Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Colquhoun [2018] NSWSC 1012 Hearing dates: 20 June 2018 Decision date: 02 July 2018 Jurisdiction: Common Law Before: Button J Decision: (1) Pursuant to ss 5B and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), an extended supervision order is imposed upon the defendant for a period of three years, commencing on 4 July 2018. (2) Pursuant to s 11 of the Act, the defendant must comply with the conditions set out in Schedule A to the Amended Summons, annexed to this judgment, for the period of the extended supervision order. Catchwords: HIGH RISK OFFENDER – serious sex offender – application for extended supervision order pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – whether such an order should be imposed – dispute as to conditions imposed – extended supervision order imposed – discussion of appropriateness of various orders Legislation Cited: Child Protection (Offenders Registration) Act 2000 (NSW Cases Cited: Wilde v State of New South Wales [2015] NSWCA 28; 249 A Crim R 65 Category: Principal judgment Parties: State of New South Wales (Plaintiff) Richard Kenneth Colquhoun (Defendant) Representation: Counsel: D New (Plaintiff) S Goodwin (Defendant) Solicitors: Crown Solicitors (Plaintiff) Legal Aid (Defendant) File Number(s): 2018/67482 Publication restriction: Nil Judgment Background 1. Mr Richard Kenneth Colquhoun (the defendant in these proceedings) was born in January 1964, and is therefore now 54 years of age. Since January 1991, when he turned 27, he has spent a very significant portion of his life in gaol. The reason for that is his entrenched sexual attraction to boys under the age of 16 years, and his repeated readiness to act upon that attraction. I proceed to provide some detail in support of those propositions. 2. In 1989, when he was in his mid-20s, the defendant was working as a gymnastics teacher at a community centre in Sydney. He committed a number of penetrative sexual assaults upon a boy who attended that centre. He was able to do so by obtaining the agreement of the mother of the victim to the defendant providing private tuition to him at the centre when it was closed. The defendant has always denied that he committed any offences against this victim. I shall call these the "community centre offences". 3. Whilst on bail for those offences, in January 1991, when he turned 27, the defendant kidnapped two young boys from a park in Manly. They were strangers to him. He detained them in his work van, bound them up, and committed sexual offences against them, including penetration. 4. The defendant pleaded guilty to a number of offences, and maintains his admission today that he was indeed guilty of them. His explanation is that, at the time, he was affected by cannabis and alcohol, and was very angry about having been accused, on his version falsely, of the offending against the child at the community centre. Having said that, he has conceded that he was sexually aroused when he committed what I shall call the "Manly offences". 5. After the defendant was found guilty at the conclusion of a trial by jury in this Court with regard to the "community centre offences", Slattery AJ imposed sentences upon him for both sets of matters. In remarks on sentence of 11 June 1991, his Honour drew attention to the offences and their respective maximum penalties; the facts and circumstances surrounding the offending (including the seemingly planned and calculated nature of the Manly offences, and his position of authority and trust with regard to the community centre offences); the defendant's subjective circumstances (including his substance use, psychiatric history, sexual history, and criminal antecedents); the reservation his Honour held with regard to any remorse shown by the defendant, and its incongruence with the defendant's behaviour during the trial; his guilty pleas in relation to the Manly offences; his prospects of rehabilitation; the principle of totality; and a finding of special circumstances. 6. At the conclusion of those remarks, a total head sentence of imprisonment for 14 years with a total non-parole period of nine years was imposed. 7. The defendant spent almost exactly 9 years in custody, from January 1991 until January 2000, when he was released to parole. 8. In March 2004, whilst living with his parents and on parole, the defendant, by then aged 40, was found to be in possession of child pornography. Children of both genders were depicted, but it is noteworthy that included amongst the images were pubescent boys. 9. The explanation of the defendant for the presence of those images on a computer to which he had access was and is that either a "virus" had infected that computer, leading to the images being unintentionally present, or that his mother, whilst intoxicated, accidentally downloaded the images from a website. 10. In assessing the rational possibility of those explanations being correct, one is entitled to take into account the whole context, which includes not only the fact that it was the mother of the defendant who alerted the authorities about the presence of the images, but also the prior offending of the defendant. I readily reject his explanations for the presence of the child pornography on the computer to which he had access. 11. In October 2004, the defendant was sentenced to a head sentence of eight months with a non-parole period of six months for that offending. An appeal to the District Court was dismissed. In the meantime, the parole of the defendant was revoked; the result of those developments was that he was in custody from May 2004 until April 2006, a period of not quite two years. 12. Interrupting the chronological analysis for a moment, in April 2004, the defendant had been charged with failing to comply with his reporting conditions pursuant to the Child Protection (Offenders Registration) Act 2000 (NSW) (the Child Protection Act). In a nutshell, he had changed his residential address without informing authorities, assertedly because he had been the subject of intimidation as a result of his offending against children having become known in the community. In September 2004, he was placed on a 12 month bond for that offence. 13. In September 2009, after a trial by jury, the defendant was sentenced by Judge Lakatos SC for three offences committed in the first three months of 2007 (it will be recalled that the defendant had been released from gaol again in April 2006). The offences were acts of aggravated indecent assault and of indecency against an 11 year old boy. Judge Lakatos imposed a total head sentence of six years four months with a non-parole period of five years. 14. An appeal against conviction to the Court of Criminal Appeal led to all of those convictions being quashed. The defendant was subsequently retried, and acquitted of all counts. In those circumstances, counsel for the plaintiff in these proceedings was content for me to take the approach that, although those "acquittal counts" are not irrelevant in proceedings such as these, they should be accorded much less weight by me than any "conviction counts". She also accepted that there is no requirement for me to refer to any aspect of the remarks on sentence of Judge Lakatos. 15. In December 2009, the defendant came before Judge Flannery SC for sentence. That was after a separate trial by jury had culminated in verdicts of guilty, but the trial judge had subsequently died. The jury had returned guilty verdicts on three counts of aggravated indecent assault, committed by the defendant in April and May 2007 against a boy aged 13 and a half years. Judge Flannery imposed a sentence that had the effect of extending the total non-parole period imposed by Judge Lakatos by a period of 15 months. 16. Those convictions were quashed by the Court of Criminal Appeal as well. Again, in those circumstances, counsel for the plaintiff accepted that there is no need for me to analyse the remarks on sentence of Judge Flannery. 17. A retrial was conducted, judge alone, before Judge Norrish QC. In the event, Judge Norrish found the defendant guilty of two of the three counts. Judge Norrish, in his remarks on sentence of June 2014, emphasised the offences and their respective maximum penalties; the objective seriousness of the offending; the grooming by the defendant of the young boy; the sentencing principles applicable to re-sentencing; the criminal history of the defendant; the finding that the defendant was at a risk of re-offending in the future; his sexual interest in and emotional identification with young boys; his denial of responsibility and lack of remorse; and his prospects of rehabilitation, with regard to which treatment was assessed as being "impossible". His Honour also spoke of the fact that the sentence imposed by Judge Lakatos for the "acquittal counts" no longer had any role to play, and that Judge Norrish had acquitted the defendant of one of the offences for which Judge Flannery had sentenced him. 18. In the event, Judge Norrish imposed sentences that had expired in their entirety by the date of their imposition. 19. The net result of all of those proceedings was that the defendant was continuously incarcerated from July 2007 until September 2013, a period of over six years (the defendant was on bail from the latter date until the resolution of the proceedings in June 2014). 20. In May 2015, the police charged the defendant with failing to comply with his obligations under the Child Protection Act. That arose from the fact that the police inspected the home of the defendant, and discovered that he had a Facebook account and Facebook messenger account on his mobile phone. Those accounts were unknown to the authorities until that inspection. Upon investigation of the Facebook account, it was found that the defendant had communicated with another "gamer", whose online photographic profile suggested, according to the police, that he was between the ages of 10 and 12 years. A communication sent by the defendant to that person was: "I'm Racoon Baboon Balloon Monsoon Typhoon And Platoon ;)" 1. The defendant was sentenced for that offence in May 2016 in the Local Court. He received a head sentence of imprisonment for two years with a non-parole period of eighteen months, which commenced in May 2016. The remarks on sentence of Magistrate Bartley were not placed before me. An appeal to the District Court against severity was dismissed. 2. Pursuant to that sentence, the defendant was released to parole on 10 November 2017, upon the expiry of his non-parole period. His head sentence expired last month, on 10 May 2018. 3. To complete the conspectus, on 16 April 2018, RA Hulme J imposed an interim supervision order (an ISO) upon the defendant, and made other orders preliminary to the proceedings that came before me. I understand that the ISO has since been extended, and will currently expire on 4 July 2018. 4. To summarise the above: the defendant has convictions for sexual offences against four prepubescent or pubescent boys: the victim of the community centre offences; the two victims of the Manly offences; and the victim of the offences that culminated in the sentences imposed by Judge Norrish. 5. He has been convicted of possessing child pornography (as it was then called), and twice convicted of breaching his obligations under the Child Protection Act. 6. He was recently released from custody after secretly being in online contact with a person whom (one can infer) the defendant believed to be a prepubescent or pubescent boy. 7. Finally, since early 1991, the defendant has been incarcerated for continuous periods of approximately nine years, two years, six years, and 18 months; a total of well over 18 years. Application and points of dispute 1. It is in that context that, by way of an amended summons filed in Court at the hearing before me on 20 June 2018, the plaintiff seeks an extended supervision order (ESO) of three years against the defendant. 2. To state the position of counsel for the plaintiff succinctly, it is that the defendant is, regrettably, a person who is sexually attracted to children; who is very largely in denial about that proposition; and who is very largely untreated. He is someone who has breached statutory obligations designed to protect children from himself more than once in the past. All of the expert evidence accords with the inevitable view that one would come to as a layperson: there is a high risk of the defendant committing further serious sexual offences against young boys if his liberty is not significantly curtailed by a strict ESO. 3. Counsel for the defendant did not submit that any of the formal preconditions for the making of an ESO had not been satisfied. She did submit that the basal test for the making of an ESO, to be found in s 5B(d) of the Act, had not been. By the end of the hearing, her position had been refined in that regard to two points of emphasis. 4. The first was that there is no evidence that the defendant has committed a sexual offence against a child for more than a decade; that is, since the first part of 2007. 5. The second was that the "Facebook offence" that led to the most recent incarceration of the defendant for a continuous period of 18 months should not have too much read into it; after all, the person with whom the defendant had online contact may, in truth, not of been a boy at all; and in any event, it is hardly troubling for there to be a communication from one gamer to another that is in its terms quite anodyne. 6. If I were against her on the question of whether to make an ESO, I did not understand counsel to dispute its proposed length in itself, but rather to submit that the question of the length of the curtailment of the liberty of the defendant was bound up with the degree of that curtailment by way of the conditions of any ESO. 7. Finally, if I were to be satisfied that an ESO should be made, and that it should be of three years' duration, counsel for the defendant placed a number of the proposed conditions in dispute. 8. In that regard, Mr Sheehan, forensic psychologist, was called and cross-examined before me. In a nutshell, his evidence was that some of the conditions are unlikely to play an effective role in reducing the risk of re-offending, not only because of their lack of relevance to how the defendant has offended in the past, but also because there comes a point at which a set of conditions becomes so restrictive and burdensome that the resultant feeling of resentment and oppression on the part of a supervised offender can itself be criminogenic. 9. Counsel for the defendant also read two affidavits, one of the defendant and one of his mother (with whom he lives, and with whom he proposes to live into the future), which may be summarised as being that the supervision to which the defendant is currently subject is rigorous, disruptive, and upsetting for both of them. Resolution of dispute about imposition of ESO 1. The threshold test that I am required to apply is to be found in s 5B and s 5D of the Act, which are relevantly as follows: 5B Making of extended supervision orders—unacceptable risk The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if: … (d) 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. 5D Determination of risk For the purposes of this Part, the Supreme Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence. 1. Further, the list of mandatory considerations to which the Court must have regard when determining such an application found in s 9(3) informs the determination of the evaluative judgment in s 5B(d). The section in its entirety is as follows: 9 Determination of application for extended supervision order (1) The Supreme Court may determine an application for an extended supervision order: (a) by making an extended supervision order, or (b) by dismissing the application. (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. (2A) (Repealed) (3) In determining whether or not to make an extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant: (a) (Repealed) (b) the reports received from the persons appointed under section 7 (4) to conduct examinations of the offender, and the level of the offender's participation in any such examination, (c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, (e1) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time, (e2) the likelihood that the offender will comply with the obligations of an extended supervision order, (f) without limiting paragraph (e2), the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order, (g) the level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004, (h) the offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will commit a further serious offence. (4) (Repealed) 1. As discussed previously, the formal preconditions for making an ESO found in s 5B(a)-(c) were not disputed in the hearing of the application: the defendant is a 54 year old man; he has been sentenced for a serious offence as defined; and, at the time of the application, he was serving a term of imprisonment for a serious offence of a sexual nature. 2. Turning to resolve the first dispute: in my opinion, the evidence soundly establishes, first, that the defendant is sexually attracted to children; in particular, boys around puberty. The aetiology of that paedophilia is unknown, though in the evidence placed before me there is a suggestion that a period spent in Boys Town (after a disadvantaged and disrupted childhood) may have had the effect that his first sexual experiences were with young boys when he himself was a young boy. 3. Secondly, as my review of the convictions and incarceration of the defendant shows, he has been repeatedly ready to act upon that attraction; and to do so by way of both "grooming" boys and inveighing himself into the lives of those close to them; and, on the other hand, by way of random attacks (s 9(3)(h) of the Act). 4. Thirdly, there is a lack of insight on the part of the defendant that, combined with his repeated refusal to take responsibility for what he has done, may not ungenerously be described as recalcitrance (s 9(3)(h) of the Act). 5. Fourthly, there is nothing to suggest that the defendant has received any therapy that has truly intervened in his criminal ways of thinking and feeling. It is noteworthy that he has consistently evaded intensive therapy whilst in custody. It is true that the defendant did complete a program, Sex Offender Psycho-Educational Group, during 1996. However, that program does not treat sexual aggression, the defendant was recorded as "not a committed participant", and, as Mr Sheehan notes, this program is educational only. Most importantly, completion of that program over two decades ago pre-dates much of the offending of the defendant (s 9(3)(e) of the Act). 6. Fifthly, I do not accept that the paedophilic attraction experienced by the defendant has faded or disappeared with the passage of time. 7. Sixthly, a number of recommendations discussed by Mr Ardasinski, psychologist, as risk management strategies were considered by him as options that might reduce the likelihood of the defendant re-offending. These include restrictions on the defendant's internet use and online gaming, being subject to random home visits, electric monitoring, and providing a schedule of daily activities. 8. Dr Eagle, a forensic psychiatrist, also opined that biological interventions, in the form of anti-libidinal medication, would reduce the defendant's risk of re-offending following the diagnosis of a paedophilic disorder. However, Dr Eagle noted, this would be ideally prescribed with the consent of the defendant and in association with other psychological therapies that target the offending behaviour. 9. All of that, in my opinion, argues for the proposition that an ESO might reduce the likelihood of re-offending (9(3)(e1) of the Act). 10. Furthermore, a psychological report of Corrective Services NSW, prepared as long ago as on 6 September 2005, states that the ability to manage the defendant reasonably and practicably in the community "will remain problematic". Corrective Services NSW also prepared a risk management report on 9 November 2017 that outlined the focus of the ESO, and how the ESO will manage the defendant in the community. This aims to manage his criminogenic risk factors, in order to reduce his risk of re-offending. 11. In short, there are indications that the defendant may be able to be reasonably and practicably be managed in the community (s 9(3)(d1) of the Act). 12. Seventhly, quite apart from breaches of parole encapsulated by re-offending, on two separate occasions the defendant has shown that he cannot be trusted to abide by the conditions of conditional liberty (s 9(3)(e2)-(f) of the Act.) And, as discussed previously, he has displayed a lack of compliance with obligations pursuant to the Child Protection Act (s 9(3)(g) of the Act). 13. Eighthly, as for the latter, and contrary to the submission of his counsel, I do not regard the more recent contact between the defendant and a person who presented himself as a 12 year old boy, by way of an online account that the defendant had kept hidden from the authorities, and by way of a gibberish message that a child might find attractive or amusing, as being of little moment. Quite the contrary: it is a matter of grave concern. 14. Ninthly, one may accept that it is many years since there has been any evidence of commission of a sexual offence against a child. But it is to be recalled that, for a significant proportion of those years, the defendant was in no position to offend in that way, because he was incarcerated, and had no access to children. During others of those years, he was subject to conditional liberty, and that may have played some prophylactic role. 15. Furthermore, I repeat that the recent offence committed by way of contact with the person presenting himself as a child, whilst not overtly sexual, is deeply troubling in relation to the likelihood that the offender will commit a further serious offence (s 9(3)(i) of the Act). 16. Tenthly and finally, the opinions of various experts found in a number of reports and statistical assessments must be considered when determining whether the defendant meets the test for the imposition of an ESO (s 9(3)(b)(c) and (d) of the Act). 17. In a nutshell, the unanimous opinion of Dr Eagle, forensic psychiatrist, Mr Sheehan, forensic psychologist, and Mr Samuel Ardasinski, a senior psychologist within the Department of Corrective Services, is that the defendant poses a risk of sexual re-offending that is either above the average risk or is a high risk. The experts all diagnosed the defendant with paraphilia or paedophilia, and various personality traits that are linked with his risk of re-offending. 18. Those opinions are consistent with the view to which, as a layperson sitting as the tribunal of fact, I am compelled by the evidence: there is a significant risk that the defendant, untreated and unrepentant, will offend again, just as he has been doing since almost three decades ago. 19. In all the circumstances, I am well satisfied that the test found in s 5B and s 5D, informed by s 9(3), of the Act has been established, especially with regard to the paramount consideration of the safety of the community (s 9(2) of the Act). I consider that I could, and certainly should, impose an ESO. 20. Furthermore, and giving due weight to the flexibility to be found in the Act whereby an ESO may be revisited or extended during its currency, I am satisfied that a duration of three years is appropriate. Resolution of disputes about conditions of ESO 1. Turning to the question of the conditions of the ESO, one may accept that there is no point in imposing a condition that does not play a preventative role with regard to offending. Having said that, the relevant authoritative judgment of Wilde v State of New South Wales [2015] NSWCA 28; 249 A Crim R 65 does not call for a mechanistic or direct preventative role; the approach called for is more nuanced than that. 2. One may also accept that there comes a point where conditions are so rigorous and so numerous that they can be in combination counter-productive, in that a person subject to them may feel crushed by their weight, and react against them by resentfully rejecting any benefits of supervision and possibly committing further crimes. 3. To be weighed against that is the need for the protection of the community by way of a rigorous regime of implicit compulsion, founded on the threat of breach action for non-compliance leading to further incarceration, in the compelling circumstances of this case. 4. With that general approach in mind, I turn to discuss briefly each of the disputed conditions, and to resolve each dispute. 5. Proposed condition 11 is: "11. If directed by the DSO [Departmental Supervising Officer], the defendant must be at his approved address between 10pm and 5am." 1. I do not accept that such a condition is unnecessary, or unreasonable, or unduly onerous, or fruitless. Quite apart from anything else, it is to be recalled that the defendant committed sexual offences of the utmost gravity against young boys who were strangers to him, and whom he plucked from a public park in broad daylight. Proposed condition 11 will be imposed. 2. Proposed condition 20 is: "20. The defendant must not, without the prior approval from his DSO, 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." 1. I respectfully do not accept that the defendant should have an unfettered right to expose himself to sexually explicit material, sexual services, or sexually explicit entertainment. It is not difficult to think of circumstances in which such material could, directly or indirectly, lead to sexual arousal on the part of the defendant with regard to children. By the conclusion of the hearing, I understood counsel for the defendant not to be forcefully opposing this condition. It will be imposed. 2. Proposed condition 21 is as follows: "21. If the defendant is unemployed, the defendant must make himself available for employment, education, training or participation in a personal development program as directed by the DSO." 1. The point was soundly made by Mr Sheehan that a person cannot be forced to work, or forced to develop his or her personality. So much may be accepted; but the condition calls upon the defendant merely to "make himself available" for such activities. And I believe that one can expect a DSO to manage this condition – and, indeed, all of the proposed conditions – with sensible discretion and common sense. Condition 21 will be made by me. 2. Proposed condition 24 is as follows: "24. The defendant must not consume alcohol without the prior approval of his DSO." 1. Counsel for the defendant submitted that this proposed condition should be replaced by: "The defendant must not consume alcohol to the extent that his blood alcohol concentration will exceed 0.05 grams of alcohol per 100 millilitres of blood unless otherwise approved by his DSO." 1. It was accepted by counsel that being affected by alcohol is generally disinhibiting, and that it has always been the position of the defendant that he was indeed affected by alcohol and cannabis when he committed the Manly offences. 2. As I understood it, the point of concern on behalf of the defendant is that a DSO is not readily available after 10 pm if one wishes to have an alcoholic drink. I accept that; but there can surely be a regime whereby, over an extended period, the DSO and the defendant can work out a logistical regime that permits appropriate use, if any, of alcohol by the defendant. And in any event, the condition proposed by counsel for the defendant has its own logistical problems. 3. I propose to make condition 24 in the form proposed by the plaintiff. 4. Proposed condition 26 is as follows: "26. 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 prior approval of his DSO." 1. The point was made, as I have said, that one cannot "enforce" sincere and fruitful engagement in a rehabilitation program with regard to drugs or alcohol. One may query whether that that proposition is absolutely correct in all circumstances; having said that, I see the force in the evidence of Mr Sheehan, to the effect that conditions, the breach of which can lead to further incarceration, must be shown to be efficacious, directly or indirectly, before they are imposed. On reflection, I decline to impose condition 26. 2. The final disputed condition is proposed condition 32, which is as follows: "32. The defendant must not, without prior approval of his DSO, engage the services of sex workers." 1. Yet again, it is not difficult to envisage circumstances whereby an adult sex worker might be content to be paid to do or say things, or to permit things to be said or done to him or her, that have the direct or indirect effect of exacerbating a sexual attraction to children. Yet again, by the end of the hearing I did not understand counsel for the defendant to be strongly resisting that proposition. Condition 32 will be made by me. 2. To summarise my resolution of the extended dispute before me about proposed conditions: all of those sought by the plaintiff in its final version of the annexure to the amended summons, with the exception of condition 26, will be made by me. It should be noted that the annexure to this judgment setting out the imposed conditions features a degree of renumbering and reformatting of the draft provided by counsel for the plaintiff. Orders 1. For the foregoing reasons, I make the following orders: (1) Pursuant to ss 5B and s 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), an extended supervision order is imposed upon the defendant for a period of three years, commencing on 4 July 2018. (2) Pursuant to s 11 of the Act, the defendant must comply with the conditions set out in Schedule A to the Amended Summons, annexed to this judgment, for the period of the extended supervision order. ********** ANNEXURE A SCHEDULE A OF CONDITIONS OF SUPERVISION Departmental Supervising Officer (DSO) Corrective Services NSW (CSNSW) Part A: Reporting and Monitoring Obligations Monitoring and Reporting 1. The defendant must accept the supervision of Corrective Services NSW (CSNSW) until the end of the Order. 2. The defendant must report to the Department Supervising Officer (DSO) or any other person supervising him as directed by the DSO. 3. The defendant must follow all reasonable directions by his DSO or any other person supervising him. 4. The defendant must attend the police station nearest to his approved accommodation within 3 days of the date of this order and provide a copy of this order. Electronic Monitoring 5.The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him. Schedule of Movements 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. 9. The defendant must truthfully answer questions from his DSO, or any other person supervising him, about where he is, where he is going and what he is doing. Part B: Accommodation 10. The defendant must live at an address approved by his DSO. 11. If directed by the DSO, the defendant must be at his approved address between 10pm and 5am. 12. The defendant must allow his DSO or any other person supervising him to visit him at his approved address at any time and, for that purpose, to enter the premises at that address. 13. The defendant must not spend the night anywhere other than his approved address without the approval of his DSO. 14. The defendant must not invite any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO and must not permit any person under the age of 18 years to remain or stay overnight at his approved address without prior approval of his DSO. Part C: Place and travel restrictions 15. The defendant must not leave New South Wales without the approval of CSNSW. 16. The defendant must surrender any passports held by the defendant to the Commissioner. 17. The defendant must not go to a place if his DSO tells him he cannot go there. 18. Without limiting condition 17 above, the defendant must not, without prior approval of his DSO, go to any: a. Day-care centres, pre-schools and schools; b. Amusement parlours, c. Amusement parks and theme parks d. Cinemas; e. Libraries and museums; f. Camping grounds and caravan parks; g. Children's playgrounds, parks, and areas with play equipment provided for the use of children; h. Pools, playing fields and sporting facilities; i. Marinas, beaches, wharfs and jetties; j. Concerts, theatre shows, movies, events and activities intended for the entertainment of children; k. Residences where the defendant knows that persons under 18 ordinarily reside; or l. Internet cafes or other businesses which provide public access to the internet either for payment or for no charge (other than employment agencies) for the purpose of using that service. 19. The defendant must not attend any place where he knows, or ought reasonably to know, alcohol or drugs are illegally sold. 20. The defendant must not, without the prior approval from his DSO, 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 21. If the defendant is unemployed, the defendant must make himself available for employment, education, training or participation in a personal development program as directed by the DSO. 22. The defendant must not start any job, volunteer work or educational course without the approval of his DSO. Part E: Drugs and Alcohol 23. The defendant must not possess or use illegal drugs, and he must not possess or use prescription medication other than as prescribed. 24. The defendant must not consume alcohol without the prior approval of his DSO. 25. The defendant must submit to testing for drugs and alcohol as directed by his DSO. Part F: Non-association Association with Children 26. The defendant must not approach or have contact either directly, indirectly or through a third person, or through the use of internet services, with anyone who he knows is under 18 unless his DSO tells him he can, and he is in the company of an adult who has been approved by his DSO to supervise such contact. 27. If the defendant has had any inadvertent or accidental interaction or conversation with a person who he knows is under 18 years of age, he must report that conversation, and its contents to his DSO, including any steps he took to cease the conversation or interaction with that person. Associations with Others (not children) 28. The defendant must not associate with people that his DSO tells him not to. 29. Without limiting the above condition, except with the prior approval of the DSO, the defendant must not knowingly associate with any person convicted of a "serious sex offence" or an "offence of a sexual nature" as defined by the Act, except in the course of living in a Departmental facility or attending community based maintenance program conducted by the Forensic Psychology Services section of Corrective Services NSW. 30. The defendant must not associate with any people who are consuming or under the influence of illegal drugs. 31. The defendant must not, without prior approval of his DSO, engage the services of sex workers. 32. 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. 33. The defendant must obtain permission from the DSO prior to joining or affiliating with any club or organisation, including any internet or mobile based social networking service. Part G: Access to the internet and other electronic communication 34. The defendant must: a. 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. b. Not create or use a user name or email address without prior approval of the DSO in writing of the website, email provider, account or application for which the user name is to be created or used and the user name and password for the same. c. Not make use of any internet connection or service provider to access instant messaging, chat room/s, chat service, online gaming social networks (where he may compete with or against other internet users and/or interact with other child players orally or via written message before, during or after games) and must not subscribe to or use online gaming platforms, without the prior approval of his DSO. 35. The DSO (or any other person requested by the DSO) may remotely inspect any Internet account used by the defendant, including the defendant's email addresses and websites accessed or used by the defendant, in monitoring compliance with this order. 36. The defendant 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. 37. The defendant must allow his telephone and/or Internet service provider to share information about his accounts with his DSO. 38. The defendant must provide a list of communication devices and data storage devices in the defendant's possession and advise the DSO of any change to the inventory immediately. Part H: Search and seizure 39. If the DSO reasonably believes that a search (of the type referred to in sub-paragraphs (d)-(g) below is necessary: a. for the safety and welfare of residents or staff or persons present at the defendant'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 conduct associated with an increased risk of the defendant committing a serious offence; 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's approved address; e. search and inspection of any part of, or any thing in, any vehicle owned, hired by 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 the control of the defendant; and/or g. search and examination of his person. 40. 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. 41. During a search carried out pursuant to condition 39-40 above, the defendant must allow the DSO (or any other person requested by the DSO) to seize anything found, whether in the defendant's possession or not, 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. 42. The defendant must allow CSNSW to search any phone, tablet device, data storage device or computer that he may use. 43. 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 34-42. Part I: Access to pornographic, violent and classified material 44. The defendant must not purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified as Refused Classification. 45. The defendant must not, without prior approval of his DSO, purchase, possess, access, obtain, view, participate in or listen to material classified or material that would be classified X18+, Restricted Category 2 and Restricted Category 1, or any other material as directed by the DSO. Part J: Personal details and appearance 46. The defendant must not change his name from "Richard Kenneth Colquhoun" or use any other name without the approval of his DSO. 47. The defendant must not use any alias, log-in name, or a name other than "Richard Kenneth Colquhoun" or use any email address other than those known to the DSO under condition 35 above, on any internet site (including social networking sites), any online communication applications or any third party sites or applications that requires the user to have a user identification name or log-in email. 48. The defendant must not change his appearance without the approval of his DSO. 49. The defendant must let CSNSW photograph him. 50. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must notify the DSO in writing prior to obtaining that form of identification and, subject to being approved by the DSO to obtain that identification, confirm with the DSO the details of that identification. Part K: Medical intervention and treatment 51. The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults. 52. The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that his DSO tells him to attend. 53. The defendant must take all medications that are prescribed to him by his healthcare practitioners. 54. 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. 55. 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. 56. 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. 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: 03 July 2018