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[2025] NSWSC 363
General information, not legal advice.
Supreme Court of NSW
2025-04-17
Hamill J
Original judgment source is linked above.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: State of New South Wales v Daiman Nixon (also known as Damien Nixon) [2025] NSWSC 363
Hearing dates: 28 February 2025
Date of orders: 17 April 2025
Decision date: 17 April 2025
Jurisdiction: Common Law
Before: Hamill J
Decision: (1) Summons dismissed.
(2) Application for interim supervision order refused.
(3) Plaintiff to pay defendant’s costs.
Catchwords: CIVIL LAW – high risk offender – application for 18 month extended supervision order – preliminary hearing – interim supervision order – application of statutory test – whether supporting documentation if established would justify the making of an order – assessment of risk – consideration of authorities – extremely serious sexual offences committed when the defendant was 24 – defendant now 40 – where two year extended supervision order about to expire – positive but not perfect progress towards rehabilitation – reduction in statistical assessments of chances of recidivism – no recent record of violence or sexual offending – assessment of response to parole and current supervision order – where only recent offences arose from disobedience to supervision order and directions – defendant in positive relationship with supports in place – where no relaxation in strict conditions like electronic monitoring and weekly scheduling – where police targeted defendant because of ankle bracelet – where defendant believed racial component – “hero complex” or tying to help – demonstration of increased maturity and capacity to regulate emotions – summons dismissed
Legislation Cited: Crimes Act 1900 (NSW), s 61J
Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 5B(a), 5B(b), 5B(c), 5B(d), 5I, 7, 9(3), 10A, 10C(1)
Cases Cited: AB (A Pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46
Attorney General for New South Wales v Tillman [2007] NSWCA 119
Cornwall v Attorney General for New South Wales [2007] NSWCA 374
Kamm v State of New South Wales (No 4) (2017) 95 NSWLR 179; [2017] NSWCA 189
Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57
State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280
State of New South Wales v Kamm (Final) [2016] NSWSC 1
State of New South Wales v Keech [2024] NSWSC 408
State of New South Wales v Nixon (Final) [2023] NSWSC 106
Tannous v State of New South Wales (2020) 103 NSWLR 183; [2020] NSWCA 261
Texts Cited: N/A
Category: Principal judgment
Parties: State of New South Wales (Plaintiff)
Daiman Nixon (also known as Damien Nixon) (Defendant)
Representation: Counsel:
M Hunter (Plaintiff)
E Kerkyasharian (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid Commission (NSW) (Defendant)
File Number(s): 2024/00460464
Publication restriction: N/A
JUDGMENT
By summons filed on 11 December 2024, the State of New South Wales seeks several orders under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) in relation to the defendant, Daiman (or Damien) Nixon. Mr Nixon is a 40-year-old Wiradjuri and Wonnarua man who has been subject to an extended supervision order (“ESO”) for the last two years. That order was made by Dhanji J on 20 February 2023 after Mr Nixon served a lengthy gaol sentence for serious offences committed when he was 24 years old. Ultimately, the summons seeks a further ESO for a period of 18 months, but at the preliminary hearing on 28 February 2025 the State sought orders under ss 7, 10A and 10C(1) for the appointment of experts to prepare reports for a final hearing and an interim supervision order for a period of 28 days. The current ESO will expire on 20 April 2025.
I am not satisfied that the supporting documentation, if proved, would justify the making of a further ESO. Accordingly, the summons must be dismissed. These are my reasons for that conclusion.
There is no dispute that the formal pre-requisites in s 5B(a), (b) and (c) of the Act are satisfied. That is:
(a) Mr Nixon is an offender who has served a sentence of imprisonment for a serious (sexual) offence as defined. (b) He is a “supervised offender” and was at the time the summons was brought. (c) The application is and was made in accordance with s 5I of the Act. It is in appropriate form and was brought within the time limits prescribed.
“[80] The Act is to be construed in accordance with its text and so as to promote its purpose or objects. That said, the State, properly, conceded that s 3(1) cannot mean literally what it says, for there will always be some level of risk to the safety and protection of the community.
[81] There is no basis for construing the general object expressed in s 3(1) to impact upon the finely calibrated language in Div 2 of Pt 1A…
…
[83] The expressed primary purpose of the Act is amply fulfilled by the fact that it confers power to curtail, and in relatively extreme circumstances deny, liberty to an offender who has served the entirety of his or her sentence. The precise circumstances when the powers to make an extended supervision order or a continuing detention order, and the terms of those orders, are governed by the particular provisions conferring such power and the interrelationship between them. As already noted, the operative provisions are nuanced, including by expressly referring to different levels of satisfaction.
[84] That said, as noted above, and as recognised by the primary judge, the evaluative judgment as to whether an extended supervision order will provide adequate supervision will have regard to the safety and protection of the community, and therefore necessarily involve an assessment of the likelihood of re-offending and the consequences of any re-offending.”
See also Lynn v NSW at [55] and Kamm (No 4) at [147].
“[98]…In determining whether the power to grant an interim order is enlivened, the Court is not involved in weighing that documentation or predicting the ultimate result. The power is enlivened if the supporting documentation would, if proved, justify the making of either category of final order bearing in mind the elevated standard of proof stated in ss 17(2) and (3). That threshold question is to be resolved without considering what evidence might be called by the offender at the final hearing. Indeed, it is to be considered without taking into account the evidence (if any) called by the offender at the interim hearing: such evidence may go to (relevant) discretionary matters, but would not cast light upon what is alleged in the Attorney General’s supporting documentation.”
“[41]…The determination of what is an unacceptable risk may require consideration of various factors (such as the perceived likelihood of recidivism and the type and nature of offences that may be committed absent supervision), and may entail a balancing of factors in cases where they might point towards differing outcomes (such as a low risk of recidivism versus likely drastic consequences to the victim if an offence occurs). Clearly, any analysis of the concept of unacceptable risk involves recognition that there will be a range of factors affecting risk and some cases that are more obvious examples of unacceptability than others.
…
[43] Thirdly, it is important to recall, having regard to s 5B(3), that the Supreme Court may legitimately find in some situations that a person poses an unacceptable risk for the purposes of the statutory test even if the likelihood of them committing a further serious sex offence is determined to be low.” [1]
The parties prepared a three volume “Judges working folder” which was mostly comprised of material tendered by the State, although there were also some documents prepared by both parties and an affidavit of Mr Nixon’s solicitor, Ms Moussaoui. The bulk of the material was exhibited to an affidavit of Ms Henen, a solicitor with the Crown Solicitor’s Office who has carriage of the case.
I have considered that material which, without attempting to be exhaustive, includes:
A statement of agreed facts and a chronology.
Material relating to the serious offences that Mr Nixon committed in 2009 (“the index offences”). This included the sentencing judgment of Judge Ellis, the agreed facts on sentence and reports tendered at the sentencing hearing.
Mr Nixon’s criminal history and the facts of various offences recorded in that history.
Expert reports and assessments tendered before Dhanji J two years ago along with his Honour’s judgment.
Records relating to Mr Nixon’s performance on parole including a number of breach reports and a notice of revocation of parole.
Records of his performance on the ESO including several warning letters.
A risk assessment report prepared by Sam Ardasinski, a senior psychologist with the High Risk Offenders unit, dated 3 October 2024.
A risk management report dated 28 October 2024 which was prepared by David Tibos, a manager with the Metropolitan ESO Team.
A document styled “ComSOP Review & Summary Form” prepared on 17 October 2024.
The police bail report is a 23-page document but, leaving to one side for a moment the 2009 offences, it is not the most serious criminal record. However, it does include convictions for offences of actual and threatened violence, including domestic violence, some of which resulted in imprisonment or suspended gaol sentences. The defendant has also committed a lot of relatively minor offences of dishonesty but I will only summarise the violent offences.
In 1998, while he was still a juvenile, Mr Nixon was sentenced to a 12-month good behaviour bond and fined $400 for an offence of common assault. On 7 December 1999, he was dealt with by the Kempsey Children’s Court for three offences, including an offence of stalking/intimidation with intention to cause fear of personal injury and custody of a knife in a public place. The Court dismissed the charges and administered a caution.
In mid-2001, he was charged with an offence of common assault and was sentenced to a control order for 1 month. Later that year he was charged with common assault and stalking/intimidation with intention to cause fear of physical/mental harm, for which he received a 12-month good behaviour bond.
In 2002, the Children’s Court sentenced Mr Nixon to probation for 12 months for one count of common assault.
In 2005, the defendant was sentenced to 10 months imprisonment which was suspended for several offences including one count of common assault and one count of possessing a knife in public.
On 13 February 2009, Mr Nixon was sentenced in the Maitland Local Court to an aggregate sentence of 6 months imprisonment for two counts of common assault (DV), one count of stalk/intimidate with intention to cause fear of physical/mental harm and one count of contravene an apprehended violence order (“AVO”). He was also placed on a good behaviour bond for a second offence of contravene AVO.
In 2010, Mr Nixon was sentenced for two sets of serious offences committed in 2009. The second set of offences are those that brought him within the scope of the Act.
On 29 April 2009, Mr Nixon committed an offence of sexual intercourse without consent. That offence related to a sexual assault on Mr Nixon’s then partner (although, from the victim’s point of view, they broke up a day or so before the incident). Mr Nixon entered the shower where the victim was naked and forced sexual intercourse on her. This was over her protests and despite the intervention of a third person. Mr Nixon pleaded guilty and admitted that he was reckless as to whether the complainant was consenting. The matter was dealt with on 3 March 2010 in the District Court sitting at East Maitland. Mr Nixon was sentenced to an 18-month prison term which was suspended.
The second set of offences was committed on 1 September 2009 while Mr Nixon was on bail for the offence of sexual intercourse without consent. The facts are set out in the remarks on sentence of Judge Ellis delivered on 24 August 2010 and in the agreed facts prepared for the sentencing proceedings. The matter involved a planned armed robbery in company, an aggravated sexual assault, and an aggravated indecent assault.
Mr Nixon and a 17-year-old juvenile offender (“X”) attacked a vulnerable young woman at around 2:00am on a train traveling between Gosford and Wyong. Mr Nixon was armed with two large kitchen knives. X approached the victim and sprayed her eyes and face with a can of aerosol and tried to take her handbag. The victim resisted, saying she had no money, and Mr Nixon repeatedly punched her in the face. He also slammed her head against the window or wall of the train carriage. This caused a wound to her eyebrow requiring four stitches. He then kicked the victim’s legs but she refused to let go of her bag. Mr Nixon yelled at X, who by then had the knives, to stab the victim but the strap of the bag broke and X took possession of it.
The sexual offending occurred after the victim’s handbag was taken. Mr Nixon continued to punch the victim to the head. He tried to force open the victim’s legs but she resisted. He then undid her belt and pulled the victim’s jeans down low enough to be able to insert his fingers into her vagina. Mr Nixon told X to hold the victim’s arms down and kept his fingers inside the victim’s vagina for several minutes. Mr Nixon also bit the victim’s breast through her clothes so hard that it caused bruising.
Mr Nixon pleaded guilty in the Local Court to one count of robbery in company causing wounding, one count of aggravated sexual assault in company and inflict actual bodily harm, and one count of aggravated indecent assault in company.
Judge Ellis assessed the objective seriousness of the offences as being just below the mid-range, and imposed an aggregate sentence of 13 years and 3 months imprisonment, commencing on 1 September 2009, with a non-parole period of 9 years. The non-parole period expired on 31 August 2018 and the defendant was released to parole on 6 September 2021.
Mr Nixon’s parole was revoked on 18 March 2022 and this order was rescinded on 29 June 2022.
Since his release, and while he was on parole or subject to the ESO, there are only three offences recorded against the defendant. The first was a shoplifting offence in 2023 which attracted a $50 fine. The other offences involved failing to comply with the conditions of the ESO and these attracted concurrent fixed term sentences of 2 months from 29 November 2023 to 28 January 2024.
The expert reports of Dr Sathish Dayalan, forensic psychiatrist, dated 16 January 2023 and Dr Michael R Davis, forensic and clinical psychologist, dated 16 January 2023 set out Mr Nixon’s personal and family history. Those reports were prepared for the hearing before Dhanji J. There are inconsistencies in the histories and Dr Dayalan said that Mr Nixon “was not a reliable historian. He contradicted himself on occasions and repeatedly refuted information in the documents if they portrayed him in a negative light.” What follows is a distillation of the information in the reports presented as a cohesive and consistent narrative.
Mr Nixon was born in Dubbo and grew up in Kempsey. He was raised by his father and stepmother and has not seen his biological mother since he was two years old. His childhood was characterised by parental neglect, behavioural problems and early exposure to illicit substances. His father used to hit him, and he has not spoken to his father for 15 years. He was sexually abused by an adult male when he was around six or nine years old.
The defendant attended four different primary schools. He had learning difficulties and was at times placed in special classes. He routinely got into fights and there were incidents of violence including one occasion where he stabbed a teacher with a lead pencil. In year 8, he threw a table at the school principal’s head and, unsurprisingly, was expelled from school.
Mr Nixon did not complete year 8 but has attended TAFE on and off. His employment history is patchy. He says he has worked in various roles including in sales, marketing, carpeting, trolley pushing, cleaning and grape picking. However, he has struggled to maintain consistent employment and tends to “get bored” and “walk away”. A pre-release report prepared by Corrective Services in 2019 suggested that his longest period of employment within the community was three days and that he had jobs in custody for a total of 18 months during his time in gaol.
Mr Nixon has a history of mental health issues and cognitive impairment. From an early age he engaged in fighting, demonstrated aggressive tendencies, was cruel to animals, stole and damaged property, engaged in substance abuse and frequently ran away from home. Dr Dayalan said his behaviour was indicative of a conduct disorder. Mr Nixon was diagnosed with ADHD at the age of nine. He was treated with dexamphetamine, a stimulant, which according to Mr Nixon made his behaviour worse.
He began using cannabis when he was 12 years old. He said this was provided by family members to help calm him down. He reported heavy cannabis use from the age of 12 to 24 and was using stimulants from the age of 17 to 22. Dr Dayalan believed Mr Nixon’s history of substance use was “consistent with a diagnosis of cannabis and stimulant use disorder that are currently in remission”.
When he was 16 years old Mr Nixon attempted suicide by stabbing himself in the gut after a romantic partner admitted to infidelity.
“…It was reported that the defendant initially responded well to supervision. He was maintaining regular contact with his supervising officer, following the directions of the National Disability Insurance Scheme (NDIS) coordinator and was ‘an active and respectful participant in the case planning and supervision process’.
From around March 2022, there was, however, a deterioration in the relationship between the defendant and his parole supervisors, including a failure to comply with directions and deviations from the schedule of movements imposed as part of his parole conditions.”
Mr Nixon’s parole order was revoked on 18 March 2022 on the basis that the defendant posed “a serious and immediate risk to the safety of the community” because, according to the breach report dated 18 March 2022, Mr Nixon “[failed] to adapt to normal lawful community life”. This conclusion was reached on several bases including that Mr Nixon left his approved accommodation to live with a “vulnerable person” at a local caravan park in a tent, said that he wished to commence a sexual and romantic relationship with that person despite their misgivings, and deviated from his schedule of movements on several occasions.
The revocation order was rescinded on 29 June 2022 and the defendant returned to the community.
On 20 February 2023, Mr Nixon was placed on the two-year ESO. An ESO completion report prepared by Glenn Perry indicated that the defendant’s response to the order has been “superficial and resistant”, that he “associate[d] with antisocial influences” and engaged in “verbal conflict and minor physical conflict when he [was] stressed and/or angry”. Against that, Mr Perry noted that Mr Nixon has “engaged in discussions aimed at addressing his attitudes and behaviour along with his ability to manage his stress and anger more appropriately” and has returned negative drug tests on each occasion of oral testing.
There have been some breaches, and warnings concerning alleged breaches, of the ESO. For example:
On 22 June 2023, Mr Nixon received a formal warning for breaching a non-association condition and an access to pornographic, violent and classified material condition. The defendant had contact with a person he was directed not to “associate or communicate with” via text messages, created screenshots of images of naked women, and accessed Pornhub on several occasions without prior approval.
On 25 July 2023, the defendant received another formal warning for breaching his schedule of movements and a non-association condition.
On 16 August 2023, Mr Nixon was issued a formal warning for breaching a non-association condition through contact via Facebook Messenger.
In November 2023, Mr Nixon went shopping with a “vulnerable” female with whom he was permitted to have contact but not otherwise associate with unless he was in the presence of a third person with whom he was permitted to associate. When asked by his managers about this meeting he denied that it had occurred. He was charged with two counts of failing to comply with his ESO on 29 November 2023, entered pleas of guilty and was sentenced on 11 January 2024 to a fixed term of imprisonment of 2 months.
After his release from custody, the defendant received a warning on 19 April 2024 for breaching the schedule of movements condition, a non-association condition and an access to pornographic, violent and classified material condition. He had deviated from his approved route while on a walk, had a text message exchange with a person he was directed not to associate with, a “non-associate”, and had accessed Pornhub six times without prior approval.
A risk assessment report was prepared by Sam Ardasinski, senior psychologist, in May of 2022 and a risk management report was prepared by Community Corrections in June of that year. Dr Dayalan’s report dated 16 January 2023 and Dr Davis’ report dated 16 January 2023 were also tendered by the plaintiff at the hearing before Dhanji J.
Dhanji J summarised the findings of those reports in NSW v Nixon at [25]-[38] and I will not repeat those findings here. However, the contrast in the findings in 2022 and those in late 2024 are not without significance.
In preparing his most recent risk assessment report, Mr Ardasinski readministered some of the tests using the same actuarial tools, focusing on those which measure dynamic risk and protective factors.
On the Violence Risk Scale (“VRS”), which assesses an individual’s risk for violence based on both static and dynamic risk factors, the defendant’s results demonstrated a reduction in his dynamic risk score in comparison to the previous assessment. Mr Nixon’s overall level of risk remained within the “high” risk range according to the old classification system, “but only just”. Using the RSVP tool, which contains a checklist of risk factors specifically related to sexual violence, Mr Nixon was assessed as requiring “a Moderate/Elevated level of effort to prevent [him] from committing acts of sexual violence”. Mr Nixon’s score on the STABLE-2007, a tool used to identify stable dynamic risk factors, indicated that he had “a Moderate density of criminogenic needs relative to other male sexual offenders”. Using the SAPROF-SO, which evaluates the protective factors that may reduce an individual’s risk of sexually abusive behaviour, Mr Nixon was “determined to have a moderate loading of protective factors that would inoculate against risk”.
Despite the statistical outcomes just described, Mr Ardasinski’s report was a reasonably positive one and there have been improvements in the defendant’s self-regulation, coping skills and his capacity to access services that reduce his risk profile. Overall, Mr Ardasinski said that Mr Nixon “would fall into a group of persons with a risk for serious sexual offending that is statistically moderate in frequency, [but] of a type with potentially serious consequences”. While he thought it was “still quite possible” that Mr Nixon could commit some form of sexual offending, the author was of the opinion that the chances of “a contact offence against a stranger adult female… no longer appears likely, since Mr Nixon is not associating with criminal peers and his substance abuse issues appear in full remission.”
While fairly acknowledging the improvements and positive signs, Mr Hunter identified a number of ongoing risk factors and submitted that I would be satisfied that the supporting documentation, if proved, would justify the making of a further ESO. That is, the Court would be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under the supervision of an ESO. He pointed to the probability of the risk eventuating and emphasised the gravity of the potential consequences.
In relation to the gravity of the risk, Mr Hunter referred to the defendant’s apparent tendency to target vulnerable women as part of his so-called “hero complex”, an expression used in one of the reports. When pressed, counsel conceded that there was very little within the material that could assist in divining the meaning of that term. In his most recent risk assessment report, Mr Ardasinski hypothesised that the most likely risk scenario for sexual reoffending by the defendant would involve a contact offence against a current or former partner, which was intended to punish or gain control over the victim.
In oral submissions, Mr Hunter submitted that if the defendant were to commit such a contact offence against his current partner, who has an intellectual disability, this would constitute an offence under s 61J of the Crimes Act 1900 (NSW), thereby meeting the test of a serious sexual offence for the purposes of the Act. It was also submitted that if the defendant were to cause actual bodily harm through physical violence, this would also meet the statutory test.
While the State acknowledged that Mr Ardasinski’s most recent report did not assess the likelihood of such a risk eventuating as a “higher or moderate likelihood”, it emphasised that Mr Ardasinski did not conclude that there was no such risk. The plaintiff referred to paragraphs [30] and [32] of that report where Mr Ardasinski described the risk as “quite possible” and that it “may still be quite active” in the context of relationships with vulnerable women. The plaintiff referred to evidence which may support the likelihood of such a risk. This included that the defendant had been secretive about having contact with a vulnerable woman, had engaged in sexual banter and sent photographs of his penis to a former partner and unknown females online. He pointed to evidence that Mr Nixon downplayed sexualised behaviour and sexual contact with his partner, and was found to have a nude photograph of his partner on his telephone. It was suggested that the last of those matters indicated an “under-developed understanding of informed consent” as the defendant’s partner appeared to be asleep at the time the photograph was taken.
Mr Kerkyasharian argued that the Court would not be satisfied to a high degree of probability that there is an unacceptable risk of Mr Nixon committing a further serious sex offence within the meaning of the Act, and that the application should be dismissed with costs.
The defendant accepted that Mr Ardasinski’s most recent report included the opinion that the risk of further sexual offending “may still be quite active” and that it is “still quite possible”. However, Mr Kerkyasharian submitted that the words “may” and “quite possible” were far from positive assertions of an actual existing risk, but were more in the nature of a theoretical possibility that could not be excluded. He highlighted evidence that supports the proposition that the risk has decreased substantially and submitted that the defendant no longer represented an “unacceptable” risk. This included evidence that the defendant now has employment, that his current relationship “appears to be supportive and caring” and that no sexual content has been found on his ‘phone in the past four months. These are significant protective factors.
Mr Kerkyasharian pointed to examples of occasions where Mr Nixon has displayed greater insight into his “triggers” and managed to control his emotions and refrain from resorting to violence. One example was in July 2023 during an incident involving his mother’s ex-boyfriend who refused to leave her home. Mr Nixon did not use or threaten violence but instead told the man to leave or he would contact the police. In May 2023 the defendant was stopped by police. Although agitated by the incident which he believed was racially motivated, he nonetheless was able to control and de-escalate his emotions and did not resort to violence. In September 2023, the defendant discovered that his partner had sent a nude photograph of herself to an ex-boyfriend. Mr Kerkyasharian submitted that this was:
“a pretty triggering event… that would aggravate most people greatly and for someone who is said to have poor impulse control might suggest that they engage in violence, he doesn’t”.
In October 2024, the defendant’s partner ended the relationship with him via text. The defendant’s response to this was indifferent, and the pair subsequently reconciled.
Counsel for the defendant also pointed to the fact that the defendant’s treating psychologist has expressed the view that Mr Nixon has a “higher risk of general offending rather than sex offending”. This opinion was expressed with knowledge of occasions where Mr Nixon has viewed pornography and has been found to have such material on his telephone. The defendant submitted that this “is consistent with the fact that sexual preoccupation has not been identified as a risk factor for the defendant”.
The defendant is now 40 years old. This is said to be a factor which reduces the likelihood of the defendant reoffending. In this regard, counsel referred to psychological literature which shows that “antisocial individuals tend to remit by their fourth decade”.
Finally, it was submitted that Mr Nixon has sufficient supports and accommodation in place without the need for a further ESO. The defendant has become settled in NDIS-funded accommodation and receives six hours of one-on-one support a day, including assistance with participating in the community and social and recreational activities. In response to a suggestion that the defendant may choose to “opt out” of such services if a further ESO is not made, the defendant submitted that Mr Nixon:
“has consistently, for many years now, tried to improve himself. It is not the case that the defendant has a mental illness which will leave him likely to turn his back on those assisting him. In so far as he has had trouble with those supervising him, it has been those employed by the State”.
Counsel for the defendant also made a number of submissions in relation to the proposed conditions in the event that the Court was minded to make an ISO. Mr Nixon opposed the electronic monitoring and schedule of movement conditions (conditions 5-8), and the limitations on communication, internet access and other measures condition (condition 34). Counsel for the defendant also submitted that the wording of the non-association condition (condition 26) was ambiguous and proposed an alternative. I note in passing that it has been these conditions which have resulted in breaches of the current ESO.
In reply, the State did not press condition 34 (limitations on communication, internet access etc) and the proposed amendment to condition 26 (non-association) was accepted. However, the electronic monitoring and schedule of movement conditions were pressed and remained in dispute.
In both written and oral submissions, Mr Kerkyasharian stressed that Mr Nixon has not had an opportunity to demonstrate his stability in the community without the strictures of electronic monitoring and schedule of movement conditions. Counsel observed that this was contrary to the recommendations of the court appointed experts. Dr Davis recommended at paragraph [202] of his report that “the conditions become progressively more relaxed in the second year, if possible, to enable Mr Nixon to prove that any observed behavioural stability is not simply due to the restrictive nature of the ESO itself”. Similarly, Dr Dayalan recommended at paragraph [148] of his report that the “restrictions are lifted as soon as practicable as they are restrictive in nature and he would need to demonstrate a period of stability without these restrictions prior to expiry of any ESO made”. The restrictions have not been lifted, despite Mr Nixon displaying considerable stability in the community over the past 10 months.
Furthermore, counsel for the defendant submitted that such conditions have been “harmful” to Mr Nixon’s rehabilitation, and referred to the incident on 3 May 2023 when he was stopped by police simply because of his ankle monitor. Given this, and the fact that Mr Nixon was released from custody after his breaches more than a year ago, the defendant submits that “there is no obvious need for these conditions”.
While counsel for the State acknowledged that the incident with police was “regrettable”, it was submitted that there is no suggestion that such monitoring presents “an ongoing or more immediate impediment to the defendant’s rehabilitation”. The State maintains that electronic monitoring and schedule of movement conditions have facilitated Mr Nixon’s ongoing rehabilitation by allowing his managers to proactively assess risks in his environments and behaviours, and by providing early warnings if he fails to attend scheduled programs or appears to be engaging with vulnerable women. The latter, it was submitted, was particularly important in light of Mr Nixon’s previous lack of candour with his managers which constituted one of the two breaches that resulted in his incarceration for 2 months. Moreover, in oral argument counsel for the State noted that there had been instances where Mr Nixon had attended scheduled activities on the incorrect date and had been alerted to his mistake as a consequence of his electronic monitoring. This was cited as an example of such conditions promoting Mr Nixon’s rehabilitation.
I have applied the principles set out earlier in this judgment to the particular facts and circumstances of this application. The protection of the community, and potential victims of sexual offences, must remain a preoccupying concern. The offences committed in 2009 give rise to obvious concerns about the defendant’s capacity to engage in serious sexual violence against vulnerable women.
Insofar as they are available and relevant, I have considered the list of matters in s 9(3) to which the Court must regard at the final hearing.
I accept Mr Ardasinski’s opinion in relation to the likelihood of Mr Nixon committing a grave offence of the kind perpetrated on the train in 2009. The risk of a recurrence of that kind of behaviour appears to be very low. Even so, taking Mr Ardasinski’s opinion at its highest from the perspective of the State, there remains a risk of other forms of violence or sexual offending. The defendant’s submissions tended to understate the language expressed by Mr Ardasinski. He did not say simply that “it is a possibility” or “it may be active”. Rather, he said it is “still quite possible” and “it may be quite active”. Without parsing the language, the use of the word “quite” suggests a level of risk greater than a mere possibility. Even so, the level of risk does not rise above a “moderate” degree of risk.
While I do not accept that Mr Nixon’s age (he is now 40) diminishes the risk to any great extent, the fact is that the offences he committed in 2009 occurred when he was a much younger and much less mature man. Since that time, he has received condign punishment, been admitted to parole and spent the last two years under the strict supervision of the ESO. He has not been charged with a sexual offence, let alone a serious sex offence within the meaning of the Act, in over 15 years. As Dr Davis observed “the passage of time offence-free in the community can be a powerful protective factor in terms of risk.” Moreover, as Mr Ardasinski points out in his most recent risk assessment report, Mr Nixon’s lifestyle is substantially different to his circumstances at the time of the index offending. Because of this, it could be said that he “no longer poses a significant risk of repeating serious sexual offending such as that he committed on the train in 2009”.
I accept that Mr Nixon has made good progress and this is reflected in the reports which indicate he has now become settled in supported accommodation, has employment, is better able to manage his emotions, and is assessed (statistically) as a moderate, rather than a high, risk of serious sexual reoffending.
Putting to one side the irrelevant shoplifting offence with its $50 penalty, the only offences committed since his release concerned breaches of the conditions of the ESO. He received other formal warnings about potential breaches and was ultimately convicted and sent to gaol. His conduct was not, of itself, an offence or otherwise unlawful. The offence was the failure to comply with directions and conditions. Even so, Mr Ardasinski considered that “there has been a notably honest attempt overall by Mr Nixon to comply”.
“It is not unusual for at least the behavioural manifestations of personality disorders to ameliorate to some extent with age, although this has been found to be less notable amongst those with elevated levels of psychopathic personality [like Mr Nixon]”.
In considering the matter through the prism of the “calculus of risk”, I understand the potential gravity of the consequences if the defendant were to offend again as he did in 2009. However, the evidence points strongly against such an outcome. Since his release, there is little (if any) evidence to suggest that Mr Nixon deliberately targets vulnerable women. I accept Mr Kerkyasharian’s submission that the fact that Mr Nixon’s current partner has some form of intellectual disability is the result of him sharing a similar impairment, rather than suggestive of him deliberately targeting a vulnerable partner. Even so, I have considered the potential devastating impact on such a person if a sexual offence was committed against them. Obviously, I have considered the fact that offending against such a person would be (in some instances) an aggravating circumstance that would elevate the offence into the category of “serious sex offence” caught by the provisions of the Act.
I have taken into account the “mixed reports on his level of engagement” with sex offender programmes. It is not easy to reconcile the reports. For example, his High Intensity Sex Offender Program Treatment Report noted that although the defendant “appeared to be motivated and [made] attempts to change his aggressive behaviour, he demonstrated ongoing difficulties with developing insight generally, regulating his emotions, and planning for the future. He was reluctant to discuss his sexual self-regulation in the program”. In Dr Dayalan’s report, it was noted that Mr Nixon’s “attitude towards his offending had been one of denial and minimisation” including denying that any sexual offending had occurred in relation to the index offences, which is troubling.
Mr Nixon has not had the opportunity to demonstrate his stability within the community while on less restricted conditions prior to the expiry of his current ESO. This is contrary to the recommendations of both Dr Dayalan and Dr Davis in the reports considered by Dhanji J. It must be acknowledged that Mr Nixon has not been charged with any violent offences since the index offence in 2009 which was more than 15 years ago. He does not have a serious criminal history of violent offences, at least not recently. Most of his offences have been dishonesty offences. I have set out the violent offences earlier in this judgment. They occurred more than a decade ago and, for the most part, were dealt with in the Children’s Court.
I am not satisfied that the supporting material, if proved and taken at its highest, would justify the making of an extended supervision order. I have reached that conclusion based on all of the evidence presented at the preliminary hearing and cognisant of the fact that the State would need to establish to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under the supervision of an order under the Act.
For those reasons, I make the following orders:
The summons is dismissed.
The application that the defendant be subject to an interim supervision order is refused.
The plaintiff is to pay the defendant’s costs of and incidental to the application.
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This approach was upheld on appeal: Kamm (No 4).
As their Honours were back in 2019.
State of New South Wales
Daiman Nixon
(2019) 97 NSWLR 1046
(2017) 95 NSWLR 179
(2016) 91 NSWLR 636
(2015) 90 NSWLR 389
(2020) 103 NSWLR 183
He has been diagnosed with a “mild intellectual disability which is characterised by difficulties in communication, memory, understanding, problem-solving, executive functions, social interaction and communication skills”. This disability is “permanent and lifelong”.
Dr Dayalan and Dr Davis both expressed the opinion that Mr Nixon meets the diagnostic criteria for antisocial personality disorder. Dr Davis referred to “Mr Nixon’s repeated offending, impulsivity, deceitfulness, reduced guilt, and irritability” and was of the opinion that his disordered personality “has been complicated by poor childhood attachments, abusive experiences, and previously chronic substance misuse”. Dr Davis was of the view that the defendant’s personality disorder “is at a severe level of impairment” but acknowledged that “it is certainly possible that he has been experiencing a degree of personality maturation in recent years”.
Mr Nixon has significant protective supports in place without a further order. There is a risk that the imposition of, or continuation of, stringent and invasive conditions may be counterproductive in terms of the defendant’s progress towards rehabilitation.
On the face of it, and without levelling any criticism at the officers involved, some of the defendant’s difficulties over the last couple of years have arisen because of the strictures of the ESO. For example, the confrontation with the police arose because he was wearing the ankle monitor. Given his history, it was not surprising that Mr Nixon took the incident as being racially motivated. Even so, despite past difficulties in managing his emotions, he managed to “de-escalate” the situation.
Similarly, the way he dealt with his partner breaking up with him was admirable and philosophical, and may be contrasted with the offence committed in the shower in similar circumstances in 2009 and his suicide attempt when he discovered his partner’s infidelity. The same observation applies to his calm response to finding out that his current partner sent naked photographs to another man. These are positive signs of growth and maturity.
I accept the reports describing Mr Nixon’s relationship with his current partner as loving and supportive. I do not accept the suggestion that possession of a single nude photograph of his partner is indicative of a lack of understanding of informed consent. While I accept that Mr Nixon may have attempted to downplay his sexualised contact, and been unwilling or reluctant to discuss his sexual relations with DSO managers, I believe this was due to the awkward nature of such personal conversations rather than for devious or nefarious reasons. Similarly, his dishonesty about breaching his non-association condition is more likely to have been driven by a fear of getting into trouble.
While he is still a fairly young man, Mr Nixon’s advancing years appear to be associated with greater maturity and emotional control, accompanied by a substantial reduction in antisocial behaviours. This is reflected in the lack of serious offending over the past 15 years but in particular since his release to parole. In this regard Dr Davis offered the following opinion: