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[2026] NSWSC 301
Supreme Court of NSW
2026-03-31
Roberts J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation:
Hearing dates: 25 March 2026
Date of orders: 31 March 2026
Decision date: 31 March 2026
Jurisdiction: Common Law
Before: Roberts J
Decision: (1) An order pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW):
(a) Appointing two qualified psychiatrists or registered psychologists (or any combination of the two) 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 section 10A of the Crimes (High Risk Offenders) Act 2006 (NSW) that the defendant be subject to an interim supervision order from 23 April 2026;
(b) pursuant to section 10C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) that order (2)(a) be for a period of 28 days; and
(c) pursuant to section 11 of the Crimes (High Risk Offenders) Act 2006 (NSW) directing the defendant, for the period of the interim supervision order, to comply with the conditions set out in the attached Schedule.
Catchwords: HIGH RISK OFFENDER – preliminary hearing – serious sexual offences – existing extended supervision order due to expire – application for interim supervision order – where defendant did not appear – whether the Court can determine the matter in the defendant’s absence – where defendant had due notice of the proceedings – where the defendant expressed an intention not to participate – significant and complex mental health conditions – lack of insight into the relationship between defendant’s mental health and risk of reoffending – defendant has not engaged with treatment or interventions during period of existing supervision order – well above average risk of reoffending – orders made
Legislation Cited: Civil Procedure Act 2005 (NSW), Pt 6
Crimes (High Risk Offenders) Act 2006 (NSW), ss 7(4), 9, 10A, 10C(1), 11, 17(2), 21
Uniform Civil Procedure Rules 2005 (NSW), r 29.7
Cases Cited: Attorney-General for New South Wales v Tillman [2007] NSWCA 119
Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 340
Cornwall v State of NSW [2007] NSWCA 374
Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230
Manna v State of NSW (No 2) [2021] NSWSC 1384
Monteiro v State of NSW [2025] NSWSC 439
Re Association of Architects of Australia; ex parte Municipal Officers Association of Australia [1989] HCA 13; 63 ALJR 298
State of New South Wales v Farzad (also known as Arthur Fairwell) (Final) [2024] NSWSC 265
State of New South Wales v Farzad (Preliminary) [2023] NSWSC 1207
State of NSW v Dunn (a pseudonym) [2018] NSWSC 1008
State of NSW v Guider (No 3) [2020] NSWSC 209
State of NSW v Manners [2008] NSWSC 1242
State of NSW v Thomas (Preliminary) [2011] NSWSC 118
Sullivan v Department of Transport (1978) 20 ALR 323
United Group Resources Pty Ltd v Calabro (No 5) [2011] FCA 1408; 198 FCR 514
Category: Principal judgment
Parties: State of New South Wales (Plaintiff)
Arash Farzad (Defendant)
Representation: Counsel:
M Dalla-Pozza (Plaintiff)
No appearance (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
No appearance (Defendant)
File Number(s): 2025/00493648
The defendant is the subject of an extended supervision order (“ESO”) imposed on 15 March 2024 by Hamill J pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). [1] That order will expire on 23 April 2026. By summons filed 19 December 2025, the plaintiff seeks an order that the defendant be subject to an ESO for a further period of two years pursuant to ss 5B and 9(1)(a) of the Act.
At this preliminary stage, the plaintiff seeks interim orders as follows:
(1) An order pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 (“the Act”):
(a) Appointing two qualified psychiatrists or registered psychologists (or any combination of the two) 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 Act, that the defendant be subject to an interim supervision order from 23 April 2026 (“the interim supervision order”);
(b) pursuant to s 10C(1) of the Act, that the interim supervision order be for a period of 28 days; and
(c) pursuant to s 11 of the Act, directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule to this Summons.
21 Nature of Proceedings
Proceedings under this Act (including proceedings on an appeal under this Act) are civil proceedings and, to the extent to which this Act does not provide for their conduct, are to be conducted in accordance with the law (including the rules of evidence) relating to civil proceedings.
“[19] … if, in addition to appropriate punishment for crimes they have committed, persons are to have their liberty further restricted because of what they might do in the future, this requires justification outside the ordinary principles of criminal law, and outside the ordinary principle that interference with liberty is generally restricted to interference that is deserved by reason of actual criminal conduct. In passing the Act, the New South Wales legislature has determined that, for the protection of the public, there should in specific cases be restrictions of liberty on that basis.”
As set out above, the plaintiff ultimately seeks orders that the defendant be subject to an ESO for a further two years. Whilst the Court must approach the question of whether to make an order restricting the liberty of a person with “care” (Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 340 at [34]), s 17(2) of the Act provides that in determining whether to make an ESO, the “safety of the community must be the paramount consideration”. The legislation is protective and not punitive in its intent: Attorney-General for New South Wales v Tillman [2007] NSWCA 119 at [5]. However, a breach of an order may be punishable by a term of imprisonment. [4] Given the potential consequences not only of making the order sought, but of a breach of any conditions of the order, the Court should be well satisfied that it is in the interests of justice in all of the circumstances to hear the plaintiff’s application in the defendant’s absence.
Significantly, the present proceedings are preliminary in nature. They do not finally determine whether a further ESO should be made, but whether an interim order for 28 days should be imposed at the expiration of the defendant’s current ESO, to permit time for the defendant to be examined by court-appointed medical experts and for the matter to proceed to a final hearing. Section 10A of the Act empowers the Court to make such an order if it appears to the Court that the “matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order” (emphasis added). This test has been described as akin to a prima facie case test (State of NSW v Manners [2008] NSWSC 1242 at [8]) or as taking the plaintiff’s case at its highest (State of NSW v Dunn (a pseudonym) [2018] NSWSC 1008 at [44]). In the State of NSW v Thomas (Preliminary) [2011] NSWSC 118, RA Hulme J said at [11] “[t]he task of the Court at the preliminary hearing stage is not to weigh up the documentation, or predict the ultimate result, or to consider what evidence the defendant might call at the final hearing”. At preliminary proceedings, any disadvantage to the defendant which may arise from his non-participation is different from the position were that to be so at the final hearing.
The first question to be determined is whether the defendant has had adequate notice of the proceedings. In proceedings of this nature, this imports considerations of the defendant’s understanding of that notice and capacity to respond, in so far as those matters can be ascertained.
The plaintiff read four affidavits on the application to proceed in the defendant’s absence, from which the following summary is taken. [5]
Acting on the instructions of the Attorney-General, a solicitor from the NSW Crown Solicitors Office (“the CSO”) wrote to the defendant on 31 March 2025 notifying him that orders would be sought in relation to him under the Act. On 11 April 2025, Legal Aid NSW (“Legal Aid”) advised the CSO that the defendant had consented to the CSO contacting Legal Aid with respect to the matter. On 15 December 2025, the CSO advised both the defendant and Legal Aid of their instructions to commence an application seeking an ESO.
A summons was filed on 19 December 2025 and the matter listed for directions on 5 February 2026. The CSO wrote a letter to the defendant informing him of the summons and the directions listing. In January, the Department of Communities and Justice (“DCJ”) confirmed that the defendant had collected the letter. His departmental supervising officer (“DSO”), spoke to him about the availability of representation from Legal Aid. There is no evidence that the defendant contacted or instructed Legal Aid.
On 31 January 2026, notes record that officers visited the defendant and during the visit they “prompted” him to contact Legal Aid whilst he expressed reluctance to do so. On 3 February 2026, notes record a phone call in which the defendant said to his DSO that he did not wish to have Legal Aid representation, nor would he attend Court to represent himself.
On 5 February 2026 when the defendant was reminded that there was an AVL link to the directions hearing on that date, he told his DSO that he would not appear. The defendant was later advised that the directions hearing had been adjourned to 12 February 2026. Casenotes indicate that when the DSO asked the defendant on 11 February 2026 if he would be attending, he replied “No, I’ll give it a miss”.
The CSO again wrote a letter to the defendant on 12 February 2026, this time advising of the listing of a further directions hearing on 19 February 2026, and of the listing for preliminary hearing on 25 March 2026. Information was provided about the availability of free and confidential legal advice, and a means to contact Legal Aid NSW, as it had been in earlier correspondence. The letter included the following:
“At the Preliminary Hearing, the State will ask the court to make orders that you be subject to an Interim Supervision Order once your Extended Supervision Order expires on 23 April 2026. The State will also ask the court to make orders that you be assessed by two court-appointed experts and directed to attend appointments with the court-appointed psychiatrist/psychologist.
It is important that you or your legal representative attend the Preliminary Hearing on 25 March 2026 otherwise orders may be made in your absence.” (emphasis in original)
The defendant signed this letter acknowledging receipt. Case notes record conversations with the defendant in which his responses reflected an awareness of the upcoming court hearing, a recognition that it concerned his ESO, and a statement that he did not propose to attend the directions hearing of 19 February 2026, despite a reference by the DSO Ms Lobb to the fact that it was his “right” to attend, and her mention of the option for him to take up assistance from his National Disability Insurance Scheme (“NDIS”) support workers to do so.
The defendant was advised of the preliminary hearing date of 23 March 2026 again on 3 March 2026 by formal letter from the CSO. On 9 March 2026, the defendant was personally served, by process server, with the materials filed by the plaintiff in the matter. The defendant was further reminded by text message of the listed hearing date on 19 and 23 March 2026.
The defendant’s attitude to participation in the present proceedings may be affected by the mental health issues he is experiencing, which appear to include an overall state of low motivation. On occasions, he has expressed opinions to his DSO concerning his supervision conditions, for example, stating with respect to electronic monitoring that such conditions should only apply to “terrorists and gang members”. Insofar as can be gleaned from the notes, the defendant appears to understand that engagement with the court process will offer him the opportunity to raise complaints he may have about the supervision.
Also relevant to an assessment of the defendant is the fact that he actively participated in the 2024 proceedings before Hamill J through his legal representative. At that hearing, conducted at a time when the defendant was still in custody, the plaintiff sought a continuing detention order (“CDO”), and in the alternative, an ESO. The application for the CDO was successfully resisted. With respect to the State’s alternative case for an ESO, Hamill J observed that “the parties were in conflict over several conditions” (Farzad (Final) [2024] at [119]). As clearly emerges from his Honour’s reasons, the hearing extended across three days, and the defendant’s legal representative successfully opposed several of the initially proposed conditions and achieved amendments to others.
Taking all of these matters together, I am comfortably satisfied that the defendant has had adequate notice of the proceedings, that he understands the nature of the proceedings and the potential consequences of orders being made in his absence. With that knowledge, the defendant has chosen not to attend nor to instruct lawyers to appear on his behalf.
In so finding, I have not overlooked that the defendant’s mental health and personality pathology may be complicating his capacity to necessarily act in his own best interests. However, the defendant cannot be compelled to attend or to instruct Legal Aid to appear on his behalf. The rules of procedural fairness require that a party be given a reasonable opportunity to present his case, but do not impose upon the Court “the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled”: Sullivan v Department of Transport (1978) 20 ALR 323 at 343 (per Deane J); see also Re Association of Architects of Australia; ex parte Municipal Officers Association of Australia [1989] HCA 13; 63 ALJR 298 at [19] (per Gaudron J). The only alternative to continuing in the defendant’s absence would be to adjourn the proceedings. There is no evidence suggesting that an adjournment would lead to any different outcome with respect to the defendant’s participation; indeed, the evidence is to the contrary.
The defendant’s current ESO will expire on 23 April 2026. In the absence of an ISO, the defendant will no longer be subject to supervision. The State’s case is that in the absence of supervision, the defendant presents an unacceptable risk of committing a serious sexual offence. Considerations of community safety weigh strongly in favour of the State being entitled to have that case determined (one way or the other) before the expiry of the existing supervision orders.
In circumstances where the Court determines to proceed in the defendant’s absence, the Court must nevertheless investigate the merits of the matter: United Group Resources Pty Ltd v Calabro (No 5) [2011] FCA 1408; 198 FCR 514 at [44]. In the present case that means that the Court, having considered the material relied upon, must be satisfied of the statutory requirements for the making of the orders sought by the plaintiff, on the basis and to the standard required by the authorities.
For the reasons set out above, I find that it is in the interests of justice that the preliminary hearing proceed in the absence of the defendant. On 25 March 2026 I directed accordingly.
On the substantive application, the plaintiff read affidavits affirmed by Lucy Nicholls on 19 December 2025 and on 9 March 2025. The bundle of documents annexed to the 19 December 2025 affidavit is marked LN-1. The Court was informed that the plaintiff intended only to rely upon selected materials from LN-1 in the preliminary hearing. In accordance with procedural directions made by Yehia J in these proceedings, a folder of those selected documents and an index identifying the documents has been provided to the Court and was admitted into evidence as a separate tender bundle.
The plaintiff provided written submissions dated 9 March 2026. Additionally, the Court heard short oral submissions principally responding to questions or matters of clarification.
As a broad overview, the plaintiff relies upon the same factors which Hamill J found in 2024 gave rise to an unacceptable risk and which his Honour held warranted the imposition of an ESO. The plaintiff asserts that those factors remain., In reliance upon those, alongside other factors addressed in the more recent material, the plaintiff submits that the defendant remains at an “unacceptable risk” of committing another “serious sex offence”. At this preliminary hearing the plaintiff seeks orders pursuant to s 7(4) of the Act for the appointment of experts, and an ISO pursuant to s 10A. The conditions that the plaintiff seeks be attached to the ISO are largely similar to the conditions to which the defendant is presently subject.
The background material records that the defendant was born in Iran, and first emigrated to the Unites States of America with his parents at approximately one year of age. He later emigrated from the United States to Australia with his mother and brother at approximately 15 years old. He is now approximately 59 years of age. He suffers several health conditions including cardiac difficulties and associated conditions, and has a complex mental health history including diagnoses of psychotic illness and antisocial personality disorder. He has limited familial and social supports, although he has access to support workers though the NDIS. He has a lengthy and varied criminal history which includes sexual offending, possession of child abuse material, intimidation and various breaches of court orders.
In his 2024 judgment, Hamill J described the defendant’s criminal history including the particular “serious offences” giving rise to the ESO application. It is convenient to extract the relevant passages from his Honour’s judgment where those matters are set out:
“The “index offences”, history of offending and non-compliance with orders, and most recent offending and incarceration
[43] The defendant has a history of offending which is recorded in both New South Wales and Tasmania. However, his most grave offences were committed about 20 years ago and was dealt with in 2006 in the New South Wales District Court. These were the offences which brings him within the purview of ss 4A and 5 of the Act. Since that time, his offending has been much less serious but includes the possession of child abuse material or pornography and breaches of various orders.
The May 2004 offences
[44] On 25 May 2004 the defendant was charged with the grave offences which expose him to the orders now being sought. These offences involved using [a stupefying drug] to commit an indictable offence, aggravated attempted sexual assault and the indecent assault of a child. The offences were committed on 19 May 2004.
[45] Questions were raised over the defendant’s fitness to stand trial but in May 2005 a jury found the defendant to be fit. However, when the trial was listed to commence around a year later, a psychiatrist, Dr Lucire, questioned the defendant’s fitness to plead. [3] Dr Lucire doubted the defendant’s ability to follow the evidence in the trial and provide instructions. These concerns arose from the defendant’s drug induced akathisia (inability to stay still) and other impairments arising from his long-standing mental health issues. Judge Murrell SC (as her Honour then was) directed a further inquiry into the defendant’s fitness. Several psychiatrists and doctors were called to give evidence in the judge alone inquiry. On 29 May 2006 her Honour delivered a judgment in which she concluded that the defendant had feigned or exaggerated his symptoms and that he did not suffer, at least to any significant extent, from drug-induced akathisia or other mental impairments or side-effects. Her Honour found that the defendant was fit to plead and be tried.
[46] On 30 May 2006, the defendant pleaded guilty to the following six offences as described in the remarks on sentence delivered on 8 September 2006:
(1) Cause RD to take a stupefying drug (benzodiazepines) with intent to sexually assault her daughter, LD (s 38 Crimes Act 1900 (NSW)).
(2) Cause LD to take a stupefying drug (benzodiazepines) with intent to sexually assault her (s 38 Crimes Act).
(3) Aggravated attempt to have sexual intercourse with LD (place penis into mouth) without her consent, knowing that she was not consenting – she being under 16 years old (s 61J(2)(d) Crimes Act).
(4) Aggravated attempt to have sexual intercourse with LD (rub penis on vagina) without her consent, knowing that she was not consenting – she being under 16 years old (s 61J(2)(d) Crimes Act).
(5) Aggravated indecent assault on LD (licking breast) – she being under 16 years old (s 61M(3)(b) Crimes Act 1900 (NSW) (Repealed)).
(6) Aggravated sexual intercourse with LD (licking vagina with some penetration) without her consent, knowing that she was not consenting – she being under 16 years old (s 61J(2)(d) Crimes Act).
[47] The facts (adopting the pseudonyms used by Judge Murrell which were not redacted on Caselaw) were that in early April 2004, the defendant met RD through a telephone chatline. On 19 May 2004 the two met at RD’s house. LD, RD’s 13-year-old daughter, was also present. The defendant brought three tubs of custard which he encouraged LD to consume. He also encouraged RD to consume alcohol. RD soon felt lightheaded and her next memory was waking up in the hospital. LD also began to feel dizzy and tired. The defendant asked to accompany LD to her bedroom. He pushed LD onto her bed, held her down and began to play with her breasts, hair and legs. He threatened LD, saying that if she did not comply with his wishes he would kill her and hurt her mother. LD screamed and tried to escape but the defendant covered her mouth and held her down. The offending continued in the mother’s bedroom where the defendant removed LD’s clothing and tried to make her perform oral sex on him and rub his testicles. When she refused, he forced her to do so. The defendant played with LD’s vagina and rubbed his penis against it. He spread her legs and licked her vagina. Throughout the offending, the defendant told LD to shut up or he would “cut her ‘effin’ throat” and kill her.
[48] As these events were occurring, LD’s older sister telephoned the household. LD managed to alert her sister of the sexual assault and the defendant fled. The sister rang 000 and LD’s brother-in-law rushed to the house where he found RD and LD in drug induced states. Medical examinations showed that both RD and LD had benzodiazepine – which can cause memory loss, muscle weakness, impaired alertness and walking difficulties – in their systems. Two and a half weeks prior to the offences, the defendant attempted to obtain benzodiazepines through a nurse he met on a chatline.
[49] The sentencing Judge canvassed the defendant’s mental health issues and found that he exhibited symptoms of paranoia, obsessive/compulsive traits and occasional signs of depression. While her Honour accepted that the defendant suffered from a chronic paranoid schizophrenic disorder and antisocial personality traits, she rejected the proposition that he was delusional and psychotic during the offending. The sentencing Judge concluded that evidence suggested the “offences were not planned at the last minute” and that “before going to RD’s home, the [defendant] had determined to bring benzodiazepines, was aware of the likely effects of those drugs on the victims and had considered how he would administer the drugs surreptitiously to the victims”.
[50] Her Honour took into account the defendant’s tumultuous life which was marked by frequent relocations, unemployment, short-lived relationships and a history of mental health issues. While he did not “inspire sympathy”, her Honour acknowledged that the defendant was a tormented individual affected by varying kinds of mental and psychological illnesses.
Sentences imposed for the May 2004 offences.
[51] Individual sentences ranging from two years (count 5) to eight years and ten months (count 1) were imposed for the six individual sentences and there was a partial accumulation between those sentences. The total effective sentence for the six counts was 10 years imprisonment with a non-parole period of six years.
[52] The earliest release date on those sentences (that is, the expiration of the last expiring non-parole period) was 7 August 2009. The total sentence would not expire until 7 June 2014.
[53] It seems (based on an attempt to divine the cumbersome “bail report” and Corrective Services custody records) that he was not released from custody until 28 August 2015 (after he was found not guilty in relation to unrelated allegations of sexual assault). This was confirmed by counsel before submissions commenced.
Some relevant comments made by the sentencing Judge
[54] For the purpose of ss 9(3)(h1) and 17(4)(h1) of the Act, I have considered various comments made in the sentencing judgment. Her Honour was “not confident” about the defendant’s prospects of rehabilitation, was concerned that he may re-offend and expressed the opinion that much would turn on “the successful diagnosis and treatment of the offender’s mental condition”. Her Honour concluded by saying:
“To the extent that the offender’s conduct is a reflection of antisocial personality traits, it may not respond to treatment, although it may respond to very strict supervision.”
The defendant’s criminal history in New South Wales and Tasmania until 2022
[55] The defendant has an extensive criminal history.
[56] Before the May 2004 offences, he had been convicted of several relatively minor offences, including driving offences, dishonesty and property offences, breaches of apprehended violence orders and some minor offences of violence. He was charged with an offence of “peep and pry” in 1997. This charge was withdrawn and dismissed and I have disregarded it. Some of his offences were disposed of under ss 32-33 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (Repealed). On 26 May 1999 he was sentenced to 3 months imprisonment for two offences of wilful and obscene exposure near a public place or school.
[57] While in custody for the 2004 offences, the defendant was charged with offences of sexual intercourse without consent and aggravated sexual assault of a woman he met through a telephone dating service. These offences were alleged to have occurred in 2002 but there was an extensive delay due to ongoing questions over his fitness, the intervening lengthy sentence for the 2004 offences and the delay in his release. According to the bail report, he was found “not guilty by verdict” on 28 August 2015.
[58] After the acquittal, the defendant was released into the community. He was subject to a forensic community treatment order with which he remained compliant for some time. It seems there were no recorded convictions or offences between the date of his release in August 2015 until offences committed in Tasmania in 2018.
[59] In 2017 the defendant moved to Tasmania and was placed on the Tasmanian Child Protection Register. On 12 September 2019 the defendant was sentenced to 12 months imprisonment for breaching the reporting conditions under the Child Protection Register. The offences occurred in 2018 and involved him failing to notify police that he was using a dating site. He sent harassing emails to two women he met on that site.
[60] On 28 November 2019 the defendant was convicted for possessing child exploitation material after he was found with 43 images which constituted child pornography. He was also convicted for breaching his reporting conditions under the Child Protection Register after he failed to notify police about three email accounts he had created. He was fined, sentenced to 9 months imprisonment and a forfeiture order was made over his telephone and laptop.
[61] On 24 August 2021 the defendant was placed on a community protection order for three years under the Community Protection (Offender Reporting) Act 2005 (Tas) which applied across Australia. On 9 December 2020 he was convicted of several counts of failing to comply with the conditions of that order. The breaches involved him failing to report his email address and new ‘phone number, sending harassing emails to police and his lawyer, purchasing a ‘phone with internet connection and accessing YouTube. He was sentenced to 6 months imprisonment with an additional suspended term of 18 months and placed on an 18-month community corrections order.
Recent offending, alleged offending and incarceration in New South Wales
[62] In June 2022 the Defendant committed further offences of contravening the community protection order and failing to comply with reporting obligations under the Child Protection Register. When he was still living in Tasmania, he met a woman through an online dating site. On 17 June he moved back to NSW and resided with that woman and her four-year-old daughter for three days, before relocating to his mother’s house. He failed to disclose his movements to police and did not report the breach of conditions to the Register for several days. He was convicted in the Local Court on 16 February 2023 and sentenced to 16 months imprisonment with a non-parole period of eight months. He was released to parole on 22 February 2023 and the additional term (or parole period) was set to expire on 22 October 2023.
[63] The defendant allegedly breached his parole by committing offences on 3 and 29 June 2023. His parole was revoked and he served the balance of parole in custody. His sentence has now expired. However, he remains in custody, bail refused, for offences of stalking, harassing and intimidating, [5] assaulting a community corrections officer, using a carriage service to menace, harass and offend and having custody of a knife in a public place. The offences include an allegation that the defendant threatened and harassed a community corrections officer after he was informed that his temporary residence was not considered to be suitable. He allegedly yelled at the community corrections officer and sent him lengthy text messages. He was arrested at the police station on 29 June 2023 where he was also allegedly found to be in possession of a knife. According to JusticeLink records the defendant pleaded not guilty to these charges on 19 December 2023. The matter was listed for hearing on 24 June 2024.”
“The court appointed experts
[73] Dr Smith and Dr Elliott were largely in agreement as to the defendant’s diagnoses and the risk that he will commit a serious sexual offence if not detained or supervised. However, they expressed some differing opinions as to the primary risk factors arising from his complicated mental health presentation, and had different views concerning the best way of managing the risk.
[74] Dr Elliott concluded that the defendant has a “severe personality disorder” manifesting in “narcissistic and antisocial traits” with the “predominant characteristic [falling] under the category of a paranoid personality disorder”. The doctor also considered that the defendant has an additional chronic psychotic illness. He preferred to categorise it as a “schizoaffective disorder” which is a chronic psychotic illness with an additional abnormal mood component. His preference for this diagnosis stemmed from an absence of certain features generally associated with schizophrenia. Dr Elliott also diagnosed the defendant with an obsessive-compulsive disorder (“OCD”) although he was suspicious that some of the features of this disorder may have been exaggerated “to avoid an additional diagnosis of a chronic psychotic illness, and possibly for more obscure reasons”.
[75] Dr Smith, who was subjected to a verbal tirade of abuse during his consultation with the defendant, was satisfied that the primary diagnosis was “treatment resistant schizophrenia/schizoaffective disorder”. He placed substantial reliance on the fact that the defendant had responded well to antipsychotic medication in the past when he either voluntarily complied with, or was compelled to comply with, a regime of such medication. Dr Smith also noted that the defendant’s thought processes were “notably disorganised” which was not something that was apparent in the consultation with Dr Elliott. I noted that the interviews took place on the same day and sequentially and wondered, out loud during the concurrent evidence, whether that may have impacted on the defendant’s presentation in the interview and, in turn, the diagnoses. Dr Elliott thought it might, but Dr Smith seemed to disagree saying “my view is … he has a chronic schizophrenic illness”.
[76] Dr Smith also diagnosed the defendant with an antisocial personality disorder with “borderline features”. However, he said there were “limitations in this diagnosis”. He was of the view that the defendant has been “more settled and has not exhibited wider spread antisocial [behaviour]” when medicated for the psychosis. Further possible diagnoses contemplated by Dr Smith were a substance or alcohol use disorder, complex trauma and OCD. Based on the defendant’s history, and in particular the 2004 offences, Dr Smith said that “paraphilia” or “paedophilia” were “strongly suggested”.
[77] Dr Smith said that all these conditions involved a “lifelong diagnosis” but their “impact may vary”.
The psychiatrists’ opinions as to the risk of the defendant committing a serious sexual offence.
[78] Dr Smith and Dr Elliott both concluded that the defendant posed a risk of committing a serious sexual offence. Based on the application of statistical tools, each assessed the risk to be a “well above average” risk compared to other sexual offenders. Dr Elliott emphasised the dangers of making such assessments and said, “[i]t is impossible to accurately predict an individual’s risk for general or sexual recidivist offending.”
[79] The psychiatrists provided different opinions as to the management of risk and whether it could be managed in the community with the imposition of an ESO.”
Justice Hamill was satisfied, based on the whole of the evidence (not all of which is extracted in this judgment), to a “high degree of probability” that the defendant posed an “unacceptable risk” of committing a serious sexual offence if not subject to an order under the Act: Farzad (Final) [2024] at [95]. A significant aspect of the evidence with respect to whether the appropriate order was for continuing detention or supervision in the community concerned the defendant’s mental illness diagnoses, need for treatment (including anti-psychotic medication, which he was not receiving at that time) and the expert opinions concerning the defendant’s (in)ability to comply with supervision conditions if he remained untreated or non-compliant with his medication regime.
On 15 March 2024, Hamill J made an ESO pursuant to s 17(1)(a) of the Act which commenced on 24 April 2024 after the defendant was released from custody.
On 18 April 2024, the Mental Health Review Tribunal made a forensic community treatment order (“FCTO”), which was converted into a CTO on 20 March 2024 after his release from custody. The present CTO will expire on 30 April 2026 if not extended. The defendant is prescribed an anti-psychotic administered by depot injection under the CTO. The defendant does not agree with the need for this treatment and has repeatedly requested that this be reduced or ceased. There are indications in the casenotes that his treating team are considering trialling a cessation of this medication.
The defendant has not been convicted of nor charged with any further offences during the almost 2-year term of his ESO. He has not been charged with a breach of his supervision orders and has been described as compliant with supervision. However, he remains unwilling or unable to meaningfully engage with supervision in terms of treatment and intervention, and unmotivated to participate in prosocial activities.
The plaintiff relies upon a report dated 25 August 2025 and prepared by Ms Alex Hill, acting senior psychologist, Risk Management Programs, Corrective Services NSW (“risk assessment report”), which is discussed in more detail below. Ms Hill assesses the defendant as posing a “well above average” risk of sexual recidivism and considers that it is the compulsory supervision and enforced compliance with medication which has contained his risk of re-offending during the past two years.
“… The expression “high degree of probability” indicates something beyond more probable than not, but that expression qualifies the state of the judge’s satisfaction rather than the degree of risk involved. Further, an “unacceptable risk” may arise not only because of the probability or statistical chance of the risk manifesting itself, but also because of the consequences of that outcome.”
I have taken into account the risk assessment report of 25 August 2025 to which reference has already been made. The defendant declined to be interviewed by Ms Hill and so her report was prepared based upon a file review. The risk assessment report considered both the defendant’s criminal history and mental health history in detail and the following summary necessarily makes reference only to some of that information. In terms of the defendant’s response to supervision under the 2024 ESO, whilst this had been better than his response to earlier periods of community supervision, he had not demonstrated meaningful engagement in the supervision process.
The defendant has a complex mental health presentation which is complicated by his personality pathology. His anger, hostility and paranoid beliefs appear to reduce when he is appropriately medicated. However, and in Ms Hill’s opinion “concerningly”, the defendant continues to deny the need for anti-psychotic medication and lacks insight into the relationship between his mental health and risk.
The defendant has a long history of deviant sexual behaviours and continues to demonstrate sexual preoccupation, as well as to minimise, justify or deny his offences. He has not completed offence focused treatment either in custody or during his supervision. The defendant falls within the “well above average” category for sexual offending recidivism. His risk presently appears to be moderated by his restrictions and monitoring as part of his ESO conditions.
The defendant’s risk is increased by his lack of social supports and low motivation to engage in pro-social activities. The evidence is that except when taken out by a support worker the defendant essentially spends all of his time in his home. In Ms Hill’s view, a better indication of the defendant’s ability to manage high risk situations would be provided were this situation to change.
The defendant has been consistently resistant to engagement with treatment and risk reduction programs. One reason for this is his asserted belief that he does not require such interventions. The defendant appears to attribute his lack of motivation to engage in self-care and pro-social daily activities to the side effects of his anti-psychotic medication. The defendant also reports a reduction in his sex drive which he attributes to his medication. Behaviour revealing persistent sexual preoccupation has been noted throughout the term of the order, including making sexual comments about female support workers; speaking to a male support worker in prurient terms about strippers and expressing a preference for young girls; complaining that his NDIS provider would only send male support workers and demanding a female support worker to attend, specifically to shower him; and a phone search in February 2026 revealed the defendant had apparently viewed a YouTube video displaying young teenagers dancing. [6]
Ms Hill concludes that in a scenario where the defendant’s CTO was not extended and his mental health deteriorated, and his supervision conditions were removed, she would hold “significant concerns with [the defendant’s] ability to effectively identify and manage his risk factors”.
As set out above, the defendant has a very poor record of compliance with supervision in the community. He has been convicted of breaching his obligations under the Child Protection Register. The offences for which he was most recently incarcerated included offences of stalking, harassing and intimidating a community corrections officer.
As also discussed above, while the defendant has not breached his current ESO, he has made no positive progress with respect to supervision by way of engagement with treatment programs. The extent of the defendant’s capacity to ever respond to these types of interventions in a meaningful way is likely to be addressed by further expert opinion.
“… establishes the magnitude of the potential risk in terms of the possible seriousness of the kind of offending against which the community must be protected. Even if the likelihood (statistical or otherwise) is small, the overall risk may be unacceptable. Those offences were particularly troubling even though they took place a long time ago.”
I respectfully agree with his Honour’s findings.
The defendant’s lengthy criminal history, including persistent offending in breach of court orders, combined with his lifelong complex mental health presentation, lack of insight and persistent preoccupation with sexually deviant beliefs and behaviours, create an ongoing risk of further serious sexual offending. The defendant has not re-offended during the period of supervision. Nor has he effectively engaged with treatment or interventions nor gained insight into his own risk factors. The evidence presently available supports the position advanced by the plaintiff, that it is the fact of supervision under the ESO that is presently operating to reduce the defendant’s risk.
I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the courts satisfaction to a “high degree of probability” that the defendant poses an unacceptable risk of committing a serious sexual offence if not kept under supervision by way of an ESO. I therefore grant the relief sought.
The plaintiff has provided a Schedule of Proposed Conditions which are substantially the same as the conditions attached to the existing ESO. The proposed amendments are minor and provide clarity but do not alter the substance of the conditions. The plaintiff submits that where the defendant is not present, and where updated expert reports are not yet available, the appropriate course is to order an ISO with the same conditions as those to which the defendant is already subject. I accept that this approach is appropriate to avoid confusion or unfairness. At the final hearing, if an ESO is to be made, the appropriateness of individual conditions can be revisited with the benefit of expert opinions.
Accordingly, I make the following orders:
An order pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW):
(a) Appointing two qualified psychiatrists or registered psychologists (or any combination of the two) 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.
(a) pursuant to section 10A of the Crimes (High Risk Offenders) Act 2006 (NSW) that the defendant be subject to an interim supervision order from 23 April 2026; (b) pursuant to section 10C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) that order (2)(a) be for a period of 28 days; and (c) pursuant to section 11 of the Crimes (High Risk Offenders) Act 2006 (NSW) directing the defendant, for the period of the interim supervision order, to comply with the conditions set out in the attached Schedule.
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State of New South Wales v Farzad (also known as Arthur Fairwell) (Final) [2024] NSWSC 265 (“Farzad (Final) [2024]”).
Directions hearings were held before her Honour Yehia J on 5 February, 12 February and 19 February 2026.
See also Civil Procedure Act 2005 (NSW) Pt 6; Uniform Civil Procedure Rules 2005 (NSW) r 29.7.
See s 12 of the Act.
Three affidavits under the hand of Lucy Nichols affirmed on 12 February 2026, 18 February 2026 and 23 February 2026 respectively, and one affidavit of Erasmo Roppolo affirmed 23 March 2023.
The more recent of these examples are taken from casenotes which post-date Ms Hill’s report and are therefore not specifically addressed in the risk assessment report.
State of New South Wales
Farzad
(1978) 20 ALR 323