beneficial and have likely enhanced his capacity for law abiding conduct in the past 12 months. 5. Certain particular features of the orders sought were challenged by the defendant's counsel. Firstly, the condition which would require him to wear an anklet enabling his location to be monitored was said to be unduly onerous because the anklet is uncomfortable. His ankles, apparently, are swollen by his current medical condition. Because of his intellectual limitations he is at risk of failing to keep the device charged, which can result in it not functioning, leading to the monitoring service trying to contact him or sending somebody to his address to verify his whereabouts. 6. He gave evidence that his intellectual limitations which cause him to be less than perfect in compliance with conditions such as keeping the anklet electrically charged have also at times led to him failing to keep his mobile phone charged or in credit, with the result that he does not make calls to the monitoring service to notify them of departures from his proposed schedule. He said that at times, because he sleeps deeply as a result of medication, he may fail to hear phone calls that are made to him by the monitoring service to check his whereabouts when the battery life of his anklet has expired. 7. All of these matters are details. They will, no doubt, require particular attention by those support workers who assist him under Community Justice Programme to give particular attention to ensuring the defendant's management of his phone and of his movements and of his position monitoring anklet. 8. I have taken account of the circumstance that his medical appointments are onerous and numerous. It appears that he has to have the anklet removed in order to undertake any form of radiology. The evidence before me is that this can be attended to if he notifies his Departmental Supervising Officer of an appointment for radiology. This should not cause difficulty, particularly with the assistance of the Community Justice Programme welfare workers. The Supervising officer can accompany him to the radiology appointment, remove the anklet before the procedure is carried out and replace it afterwards. 9. He has also mentioned difficulties in compliance with any schedule of movements which he has to follow, because medical appointments may be changed on short notice and may be prolonged unexpectedly. The evidence before me is that all of these matters can be addressed by phone calls to the monitoring service and whatever difficulty this may involve to the defendant, in order to maintain compliance, it is not an enormous burden for him to meet in order to comply with an appropriate extended supervision regime which will meet the needs of the community for protection. 10. Before making an extended supervision order I am required to have regard to a range of considerations set out in section 9 of the Act. As required by subsection (3) of section 9, paragraphs (b), (c), (d) and (d1), I take into account the materials that have been placed before me. I have had regard to the facts which emerge from the other evidence as bearing upon paragraphs (a), (e), (f), (g), (h), and (h1) of section 9(3). On consideration of all of those matters I am satisfied that an extended supervision order should be made in the terms and on the conditions sought by the plaintiff. One minor adjustment is required to clause 16, as sought by the plaintiff. As sought, that condition reads as follows: "16. John must not go to a place if his DSO tells him he cannot go there". This will be imposed with the addition of the words "on reasonable grounds" before the word "tells". 11. I have concluded, on all of the material placed before me, in particular the defendant's history of sexual offending and the content of the expert assessments which I have summarised, that he poses a significant risk of perpetrating further sexual offences against very young and vulnerable girls. Close supervision and monitoring of his activities is called for, to mitigate this risk. 12. I take into account his poor level of compliance, poor levels of cooperation with authorities in earlier times, and I make allowance for his improvement during his supervision under parole. I consider that sufficient protection of young girls who might otherwise be victims of his behaviour cannot be achieved merely by the imposition of directives and must be secured through close monitoring and supervision as envisaged by the conditions of the order for which the plaintiff asks. 13. Accordingly, the orders of the Court will be: 1. Pursuant to s 5C and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is to be subject to a high risk sex offender extended supervision order for a period of 3 years from 10 July 2017. 2. Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW) the defendant is directed for the period of the extended supervision order to comply with the conditions in Schedule A to these orders. 3. The reports of Dr Jonathan Adams dated 3 July 2017 and Chelsey Dewson dated 28 June 2017 may be provided by the plaintiff to Corrective Services New South Wales, to any agency involved in the defendant's supervision and to the defendant's treating clinicians and healthcare practitioners. 4. Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) it is prohibited to publish or disclose the content of this judgment or any evidence given in these proceedings tending to identify the defendant with the offences alleged to have been committed by him on 28 July 2004 for which he is to stand trial on 25 September 2017 on grounds that it is necessary to make such an order for the integrity of the administration of justice and to ensure there is no negative publicity which may compromise the jury's deliberations in the forthcoming trial. 5. Order 4 is to remain in force until the conclusion of proceedings against the defendant upon the indictment on which he is to be tried in the District Court on 25 September 2017. SCHEDULE A CONDITIONS OF SUPERVISION JOHN MARTIN MERKEL Departmental Supervising Officer (DSO) Corrective Services NSW (CSNSW)*Any reference to DSO includes any other person supervising the defendant (referred to in these conditions as "John"). Part A: Reporting and Monitoring Obligations Monitoring and Reporting 1. John must accept the supervision of CSNSW until the end of the Order. 2. John must report to the DSO. 3. John must follow all reasonable directions by his DSO Electronic Monitoring 1. John must wear electronic monitoring equipment as directed by the DSO or any other person supervising him. Schedule of Movements 1. If he is asked for a schedule, John must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start. John's DSO may help him prepare the schedule. 2. If John wants to change to 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 3. John must not deviate from his approved schedule of movements except in an emergency. 4. John must truthfully answer questions from his DSO, about where he is, where he is going and what he is doing. Part B: Accommodation 1. John must live at an address approved by his DSO. 2. John must be at his approved address between 11:00 pm and 6:00 am unless other arrangements are approved by his DSO. 3. John must allow his DSO to visit him at his approved address at any time and, for that purpose, to enter the premises at that address. 4. John must not spend overnight anywhere other than his approved address without the approval of his DSO. 5. John must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO. Part C: Place and travel restrictions 1. John must not leave New South Wales without the approval of CSNSW. 2. John must surrender any passports held by John to the Commissioner of CSNSW. 3. John must not go to a place if his DSO on reasonable grounds tells him he cannot go there. 4. Unless given prior approval by his DSO , John must not go to any: 5. Day-care centres, pre-schools and schools; 6. Amusement parlours, amusement parks and theme parks 7. Cinemas; 8. Libraries and museums; 9. Camping grounds and caravan parks; 10. Children's playgrounds, parks, and areas with play equipment provided for the use of children; 11. Pools, playing fields and sporting facilities; 12. Concerts, theatre shows, movies, events and activities intended for the entertainment of children; or 13. Residences where John knows that persons under 18 ordinarily reside 14. Internet cafes or other businesses which provide public access to the internet either for payment or for no charge (other than employment agencies). 15. Unless approved by the DSO, John must not attend any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment. Part D: Employment, finance and education 1. If John is unemployed, John 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. 2. John must not start any job, volunteer work or educational course without the approval of his DSO. 3. John must provide any information relating to his financial affairs, including income and expenditure, if directed by his DSO. 4. John must not sign any legal instrument that gives him control of any money or assets of another person or organisation, without prior approval of the DSO. Part E: Drugs and alcohol 1. John must not possess or use alcohol or illegal drugs, and he must not possess or use prescription medication other than as prescribed. 2. John must be tested for drugs and alcohol if directed by his DSO. 3. John must not enter any licensed premises without the approval of his DSO. 4. John must attend and participate in programmes and courses for drug and alcohol rehabilitation as directed by his DSO, and must not quit such programs and courses without prior approval of his DSO. Part F: Non-association Association with Children 1. John must not approach or have contact with anyone who he knows is under 18 unless his DSO tells him he can, and he is with someone who has been approved in writing by his DSO. Associations with Others (not children) 1. John must not associate with people that his DSO tells him not to. 2. John must not associate with any people who are consuming or under the influence of illegal drugs or alcohol. 3. John must not engage the services of sex workers without prior approval of his DSO. 4. If John starts an intimate relationship with someone, he has to tell his DSO who may want to tell the person about his criminal history. 5. John must obtain written permission from the DSO prior to joining or taking part of any club or organisation, including any internet or mobile based social networking service Part I: Access to the internet and other electronic communication 1. John must give his DSO a list of all devices, services and applications he uses to communicate with or to access the internet. This includes phones, tablet devices, data storage devices or computers. This includes the details of telephone numbers, service provider account numbers, email addresses or other user names and relevant passwords and codes, used by John and the nature and details of the internet connection, as directed. 2. The DSO (or any other person requested by the DSO) may remotely inspect any internet account used by John, including John's email addresses, in monitoring compliance with this order. 3. John must obey any reasonable directions by his DSO about the use of phones, tablet devices, data storage devices, computers and other devices, including any reasonable directions relating to his access to the internet. 4. John must allow his telephone and/or internet service provider to share information about his accounts with his DSO. 5. John must provide a list of communication devices and data storage devices in John's possession and advise the DSO of any change to the inventory immediately. Part J: Search and seizure 1. If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs d to f below) is necessary: 2. for the safety and welfare of residents or staff or persons present at John's approved address; 3. to monitor John's compliance with this order; or 4. because the DSO reasonably suspects John of behaviour or conduct associated with an increased risk of John committing a serious offence; 5. then the DSO may direct, and John must submit to: 6. search and inspection of any part of, or any thing in, John's approved address; 7. search and inspection of any part of, or any thing in, any vehicle owned, hired by or under the control of John; 8. 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 the control of John; and/or 9. search and examination of his person. 10. For the purposes of the above condition: 11. a search of John means a garment search or a pat-down search. 12. to the extent practicable a pat-down search will be conducted by a DSO of the same sex as John, or by an Officer of CSNSW of the same sex as John under the direction of the DSO. 13. NOTE: 14. "Garment search" means a search of any article of clothing worn by John or in John's possession, where the article of clothing is touched or removed from the person's body. 15. "Pat-down search" means a search of a person where the person's clothed body is touched. 16. During a search carried out pursuant to condition 38 above, John must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in John's possession or not, which the DSO reasonably suspects will compromise: 17. the safety of residents or of staff at John's approved address; 18. the welfare or safety of any member of the public or any other person; or 19. John's compliance with this order; 20. or which the DSO reasonably suspects relates to behaviour or conduct associated with an increased risk of John committing a serious offence. 21. John must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use. 22. John must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to conditions 38 to 41 above. Part K: Access to pornographic, violent and classified material 1. John must not purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification, X18+, Restricted Category 2 and Restricted Category 1, or any other material as directed by the DSO. He must not purchase, possess, access, obtain, view, participate in or listen to material classified R18+ without the prior approval of his DSO. Part L: Personal details and appearance 1. John must not change his name from "John Martin Merkel" or use any other name without the approval of his DSO. 2. John must tell his DSO of any names he uses when he uses the internet. John must not change his appearance without the approval of his DSO. 3. John must let CSNSW photograph him. 4. If John changes the details of any current form of identification or obtains further forms of identification, he must provide the DSO with such details. Part M: Medical intervention and treatment 1. John must notify his DSO of the identity and address of any healthcare practitioner that he consults. 2. John must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO reasonably tells him to attend, relating to alcohol, drug abuse or to mental health. 3. John must take all medications relating to alcohol, drug abuse or to mental health that are prescribed to him by his healthcare practitioners 4. If John stops taking medication that has been prescribed, either on a temporary or permanent basis, John is to notify the DSO within 24 hours of ceasing to take the medication. 5. John 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. 6. John 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. ********** 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: 13 May 2022