Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Christopher Roy Lee [2018] NSWSC 473 Hearing dates: 20 March 2018 Date of orders: 20 March 2018 Decision date: 20 March 2018 Jurisdiction: Common Law Before: Hamill J Decision: (1) Pursuant to s 5B and s 9(1)(a) of the Crimes (High Risk Offender) Act 2006 (NSW), the defendant is subject to an extended supervision order for a period of 3 years from 20 March 2018. (2) Pursuant to s 11 of the Act the defendant is to comply with the conditions set out in the Schedule of Conditions for the period of the order. (3) Access is restricted to the Court's file such that access is permitted to a non-party only with the leave of a judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access. Catchwords: CIVIL LAW – high risk offender – extended supervision order – where defendant concedes statutory requirements – previous offence of murder – subsequent sexual offending – dispute as to various conditions under ESO – no question of principle Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) ss 3, 5B, 5I, 9(1)(a), 9(2), 10C(2), 11 and 13 Cases Cited: Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575; HCA 46 State of New South Wales v Bugmy [2017] NSWSC 855 State of New South Wales v Burns [2014] NSWSC 1014 State of New South Wales v Carr [2014] NSWSC 1348 State of New South Wales v Green (Final) [2013] NSWSC 1003 State of New South Wales v Lee (No 2) [2018] NSWSC 27 State of New South Wales v Lee (No 3) [2018] NSWSC 145 State of New South Wales v Lee [2017] NSWSC 1766 Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 Veen v R [1979] HCA 7; (1979) 143 CLR 458 Wilde v State of NSW (2015) 249 A Crim R 65; [2015] NSWCA 28 Category: Principal judgment Parties: State of New South Wales (Plaintiff) Christopher Roy Lee (Defendant) Representation: Counsel: Mr J Edwards (Plaintiff) Ms A Cook (Defendant) Solicitors: Crown Solicitors Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2017/00368841 Publication restriction: Access to court file restricted. ex tempore Judgment (REVISED) 1. The State of New South Wales brings an amended summons against Christopher Roy Lee, who I will refer to throughout as "the defendant", seeking an order under s 5B of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) that the defendant be subject to an extended supervision order for a period of 5 years. The defendant does not contest the fact that an order should be made, and makes a number of important concessions in relation to the jurisdiction or prerequisites to the making of such an order. However, the defendant contends that a number of the conditions sought by the State are not appropriate in the circumstances of his case. 2. Accordingly, the issues between the parties are relatively narrow. However, in spite of the concessions made by the defendant, before any order can be made it is necessary to be satisfied that the statutory requirements for the making of such an order have been established. In other words, I must be satisfied that the defendant's concessions are properly made. For that reason, it is necessary to recount in a small amount of detail the offender's background and criminal history and the evidence upon which the State relies in contending that an extended supervision order should be made. 3. The requirements of the Act have been considered in a number of cases both at first instance and on appeal. It is unnecessary to dwell on the case law surrounding the operation of the Act. Rather, it is sufficient simply to refer to the provisions of the Act itself. The Act was amended in important respects in late 2017. It is only as a result of those amendments that the present defendant is caught by the legislation at all. However, that is not a circumstance that properly informs or influences the decisions I am required to make. One significant amendment, and one that may have some influence on the outcome of the present dispute, is the amendment to s 9(2): In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court. 1. It has long been the case that the primary objective of the Act was the protection of the community (see s 3). However, it is significant that the legislation now provides that the paramount consideration in determining whether to make an order is the safety of the community. Even so, the amendments are not determinative to the outcome of the present proceedings. 2. I refer to the judgment of Schmidt J in State of New South Wales v Lee [2017] NSWSC 1766. That decision sets out some of the background to the matter. Her Honour determined that an interim supervision order should be made. Arguments were advanced at the preliminary hearing before Schmidt J as to the content of the conditions that were appropriate for the interim supervision order. In particular, the defendant argued that the conditions imposed should be no more stringent or burdensome than those to which he had, to that point, been subject while on parole. Her Honour rejected those arguments and largely imposed conditions consistent with those sought by the State. Some of the conditions were modified in the course of argument. 3. The interim supervision order was for 28 days commencing 1 January 2018. The order was extended by Lonergan J on 23 January 2018: see State of New South Wales v Lee (No 2) [2018] NSWSC 27. That extension was for a period of 28 days from 29 January until 25 February 2018. The interim order was again renewed, this time by Schmidt J, on 20 February 2018 for a further period of 28 days: State of New South Wales v Lee (No 3) [2018] NSWSC 145. That interim order will expire on 26 March 2018, which is to say next Monday. Section 10C(2) allows for an interim order to be renewed or extended from time to time, but only to a maximum of three months. That three-month period will expire on 30 March 2018, which is to say next Friday, which happens to be a public holiday. 4. Because of the urgency involved in that temporal framework and because the issues between the parties are so confined, it is necessary both to deliver this judgment ex tempore (or as it turns out 2 hours after oral submissions were finalised) and also to be brief in articulating my reasons for the decisions I have reached. There are three formal prerequisites to the making of an order. The defendant, represented by experienced and capable lawyers, concedes that these are established. Those concessions are correctly made. 5. Section 5B of the Act provides that the Supreme Court may make an extended supervision order. The first prerequisite in the section is that "the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community". [1] The defendant is such an offender. The expression "serious offence" is defined in the Act. It includes a serious sex offence or a serious violence offence. Those terms are in turn defined. The defendant was convicted and sentenced for the crime of murder on 16 February 1990. He was sentenced to life imprisonment and that sentence was re-determined later to a sentence of 21 years with a minimum term or non-parole period of 16 years. Unsurprisingly, the definition of "serious violence offence" captures the crime of murder. Accordingly, the defendant is a person who has served a sentence for a serious indictable offence and the first prerequisite for the making of an extended supervision order has been established. 6. The second prerequisite is provided by s 5B(b) being that the person is a "supervised offender" within the meaning of s 5I. This prerequisite is also satisfied, although the supervision in question does not relate to the murder offence. When the offender was on parole for the murder he committed a sexual offence or sexual offences, although the parties agreed that these are not serious sex offences of the kind ordinarily caught by the Act, because the victim was not a child and the offences was not committed in circumstances of aggravation. On 7 August 2008, he was sentenced to 10 years imprisonment for an offence of sexual intercourse without consent. (There were other offences associated with the same incident but it is sufficient to refer to the major offence.) There was a minimum term or non-parole period of 7 years. The defendant was not released at the end of the non-parole period but was released about 2½ years later on 27 June 2017. He was on parole, and therefore a "supervised offender" under s 5I, when Schmidt J made the interim supervision order. More significantly, as of today, the defendant is subject to the terms of the interim supervision order. Because of that latter circumstance, he is a supervised offender in accordance with the definition in s 5I of the Act. 7. The third prerequisite is that the application for the order must be made in accordance with s 5I: 5I APPLICATION FOR EXTENDED SUPERVISION ORDER (1) An application for an extended supervision order may be made only in respect of a supervised offender. (2) A "supervised offender" is an offender who, when the application for the order is made, is in custody or under supervision (referred to in this Part as the offender's "current custody or supervision"): (a) while serving a sentence of imprisonment: (i) for a serious offence, or (ii) for an offence of a sexual nature, or (iii) for an offence under section 12, or (iv) for another offence (whether under a law of this State or another Australian jurisdiction) that is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraph (i), (ii) or (iii), or (b) under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order. (3) A person is taken to be serving a sentence of imprisonment whether the sentence is being served by way of full-time detention or intensive correction in the community (whether or not subject to a home detention condition) and whether the offender is in custody or on release on parole. 1. Again the concession that this formal requirement has been met is properly made. That deals with what might be considered to be the three formal requirements under s 5B. 2. Section 5B(d) requires that "the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order". The defendant accepts that it is open to come to that conclusion. 3. This test, which is in the same or similar terms to the test for making a continuing detention order, has been subject to consideration in a number of earlier cases, including cases that went to the Court of Appeal. It is unnecessary to dwell on those decisions. The proper application of the test is now well established. I am satisfied that this requirement has been established, and I will state my reasons in relatively brief terms. 4. First, while the defendant's criminal record is reasonably short, it contains two offences of the utmost gravity. The offence of murder of which the defendant was convicted was an offence of extreme brutality. The sentencing Judge described it as follows: It was obvious that she had been the subject of a frenzied attack and the blade of a large carving knife, responsible for her wounds, had broken off and was still stuck in the deceased's back. … These stab wounds were penetrating wounds to the aorta, both lungs, the superior vena carva, the diaphragm, the spleen, the liver and the left internal jugular vein. In the police antecedent form the police described this killing as one of utmost savagery and brutality and with those comments I can only agree. … The prisoner in a record of interview to the police stated that he and the deceased went upstairs. After a period he and the deceased began a sexual encounter, if I can use that expression. He said that whilst he was attempting to have sexual relations with the deceased, she suddenly pushed him away and thereupon informed him that she proposed to ring the police and complain that he had raped her. She then went downstairs where the telephone was situated and he followed and tried to reason with her, without success, she maintaining that she was going to ring the police. He then said he panicked and stabbed her. … Without anymore, the offence, on the objective facts, is a horrifying one and on the face of it calls for a very heavy penalty. There is no evidence of any contrition. … There was no suggestion that at any time previously there had been any sexual relations between them. The fact that she invited him into the bedroom, in my view, is explained by virtue of the fact that the television was in that area and they were probably looking at the television for a period. … I believe that to some extent he was obviously affected by intoxicating liquor… This was a situation in my view, where he had taken advantage of a defenceless young woman and when she resisted his advances and threatened to report him to the police, he then brutally stabbed her to death. 1. The murder offence had a significant sexual component to it and involved a savage stabbing attack on a woman who, it would seem, rejected the defendant's sexual advances. The offence occurred while the defendant was under the influence of alcohol. The defendant initially admitted to his involvement in the attack, but he recanted that admission at trial. The material demonstrates that he remains in denial of his criminal culpability for the murder to this day. 2. The sexual offences were also very serious. As I have said, they were committed at a time when the defendant was on parole in relation to the murder sentence. The remarks of Judge Armitage in sentencing the defendant included the following observations: The complainant, dressed in her pyjamas, was on her mobile phone talking to her friend… At some point whilst still on the phone [the victim] went into the main house with some food/drink. On her way back to the granny flat she passed the offender who was sitting on the back steps. The offender told her he wanted to speak to her about the rent. … They sat on the lounge and there was a brief discussion about the rent. The offender told her not to worry about the money. He then said to her "I want you to give me a head job." [The victim] told him she couldn't and that it was wrong as she was going out with his son. To this the offender responded by standing up, and grabbing hold of the complainants wrists and pulling her into the bedroom inside the granny flat. The offender repeated his request for a "head job" and the complainant continued to tell him no. The offender forced the complainant towards the wall. Her back was to the wall and the offender was directly in front of her. The offender let go of her wrists and put his hands up the complainant's pyjama top. He put his hands on her breasts and rubbed them telling her "You've got great tits" or words to that effect as he did so (this is the basis for count 1). The complainant at this point was crying and trying to push the offender away. The offender then told her he was going to put his hands down her pants. The complainant told him not to and there was a brief exchange of words before the defendant tried to kiss her. The complainant turned her head away. The offender still had his hands on the complainant's breasts, then he lifted the complainants top and sucked her breasts for a few moments (this is the basis of count 2). The offender kept asking her if she loved [his son] and that if she did she should "Suck my dick then." The offender unzipped his pants and pulled out his penis which was erect at this stage. The offender demanded the complainant kneel in front of him, which she did. The offender then took hold of the back of the complainant's head and forced his penis into her mouth. The offender moved the complainant's head back and forth until he ejaculated into the complainant's mouth. She swallowed the ejaculate. … The previous offence of murder was not a previous sexual offence, although I observe that it was in a factual context which involved sexual conduct against the victim who was ultimately murdered by the present offender. 1. A report prepared for today's hearing Dr Jeremy O'Dea, a forensic psychiatrist appointed by the Court, said that "it is generally agreed that the best predictors of future sexual and/or violent offending behaviours, are the nature and extent of past sexual and/or violent offending behaviours". 2. The savagery and brutality of the earlier offences gives rise to a concern, at least, that the offender poses the kind of unacceptable risk contemplated by s 5B(d) of the Act. 3. In addition to the history of the defendant and his earlier violent behaviour, the Court has two reports prepared for the purpose of the final hearing, and a report prepared for the preliminary hearing before Schmidt J. All of the experts agree that predicting an offender's future conduct is fraught with difficulties. They articulate their respective opinions of risk in various ways, however each expert expresses the opinion that the defendant represents some risk. 4. Mr Ardasinski described the risk as a moderate risk of sexual offending and a low risk of violent offending. Dr Lennings assessed the risk of sexual offending as medium to medium high. Dr O'Dea described the risk as significantly high, particularly if the defendant resorted to the use of alcohol. All of the experts referred to the defendant's choice of victim in each case, being women known to him, to the opportunistic nature of the offences and to the involvement of alcohol in each of the crimes. 5. Of course, assessing risk is an exercise in predicting the future, and is fraught with difficulties. However as Gleeson CJ said in Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575; HCA 46: "No doubt, predictions of future danger may be unreliable, but, as the case of Veen shows, they may also be right". [2] 1. Based on this material as well as the voluminous material otherwise tendered on the hearing, I am satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision pursuant to an order under the Act. 2. The State also relied on an earlier allegation of rape of which the defendant was not convicted. I have taken that allegation into account, but it is not necessary to give it much weight. The material relating to the offences for which the defendant was convicted establishes the statutory requirement. 3. For that reason I propose to make an extended supervision order pursuant to s 5B. 4. That brings me to the point of dispute between the parties. This concerns the precise content of the conditions to be imposed on the defendant. In making such an order and in determining the appropriate conditions, the Court must keep firmly in mind the primary objective of the Act, which is to protect the community: see s 3. It is also significant that the Act has been amended to provide that in determining whether to make an order the paramount consideration is the safety of the community, although that section does not speak directly to the conditions that may be appropriate. It has also been said that these orders are protective rather than punitive. Finally, it is also important to remember that a secondary consideration or object of the Act is to foster the defendant's rehabilitation. 5. Section 11 of the Act provides a non-exhaustive list of the kinds of conditions that may be imposed. These include: (a) to permit any corrective services officer to visit the offender at the offender's residential address at any time and, for that purpose, to enter the premises at that address, or (a1) to permit any corrective services officer to access any computer or related equipment that is at the offender's residential address or in the possession of the offender, or (b) to make periodic reports to a corrective services officer, or (c) to notify a corrective services officer of any change in his or her address, or (d) to participate in treatment and rehabilitation programs, or (e) to wear electronic monitoring equipment, or (ea) to reside at an address approved by the Commissioner of Corrective Services, or (f) not to reside in or resort to specified locations or classes of locations, or (g) not to associate or make contact with specified persons or classes of persons, or (h) not to engage in specified conduct or classes of conduct, or (i) not to engage in specified employment or classes of employment, or (j) not to change his or her name, or (k) to report to police and provide information to police about the conditions imposed on the extended supervision order or interim supervision order and the offender's residential address, or (l) to comply with any obligation that could be imposed on the offender under Part 3 of the Child Protection (Offenders Registration) Act 2000 if the offender were a registrable person within the meaning of that Act and were not the subject of an interim supervision order or an extended supervision order, or (m) to comply with specified requirements in connection with the offender's access to and use of the internet, or (n) to provide any corrective services officer with requested information in relation to any employment or any financial affairs of the offender. 1. Since the Act came into operation, the State has, over time, fashioned a number of conditions that might be considered "standard" conditions. These reflect the terms of s 11 but are also more expansive and in some instances more specific and/or onerous. 2. However, as I have said, the list of conditions in s 11 is not an exhaustive one. The Court has a broad and lively discretion to impose conditions that it "considers appropriate". Ultimately, the test provided in s 11 is what conditions are appropriate to mitigate the risk posed by the particular defendant. 3. In some cases, because of the personal attributes of a particular defendant, the standard conditions are inappropriate: see, for example, State of New South Wales v Carr [2014] NSWSC 1348. In that case, the offender was an intellectually disabled man who had found himself locked up on many occasions because of the failure to comply with the stringent, and to him largely incomprehensible, conditions of a series of such orders. Accordingly the parties fashioned conditions of far greater simplicity so that the young man could understand his obligations. In State of New South Wales v Bugmy Fullerton J said at [89]: [3] "The Court is entitled to expect that that [sic] the conditions the plaintiff proposes that Mr Bugmy be subject to are drafted to address what are identified in the evidence as the risk factors to his further violent offending (State of New South Wales v Burns [2014] NSWSC 1014 at [59]). The conditions must not be unjustifiably onerous or simply punitive (see Wilde v State of NSW (2015) 249 A Crim R 65; [2015] NSWCA 28 at [45] citing RA Hulme J in State of New South Wales v Green (Final) [2013] NSWSC 1003). Neither may they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision under an extended supervision order. The conditions to be imposed in this case must be at least capable of moderating or minimising the risk of Mr Bugmy inflicting serious violence, in contrast to reducing or minimising the risk of him offending in other ways." 1. The Court of Appeal in Wilde v State of NSW considered the appropriateness of various orders and made it clear that "it is not appropriate for the court under s 11 to impose conditions on a person directed to general future criminal conduct". [4] However, the Court went on to say that the conditions did not need to have a demonstrated link to the past offending. While judges have from time to time made observations of the kind made by Fullerton J in Bugmy, observations with which I respectfully agree, such language ought not to obscure or to distract from the words of s 11 and the requirement that the Court impose conditions that it "considers appropriate". 2. It is in that context, and based around those legal parameters, that I turn to consider the four areas of difference between the State and the defendant in the present case. 3. Conditions 6 through 8 of the proposed conditions sought by the State are in the following terms: (6) If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start. (7) If the defendant wants to change anything in his schedule of movements once it is approved by his DSO, he must tell his DSO about the change 24 hours in advance, unless the DSO approves a shorter period. (8) The defendant must not deviate from his approved schedule of movements except in an emergency. 1. The defendant complains that these conditions are both unnecessary and unduly cumbersome, may limit his ability to find gainful employment and to act spontaneously, a matter, it is said, which will be beneficial to his longer term rehabilitation. Mr Lennings says, and I'm quoting directly from his report, although the language, with respect, is a little garbled: "I do not think that the requirement for having a daily weekly schedule is as necessary as is required, and certainly not going on licensed premises is important". 1. The State submits in the following terms: "One may readily understand why Mr Lee resents the work involved in preparing a schedule of movements, but to the extent that Mr Lee complains that a schedule of movements interferes with any spontaneity, it must be noted that this is precisely what it is intended to do". 1. As Mr Ardasinski observes "a schedule of [Mr Lee's] daily activities… may assist in his impulsive decision-making when he has in the past got into the home of a female acquaintance spontaneously and outside his planned schedule." In other words, the requirement of preparing a schedule of movements expressly addresses a risk factor that is specific to Mr Lee, namely his impulsivity, opportunism and tendency towards "late night wandering while intoxicated." 2. The defendant argues that the terms of the conditions are unduly restrictive and that an alternative less stringent form of monitoring such as a daily indication of movements that can be varied by text or other written means with one hour's notice is appropriate. 3. The defendant initially submitted that no similar conditions formed part of the parole conditions and that any risk was managed satisfactorily for the 6 months the defendant was on parole from July to December of 2017. However, while there was no formal condition, the evidence demonstrates that there was some form of schedule of movements used during that period. There was a general condition to obey all reasonable directions of the parole authorities or officer, and it seems part of the regime which operated was for the defendant to notify his schedule of movements in advance and to seek to have it varied where necessary. 4. Having considered the nature and seriousness of the defendant's earlier offending and the circumstances in which it occurred, I am satisfied subject to one minor variation that the conditions proposed by the State are appropriate. The variation is that I will amend the term "24 hours" to "6 hours" in condition 7. This will provide a little more flexibility without doing any violence to the protective purpose of the regime. I should add that the condition is subject to review at all times by the Department Supervising Officer, or DSO, and also, if it appears the DSO is acting unreasonably, that the defendant could apply for some variation of the order pursuant to s 13 of the Act. 5. The defendant then objects to condition 14 which is in the following terms: "the defendant must not permit any woman to whom he is not related other than [NAME REDACTED] to enter and remain or stay overnight at his approved address without the prior approval of his DSO". 1. The defendant seeks a variation to this order so that it might incorporate his stepdaughter, to whom I will refer as "LM". She is a young woman in her early twenties. There is no prohibition on the defendant having contact with LM, and the notes demonstrate that he has had some, or ongoing, contact with her over the last relatively short period of time. 2. In considering the appropriateness of this condition, it must be remembered that the victims of both of the defendant's earlier crimes were people known to him but not related to him. In each case they were women in the same general age group of LM. In one case, the sexual assault offences, the victim was the defendant's son's girlfriend. 3. In those circumstances, I am unable to accept the defendant's submissions that there should be an exception made for a daughter of his current partner or anybody else. The condition contemplates that the DSO may provide approval for his stepdaughter or any other woman to stay with the defendant in his home, but that this must be subject to prior approval. I have reached the view that condition 14 as sought by the State is an appropriate one. 4. Conditions 30 to 33 as proposed by the State are in the following terms: 30. The defendant 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 the defendant and the nature and details of the internet connection, as directed. 31. The DSP (or any other person requested by the DSO) may remotely inspect any internet account used by the defendant, including the defendant's email addresses, in monitoring compliance with this order. 32. The defendant must obey any reasonable direction 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. 33. The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO. 1. The defendant objects to those conditions and points out that none of his offending involved the use of such devices. The State responds by saying that at the time of the defendant's offending a number of social media platforms frequently used by defendants charged with sexual offences today were not in existence or perhaps were in their infancy, at least in Australia. 2. I accept the defendant's submissions. There is nothing in the defendant's past which demonstrates a propensity to groom his victims or to seek them out via electronic means or otherwise in advance. Rather, his offences arose spontaneously or opportunistically and in circumstances where he was under the influence of alcohol and sexually aroused. They were people already known to him. 3. While conditions such as those contemplated in conditions 30 to 33 are commonly made in similar terms in parole conditions, bail conditions and also under interim and final supervision orders under the Act, those cases generally involve offenders charged or convicted of predatory behaviour towards children. I do not suggest that such conditions are restricted to such cases, and have taken into account the observations of the Court of Appeal in Wilde and the kind of conditions therein imposed, which bore no obvious, if any, nexus to the past offences and that particular offender. Even so, the conditions in these cases must be tailored to the case, and I am unable to conclude that such conditions are appropriate to impose on this defendant. In the circumstances of the present case, they seem to fit the description of "paternalistic" used by Fullerton J in Bugmy. Of course, such expressions by judges sitting at first instance must not gloss the provisions of the statute, and the protection of the community and the safety of the community remains the primary or paramount consideration that must guide my judgment in determining what conditions are and are not appropriate. 4. However, I am satisfied that such conditions in the present case are inappropriate and represent an inappropriate and unnecessary intrusion into the defendant's privacy. That intrusion is likely to have an adverse impact on his rehabilitation while providing no greater protection to the community than the other many conditions to which he will be subject under these orders. 5. I will not include conditions 30 to 34 in the orders or conditions of the order. 6. The final area of controversy concerns the duration of the order. The State seeks an order for a period of five years. The defendant argues that the facts and circumstances of the case do not justify an order of such duration even if I give full effect to the protective purposes of the jurisdiction. 7. The defendant relies on the observations of one of the Court appointed experts who gives the opinion that an order of two years' duration will be sufficient. Dr Lennings, a psychologist, provided a lengthy and helpful report, the details of which are not necessary to recount further. Dr Lennings notes, as do the other experts, that the major risk factor for this particular defendant is the consumption of alcohol. Both of his previous serious offences appear to have been committed when he was in drink. Mr Lennings provides the opinion that: "this seems to be a requirement that he be at least two years sober to have some confidence in his ability to be sober at five years. Hence to my mind the DSO should last two years from the time he moved into the community." 1. On the other hand, Dr O'Dea says: "Whilst it may fluctuate over time, Mr Lee's risk of relapse of his substance use disorder would likely remain a long term issue requiring long term treatment, supervision and monitoring, with his associate risk of committing a further serious offence, whether sexual or violent, also likely to fluctuate over time, but remain a long term issue of concern, and of at least a further five years' duration." 1. Accordingly, Dr O'Dea was of the opinion that the term of the order should be "at least five years' duration". 2. Neither party sought to cross-examine the experts on these opinions and it is a difficult question to resolve. However, it is notorious that alcohol abuse can be a lifelong problem for many people. Also there is some force in the State's submission that this is a defendant who has spent almost all of his adult life in custody and that he has become institutionalised as a result. 3. Against that, the reports of his behaviour, both in custody and generally whilst under supervision, have been positive. He is described, amongst other things, as a model prisoner and as compliant. 4. Equally, as pointed out by Ms Cook, it is open to the State to seek a further order at the expiration of the current order (that is, the order that I am about to make). There is something to be said for reducing the term of the order to provide a defendant such as Mr Lee with an incentive both to comply with what are onerous conditions and ultimately to be rehabilitated. 5. It is a judgment upon which different judges may come to a different conclusion, and the duration I have settled upon may appear to be based in caprice or might be seen as arbitrary or the operation of a compromise. Be that as it may, I have come to the conclusion that an order of three years' duration is appropriate in the circumstances of this case. 6. It will be for those monitoring the defendant's compliance and rehabilitation during that period to determine whether it is appropriate to seek a further order at the expiration of the three years. I am satisfied that an order of three years satisfies the primary object and purpose of the Act. That is, an extended supervision order of three years is sufficient to provide real protection to the community from the possibility that the defendant will relapse into alcohol use and in that or any other context commit further serious offences. It does no violence to the protection and safety of the community because it is open to the State to seek a further order towards the end of the expiration of three years. 7. For those reasons, I make the following orders: 1. Pursuant to s 5B and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) the defendant is subject to an extended supervision order for a period of three years from 20 March 2018. 2. Pursuant to s 11 of the Act, the defendant is to comply with the conditions set out in the schedule of conditions attached to this order for the period of the order. 3. Access is restricted to the Court's file such that access permitted to a non-party only with the leave of a judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access. ********** Schedule of Conditions (177 KB, pdf) Endnotes 1. Crimes (High Risk Offenders) Act 2006 (NSW) s 5B(a). 2. The Chief Justice was referring to a litigant who killed twice and whose cases both went to High Court: see Veen v R [1979] HCA 7; (1979) 143 CLR 458 and Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465. 3. State of New South Wales v Bugmy [2017] NSWSC 855. 4. Wilde v State of NSW [2015] NSWCA 28 at [54]. 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: 20 April 2018