State of New South Wales v Hudson (No 2) (Preliminary) [2022] NSWSC 1655 (16 December 2022)

Last Updated: 16 December 2022

Supreme Court New South Wales

Case Name:	State of New South Wales v Hudson (No 2) (Preliminary)
Medium Neutral Citation:	[2022] NSWSC 1655
Hearing Date(s):	5 December 2022
Date of Orders:	16 December 2022
Decision Date:	16 December 2022
Jurisdiction:	Common Law
Before:	Davies J
Decision:	1. Pursuant to s 13(1) of the Act, the existing supervision order made 13 December 2019 is revoked from 26 January 2023; 2. Pursuant to s 10A of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant be subject to an interim supervision order for a period of 28 days commencing 26 January 2023; 3. Pursuant to s 11 of the Act, direct that the defendant comply with the conditions set out in the Schedule to this judgment. 4. Pursuant to s 7(4) of the Act, I appoint two qualified psychiatrists, alternatively two qualified psychologists, alternatively one qualified psychiatrist and one qualified psychologist, to conduct separate examinations of the defendant, and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and 5. I direct the defendant to attend those examinations when so appointed; 6. The Court appointed experts are to submit expert reports to the Supreme Court by Friday, 24 February 2023. 7. The plaintiff is to file and serve any evidence and its written submissions for the final hearing by 5pm on Friday, 10 March 2023. 8. The defendant is to file and serve any evidence and its written submissions for the final hearing by 5pm on Friday, 24 March 2023.  9. The plaintiff is to file and serve any updating evidence and submissions in reply by 5pm on Wednesday, 29 March 2023. 10. The parties are to notify one another of any witnesses they intend to call for the final hearing by 5pm on Friday, 31 March 2023. 11. A working folder of material to be tendered at the final hearing is to be provided by the plaintiff to the judicial officer assigned by 4pm on Monday, 3 April 2023. 12. The matter is listed for final hearing on Thursday, 6 April 2023. 13. Access to the Court file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access; 14. The parties have liberty to apply on 2 days’ notice. See end of judgment for Schedule of Conditions of Supervision
Catchwords:	HIGH RISK OFFENDER – preliminary hearing – application for an extended supervision order (ESO) for period of two years – defendant with prior convictions for child sexual offences – where defendant subject to ESO imposed in 2019 – where earlier ESO suspended from November 2022 due to defendant being arrested and entering custody – where defendant has pleaded guilty to counts of breaching the ESO – Court required to consider afresh whether defendant poses unacceptable risk of committing another serious offence if not kept under supervision under ESO – no opposition to the making of Interim Supervision Order - where making of ISO justified – where unclear in present case when defendant’s present custody will expire – timing of commencement of an Interim Supervision Order (ISO) – where need to revoke earlier ESO so defendant not subject to two orders with different conditions
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW) ss 5B, 5I, 6, 7, 9, 10A, 11, 13
Cases Cited:	Attorney General for New South Wales v Tillman [2007] NSWCA 119 Director of Public Prosecutions (NSW) v Van Gestel [2022] NSWCCA 171 State of NSW v Clarke [2019] NSWSC 411 State of New South Wales v Doherty (Final) [2022] NSWSC 1144 State of New South Wales v Hackett (Final) [2022] NSWSC 885 State of NSW v Hudson [2019] NSWSC 1761 State of New South Wales v Hudson (Preliminary) [2019] NSWSC 194 State of New South Wales v Kaiser [2022] NSWCA 86 State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	State of New South Wales (Plaintiff) Ian James Hudson (Defendant)
Representation:	Counsel: R McEwen (Plaintiff) K Averre (Defendant) Solicitors: Crown Solicitors Office (Plaintiff) Hugo Law Group (Defendant)
File Number(s):	2022/305828
Publication Restriction:	Nil

JUDGMENT

1. By a summons filed 13 October 2022 the State of New South Wales seeks an extended supervision order for a period of two years in respect of the defendant, pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW). The summons also seeks pursuant to ss 7(4) and 10A of the Act interim orders including for the appointment of two qualified psychiatrists or psychologists to conduct examinations of the defendant, and that the defendant be subject to an interim supervision order pending the final hearing.
2. The defendant is at present subject to an extended supervision order imposed by Button J on 13 December 2019: State of NSW v Hudson [2019] NSWSC 1761. However, that ESO has been suspended from 11 November 2022 by reason of the defendant being arrested and entering custody as a result of being charged with two counts of failing to comply with the existing ESO. When the defendant was before Gosford Local Court on 11 November 2022 he was refused bail and remanded in custody. On 24 November 2022 he pleaded guilty to the two charges, and the matter was adjourned for sentence on 2 February 2023. The defendant did not apply for bail on that occasion and it was refused.
3. The defendant does not oppose the making of an ISO, nor an order that he be examined by two psychiatrists or psychologists. Further, he does not take issue with the imposition of the proposed conditions for the purpose of the present ISO. Those conditions are similar to but not identical with those that are attached to the existing ESO. Account has been taken, in that regard, of the Risk Management Report (RMR) prepared by Wendy Dryden on 12 September 2022.
4. Notwithstanding those concessions, it is necessary for the Court to be satisfied in accordance with the requirement of s 10A of the Crimes (High Risk Offenders) Act 2006 (NSW), that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order. The Court, if so satisfied, then has a discretion whether to impose an ISO.
5. Although the Court has previously determined that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO, this is a fresh application and it is necessary for the Court to consider the matter afresh. No question of issue estoppel and the capacity to relitigate matters arises except in relation to the matters in s 5B(a) and (b) of the Act: State of New South Wales v Hackett (Final) [2022] NSWSC 885 at [7]. Nevertheless, the present focus is on the defendant at the present time, and his present risk of committing a serious offence.
6. The application for the earlier ISO was determined by N Adams J: State of New South Wales v Hudson (Preliminary) [2019] NSWSC 194. Her Honour in a very thorough judgment summarised the defendant’s criminal history, which I gratefully adopt, as follows:

The offender’s criminal history and any pattern of offending behaviour disclosed by that history: s 9(3)(h)

[17] The defendant is 39 years old. His prior convictions for sexual offences date from when he was only 14 years of age.

[18] When the offender had just turned 14 he approached a 16-year-old from behind in a shopping centre car-park and squeezed her breasts. He admitted being “sexually excited” by the act, when that proposition was put to him by police. The following day he approached another “young girl” who was walking from a shopping centre back to high school and grabbed her around the waist until she apparently said “fuck off”, struggled and broke free, at which point he stopped. He was charged with assault. He admitted being sexually excited by this offence as well. He pleaded guilty to indecent assault and common assault and was placed on a good behaviour recognisance for 2 years for each offence.

[19] On 2 October 1993 whilst still subject to the bond the defendant followed a 16-year-old girl home from the swimming pool. He put his left arm around her chest and right hand over her mouth after she screamed, and then let go of her and ran into a park. The defendant was sentenced for common assault to a 12-month control order, with release recommended after 3 months.

[20] In December 1995, then aged 16, the defendant was charged with abduction, two counts of aggravated sexual assault and one count of aggravated act of indecency. The victim, who was 15 years of age, had been walking home at night around 7.10pm when the defendant grabbed her from behind, placed his hand over her mouth and forced her to the ground. He led her to bushland on a vacant block and made her lie on the ground and remove her top. He threatened her and sexually assaulted her by forcing her to commit fellatio to ejaculation (aggravated sexual assault) and then digitally penetrated her vagina (aggravated sexual assault). After that the defendant asked if he could be the victim’s boyfriend, and began to kiss her. The defendant told her to get dressed and he left the scene.

[21] The defendant was later placed on a control order. He then assaulted a youth worker in the detention centre. A further charge of assault in 2000 was dismissed under the Mental Health Act 2007 (NSW) s 32. This related to the break-up of the defendant’s then relationship. He entered her residence, damaged her property and then assaulted her by pushing her against a wall several times. He was fined in 2002 for behaving in an offensive manner near a school. In 2002 and 2003 he was convicted on other charges of: furnishing false information, receiving stolen property, taking and driving a conveyance, making a false instrument, break and entering and stealing a motor vehicle were dealt with. Further driving offences were dealt with in 2007.

Victorian Offences

[22] The defendant has convictions in Victoria for child sexual assault offences committed between 27 December 2008 and 31 January 2009. At the time of commission of these offences the defendant, who was 29 years old at the time, was working as a dodgem car operator and lived at the back of a truck trailer. Upon meeting the 12-year-old victim in December 2008 he gave her his mobile number and they began contact through text messages and the internet. On 27 December 2008 arrangements were made for the defendant to collect the victim from her home and stay with him in his trailer. After collecting the victim from her home under the pretence of being the father of one of the victim’s school friends their sexual relationship began that day. The victim stayed with the defendant for approximately two weeks during which time they had sexual intercourse on numerous occasions with the defendant penetrating the victim anally, vaginally, and orally.

[23] The defendant pleaded guilty to count 1 (a rolled-up count relating to four separate counts of penile/vaginal sexual intercourse); to count 2 (a rolled-up count relating to three separate instances of penile/anal sexual intercourse); to count 3 of penal/oral sexual intercourse; to count 4 (a rolled-up count of production of pornography relating to the photographs, images and videos of vaginal and anal intercourse with the victim taken by the defendant); to count 5 (a rolled-up count of three occasion of procuring a minor for child pornography, which involved the defendant posting a package to the victim on her thirteenth birthday containing a mobile phone capable of video playback and a vibrating sex toy and subsequent to that a video of himself masturbating to her on her phone as well as text messaging the victim encouraging her to make videos and picture herself using the vibrator); to counts 6 to 9 relating to oral/anal/vaginal sexual intercourse with the victim when the defendant borrowed a car and collected the victim; and to count 10 relating to stealing a wheel of the boot of a parked car when he damaged wheels on his car.

[24] Following his plea of guilty, the defendant was sentenced to a total effective sentence of 6 years and 4 months with a non-parole period of 4 years and 4 months commencing from the date of the sentence on 31 July 2009. His Honour Judge Pullen considered that the defendant had reasonable prospects of rehabilitation, provided he completed the sex offender program in custody.

The index offence

[25] On 9 September 2016 Lerve DCJ sitting at Dubbo District Court sentenced Mr Hudson to a total sentence of 3 years 6 months imprisonment, with a non-parole period of 2 years 3 months on one count of sexual intercourse with a child aged between 14 and 16 years, contrary to s 66C(3) of the Crimes Act 1900 (NSW) (with a further charge under s 66C(3) taken into account on a Form 1. These charges arose from events that occurred in NSW in April 2008. He is currently serving the remainder of this sentence which expires on 8 March 2019.

[26] The defendant pleaded guilty and agreed facts were tendered. The remarks on sentence of Lerve DCJ disclose that he met the victim in April 2008 while working at a fast food outlet in Dubbo. The offender provided his phone number and the two exchanged text messages. The victim was 14 years of age at the time. The offender was 27. She is reported to have told the offender her age.

[27] Two weeks later, the victim left her family home and began to reside with the offender in a caravan while he worked on amusement rides at the Dubbo Showgrounds. The two shared a bed together. The sentencing judge’s remarks indicate that, “[o]n one occasion the two of them hugged each other and the offender placed his fingers into the victim’s vagina, which conduct relates to the offence on the Form 1 document. The offender and the victim then had penile/vaginal intercourse. The offender was not wearing a condom and ejaculated inside the victim’s vagina.”

[28] The victim and the offender subsequently travelled with the carnival to and around southern Queensland. While in Queensland the relationship reportedly deteriorated and the victim contacted her mother and returned to Dubbo. By June 2008 the relationship broke down and the victim was reported to have become pregnant as a result of the relationship. DNA analysis following termination of the pregnancy confirmed that the victim was impregnated by the offender. The offender indicated that he was unaware of the pregnancy until informed some time later by his legal representatives.

7. A risk assessment report (RAR) was prepared by Holly Cieplucha, then a Senior Psychologist in the Serious Offenders Assessment Unit, for the purposes of the ESO application in 2019. Ms Cieplucha assessed the defendant’s risk of sexual reoffending as within the high range, with his highest treatment needs being in the areas of General Social Rejection/Loneliness and Impulsivity. She considered that “sex as coping” was an ongoing risk factor.
8. In that regard, Ms Cieplucha said:

Based on the available information and his history of offending the most likely scenario for repeat serious offending would follow a similar pattern. A return to offending would almost certainly involve social isolation if Mr Hudson were to experience a relationship breakdown. In this scenario Mr Hudson would experience heightened negative emotional states including feelings of rejection, low self-esteem and loneliness. He may return to old patterns of thinking such as “I’m alone and nobody cares about me”. He may seek out connection with younger adolescent girls to ameliorate these feelings and return to entrenched distortions around age of consent. He is likely to use sex as a maladaptive means of coping with these negative emotional states and to meet his sexual needs. Such offending is likely to be planned and involve a degree of manipulation of the victim (e.g. deceit around age).

Alternatively, a likely scenario for further sexual offending would involve impulsive and opportunistic assault against a victim by grabbing her from behind and groping her breasts or genitalia. His potential victims are likely to be adolescent females who are likely to be strangers. The likely motivation would be for sexual gratification.

9. The significance of this passage is that Samuel Ardasinski thought that those predictions remained valid in September 2022 when he prepared his RAR for the present application.
10. The two psychiatrists who examined the defendant for the earlier ESO, Drs Furst and Martin, were also of the opinion that the defendant was at a high risk of sexual offending, relative to the ordinary sexual offender.
11. In reports made to the Attorney-General pursuant to s 13(2) of the Act, the authors of the reports on 2 December 2020 and 18 October 2021 recommended that the continuation of the ESO was then necessary and appropriate. However, a report from Mandy Lau, a psychologist in the Serious Offenders Assessment Unit, of 15 February 2022 said this:

Given Mr Hudson demonstrated good insight into his sexual offending and has made improvements in the relevant risk areas, this is some evidence to suggest that he has developed skills to mediate his risk in the community whilst being subject to an ESO. If Mr Hudson continues to maintain or further the level of stability that he has established in his life and complies with his self-management around his partner's children, it is possible that he can manage his risk in the community without further sexual offending. Therefore, a further order is not recommended at this stage.

12. On 5 April 2022 Wendy Dryden, who had in one of the s 13(2) reports mentioned earlier, considered that the ESO should be continued, reached a different view in a further report of 5 April 2022. She said:

It would appear that the conditions and structure of the ESO has served its purpose in managing Mr Hudson’s risk. Overall, he appears to have maintained stability throughout the period of supervision and has verbalised his motivation to maintain a pro-social lifestyle.

He has engaged appropriately with targeted interventions which have included psychological intervention, relationship counselling, supported social activities and offence targeted cognitive behavioural (PGI) conversations and activities. He has also continually expressed a longing to have his own family unit with his current partner and her children.

In consideration of these factors and the information outlined in this report, it is recommended that no further order be sought.

13. Somewhat surprisingly, on 12 September 2022, Ms Dryden prepared a risk management report (RMR) in which she supported an application for a further ESO. Although her April 2022 report said that the defendant had not been subject to any breach action during the course of his order, the RMR identified four occasions when warnings were issued to the defendant in relation to breaches of various conditions of his order. Whilst those breaches were issued subsequent to Ms Dryden’s earlier report, the allegations that led to two of them had been made prior to her earlier report. Nevertheless, what appears to be the change in approach by Ms Dryden seems to have some solid basis in the detail of the breaches of the conditions set out in the RMR.
14. The breaches were described in this way in the RMR:

Condition 26: On 6 April 2022 a search of Mr Hudson’s telephone was conducted where a copy of message he had sent to his partner’s 14year old daughter was located. Mr Hudson admitted to sending the message between December 2021 and February 2022 via Messenger to Rebecca Norris’ daughter, Eileen Schaefer. The content of the message included Mr Hudson encouraging Eileen to spend time alone with him and that her mother had approved it. Warning issued 20 April 2022.

Condition 34: On 6 April 2022 a search of Mr Hudson’s telephone was conducted where a copy of message he had sent to his partner’s 14yo daughter was located. Mr Hudson admitted sending the message via messenger (sic); however, he was unable to produce the original message indicating that the message has been deleted. Warning issued 20 April 2022.

Condition 32: On 14 June 2022 a search of Mr Hudson’s telephone, computer, Smart TV and residence was conducted. During the search it was identified that he had not provided an up to date password for his google account attached to his emails. Mr Hudson has also provided a new pass code for his mobile telephone which was different to the code he provided during the search on 6 April 2022. He had not provided the updated code to Community Corrections prior to the search. During the search a Levono Laptop was located in Mr Hudson’s bedroom which he had not declared. The logon screen was in the name of Ian Hudson; however, he claimed he has purchased the laptop for his partner and her children, and he does not use the device. Warning issued 1 September 2022.

Condition 34: On 14 June 2022 a search of Mr Hudson's telephone, computer. Smart TV and residence was conducted. During the search it was detected that the telephone and computer were not recording the google browser search history. Further review of the telephone identified that the record search history was turned off in settings. Warning issued 1 September 2022.

15. Mr Ardasinski, who is a Senior Psychologist with the Serious Offenders Assessment Unit, prepared his RAR on 5 September 2022, subsequent to the earlier 2022 breaches but prior to the events which led to the defendant being returned to custody in November 2022.
16. Mr Ardasinski’s report is, in many respects, not unfavourable towards the defendant, although Mr Ardasinski mentions some problems between the defendant and staff who supervise him. The matter of some significance, however, is that despite the advances the defendant had made during the current ESO, Mr Ardasinski still assessed the defendant’s risk of sexual reoffending as within the highest range, even though he only had a moderate level of criminogenic needs.
17. The other significant matter in Mr Ardasinski’s report concerns the relationship between the defendant and his partner, and the absence of other social supports for the defendant. This was a matter to which Ms Cieplucha had made reference in her RAR of 2018.
18. The defendant and his partner, Rebecca Norris, have been involved in a defacto relationship for about eight years. They have a four year old daughter, and Ms Norris has three children from a prior relationship. Those children are now aged about 15, 14 and 10.
19. Previously, Ms Norris had been assessed as a suitable “responsible adult” to supervise the defendant’s contact with the children in public but not at home. However, in 2016 the defendant and Ms Norris falsified Ms Norris’s youngest daughter’s birth certificate to indicate that the defendant was her biological father when this was not the case. The matter appears not to have come to light until much later because the defendant was charged only in 2020 with wilfully making a false, substituted declaration. On 30 October 2020 the defendant was convicted of the offence and sentenced to a two-year community correction order.
20. As a result of Ms Norris’s involvement in this offence, she was no longer considered a “responsible adult” to supervise the defendant’s contact with her children. This determination was never revisited, although Mr Ardasinski said that there were indications throughout the defendant’s supervision that the ultimate goal of his reintegration into the family unit was a case management priority.
21. It seems that the defendant was permitted to maintain the relationship with Ms Norris, but he was not permitted to live with her and the children. That position continued to obtain, notwithstanding the conviction in relation to the false declaration. However, concerns appear to have been raised, particularly by reason of the first two breaches recorded at [14] above.
22. Mr Ardasinski noted that the defendant’s relationship with Ms Norris had been considered protective in the past, although it is not now considered protective because of the 2020 conviction and other matters, presumably some of the breaches of conditions concerning contact with Ms Noirris’s 14 year old daughter, referred to in Ms Dryden’s RMR of 12 September 2022.
23. Mr Ardasinski’s concern is that the defendant does not have friends and, if his relationship with Rebecca breaks down, that is likely to increase one of his dynamic risks which is social adjustment. This was also Ms Cieplucha’s concern in 2018. That points to the defendant’s social isolation as being an ongoing risk factor. This was picked up in Mr Ardisinski’s RAR where he indicated that two of the defendant’s criminogenic needs relate to general social rejection and impulsivity. Mr Ardasinski said about these matters:

In Mr Hudson’s case, his capacity for impulsivity has been contained by his ESO and his overall level of social integration has been impacted by his being on an ESO (inasmuch as Mr Hudson reported feeling unable to make new friends as he fears any disclosure of his past offending to new acquaintances). These were his primary two risk factors, as assessed in his initial report in 2019, and they appear unlikely to shift much further within his current circumstance.

24. Mr Ardasinski also said:

In the event that no order is imposed, after the 12/12/2022, Mr Hudson would be at unconditional liberty. He would have no support from, or any monitoring by, CSNSW. He would remain on the Child Protection Register for some further period, and NSW Police may be able to apply for a CPPO if there was fresh information that he posed an ongoing risk to children. FACS may reopen their file, but whilst it remains closed, there is unlikely to be oversight of Mr Hudson and his fiancée’s children, and they would likely return to co-habitation as they had in 2016 before Mr Hudson was sentenced for his index sex offences. There has been some form of agency involvement by the Department of Communities and Justice for years now which has limited Mr Hudson's ability to move in and resume his step-father role within the family - this would be removed altogether in the event his ESO expires.

The recent offending

25. There appears to have been an escalation in the seriousness of the issues relating to the defendant and his partner, or more particularly his partner’s children, that led to his being returned to custody in November 2022.
26. There were, first, the breaches set out at [14] above. Secondly, when searches of the defendant’s phone and electronic devices were carried out in June and September 2022, there were issues concerning gaps in the messages stored on the phone, and multiple passwords. At the search on 1 September 2022 there was an indication that the defendant may have had contact with Ms Norris’s children. This ultimately led to a decision at a case conference meeting on 21 September 2022 where it was, “Decided that the risk of potential harm to Rebecca’s children is too high and Ian is to be issued with a non-association direction with Rebecca and all of her children”.
27. The charges are that the defendant failed on two occasions to comply with a direction from his DSO given on 23 September 2022 not to associate with Rebecca Norris by any means including by telephone or electronic means. One of the Court Attendance Notices alleges that “between 31 October 2022 and 1 November 2022 the accused was in the presence of Rebecca HUDSON (sic) at his home address in the (sic) Entrance”. The other alleges that he breached the direction against associating with Ms Norris between 1 October 2022 and 1 November 2022.
28. There were no Police Facts in evidence concerning the charges alleged, but Mr Averre of Counsel for the defendant said that he understood the breach to have involved the defendant assisting Rebecca to move premises. Even if of low objective seriousness, a non-parole period of no less than three months could reasonably be expected for a breach of an ESO. However, how long the defendant will remain in custody is uncertain. This is relevant for two matters; first, the terms of s 10A(a) of the Act; secondly, if an ISO is made, when it should commence.

Determination

29. Section 10A of the Act provides:

10A Interim supervision order

The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, it appears to the Court –

(a) that the offender’s current custody or supervision will expire before the proceedings are determined, and

(b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.

30. Unlike most cases involving applications for an ISO, it is unclear in the present case when the defendant’s custody will expire. It is not clear beyond doubt, although likely, that further custody will be imposed when the defendant is sentenced on 2 February 2023. The final hearing of this present application is fixed for 6 April 2023. The result may be that the defendant’s current supervision will expire before the proceedings are determined, even taking into account the suspension of the present ESO from 11 November 2022.
31. Although s 10A(a) uses the word “will”, I do not consider in the context of the objects of the Act, particularly the object in s 3(1), that the Court is required to be certain that the supervision will expire. The use of the word “appears” points to the Court’s satisfaction as being that of an impression, based on the evidence that is available at the time: cf Director of Public Prosecutions (NSW) v Van Gestel [2022] NSWCCA 171 at [44].
32. In the circumstances, the provisions of s 10A(a) are satisfied.
33. I am satisfied that at the time of the present application the defendant was a supervised offender within the meaning of ss 5B(b) and 5I, and that the provisions of s 6 have been complied with: see in that regard State of New South Wales v Kaiser [2022] NSWCA 86 where the Court of Appeal held at [109] that the reference in s 5B(c) to s 5I was an error, and that s 6 was meant. Section 5B(a) was determined by Button J to be satisfied in his Honour’s judgment earlier referred to.
34. The task of the Court at the preliminary hearing on an application for an interim order is not to predict the ultimate result. Rather the test is said to be one similar to the prima facie test applied by magistrates in committal proceedings: Attorney General for New South Wales v Tillman [2007] NSWCA 119; State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11]; see also State of NSW v Clarke [2019] NSWSC 411 at [7] to [11].
35. Even prior to the breaches for which the defendant is now in custody, Mr Ardasinski assessed the defendant’s risk as being in the highest category. That was consistent with the assessments made of the defendant in 2028 and 2019 by both Ms Cieplucha and Drs Furst and Martin. Of some significance is the fact that Mr Ardasinski considered that the particular risks identified by Ms Cieplucha in 2018 were still present, and for the same reasons.
36. Further, in circumstances where the defendant’s relationship with Ms Norris was supportive, the fact that the defendant is no longer permitted contact with her is likely to increase the defendant’s social isolation when out of custody, with a likely increase in the risk of offending. It must be said that the direction preventing the defendant to have contact with Ms Norris has been brought about by the defendant’s own actions in making contact with her children, or one of them, and by failing to preserve electronic evidence of his contacts and messaging. Those actions are also directly relevant to the risk the ESO was designed to limit, and the present risk of the defendant committing a further serious offence.
37. In those circumstances, I am satisfied that the matters alleged in the supporting documentation would, if proved at the final hearing, justify the making of an ESO.
38. The question then arises when the ISO should commence. In the absence of an ISO the current ESO will revive when the defendant is released from custody. Further, if the ISO commences on the date the order is made, it will be immediately suspended but revive on the defendant’s release. However, when that will be is a moveable feast. It is entirely inappropriate that the defendant be subject to two orders containing different conditions.
39. In State of New South Wales v Doherty (Final) [2022] NSWSC 1144 Ierace J was dealing with an application for an ESO where an earlier ESO had been made but suspended at the time the order was to be made because the offender was in custody. The orders indicate that Ierace J revoked the existing ESO from the commencement of the further ESO. Nothing is said in the reasons about that revocation, nor the basis for the order revoking it.
40. Section 13 of the Act relevantly provides:

13 Supervision order may be varied or revoked

(1) The Supreme Court may at any time vary or revoke an extended supervision order or interim supervision order on the application of the State or the offender.

(1A) ...

(1B) Without limiting the grounds for revoking an extended supervision order or interim supervision order, the Supreme Court may revoke an extended supervision order or interim supervision order if satisfied that circumstances have changed sufficiently to render the order unnecessary.

41. It can be seen that an application must be made to revoke by either the State or the offender. There does not seem to be any facility for the Court to do so of its own motion. In the present matter, the State applies to revoke the prior ESO. The ground in s 13(1B) is made out, in that the making of an ISO subsequent to an earlier ESO which is still in place, albeit suspended here, is a sufficient change in circumstances.
42. Accordingly, the orders I make are as follows:

1. Pursuant to s13(1) of the Act, the existing supervision order made 13 December 2019 is revoked from 26 January 2023;

2. Pursuant to s 10A of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant be subject to an interim supervision order for a period of 28 days commencing 26 January 2023;

3. Pursuant to s 11 of the Act, direct that the defendant comply with the conditions set out in the Schedule to this judgment.

4. Pursuant to s 7(4) of the Act, I appoint two qualified psychiatrists, alternatively two qualified psychologists, alternatively one qualified psychiatrist and one qualified psychologist, to conduct separate examinations of the defendant, and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and

5. I direct the defendant to attend those examinations when so appointed;

6. The Court appointed experts are to submit expert reports to the Supreme Court by Friday, 24 February 2023.

7. The plaintiff is to file and serve any evidence and its written submissions for the preliminary hearing by 5pm on Friday, 10 March 2023.

8. The defendant is to file and serve any evidence and its written submissions for the preliminary hearing by 5pm on Friday, 24 March 2023. 

9. The plaintiff is to file and serve any updating evidence and submissions in reply by 5pm on Wednesday, 29 March 2023.

10. The parties are to notify one another of any witnesses they intend to call for the preliminary hearing by 5pm on Friday, 31 March 2023.

11. A working folder of material to be tendered at the preliminary hearing is to be provided by the plaintiff to the judicial officer assigned by 4pm on Monday, 3 April 2023.

12. The matter is listed for preliminary hearing on Thursday, 6 April 2023.

13. Access to the Court file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access;

14. The parties have liberty to apply on 2 days’ notice.

SCHEDULE OF CONDITIONS OF SUPERVISION

Terms

Departmental Supervising Officer (DSO)

Corrective Services NSW (CSNSW)

In these conditions:

“Associate” includes, but is not limited to, being in company with, or to communicate by any means (including by post, facsimile, telephone, email or any other form of electronic communication).

“CSNSW” means Corrective Services NSW.

“Commissioner” means Commissioner for Corrective Services

“Defendant” means Ian James Hudson, the defendant in these proceedings and the subject of the order.

“DSO” means Departmental Supervising Officer, that is, any Corrective Services Officer supervising the defendant under the order.

“Electronic Identity” means each of the following:

(a) an email address,

(b) a user name or other identity allowing access to an instant messaging service,

(c) a user name or other identity allowing access to a chat room or social media on the internet,

(d) any other user name or other identity allowing access to the internet or an electronic communication service.

“Material” includes:

1. any written or printed material;

2. any picture, painting or drawing;

3. any carving, sculpture, statue or figure;

4. any photograph, film, video recording or other object or thing from which an image may be reproduced;

5. any computer data or the computer record or system containing the data; and

6. any other material or object on which an image or representation is recorded or from which an image or representation may be reproduced.

“NSWPF” means NSW Police Force.

“Search” includes:

1. A garment search, being 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; and

2. A pat-down search, meaning a search of the defendant where the defendant’s clothed body is touched.

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

1. The defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions of a DSO.

2. 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.

3. The defendant must truthfully answer questions from a DSO, or any other person supervising him, about where he is, where he is going, who he is with, what he is doing and the nature of his associations.

Electronic Monitoring

4. The defendant must wear electronic monitoring equipment as directed by a DSO or any other person supervising him.

Schedule of Movements

5. If the defendant breaches a condition of the ESO or commits a criminal offence or there is a significant concern as to the defendant’s movements, then at the discretion of the DSO or supervisor, the defendant may be required to provide a weekly plan (called a 'schedule of movements') to a DSO.

a. This is to be provided 3 days before it is due to start.

b. If the defendant wants to change anything in his schedule of movements once it is approved by a DSO, he must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period.

c. The defendant must not deviate from his approved schedule of movements except in an emergency.

Part B: Accommodation

6. The defendant must live at an address approved by a DSO (the "approved address").

7. The defendant must allow a 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.

8. The defendant must not spend the night anywhere other than his approved address without the approval of a DSO.

9. The defendant must not permit any person to enter and remain, or to stay overnight, at his approved address, without the prior approval of a DSO.

For the purpose of this condition, a DSO may give pre-approval from time to time of a list of "approved visitors" who may enter and remain at the defendant's approved address without a requirement for him to notify a DSO upon each occasion of that person entering and remaining at his approved address. The defendant must give a DSO a minimum of 48 hours' notice to seek approval for a new visitor to be considered for the "approved visitors" list.

Part C: Place and travel restrictions

10. The defendant must not stay outside of or leave New South Wales without the approval of CSNSW.

11. The defendant must surrender any passports held by the defendant to the Commissioner.

12. The defendant must not go to a place if a DSO tells him he cannot go there.

13. The defendant must not go to any residences where the defendant knows that persons under 18 ordinarily reside, without prior approval of a DSO.

Part D: Employment, finance and education

14. The defendant must not start any job, volunteer work or educational course without the approval of his DSO.

15. The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by a DSO.

Part E: Drugs

16. The defendant must not possess or use illegal drugs, and he must not possess or use prescription medication other than as prescribed.

17. The defendant must submit to testing for drugs as directed by a DSO.

Part F: Non-association

Association with Children

18. The defendant must not approach or have contact with anyone who he knows or reasonably believes is under the age of 18, other than incidental contact in a public place with a person in the course of that person's duty, unless a DSO tells him he can, and he is with someone who has been approved in writing by a DSO for the purpose of this condition.

Associations with Others (not children)

19. The defendant must not associate with people that a DSO tells him not to.

20. The defendant must not knowingly associate with any people who are consuming or under the influence of illegal drugs.

21. If the defendant starts a new intimate/romantic or sexual relationship with a woman who is the parent or guardian or has care and control of a child under the age of 18 years, he must notify the DSO of that relationship as soon as possible. The DSO may want to tell the person about the defendant’s criminal history and the defendant must permit that disclosure.

22. The defendant must obtain permission from a 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

23. The defendant must give a 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.

24. The defendant must not use any coded or encrypted messaging application or service.

25. The defendant must provide any code or encryption for any electronic data or any electronic communication if discovered on the defendant’s electronic devices or accounts as a result of a search or a remote inspection.

26. If a DSO suspects on reasonable grounds that the defendant may be breaching one of the conditions of this order, a DSO (or another person at the request of a DSO) may remotely inspect any internet account used by the defendant, including the defendant's email addresses, in monitoring compliance with this order.

27. The defendant must obey any reasonable directions by a 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.

28. The defendant must allow his telephone and/or internet service provider to share information about his accounts with a DSO.

29. The defendant must provide a list of communication devices and data storage devices in the defendant's possession and advise a DSO of any change to the inventory immediately.

Part H: Search and seizure

30. If a DSO forms a reasonable suspicion that a search is required, either to monitor the defendant’s compliance with this Order, or for the safety and welfare of any other person, or because a DSO suspects the defendant of having engaged in behaviour or conduct associated with an increased risk of committing a serious offence, the defendant must submit to the search of any item or place in his possession or under his control, including his residence, any vehicle in which he is traveling or which is under his effective control, or any storage facility, garage, locker or commercial facility, and the seizure of any items object located during the search.

31. The defendant must submit to the search of any computer, electronic or communication device in his possession or under his control and to the seizure of such devices.

Part I: Personal details and appearance

32. The defendant must not change his name from "Ian James Hudson" or use any other name without the approval of a DSO.

33. The defendant must not use any alias, log-in name, or a name other than "Ian James Hudson" or use any email address other than those known to a DSO under condition 23 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.

34. The defendant must not significantly change his appearance without the approval of a DSO.

35. The defendant must let CSNSW photograph him when reasonably requested to do so for the purposes of CSNSW maintaining an accurate image of the defendant's current appearance.

36. If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide a DSO with such details.

Part J: Medical intervention and treatment

37. The defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults.

38. The defendant must attend all psychological and psychiatric assessments, therapy, support and treatment that a DSO tells him to attend.

39. 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 a DSO.

40. The defendant must agree to any information being shared between those agencies that are involved in his supervision including, but not limited to, a DSO and CSNSW.

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