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Catchwords: HIGH RISK OFFENDER – interim supervision order – what conditions likely to be effective – recent alleged offending potentially relevant to risk – defendant in custody bail refused for recent alleged offending – suspension of examinations while awaiting hearing of recent charges – conditions of ISO – conditions should not criminalise minor behavioural issues – unjustifiable conditions should not be imposed

Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)

Cases Cited: Attorney General for the State of New South Wales v Winters [2007] NSWSC 611
State of New South Wales v Azar (Final) [2025] NSWSC 1420
State of New South Wales v BG (Final) [2019] NSWSC 200
State of New South Wales v Craig (Preliminary) [2026] NSWSC 8
State of New South Wales v Keech [2024] NSWSC 408
State of New South Wales v Keir [2022] NSWSC 627
State of New South Wales v KW (preliminary) [2023] NSWSC 397
State of New South Wales v Lynn [2013] NSWSC 1147
State of New South Wales v Sturgeon (No. 2) [2019] NSWSC 883
State of New South Wales v Tabbah (Preliminary) [2025] NSWSC 56

Category: Principal judgment

Parties: State of New South Wales (Plaintiff)
Fale Faasavalu (Defendant)

Representation: Counsel:
C McGorey (Plaintiff)
B Fogarty (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s): 2026/00207982

Publication restriction: Nil

JUDGMENT

1. On 18 May 2026, the State of New South Wales, the plaintiff, commenced proceedings against Fale Faasavalu, the defendant, seeking an extended supervision order (“ESO”) of three years under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”).

2. The plaintiff also seeks interim orders for supervision, (“ISO”), for 28 days commencing on the date he is released from custody and the appointment of two suitably qualified experts pursuant to s 7(4) of the Act to examine the defendant and report to the Court. He is currently on remand for domestic violence charges allegedly committed on 14 and 16 June 2026. Those charges are next before the Local Court on 27 August 2026. It is unclear whether there is any intention to apply for bail, and less clear whether bail would be granted.

3. This judgment deals only with the making of the interim orders that will operate only when the applicant is released from custody. Whilst the head sentence for the index offences is due to expire on 19 August 2026, his date of release is not able to be identified given he is currently bail refused for alleged offending in June 2026, and his parole has been revoked.

4. That circumstance raises a concern as to whether useful psychiatric/psychological examinations and assessments can be conducted under s 7(4) of the Act when the defendant is entitled to not discuss the recent charges which are yet to be determined and are relevant to risk assessment because they involve allegations of violence against his domestic partner: assault occasioning actual bodily harm. It is also alleged that two days later, on 16 June 2026, the defendant committed further offences against his domestic partner corresponding to serious charges of take / detain person in company and aggravated break and enter. I emphasise that these are allegations only, but the defendant is entitled not to answer questions about them and this may stymie key aspects of the examinations.

5. For the reasons that follow, I have decided to impose an ISO with agreed notations to manage the above issue.

The hearing and evidence

6. Mr McGorey appeared for the plaintiff and Mr Fogarty for the defendant. They cooperated on a suitable approach to orders that may accommodate these concerns. They also pursued a (welcome) cooperative approach in preparing Agreed Facts, making relevant concessions, and discussing potential modifications of the conditions that remained in issue.

7. In his written submissions, Mr Fogarty informed the Court that the defendant acknowledged that the criteria were met that would allow the Court to make an ISO, but that whether it should do so remains a matter for the Court. Mr Fogarty for cogent reasons also opposed the imposition of a number of the proposed conditions. I will deal with those arguments later in the judgment.

8. The plaintiff tendered an affidavit of Catherine Moore, solicitor, sworn 18 May 2026 together with a lengthy exhibit containing material responsive to the s 9(3) factors the Court must consider. There was a further affidavit of Ms Moore sworn 29 June 2026 which appended more recent Offender’s Information Management System (“OIMS”) notes, and the Court attendance notices regarding the alleged offending on 14 and 16 June 2026.

9. The defendant tendered an affidavit of Susannah Coles, solicitor, affirmed 16 July 2026 which attached some notes regarding recent engagement with Mt Druitt Community and notes of an interview by the ESO team at Parklea in October 2025.

Relevant legal test

10. To be satisfied that an ESO (and, initially, an ISO) should be imposed, the Court must be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision under the order: s 5B(d).

11. A serious violence offence is defined in s 5A as follows:

5A Definition of “serious violence offence”

(1) For the purposes of this Act, a serious violence offence is a serious indictable offence that is constituted by a person—

(a) engaging in conduct that causes the death of another person or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person, or

(a1) an offence under the Crimes Act 1900, section 37(1) or (2), or

(b) attempting to commit, or conspiring with or inciting another person to commit, an offence of a kind referred to in paragraph (a) or (a1).

(2) An offence that includes the elements referred to in subsection (1) (a) is a serious violence offence regardless of how those elements are expressed, and whether or not the offence includes other elements.

…

12. As observed by Button J in State of New South Wales v Lynn [2013] NSWSC 1147 (“Lynn”) at [16]:

“At its lowest, on analysis a serious violence offence could be an offence that features an act causing grievous bodily harm done with foresight of the possibility that actual bodily harm could occur. An example that springs to mind is punching someone to the face whilst realising that it is possible that the victim will receive a split lip and the victim, as a result of the punch, falling back and hits his or her head on concrete and suffering a very large laceration to his or her head. Clearly, the concept of a serious violence offence is not confined to offences of homicide, or even the intentional infliction of serious violence.”

13. The preliminary application is limited to an ISO of 28 days length. At this stage I am not engaged in the task of weighing the material contained in the evidence, or predicting the result of the plaintiff’s application at final hearing.

14. What I am required to do is to consider whether the facts and matters contained in the documentation tendered by the plaintiff, would, if proved, justify the making of an ISO.

15. The test is not a stringent one: see Lynn at [18] per Button J.

16. It is necessary to have regard to the objects of the Act - safety and protection of the community being paramount - and to give weight to risk avoidance: Attorney General for the State of New South Wales v Winters [2007] NSWSC 611 at [7].

17. Another object of the Act is to encourage high risk offenders to undertake rehabilitation: s 3(2).

Statutory considerations and the evidence tendered on the application

18. In deciding whether I am satisfied to the requisite standard that the defendant poses an unacceptable risk of committing another serious offence if not supervised, I must bear in mind the safety of the community as the paramount consideration: s 9(2) of the Act.

19. I must consider the evidence tendered addressing the matters set out in s 9(3) of the Act:

9 Determination of application for extended supervision order

…

(3) In determining whether or not to make an extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant—

(a) (Repealed)

(b) the reports received from the persons appointed under section 7(4) to conduct examinations of the offender, and the level of the offender’s participation in any such examination,

(c) the results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment,

(d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence,

(d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community,

(e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender’s participation in any such programs,

(e1) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time,

(e2) the likelihood that the offender will comply with the obligations of an extended supervision order,

(f) without limiting paragraph (e2), the level of the offender’s compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order,

(g) the level of the offender’s compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004,

(h) the offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history,

(h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender,

(i) any other information that is available as to the likelihood that the offender will commit a further serious offence.

20. At this stage material addressing a number of these matters has been made available in Ms Moore’s affidavits and the exhibit CM1.

Background, criminal history, outline of the index offending and remarks of the sentencing court: s 9(3)(h) and (h1)

21. The following summary set out at [22] to [58] has been taken from the Joint Statement of Agreed Facts helpfully prepared by the parties and signed 29 July 2026. The Court was greatly assisted by this document as a fair summary of essential matters.

Background

22. Fale Faasavalu was born in Samoa in August 1990 making him now 36 years old. He was raised by his grandmother in Samoa until her death in about 1998-1999 when he was about 7 years old. He left Samoa aged 7 and thereafter moved between Australia and New Zealand.

23. The defendant attended high school until year 10, and has reported holding employment in warehousing, security and steel fixing since.

24. The defendant has reported ongoing difficulties with anxiety and depressive symptoms. He has been prescribed antidepressant medication at times while in custody.

25. The defendant presents with significant difficulties with substance misuse, which has been a contributing factor in many of his past offences. He has continued to use substances while in the community on parole.

26. The defendant's immediate family are supportive of him and have offered accommodation while he has been on parole. He has been in an intimate relationship for approximately one year and does not have any children/dependants.

Criminal history

27. The index offences (committed in December 2018) giving rise to the application are:

(a) Take and detain and occasion actual bodily harm whilst in company contrary to s 86(3) of the Crimes Act 1900 (NSW); (b) Wound with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act; (c) Intentionally choke with recklessness contrary to s 37(1) of the Crimes Act; and (d) Assault occasioning actual bodily harm in company pursuant to s 59(2) of the Crimes Act.

28. Wound with intent to cause grievous bodily harm and intentionally choke a person with recklessness are "serious violence offences" pursuant to s 5A of the Act.

29. The index offending occurred on 19 December 2018 and involved the kidnapping and detention of a female victim for approximately 14 hours. The offending involved “multiple participants, torture, mutilation and humiliation of a high order” (Remarks on Sentence of Beckett DCJ). Multiple forms of violence were inflicted on the victim including punches, a blow to the head with a curtain rod, choking, and inflicting burns on her body with a blow torch.

30. The defendant was described by Beckett DCJ as the ringleader who was directly involved in the detention of the victim from start to finish and instigated the detention. His motivation in committing the offences was to terrorise, debase and humiliate the victim, to the point that she was frightened for herself and her family for the purpose of obtaining money owed.

31. Beckett DCJ did not find the defendant had the intention to permanently inflict injury upon the victim or to keep her beyond a period of time to make his point known, but found that there was clearly a belief that the victim would not report the matter to authorities as a result of her fear of the defendant and his associates.

32. On 1 April 2021, Beckett DCJ sentenced the defendant for the offences to an aggregate term of 7 years and 8 months imprisonment, commencing on 20 February 2018, with a non-parole period of 5 years.

33. The defendant was released to parole on 28 May 2024, but has returned to custody on two occasions for non-compliance with parole conditions. His last period in custody was between 7 October 2025 and 4 November 2025. The head sentence will expire on 19 August 2026.

Current status

34. The defendant was arrested on 16 June 2026 for the alleged offending outlined at [42] and [43] and was refused bail. It is understood that the defendant's parole has been revoked and he remains in custody at the time of this hearing on 30 July 2026. The pending charges are next listed for mention on 27 August 2026.

Earlier offending (prior to 2018 index offending)

(i) 2008: Assault occasioning actual bodily harm (H66479101)

35. At the time of this offence the defendant was 17 years and 11 months old. It was committed at 1:00am on 5 July 2008 in company as the victims were returning home from a licenced venue. The victims were not known to the offenders. The offences included punches to the head, and punches and kicks to the victims while they were on the ground. The offending continued in a Seven Eleven store. The defendant was arrested by police and noted to be intoxicated and aggressive to police. The defendant was sentenced to 6 months periodic detention and a 2 year Good Behaviour Bond (GBB) (s 9) with conditions to participate in anger management and alcohol relapse prevention programs.

(ii) 2008: Assault officer in execution of duty (H36161753)

36. At the time of this offence, the defendant was 18 years 2 months old. It was committed on 26 October 2008, the defendant was charged with assault police officer, resist police officer and escape police custody. This occurred during police attendance at a large brawl in Lethbridge Park. Police noted the defendant displayed signs of intoxication at the time of his arrest. The defendant was sentenced to a 2 year GBB (s 9) with conditions to participate in anger management and alcohol relapse prevention programs.

(iii) 2009: Assault with intent to rob in company (H36458048)

37. The defendant approached an unknown male at a train station and demanded money. The victim called out to transit officers who chased the offenders away. The defendant was sentenced by Hock DCJ to 2 years and 8 months imprisonment (ending 15 March 2012) with a 1 year 4 month non parole period (ending 15 November 2010).

(iv) 2011: Assault occasioning actual bodily harm (H182447594)

38. While on parole for the above offence, the defendant assaulted a male acquaintance who attended the defendant’s family home asking to speak to his sister. The assault included multiple blows to the victim’s head including a punch that broke the victim’s teeth. The defendant was sentenced to 12 months imprisonment from 10 March 2011 to 9 March 2012, with a non-parole period of 9 months (ending 9 December 2011).

(v) 2013: Aggravated robbery (H53121423)

39. The defendant committed an aggravated robbery on a taxi driver at North St Mary’s train station in the company of another. The victim was punched and kicked multiple times while on the ground and the defendant stole his money during the assault. The Court reduced his sentence by about 25% to reflect the utility of his guilty plea. The Court concluded that the defendant was genuinely remorseful. The Court considered this offence to be an example of an ongoing pattern of violent offending behaviour but nevertheless assessed the defendant's prospects for rehabilitation as reasonable. The defendant was sentenced to 3 years and 9 months imprisonment from 29 July 2014 to 28 April 2018 with a 2 year non-parole period ending 28 July 2016 following a finding of special circumstances.

(vi) 2013: Assault occasioning actual bodily harm (H53659962)

40. The defendant swung a metal pole at a co-worker, motivated by a grievance towards the victim, striking the victim’s hand and punched him multiple times in the head. The defendant was sentenced to 15 months imprisonment from 29 January 2014 to 28 April 2015 with a 12 month non-parole period ending 27 January 2015.

(vii) 2020: Use offensive weapon with intent to commit indictable offence (H76222420)

41. The defendant was involved in an incident while incarcerated at Parklea Correctional Centre involving the use of various items as weapons. The defendant was sentenced to an aggregate term of imprisonment of 22 months from 20 December 2022 to 19 October 2024 with a non-parole period of 15 months (ending on 19 March 2024).

(viii) Alleged recent offending

42. 2026: Assault occasioning actual bodily harm (DV) (H103948112). On 14 June 2026 the defendant is alleged to have assaulted his ex-partner by grabbing and dragging her by the hair. The alleged complainant kicked the defendant and ran away to hide in the bushes outside. She observed the defendant yelling her name on the street. Police noted that the victim had red marks on the side of her face, bruising on her face and under her eye and swelling to her nose. She told police she felt dizzy and her head was sore. This matter is currently unproven and is pending before the Local Court.

43. 2026: Take / detain person in company with intent to obtain advantage (DV); aggravated break and enter with intent (H678203491). On 16 June 2026, at around 4:45am, the defendant and two co-accused attended an address of an associate where the alleged complainant was staying. Two of the co-accused were holding swords. The alleged complainant was hiding in a wardrobe when one co-accused dragged her out by the hair and began hitting her. The defendant is alleged to have grabbed her by the shirt and, while armed with a machete, dragged her into the yard and told her to get into the car. The alleged complainant went with him in fear of being assaulted. The defendant drove to other addresses but was located by police and arrested later in the day. The defendant attempted to run from police. The alleged complainant told police she thought she was going to die. The defendant refused to participate in an interview. This matter is currently unproven and is pending before the Local Court.

Psychiatric and psychological assessments of risk: s 9(3)(c) and (d)

44. The following summary of the psychiatric and psychological assessments is taken from the Joint Statement of Agreed Facts. I accept this as an appropriate and relevant summary of those assessments.

45. On 9 March 2026, Samuel Ardasinski, Senior Psychologist, Corrective Services NSW prepared a Risk Assessment Report (“RAR”) pursuant to s 6(3)(b) of the Act.

46. Mr Ardasinski assessed the defendant using the following risk assessment tools: (i) Violence Risk Appraisal Guide - Revised (“VRAG-R”): High risk of reoffending, in the 8th of 9 “bins” (with the 9th being the highest); (ii) Violence Risk Scale (“VRS”): Above average risk of reoffending; (iii) HCR-20: High level of effort to prevent further violence and (iv) SAPROF: low-moderate loading of protective factors.

47. Mr Ardasinski identified the following criminogenic needs/dynamic risk factors as being relevant to the defendant: (i) Violent attitudes: a belief that violence is a justifiable means to an end; (ii) Criminal associates (including family) and few, if any, prosocial peers; (iii) Substance abuse: polydrug use, with methamphetamine use daily; (iv) Relationship instability: with prior domestic abuse and poor capacity to deal with stress and (v) Institutionalisation and criminal identity: few generalisable life skills to manage in society without reliance on others to manage responsibilities.

48. Mr Ardasinski considered the view of the defendant’s VOTP therapist that the most likely risk scenario for future reoffending violently would involve a return to a similar, prior way of life, including associating with antisocial peers or relapsing into gambling. If he were confronted with a situation of interpersonal conflict, with perceived threats or insults to his family or himself he may resort to violence, noting pride and entitlement often contribute to his violence.

49. Mr Ardasinski identified, based on the SAPROF assessment, that the defendant’s main motivational and internal protective factors are his intelligence, coping, financial management, work and attitudes towards authorities. In the same assessment, external protective factors include his social network, intimate relationship, professional care, living circumstances and external control (i.e. parole).

50. Mr Ardasinski concludes that the totality of the evidence suggests the defendant falls within a high-risk category for violent reoffending.

51. Dr Sathish Dayalan, consultant forensic psychiatrist, conducted a psychiatric assessment of the defendant on 18 June 2011 at the request of Mt Druitt Local Court in relation to a charge of assault occasioning actual bodily harm.

52. Dr Dayalan opined that the defendant at that time did not suffer from any mental illness, developmental disability or mental health condition. Dr Dayalan stated that the defendant required monitoring of his mental state to determine the presence of any underlying functional psychiatric illness.

53. Dr Dayalan noted that the defendant would benefit from completing an alcohol rehabilitation program and engaging in psychological interventions to address poor impulse control and anger management.

54. Kathryn Wakely, forensic psychologist, prepared a report at the request of the defendant's solicitor in relation to his sentencing for the charge of aggravated robbery. Ms Wakely conducted an assessment of the defendant on 29 October 2014.

55. Ms Wakely conducted the following assessments: (a) Self Appraisal Questionnaire (SAQ): the defendant's score placed him in the high-moderate range for risk of general or violent reoffending; and (b) Severity of Dependence Scale (SOS): relating to substance dependence. His results indicated that he exceeded the diagnostic threshold required for psychological dependence/compulsive use during this period of time.

56. Ms Wakely was of the opinion that the defendant had difficulties with anger and behavioural self-management; presented with a very immature disposition for his age; and presented as somewhat resistant to treatment. Ms Wakely concluded that the defendant required assistance in addressing his substance use and anger management, negative peer influence, and unhelpful/antisocial attitudes and beliefs.

57. Dr Stephen Allnut, forensic psychiatrist, prepared a report at the request of the defendant's solicitor in relation to offences which occurred in 2012. Dr Allnut conducted an assessment of the defendant on 13 March 2015. Dr Allnut was of the opinion that at the time of the offending behaviour, the defendant likely experienced a mood disturbance with associated psychotic symptoms induced by the use of methamphetamines, in remission since he was incarcerated and ceased using methamphetamines. Dr Allnut also described symptoms that could be consistent with attention deficit hyperactivity disorder but was unable to rule out mild hypomania as a residual symptom of methamphetamine abuse. Otherwise, Dr Allnut concluded that the defendant did not manifest any major medical problems. Dr Allnut recommended that the defendant seek further psychiatric assessment and monitoring for diagnostic clarity, and was also unable to rule out underlying bipolar affective disorder. It was noted that the defendant would benefit from engaging in drug and alcohol rehabilitation and must abstain from the use of substances absolutely.

58. Kris North, forensic psychologist, prepared a report at the request of the defendant's solicitor in relation to his sentencing for the index offences. Ms North assessed the defendant by way of audio-visual link (“AVL”) on 8 February 2021. Ms North noted that the defendant appeared to have difficulties in managing anger and aggression, was easily provoked and lacked alternative coping skills. His tendency towards aggression seemed to be reinforced with associations and exacerbated by substance use. Ms North was of the opinion that the defendant satisfied the diagnostic criteria for stimulant use disorder (amphetamine type substances, moderate, in sustained remission in a controlled environment) and sedative, hypnotic or anxiolytic use disorder (moderate, in sustained remission, in a controlled environment). Ms North recommended that the defendant participate in substance abuse treatment including drug and alcohol counselling, and treatment to manage anger and aggression more effectively. She also recommended that on his release from custody, the defendant be supervised by Community Corrections to ensure he is engaging in treatment and provide ongoing risk management, support and supervision in the community.

Likelihood of compliance with an ESO; prior compliance with obligations of parole: s 9(3)(e2)(f)

59. Within the Agreed Facts are events extracted from the OIMS notes relevant to the question of management in the community and potentially relevant to conditions of supervision that I should impose. Whilst there is a series of entries from 2010 and 2011 that demonstrated, among other things, an immature and belligerent attitude (calling one staff member “a fat cunt” and threatening another), he was 21 years old at the time, and these matters are sufficiently in the past to be of more limited direct relevance now, although they are not irrelevant.

60. Of more relevance are the 2025 and 2026 entries and what they show about the defendant currently.

61. On 19 June 2025, the defendant failed to attend a psychology session and Community Corrections were unable to contact him.

62. On 22 October 2025, the ESO team conducted an interview with the defendant at Parklea Correctional Centre via AVL. The defendant stated he intended to reside with his parents in the community. Discussed history of absconding from parole. The defendant stated programs were bringing up bad memories for him and that he thought that they were doing him more harm than good. As such he decided to disengage with supervision. In relation to drug use, the defendant stated it was controlled and not excessive, stating that regular use for him was using cocaine on the weekends after work and ice if available. Irregular use for him was using Xanax and/or Valium which would lead to blackouts and irrational behaviour. The defendant stated that if he consumed too much cocaine or ice on the weekend, he would use Valium or Xanax to fall asleep but reported experiencing adverse reactions.

63. On 31 October 2025, the defendant stated that while on parole he was struggling with group environments and was willing to engage in programs but did not feel comfortable in a group environment. He said that he lied to his ex-partner and family about attending parole appointments and would instead go to the pub and play the pokies for a few hours. He disclosed that he was seeing a psychologist and that he wants to return to doing this. He also disclosed weekend cocaine use and regular ice use. He was interested in commencing the bupe program.

64. On 7 November 2025, the defendant attended an interview at the Mt Druitt Community Corrections office. The defendant’s order was printed and explained to him, including additional conditions. CCO advised that the State Parole Authority (“SPA”) judge told him if he failed to report or engage this time around, he would not be released next time, which the defendant acknowledged. The defendant informed the CCO that he has no current contacts with Outlaw Motorcycle Gangs (“OMCG”) and Outlaw Criminal Network (“OCN”) contacts. In relation to Outkast, the defendant advised that he has not been associated with Outkast since his younger days.

65. On 12 November 2025 in an Internal Case Discussion, the Pacific Islander Community Engagement Officer (“PICECO”) was informed that the defendant expressed that he would like to re-engage with her. She was happy to reconnect.

66. On 9 April 2025, Community Corrections considered the defendant’s illicit substance use and agreed that no breach report would be submitted as he recently commenced engagement with Odyssey House for AOD (alcohol and drugs) assessment and treatment. The note states that if the defendant fails to stay engaged then breach action would be revisited.

67. On 4 May 2026 during a telephone contact with Mt Druitt Community Corrections, the defendant engaged well and communicated respectfully. He expressed disappointment that his current supervising officer would no longer be supervising him and stated that he had not realised he would be fitted with Electronic Monitoring (“EM”). He reported feeling: “pretty shit” about the situation. The defendant acknowledged that he had “dropped the ball” in relation to his compliance and expressed a desire to do better. He further stated that he does not want to return to custody. The DSO encouraged him to look at it in a positive light, and he could use it to his advantage to stay on track and stay out of custody. The DSO stated that due to his failure to report and disengagement with Odyssey House he did not do himself any favours and that he must reduce his alcohol and drug use. The defendant agreed to do so.

68. On 13 May 2026, Community Corrections conducted a home visit at the defendant’s partner's residence. The defendant admitted to smoking ice and heroin recently and was “coming down” at the interview. Officers explained the implications of drug use if an ESO is imposed and suggested detox/ rehabilitation to give him the best opportunity when the ESO commences. The defendant admitted that he was in two minds about intervention and part of him did not want to cease use. He also said that he was not concerned about returning to custody.

69. On 20 May 2026, Community Corrections attended one of the defendant’s nominated addresses for an interview and drug test. Discussed detox and rehabilitation options. The author noted that the defendant did not appear overly interested but indicated he would call. The defendant disclosed smoking ice that morning, as his friend asked him to clean the apartment and he “wanted to get it done quicker”. The defendant stated that he had a 24 hour blackout which was the longest blackout he ever experienced.

70. On 25 May 2026, Community Corrections attended one of the defendant’s nominated addresses. The defendant disclosed using heroin the night prior and that his friend had contacted an AOD service on his behalf called Marinjewaly. The defendant told officers that his electronic monitoring strap had become tight and showed them. His legs looked quite swollen, and a red rash had appeared where the strap was. It was agreed it was too tight and made plans to change the strap. The ESO team noted that they would attempt a larger strap size as a matter of priority.

71. On 5 June 2026, the defendant made a call to Community Corrections and expressed concern as to why he had to report to Penrith Community Corrections. The officer explained the difficulty in making contact with him over the past week. The defendant appeared to have significant apprehension about attending. He apologised and agreed to attend Penrith Community Corrections at 10:30am. The officer advised that his recent drug test returned a positive result for illicit substance use and he would be issued with a formal warning. The defendant appeared to accept that information with no evident concerns and he asked if he could bring a support person with him. Later in the day, the defendant attended Penrith Community Corrections. Attempts were made to address ongoing drug use. The defendant admitted he lacked the resolve to cease using illicit substances. A formal warning was issued in relation to the positive drug test along with a direction to attend a drug and alcohol assessment.

72. On 14 June 2026, an Electronic Monitoring officer made a phone call to Penrith Police to advise that the defendant had forcibly removed his ankle monitor. Later that day, police called to advise the defendant was wanted for DV offences occurring around 6:00pm.

73. On 15 June 2026, an internal meeting regarding the defendant’s forcible removal of electronic monitoring tag and unknown whereabouts. Risk factors identified as aggression violence, drugs and companions, as well as those identified in the Risk Assessment Report being violent attitudes, criminal associates, substance abuse, relationship instability, and institutionalisation/ criminal identity. Recommended to submit breach report to the State Parole Authority recommending revocation of parole.

Programs in which the defendant has participated: s 9(3)(e)

74. The following is taken from the Agreed Facts. The defendant has participated and completed the Violent Offender Therapeutic Program (“VOTP”); the defendant completing the VOTP in September 2017. It was noted that the defendant's motivation to participate fluctuated throughout. Initially he presented as motivated and open to engage and completed his first presentation well. However he struggled with motivation and attendance., expressing experiencing a high degree of anxiety, including panic attacks regarding presenting personal life details because reflecting on his offending behaviour made him feel like a failure. He displayed rigidity in thinking and difficulty shifting cognitive distortions and violent attitudes, displaying many pro-violence attitudes even at the end of treatment. Using the Violence Risk Scale (“VRS”) prior to treatment he scored within the “high” risk range for reoffending. Following treatment, his score was slightly improved but still fell within the "high" risk range.

75. The defendant also completed the following High Intensity Program Units (“HIPUs”): CONNECT (completed 20 November 2013); EQUIPS Foundation (completed 5 January 2024); EQUIPS Aggression (completed 26 February 2024); and EQUIPS Addiction (completed 29 May 2024).

76. The index offences were committed 15 months after the defendant completed the VOTP. His engagement with the program is considered to have been "superficial" with a high number of outstanding treatment needs.

Other information available as to the likelihood the defendant will commit a further serious offence: s 9(3)(i)

Fighting and offences in custody

77. Although not part of the Agreed Facts and comprising uncharged matters, there are entries in the OIMS records highlighted by Mr McGorey in his written submissions and chronology (added to MFI 1) as relevant to the risk of committing a further serious offence because of the behaviour identified, that it was with others, or was evidence of an attitude that the defendant intended to maintain criminal associations.

78. Between admission to custody on 21 December 2018 and July 2020, it is asserted there are nine incidents of assault, threatening and stand-over behaviour which led to a warning about being referred to the Extreme Threat Inmate Management Committee. There was then the November 2020 offending: see [41]. In November 2021, there is reference to four more incidents of fights and assaults between November 2020 and August 2021.

79. In March 2023 there is reference to a pre-release report for possible ongoing loyalty to the “Outkast” – an organised crime network and the Rebels, an outlaw motorcycle gang, on the basis that some of those people are family and he “cannot turn his back on family”. A December 2023 pre-release report refers to a total picture of 22 misconduct charges for assault, intimidation and fighting and that aggressive and abusive behaviour to staff continued.

Statutory pre-conditions are agreed

80. The parties have (appropriately) agreed that all statutory pre-conditions to the making of the ESO sought have been satisfied, other than the “unacceptable risk” pre-condition in s 5B(d) of the Act which is correctly identified as a matter for the Court. It is accordingly agreed that:

(a) the defendant is an "offender" as defined in s 4A; (b) the defendant has previously served a sentence of imprisonment for a serious offence for the purposes of s 5B(a); (c) the defendant is a "supervised offender'' within the meaning of s 5I; and (d) the application for the order is made in accordance with ss 5I and 13B.

Section 5B(d) finding

81. Having considered the evidence, I am satisfied to a high degree of probability that the defendant does pose an unacceptable risk of committing a serious violence offence if not kept under supervision and that an interim supervision order should be imposed.

Principles regarding the imposition of conditions

82. Section 11 of the Act empowers the Court to impose conditions that it determines are appropriate, and contains an illustrative list of the types of conditions that might be imposed.

83. The conditions that are imposed must be stringent and reasonably specific to reducing the particular risks of reoffending in the community: State of New South Wales v BG (Final) [2019] NSWSC 200 per Fagan J at [39]; State of New South Wales v Sturgeon (No. 2) [2019] NSWSC 883 per Garling J at [103].

84. Yehia J in State of New South Wales v Keech [2024] NSWSC 408 at [45] helpfully outlined the principles to be considered when assessing what conditions should be imposed:

“[45] …A summary of the principles regarding the imposition of conditions attaching to a supervision order are helpfully summarised in the defendant’s written submissions (at [30]) and are extracted below:

(i) Having served their sentence, an offender has a right to personal liberty, although this right is not absolute: State of NSW v Donovan [2015] NSWSC 1254 at [83].

(ii) In imposing conditions, the Court needs to strike a balance between competing considerations to provide an outcome which is fit and proper: State of NSW v Ali [2010] NSWSC 1045 at [88]; State of New South Wales v Fisk [2013] NSWSC 364 at [96].

(iii) It is relevant that a breach gives rise to criminal penalty of up to 5 years imprisonment, which supports the position that a proper basis must be shown to warrant the imposition of each condition: Wilde v State of New South Wales [2015] NSWCA 28 at [48].

(iv) A link to past offending is not necessary, but conditions should address the risk of future offending based on the scope, purpose and objects of the Act.

(v) Conditions should focus on mitigating the risk of a “serious offence”, and not on reoffending generally: State of New South Wales v Green (Final) [2013] NSWSC 1003 at [36]-[38].

(vi) Conditions must not be unjustifiably onerous, punitive, paternalistic, in the “general” public interest, or for the convenience or efficiency of those supervising the offender: State of New South Wales v Bugmy [2017] NSWSC 855 at [89].

(vii) An identifiable and substantive purpose is required for each condition. Speculation that it will be useful will not suffice: State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36].

(viii) Conditions imposed ought to be the least intrusive conditions that are still consistent with the objects and purpose of the Act: Lynn v State of New South Wales [2016] NSWCA 57 at [129]-[131].”

85. As I observed in State of N**ew S**outh W**ales v Tabbah (Prelim**inary) [2025] NSWSC 56 at [31] and [32], the interaction of conditions and the resulting regime of supervision must be part of the consideration made by the Court:

“[31] Whilst there is no express limit on the conditions that may be made, the focus must be on conditions that are appropriate for achieving the purposes of the Act. As stated by Basten JA in Lynn v State of New South Wales [2016] NSWCA 57 at [129], the Court “will seek to impose the least intrusive conditions consistent with its assessment of the risk and a further assessment as to what kinds of conditions are likely to be effective”.

[32] I entirely agree with the remarks of Basten JA. A formulaic approach is not appropriate. To impose every available or conceivable condition, without properly considering their efficacy and appropriateness to address risk in the context of a particular offender’s situation, is not what the Act requires. The task requires an assessment of the interaction of conditions with each other, with attention paid to the role of a particular condition when considered as part of the whole regime of supervision. Imposing conditions that have the effect of criminalising minor behavioural matters is unfair and setting up an offender to fail. It does little, if anything, to “ensure the safety and protection of the community” in any real sense, and can be actively discouraging of efforts at rehabilitation by offenders.”

86. Whilst encouragement to undertake rehabilitation is referred to in s 3(2) as “another” object of the Act, it is one that should not be ignored or marginalised to such an extent that it has no role at all. To that extent, the package of conditions of supervision need to have a role in reducing risk of serious offences primarily, as well as encouraging rehabilitation.

87. I have borne in mind all of the principles outlined above when making the following determinations regarding the conditions in issue. I have also borne in mind the thoughtful and evolved arguments made by counsel for and against the State’s proposed conditions, and the modifications to them proposed by counsel.

The contested conditions

Condition 4: Threatening, intimidating and abusive behaviour

88. The State contended for a condition in this form:

“You must not engage in any threatening, intimidating or abusive behaviour towards CSNSW or electronic monitoring staff involved in your supervision that would cause the staff member to fear for their safety and/or interfere with or impede supervision.”

89. The defendant submitted that the condition is unnecessary given s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) prohibits such conduct, and requires an additional element of intention which can be inferred “if he or she knows that the conduct is likely to cause fear in the other person”: (s 13(3)). A breach of s 13 can attract a maximum penalty of 5 years’ imprisonment. Mr Fogarty argued that the defendant could be subject to a term of imprisonment of up to 5 years on the basis of breach of an ESO condition that does not require any actual intent to abuse, threaten or intimidate.

90. The State pressed for the condition as drafted on the basis that officers vested with the responsibility for supervision should not be subjected to threatening, intimidating or abusive behaviour. It was submitted this kind of behaviour interferes with supervision.

91. I have a concern that the term “abusive” is very subjective and will not impose a condition which refers to that type of behaviour because it is inadequately defined. I note that “threatening” or “intimidating” conduct is at least more objectively identifiable.

92. There has been concern expressed in the authorities about conditions of this kind. Fagan J stated that a condition in the form sought by the State, (which included the term “abusive”) created an offence with a potential 5 year penalty (s 12 of the Act) that would not constitute an offence for any other citizen: State of New South Wales v KW (Preliminary) [2023] NSWSC 397 at [14].

93. I agree with Fagan J that a condition of that kind creates an unfairness if not appropriately circumscribed. The other point to consider however is that other citizens are not mandatorily engaged with supervision by a DSO and so a DSO does not have freedom to move away from, or refuse to engage with the person threatening them. Persons providing supervision do not have that option. The inter-relationship is different. Threats and intimidation in particular, can be used to avoid cooperating with supervision.

94. There have been cases where a condition in the form the Crown seeks was imposed: McGuire J in State of New South Wales v Azar (Final) [2025] NSWSC 1420 (in light of past abusive, derogatory and threatening behaviour: [197]); McNaughton J in State of New South Wales v Craig (Preliminary) [2026] NSWSC 8 (beneficial because it helps to bring clarity to what behaviour is expected and will facilitate how other directions and/or conditions may be enforced under the ISO: [55]), and Beech-Jones CJ at CL in State of New South Wales v Keir [2022] NSWSC 627 (likely to have an educative effect and enhance enforcement: [30]).

95. I have determined that a condition in the form proposed by the Crown, removing the word “abusive”, is appropriate and will be imposed. I accept the submission that making this a requirement of his ISO is likely to have an educative effect and will assist the defendant in understanding, with a level of immediacy, what response to supervision will be tolerated and what will not.

Condition 11: Curfew / DSO can direct when you must be at home

96. The State initially proposed:

“If directed, you must be at your approved address between certain times of the day as those times are identified by your DSO.”

97. This was modified to:

“You must be at your approved address between 9:00pm and 6:00am unless other arrangements are approved by a DSO.”

98. Mr Fogarty sought this addition to the above wording:

“When determining the approved times, the DSO must take into account and give priority to any job, volunteer work, educational course or job interview you have.”

99. The Crown maintained its objection to the proposed addition. I am not persuaded the addition is appropriate. It tends to introduce uncertainty and opens the way for evaluative arguments between the defendant and a DSO and so I impose the condition in the form sought by the State set out at [97]. The condition is focused on a night-time curfew. There is no suggestion that the defendant wishes to engage in work or courses that would take place between 9:00pm and 6:00am.

Condition 20: Must not start or change job, volunteer work or education without prior approval

100. The State proposed a condition in these terms:

“You must not start or change any job, volunteer work or educational course without the approval of a DSO.”

101. The defendant argued that a condition in that form did not adequately allow for the type of work the defendant has done in the past and is likely to do, that is casual labouring on building sites as needed. It was argued that he needed to be able to agree to jobs fairly immediately, or the labour offered to him would be sought elsewhere, and so it is reasonable, and pro-rehabilitation for the defendant to be able to take the job and notify a DSO later.

102. The State argued that there was a concern that offending had occurred at work sites where there had been a clash of some kind, and a DSO should be able to vet the proposed work site.

103. I am not satisfied that the condition the State seeks is necessary or appropriate or has any role in reducing the risk of serious offences. It is also unrealistic, given the nature of casual labour on work sites. The form sought by the defendant is appropriate, but with a change to notification to the DSO within 24 hours, rather than 48 hours.

Condition 21: Financial information to DSO on request

104. The State proposed:

“You must provide any information relating to your financial affairs, including income and expenditure, if directed by a DSO.”

105. The State argued the condition focused on the alerting of a DSO to expenditure on drug misuse, and that money is being spent in a pro-social fashion.

106. The defendant argued that this condition does not mitigate the defendant’s particular risk of committing a serious offence, is unjustifiable, onerous, punitive, paternalistic and arbitrary, focused only on the convenience of DSOs and has no substantive purpose.

107. Given the potential role of drug risk and associated disinhibition, and so potential serious offending as well as the mixing with criminal elements to purchase drugs, I consider the condition in the form sought by the State to be appropriate and it will be imposed. It is one relatively less invasive way of checking on possible diversion of funds to drug purchases.

Condition 25: No entry to licensed premises without prior DSO approval

108. The State proposed:

“You must not enter any licensed premises (including hotels, bars, racecourses and licenced clubs, but excluding cafes and restaurants) without the prior approval of a DSO.”

109. The defendant argued that this condition is unduly limiting of normal social life, which is an important part of reintegrating into the community.

110. The State argued that such locations may prove high to be a risk setting for potential offending scenarios. Some of the defendant’s prior offences of violence have occurred whilst intoxicated or near licenced venues.

111. I am not satisfied the condition should be imposed. The defendant is not permitted to drink alcohol or take drugs. I am not satisfied the proscribed venues had any role at all in past offending. It is too socially restrictive if he cannot socialise in any places where people drink alcohol.

Condition 28(a): Non-association with any person known to be under the influence of or consuming alcohol

112. The State proposed:

“Without limiting condition 27, you must not associate with any person:

(a) who you know is consuming or under the influence of alcohol without the prior approval of a DSO;”

113. The defendant argued that this was unworkable and impractical in terms of alcohol use, given its ubiquitous presence in social situations. He has no objection to the other parts of the non-association conditions that prevent him from being with persons he knows are consuming drugs, and the general prohibition set out in condition 27 which allows a DSO to tell him which persons he must not associate with.

114. I accept the defendant’s submissions. I consider condition 28(a) to be overreach, unnecessary and impractical.

Condition 29: Disclosure of criminal history

115. The State proposed:

“You must agree to a DSO disclosing your criminal history to another person. Before any disclosure is made, you will first be given the opportunity to make the disclosure yourself within a timeframe as identified by a DSO.”

116. The defendant objected to the imposition of a condition in that form, proposing the disclosure be limited to “a person you have an ongoing personal relationship with or intimate partner” and that the DSO “must record written reasons why they propose to disclose your criminal history to a particular person and your response to that proposal, if any”.

117. I consider the State’s form of condition overly paternalistic and contrary to rehabilitation efforts if the criminal history is shared with potential employers, for example. The version sought by the defendant will be imposed, with some minor change to the wording to add to the notation required, the need to also specify the timeframe that was given to the defendant to disclose.

Conditions 35 to 42: Access to internet and electronic communication

118. The State proposed the following package of conditions:

“35. You must obey any reasonable direction by a DSO about the use of electronic devices and access to the internet.

36. You must disclose the following information to a DSO if directed:

a. Aliases, electronic identities and log-in names;

b. Email addresses;

c. Telephone numbers;

d. SIM cards;

e. Applications used (including any social networking service);

f. Online gaming services;

g. Instant messaging services;

h. Service provider account numbers; and

i. All passwords and log-in details.

37. You must not use any of the following unless approved by a DSO:

a. Social networking applications or services (including dating services or applications);

b. Encrypted messaging applications or services;

c. Online gaming applications or services;

d. Instant messaging applications or services.

38. You must give a DSO a list of the electronic devices you use to communicate with or access the internet. This includes computers, phones, tablet devices, data storage devices and gaming devices. You must advise a DSO of any change to the list immediately.

39. You must only use an electronic device to access the internet after the device has been disclosed to a DSO and the device has been seen and approved for use by a DSO.

40. You must provide consent for a DSO (or any other person requested by a DSO) to remotely inspect any internet account used by you, including any internet service provider account, email accounts and social media accounts, in monitoring compliance with this Order.

41. You must not delete or alter any of the following from your electronic devices without prior approval of a DSO:

a. Applications;

b. Emails;

c. Text messages;

d. Electronic messages;

e. Call history;

f. Files or documents;

g. Photographs, images and videos; or

h. Internet or application usage and search history.

42. You must provide consent for your telephone provider and internet service provider to share information about your accounts with a DSO.”

119. The defendant argued that these conditions are irrelevant to risk and overly paternalistic and invasive. I agree. I am not persuaded that the remote prospect of a possible serious crime scenario developing will be recorded electronically such as to justify these conditions. The defendant’s offending and serious violence risk tends to arise in face to face situations, unlikely to be pre-discussed in texts or emails. I decline to impose any of these conditions. I note that I have imposed the financial disclosure condition to supervise financial matters as a method of checking for expenditure on drugs.

Condition 56: Disclosure of criminal history to “any health care professional”

120. The State initially proposed:

“You must agree to the disclosure of your criminal history to any healthcare professionals that are treating you.”

121. The defendant opposed the condition as overly invasive, unnecessary and potentially contrary to rehabilitation.

122. The State modified the condition proposed, limiting it to:

“… mental health care professionals or counsellors treating you with respect to risk of violent offending or drug and alcohol use.”

123. The modified condition sought by the State should be imposed. For the mental health and drug and alcohol treatment and counselling to be relevantly directed, it is in my view necessary that the treaters understand the offending background. Given the context of such treatment, it is both protective of the community and helpful to rehabilitation prospects that those treating professionals have the complete picture.

Orders

124. I make the following orders:

125. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW):

(a) Appointing two qualified psychiatrists or two registered psychologists, or a combination of both, to conduct separate psychiatric and/or psychological 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 (b) Directing the defendant to attend those examinations.

2. An order:

(a) Pursuant to s 10A of the Crimes (High Risk Offenders) Act 2006 (NSW), that the defendant be subject to an interim supervision order from 19 August 2026 (“the ISO”); (b) Pursuant to s 10C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), that the ISO be for a period of 28 days; and (c) Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), directing that the defendant, for the period of the ISO, comply with the conditions set out in the Schedule to this judgment.

3. The plaintiff agrees to not enforce the examination order made under s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW), without first providing notice to the Court at a future callover or directions hearing.
4. The plaintiff reserves its right at a future callover or directions hearing to enforce the examination order within a reasonable timeframe, taking into account whether the defendant is released from custody (at the expiration of his sentence or on bail) and the limitation on extending ISOs in s 10C(2) of the Crimes (High Risk Offenders) Act 2006 (NSW).
5. The defendant agrees to notify the plaintiff within 7 days after a bail application is successfully made.
6. The plaintiff has liberty to seek relisting of the matter for callover or directions hearing within 72 hours reasonable notice for the purpose of updating the Court of any release to bail, the commencement of the operation of the ISO and the status of the examination order.
7. The matter is otherwise stood over for directions on 29 October 2026.

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State of New South Wales v Faasavalu - Conditions (197 KB, pdf)