Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v CT (No 2) [2019] NSWSC 1864 Hearing dates: 21 November 2019 Date of orders: 22 November 2019 Decision date: 19 December 2019 Jurisdiction: Common Law Before: Wright J Decision: Order 3 made on 21 June 2019 is varied so that, pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), for the period of the Extended Supervision Order referred to in order 2 made on 21 June 2019, the defendant is directed to comply with the conditions of supervision set out in the schedule to this order [set out in the appendix to these reasons for judgment] rather than the conditions set out in the schedule to the orders made on 21 June 2019. Catchwords: HIGH RISK OFFENDERS – Extended supervision orders – Application – Variation – No point of principle Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) Cases Cited: State of New South Wales v CT (Final) [2019] NSWSC 847 State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041 State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 Category: Consequential orders (other than Costs) Parties: State of New South Wales (Plaintiff) CT (Defendant) Representation: Counsel: P Aitken (Plaintiff) S Fernando (Defendant) Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2019/037393 Publication restriction: Publication of the defendant's name is restricted in accordance with the order of N Adams J made on 22 May 2019. Judgment Introduction 1. By notice of motion filed on 7 November 2019, the defendant sought orders varying the conditions imposed in respect of the extended supervision order (ESO) made on 21 June 2019. My reasons for making the ESO and imposing the original conditions are set out in my judgment of 5 July 2019: State of New South Wales v CT (Final) [2019] NSWSC 847. 2. On 22 November 2019, I made the following order varying the conditions imposed in respect of the ESO as follows: "Order 3 made on 21 June 2019 is varied so that, pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), for the period of the Extended Supervision Order referred to in order 2 made on 21 June 2019, the defendant is directed to comply with the conditions of supervision set out in the schedule to this order rather than the conditions set out in the schedule to the orders made on 21 June 2019." 1. A copy of the schedule of conditions as varied is set out in the appendix to these reasons. 2. At the time of making that order, I said that I would publish my reasons in due course. These are my reasons. Background 1. The background to the making of the order on 22 November 2019 is set out in some detail in State of New South Wales v CT (Final) [2019] NSWSC 847. Those reasons for judgment should be read together with these reasons. I have relied upon, but have not generally repeated here, what is contained in those earlier reasons. 2. On 21 June 2019, my orders included the following: "2 Pursuant to ss 17(1)(a) and 25B of the CHRO Act, the defendant is subject to an extended supervision order (ESO) for a period of three years commencing immediately upon the expiration of the CDO referred to in order 1 or its earlier revocation by the Court. 3 Pursuant to s 11 of the CHRO Act, for the period of the ESO referred to in order 2, the defendant is directed to comply with the conditions of supervision set out in the schedule to this order (see below)." 1. The continuing detention order (CDO) referred to in order 2 expired on 23 November 2019. 2. The making of the ESO was not in issue at the hearing on 22 November 2019 nor was the 3 year term of that order. The only issue was whether the conditions previously imposed on 21 June 2019 should be varied. 3. In my reasons of 5 July 2019 at [119], I said the following concerning the conditions to be imposed under the ESO: "After discharge from the Forensic Hospital or other similar facility, any ESO imposed at this time would commence operation. It was difficult, at this stage, to determine exactly what period and conditions would be most appropriate for the ESO at that time in the future. Accordingly, it appeared most appropriate to make the ESO for the shorter period of 3 years contended for by the defendant, commencing from the expiration or earlier revocation of the CDO, but subject to the relatively standard conditions proposed by the State, noting that an application could be made for a variation of any aspect of the ESO, under s 13 of the CHRO Act, if it transpired that different conditions or a different period appeared more appropriate at a later time. In these circumstances, it was not necessary to consider in detail the specific submissions made concerning particular conditions." 1. As noted above, an order under s 13 of the Crimes (High Risk Offenders) Act 2006 (NSW) (CHRO Act) for variation of the conditions has now made by the notice of motion of 7 November 2019. Relevant statutory provisions and principles 1. The conditions that may be imposed in respect of an ESO are governed by s11 of the CHRO Act, which is in following terms: "11 Conditions that may be imposed on supervision order (1) An extended supervision order or interim supervision order may direct an offender to comply with such conditions as the Supreme Court considers appropriate, including (but not limited to) directions requiring the offender: (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. (2) An extended supervision order or interim supervision order must include a condition requiring the offender not to leave New South Wales except with the approval of the Commissioner of Corrective Services." 1. There was no dispute between the parties as to the relevant principles to be applied. It is sufficient to note the following. 2. Conditions ought not be imposed under an ESO that are unjustifiably onerous or simply punitive, but it may be appropriate to impose conditions that do not themselves directly relate to an offender's risk but are appropriate nonetheless because they promote the efficacy of an order containing other conditions which do: State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041 at [100]. In determining the conditions that are appropriate, I also take into account the comments of Adams J in State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36]: "Section 11 of the Act permits the imposition only of such conditions as it "considers appropriate", including those specified in the section. As Johnson J observed in State of New South Wales v Tillman [2008] NSWSC 1293 at [68], the Court is to strike a "balance between relevant considerations" which included the matters to which the Court has had regard in determining whether to make an extended supervision order. Amongst the other considerations are the ordinary rights of the subject to go about his or her lawful activities free from officious and unnecessary restrictions and the fact that breaches of the conditions incur criminal penalties. Ultimately, the purpose of conditions is to mitigate the risk of the defendant's committing further [relevant] offences. For this reason, it is obvious that there need not be a link between the condition and the circumstances of the offences that have triggered the order or the way in which they were committed. The conditions must address identified risk factors but these must be considered in a realistic way and not treated as some statutory scheme. In the nature of things, there can be no bright line: the relevant factors are inherently incommensurable. The condition must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice. (See Wilde v State of New South Wales [2015] NSWCA 28, in which the authorities are usefully collected.)" 1. Counsel for both parties made useful submissions concerning the appropriate conditions that would now be appropriate in respect of the ESO in the light of the most recent evidence. More recent evidence and findings 1. At this point it is appropriate to consider the evidence adduced on the variation application. It should be noted that the earlier evidence and findings concerning the defendant remain relevant and are set out in my earlier reasons, [2019] NSWSC 847 at [26] to [110]. 2. The defendant relied upon the affidavit of Ms Hayley Le of 11 November 2019 which: 1. annexed reports dated July 2019 and 16 October 2019 from the defendant's treating psychiatrist, Dr White, which had been requested by the Court in the notation included its orders of 21 July 2019; 2. included information concerning the accommodation options available for the defendant after the expiry of the CDO; and 3. dealt with other matters concerning the preparation for the hearing on 21 November 2019. 1. The State relied upon the following affidavits: 1. from Ms Gillian Tulloh, Senior Psychologist with Corrective Services NSW, of 18 November 2019 referring to her earlier risk assessment reports concerning the defendant and providing comments on the proposed variations to conditions for the ESO in light of the further evidence of the psychiatrists and other matters; 2. from Ms Kelli Grabham, a High Risk Offender Applications and Operational Governance Officer of the Extended Order Supervision Team within Corrective Services NSW, of 20 November 2019 providing information concerning the defendant's accommodation at the Campbelltown Integrated Support Centre (ISC) after his release on 23 November 2019 and the proposed conditions of the ESO; 3. from Ms Sarah Najjar, solicitor, of 20 November 2019 annexing copies of Dr White's reports, a report from Dr Ellis in his capacity as Superintendent of the Forensic Hospital, material from the Mental Health Review Tribunal and extracts from The NSW Department of Corrective Services' Offender Integrated Management System (OIMS) notes for the period from 22 October to 4 November 2019 concerning the defendant's acceptance into the ISC from 23 November 2019. 1. In addition, there were before the Court updated reports from the psychiatrists who had previously examined the defendant and provided reports under ss 7(4) and 15(4) of the CHRO Act: 1. the report of Dr Ellis of 20 November 2019; and 2. the report of Dr Martin of 18 November 2019. 1. Most, if not all, of the evidence adduced at the hearing on 21 November 2019 was not the subject of significant dispute. It is sufficient to observe that I accept that evidence both as to the opinions expressed by the experts and as to the factual matters referred to. Accommodation after expiry of the CDO 1. When the matter was heard in June 2019, the evidence established that there was no suitable accommodation for which the defendant would be eligible, other than the Forensic Hospital or some similar psychiatric facility, which could provide the stable and secure treatment and care which the defendant currently required. [1] By the time of the hearing in November 2019, the evidence disclosed that the situation had changed. Because of the improvement in the defendant's condition with treatment, among other things, he had been approved for accommodation at the ISC from the date of the expiry of his CDO on 23 November 2019. Psychiatric state and ESO conditions 1. In his report of July 2019, the defendant's treating psychiatrist, Dr White, was of the view that the defendant could be diagnosed with schizophrenia. This was complicated by substance use disorder arising out of his use of cannabis and methamphetamines. In his view, the ongoing symptoms in a controlled environment strongly suggested that the defendant had schizophrenia rather than a substance induced psychotic illness. If accommodation could be found where the defendant could live with some level of support, it was Dr White's opinion that a community treatment order (CTO) and an ESO would lead to the risk he posed being manageable in that setting. Dr White did not support the defendant's admission to the Forensic Hospital at that time. 2. Dr White also provided a report of 16 October 2019 concerning the defendant's current presentation, recent progress and current treatment. Dr White confirmed the diagnosis of schizophrenia which had probably been undiagnosed for many years. It was noted that the defendant had had a period of over six months where he had accepted treatment and had clearly responded to that treatment. There had been no incidents of irritability, aggression, non-compliance or behavioural problems in that entire six months. From a psychiatric perspective, Dr White could see no reason why the defendant would not be able to be managed in the community setting. It was also said that his lack of insight was not uncommon in schizophrenia and that it should be manageable under the conditions of the CTO. It was observed that the defendant had residual symptoms but with ongoing compliance with treatment and abstinence from drugs there was no reason to believe that his condition would deteriorate. Dr White emphasised that abstinence from drugs would be a condition of his CTO and his ESO should reinforce that need to take his medication and be abstinent. 3. Dr Ellis, in his further report of 20 November 2019, noted that the information then available did not significantly alter his earlier opinion regarding the defendant's risk or management. Nonetheless, Dr Ellis noted that it was pleasing that accommodation had been found for the defendant at the ISC. Dr Ellis was of the opinion that although the defendant had not gained insight into his mental illness, and presumably not into the motivations for his previous offending, this had not precluded his cooperation with treatment. It was also noted that he had displayed behavioural stability and no concerning attitudes regarding violence or co-operation with supervision. In relation to the conditions to be imposed as part of an ESO, Dr Ellis noted as follows: "Electronic monitoring has been covered in my previous testimony, and may serve to motivate participation in rehabilitation. His substance use disorder and partial treatment response for management of his schizophrenia would from a medical point of view preclude a recommendation he drink alcohol, or attend places where alcohol use is prominent. His mental illness will likely deteriorate with substance use and testing for use is recommended. This is a condition of his fCTO. He has likely suffered from delusions of infidelity regarding his partner. Should he enter a new relationship, or re-establish this relationship it would be important for risk management that any future partner be aware of his diagnosis and past symptoms, therefore contact with new partner would be a risk management consideration." 1. Dr Martin, in his report of 18 November 2019, noted that his overall opinion regarding diagnosis and risk of violence had not changed. He observed, however, that the defendant's mental state appeared to have substantially improved with antipsychotic treatment in a controlled environment and he was of the view that Dr White's opinion regarding presentation, diagnosis, treatment and progress should be accepted. 2. Dr Martin was of the view that the defendant required ongoing assertive treatment and monitoring in a stable environment and his management plan should include close supervision and monitoring of any substance use. In Dr Martin's view, the conditions of a CTO would not provide enough support and monitoring to adequately manage the risk issues. As to the proposed conditions, Dr Martin said: "From a clinical perspective, the main concern I have at the proposed amended conditions is around substance use. He gave a history of binge alcohol use and being violent when drinking in the past (para 17 of my report 07.05.19). Alcohol could be expected to be a destabilising factor in relation to his mental state and behaviour, associated with increased risk of violence. In my view it would be reasonable if placed on an ESO for him to be required to submit to testing for drugs and alcohol, and the question could reasonably ask by a person with his history would not submit to substance testing. … … My view is that [the defendant] would find it difficult to limit drinking, given his history of poor behavioural controls. From a risk management perspective, my view is that he should be abstinent from alcohol. Obviously, this issue needs to be balanced by the Court with respect for principles of liberty and autonomy. …" Risk management and ESO conditions 1. In her affidavit of 18 November 2019 Ms Tulloh referred to her previous risk assessment report and emphasised the need for the defendant to remain abstinent from illicit substances and alcohol. She supported conditions such as not possessing or using alcohol, submitting to alcohol and drug testing, not entering licensed premises and not associating with persons consuming drugs or alcohol in order to promote effective risk management and monitoring. She also identified the need for any supervising officer to advise a new intimate partner about the defendant's criminal history in light of the defendant's previous violence towards a partner. Also in light of previous offending, Ms Tulloh recommended that the defendant should be monitored regularly for access to and possession of weapons. Finally, in relation to electronic monitoring, Ms Tulloh said that: "The defendant has previously been managed in the community with electronic monitoring. One purpose of the electronic monitoring was to manage the risk to his ex-partner. The defendant was also subject to an AVO at that time. However, the AVO and electronic monitoring had little impact on the defendant's behaviour. There were a number of incidents of non-compliance with the conditions of community supervision and electronic monitoring during that period and the defendant was returned to custody as a result. Inclusion of the electronic monitoring as part of the ESO would allow Community Corrections to monitor his whereabouts at any given time. I also note that the defendant is expected to reside at the ISC in Campbelltown and the distance may provide some protection for his ex-partner. However, he remains a high risk for supervision non-compliance and substance use, and electronic monitoring may mitigate his risk in these areas." 1. Ms Grabham's evidence mainly concerned the management of ESO conditions by Corrective Services. As to electronic monitoring it was noted that this is usually subject to the supervising officer's discretion and generally the discretion would be exercised in such a way that supervised persons are subject to stricter monitoring and more restrictive requirements at the beginning of the period during which an ESO applied but these are relaxed over time, depending on the supervised person demonstrating commitment to rehabilitation and ongoing compliance. 2. As to whether a condition for a schedule of movements should be incorporated in the defendant's conditions, Ms Grabham said that it was unusual and also impractical for there to be electronic monitoring without a schedule of movements. This was said to be because these conditions generally worked together to foster and monitor compliance with the order. She also gave evidence of the four stages of electronic monitoring in which stage 1 is the initial monitoring stage and is most restrictive and stage 4 is the most advanced stage and is least restrictive. She also noted that in relation to the four stages of monitoring any requirement to provide notification of movements in advance can be flexibly applied. It was also said: "In the defendant's case, if the electronic monitoring condition is imposed, he would initially be placed on stage 1 of the electronic monitoring stages. The goal would then be to exercise discretion to gradually relax the operation of conditions, as considered appropriate, with a view to him ultimately living at liberty in the community. Consistent with this, it is intended that the defendant would be subject to the minimum restriction appropriate under the order in the lead up to the expiration of the ESO. As per policy, the DSO will assess the appropriateness of progression each time the defendant's case plan is reviewed (every two months). Additionally, the requirement to wear electronic monitoring equipment and the appropriateness of the electronic monitoring stage is reviewed every three months at the multidisciplinary quarterly management meeting." 1. Ms Grabham also gave evidence that the electronic monitoring and the provision of a schedule of movements work together allowing monitoring staff to be alerted if the supervised person deviated from the schedule. The requirement to provide notification of movements in advance can be flexibly applied by the supervised person contacting the supervising officer in relation to proposed late changes and for adjustments to be made to the schedule. She also noted that a schedule of movements would be important for the defendant as it can help to promote progress and structure as well as assisting with the development of planning and self-management skills by maintaining structure and providing purpose. 2. Ms Grabham also gave evidence concerning use and implementation of conditions concerning accommodation, finance drugs and alcohol, non-association, search and seizure, personal details and appearance. In relation to the conditions concerning access to the Internet and other electronic communications, Ms Grabham noted the relevance of these matters to the previous offending in relation to his domestic partner and contacting her as well as his previous use of the Internet to purchase cannabis oil illegally. 3. Ms Grabham's cross-examination focused upon "dry scheduling". This refers to a supervised person, who is being electronically monitored, providing a summary of anticipated movements including the locations, purpose and means of travel but without times being specified instead of a schedule of movements (which includes detailed timings). Ms Grabham accepted that dry scheduling allowed some assessment of the person's risk but not as fully as with a schedule of movements. She accepted that if the defendant were subject to an exclusion zone, for example around Albury consistent with an AVO, that could be monitored in real time with alerts. A difficulty identified by Ms Grabham was that any movement towards the exclusion zone would not be able to be monitored. An alert would only be raised when the exclusion zone was breached. 4. While Ms Grabham accepted that a summary of anticipated movements would provide some benefit, it would not necessarily achieve what was required in assisting the defendant to reintegrate into the community. It was also confirmed that the level of detail required in a movement schedule depended on the supervising officers assessment of what was required taking into account the supervised person's background. 5. Ms Grabham gave evidence that a large number of persons who were the subject of an ESO and electronic monitoring had passed beyond stage 1 to stages 2 and 3 while a smaller number had moved on to stage 4. Based on a five-year ESO, progression from stage to stage had been at 12-monthly intervals but more recently she had noted quicker progression. Finally, it was observed, in effect, that the level of leniency depends on the progress being made. Appropriate conditions 1. Before and during the hearing, counsel for both parties adopted a very sensible approach of seeking common ground in relation to the conditions where possible and focusing evidence and argument on areas of real dispute. As a result, a measure of agreement was reached in relation to the terms of the appropriate conditions and as to the deletion of conditions that were not considered necessary in the circumstances. The bases of agreement were elucidated in submissions and discussions and I was satisfied that, where agreement was reached, the resulting conditions were appropriate under s 11 of the CHRO Act and it was not necessary to include the conditions that were proposed to be deleted. In these circumstances, these reasons focus on the conditions in relation to which there was no agreement. 2. The schedule of conditions imposed is set out in the appendix to these reasons and I shall refer to the conditions about which there was no agreement by their numbers in the schedule. 3. Schedule of movements, conditions 5, 6 and 7: The defendant was prepared to accept electronic monitoring if he was subject to "dry scheduling" with the summary being able to be varied on 3 hours' notice rather than being required to provide a schedule of movements variable only on 24 hours' notice. He also sought a condition that: "[i]t would not be a breach of this condition if the defendant departs from the summary [of movements] but notifies his DSO of his change of plans before doing so, or as soon as is reasonably practicable afterwards." 1. The State sought conditions that would require the defendant to provide a weekly schedule of movements, variable on 24 hours' notice or such other time as the Departmental Supervising Officer (DSO) directed. It also sought a condition that there be no deviation except in an emergency. 2. Given the defendant's circumstances and the fact that he was to be released on 23 November 2019 and this would be his initial experience of supervision under the conditions of his ESO, it appeared to me that it would be more appropriate to give the DSO the discretion to require a schedule of movements (with specified timings), noting, as Ms Grabham explained, that the stringency of this regime could be relaxed over time, if the defendant demonstrated his ability to plan, organise his time and comply with his schedule and the other conditions of his order. I accept that the benefits of having to provide a schedule of movements include those described by Ms Grabham. These would be beneficial not only in enhancing the security of the public but also for the rehabilitation of the defendant and his eventual reintegration into the community. In effect, "dry scheduling" could be introduced by a DSO, if it was thought that the defendant had made sufficient progress to justify that step and it was otherwise appropriate, having regard to the safety of the community and individuals and the interests of the defendant. 3. In addition, it appeared to me that requiring electronic monitoring to be supported by the provision of a schedule of movements, to the extent determined by the DSO, also appropriately reflected Dr Ellis's and Dr Martin's opinions as to the need for close supervision and monitoring of the defendant at this stage. 4. Nonetheless, in order to emphasise the flexibility inherent in the conditions, I amended the State's proposed condition 5 so that it read "If and as directed by his DSO…". I also included an option for a DSO to approve a lesser time in conditions 5 and 6. 5. As to deviation and condition 7, I did not accept that the defendant should be able effectively to deviate from his schedule and merely inform his DSO "as soon as is reasonably practicable afterwards". This could significantly undermine the monitoring of the defendant. Notwithstanding this, I did alter the State's proposed condition to permit deviation with the approval of the DSO, which could, for example, be obtained by mobile telephone immediately before the proposed deviation. 6. With the amendments that I made to the State's proposals, I believed that conditions 5, 6 and 7 served adequately to protect the safety of the community while at the same time encouraging the rehabilitation of the defendant. 7. Curfew, condition 10: As the defendant will be living at the ISC, it was submitted that their curfew conditions would be sufficient and the State's proposed curfew timings were inappropriate. 8. Since the ESO might extend to times when the defendant was not required to live at the ISC, it appeared to me that a curfew condition was generally appropriate subject to: 1. the ability of the DSO to relax the condition, if appropriate; and 2. requiring compliance with the ISC curfew hours while the defendant was residing there. 1. Accordingly, I amended condition 10 to reflect those requirements. 2. Visitors, condition 13: Once again in order to address the defendant's contention that the State's proposed condition 13 was unnecessarily restrictive, I included the word "or" between "generally" and "for" so that the DSO would have the flexibility to permit visits generally or for nominated individuals or in respect of specific occasions. Thus, if the defendant's progress and compliance warranted visitors being allowed, this could be implemented in an appropriate manner. 3. Access to alcohol, conditions 20, 23 and 27: The defendant contended that he should be allowed to use alcohol in moderation and should be entitled to enter licensed premises and associate with persons consuming alcohol. Given the role that binge drinking and alcohol have played in his past and the opinions of Drs Ellis and Martin to the effect that it is essential for his wellbeing and the safety of the community that the defendant not consume alcohol or attend places where alcohol use is prominent, I do not accept the defendant's submission. Nonetheless, to ensure that there is some flexibility in the conditions, which are to apply for 3 years, I have included in conditions 20, 23 and 27 the ability of the DSO to approve the defendant engaging in the alcohol related activities, if that otherwise became appropriate. 4. Access to the internet and other electronic communications, conditions 32 to 36: The defendant contended that conditions 32 to 36 proposed by the State were unnecessary and that much simpler conditions dealing with this subject matter should be imposed. The simpler proposed conditions were to the effect that: 1. the defendant must inform his DSO of what, if any, device or devices he uses to gain access to the internet and allow his DSO to inspect any such device. 2. the defendant must not seek to obtain cannabis oil or any kind of illicit substance through the internet or by any other means. 1. As I understood it, there was no objection in principle to conditions dealing with access to the internet and other electronic communications and I accept that they are, in general terms, appropriate in the present case. The question is whether the simpler form proposed by the defendant or the more detailed form proposed by the State should be adopted. 2. One difficulty with the defendant's proposal is that, while it is simpler, it lacks clarity as to: when and in relation to which specific devices disclosure is to be made; how and to what extent the devices may be inspected; whether and how access to, and information concerning, the devices by the DSO may be obtained; and, whether the defendant is required to comply with the DSO's directions in relation to his use of any device. Although the State's proposed conditions are more detailed, I am of the view that the details provide required clarity in those respects. 3. Another difficulty is that the defendant's proposal deals specifically with cannabis oil and illicit substances but it does not deal with other potentially concerning aspects of internet use, including the defendant contacting his former partner in breach of any AVO or otherwise or entering other intimate relationships by means of the internet. Nor was it clear under the defendant's proposal that the DSO would have access so as to permit monitoring of internet use that might indicate any deterioration in, or other issues with, the defendant's mental health. 4. In the circumstances, I accepted that the form proposed by the State in its conditions 32 to 36 was preferable to that proposed by the defendant in this regard. Order 1. For all of these reasons, on 22 November 2019, I made the following order that: 1. Order 3 made on 21 June 2019 is varied so that, pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), for the period of the Extended Supervision Order referred to in order 2 made on 21 June 2019, the defendant is directed to comply with the conditions of supervision set out in the schedule to this order [set out in the appendix to these reasons for judgment] rather than the conditions set out in the schedule to the orders made on 21 June 2019. ********** SCHEDULE OF CONDITIONS OF SUPERVISION [CT], THE DEFENDANT 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 their delegate from CSNSW, for the purposes of the order. Where a direction may conveniently be given in writing (or is required to be given in writing), it may be given electronically including by SMS or other messaging service. Electronic Monitoring 4. The defendant must wear electronic monitoring equipment as directed by the DSO or any other person supervising him. Schedule of Movements 5. If and as directed by his DSO, the defendant must provide a weekly plan (called a schedule of movements) 3 days before it is due to start or within any lesser time approved by his DSO. 6. 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 or within any lesser time approved by his DSO. 7. The defendant must not deviate from his approved schedule of movements except in an emergency or with the approval of his DSO. 8. 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 9. The defendant must live at an address approved by his DSO. 10. The defendant must comply with the curfew hours applicable during residence as the Integrated Support Centre and otherwise the defendant must be at his approved address between 9:00pm and 6:00am unless other arrangements are approved by his DSO. 11. 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. 12. The defendant must not spend the night anywhere other than his approved address without the approval of his DSO. 13. The defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of his DSO (which approval may be given generally or for nominated individuals or in respect of specific occasions). Part C: Place and travel restrictions 14. The defendant must not leave New South Wales without the approval of CSNSW. 15. The defendant must surrender any passports held by the defendant to the Commissioner. 16. The defendant must not go to a place if his DSO tells him he cannot go there. Part D: Employment, finance and education 17. If the defendant is unemployed, the defendant must enter available employment if and as directed by the DSO or make himself available for employment, education, training or participating in a personal development program as directed by the DSO. 18. The defendant must not start any job, volunteer work or educational course without the approval of his DSO. 19. The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by his DSO. Part E: Drugs and alcohol 20. The defendant must not possess or use alcohol except with the prior approval of his DSO. 21. The defendant must not possess or use illegal drugs, and he must not possess or use prescription medication other than as prescribed. 22. The defendant must submit to testing for drugs and alcohol as directed by his DSO. 23. The defendant must not enter any licensed premises other than licensed cafes or restaurants except with the prior approval of his DSO. 24. The defendant must attend and participate in programs 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. Part F: Non-association Associations with others (not children) 25. The defendant must not associate with any individuals that his DSO tells him not to. 26. The defendant must not knowingly associate with any people who are consuming or under the influence of illegal drugs. 27. The defendant must not knowingly associate with any people who are consuming or under the influence of alcohol except with the prior approval of his DSO. 28. [deleted] 29. 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. 30. [deleted] Part G: Weapons 31. The defendant must not possess or use any firearm within the meaning of s. 4 of the Firearms Act 1996 or prohibited weapon as defined in s. 4 and Schedule 1 of the Weapons Prohibition Act 1998. Part H: Access to the internet and other electronic communication 32. 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 as well as 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 by his DSO. 33. 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, in monitoring compliance with this order. 34. 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 and online dating apps or websites. 35. The defendant must allow his telephone and/or internet service provider to share information about his accounts with his DSO. 36. 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. 36A. The defendant must not contact, approach or attempt to contract [IC] by any means whatsoever. Part I: Search and seizure 37. If the DSO reasonably suspects that a search of the defendant's approved address, or any vehicle in which he is travelling or which is under his effective control, is necessary to confirm his compliance with this order, the DSO must inform the defendant of the basis of that suspicion. The defendant must then, if directed by the DSO, consent to a search of his approved address or any such vehicle. 38. If the DSO reasonably suspects that a search of the defendant's person is necessary to confirm the defendant's compliance with this order, the DSO must inform the defendant of the basis of that suspicion. The defendant must then, if directed by the DSO, consent to a "pat down search" (that is a search confined to those areas of the defendant's body which are clothed), and consent to a search of any article of the defendant's clothing carried by him but not worn, and a search of any bag or other receptacle in his possession. 39. Where the DSO believes on reasonable grounds that anything found in the course of executing the search of the kind comprehended in conditions 37 and 38 is related to behaviour or conduct associated with an increased risk of the defendant committing a serious offence (as defined in the Crimes (High Risk Offenders) Act 2006) the defendant must submit to that item being seized. 40. The defendant must allow CSNSW to search any devices that may use. 41. 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 37 to 40 above Part J: Personal details and appearance 42. The defendant must not change his name from "[CT]" or use any other name without the approval of his DSO. 43. [deleted] 44. The defendant must not significantly change his appearance without the approval of his DSO. 45. The defendant must let CSNSW photograph him for the purpose of maintaining a current image of his appearance. 46. [deleted] Part K: Medical intervention and treatment 47. The defendant must notify his DSO of the identity and address of any healthcare practitioner that he consults. 48. Except if he has a reasonable excuse for not attending, the defendant must attend all psychological and psychiatric assessments, therapy, support, treatment and monitoring that his DSO tells him to attend. 49. Except if he has a reasonable excuse for not taking the medication, the defendant must take all medications that are prescribed to him by his healthcare practitioners. 50. 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. 51. 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. 52. 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. Endnote 1. [2019] NSWSC 847 at [86]. 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: 19 December 2019