State of New South Wales v Galvin - [2025] NSWSC 95 - NSWSC 2025 case summary — Zoe

NSWNSWSC

State of New South Wales v Galvin

[2025] NSWSC 95

Supreme Court of NSW|2025-02-12|Before: Coleman J, Dhanji J, Yehia J

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Source facts

Court

Supreme Court of NSW

Decision date

2025-02-12

Before

Coleman J, Dhanji J, Yehia J

Source

Original judgment source is linked above.

Judgment (34 paragraphs)

[1]

Introduction

By summons dated 4 September 2024, the State of New South Wales seeks orders pursuant to the Crimes (High Risk Offenders) Act 2006 ("the Act"). The orders sought are that Mr Galvin, the defendant, be subject to an extended supervision order ("ESO") for a period of three years and that whilst subject to the ESO, he comply with certain conditions.
The matter came before Dhanji J on 8 November 2024. At that time, his Honour made orders pursuant to ss.10A, 10C (1) and 11 of the Act that the defendant be subject to an interim supervision order ("ISO") for a period of 28 days and that for the period of the ISO, the defendant comply with certain conditions. His Honour also ordered, pursuant to s.7(4) of the Act, two qualified psychologists or psychiatrists (or any combination of such persons) examine the defendant and provide a report to the court of the results of those examinations and that the defendant attend such examinations.
In accordance with those orders, the defendant was assessed by two experts: Patrick Sheehan (forensic psychologist) and Dr Sally McSwiggan (clinical neurologist) and reports have been duly prepared by those experts which will be referred to below.
On 12 December 2024, Yehia J ordered that the defendant be subject to an ISO for a period of 28 days commencing on 1 January 2025, upon the expiry of the ISO made by Dhanji J on 8 November 2024 and that he comply with certain conditions.
On 17 January 2025, Dhanji J ordered that the defendant be subject to an ISO commencing on 29 January 2025 upon the expiry of the ISO made by Yehia J on 12 December 2024 and that he be comply with certain conditions.

[2]

[4]

Crimes (High Risk) Offenders Act

I must have regard to the objects of the Act. They are, relevantly, to provide for the extended supervision of high risk violent offenders so as to ensure the safety and protection of the community (s.3(1)). I also note that another object of the Act is to encourage high risk violent offenders to undertake rehabilitation (s.3(2)).
The test to be applied for the Court to make an ESO is found in s 5B of the Act. That section provides: 5B Making of extended supervision orders - unacceptable risk The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if - (a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and (b) the person is a supervised offender (within the meaning of section 5I), and (c) an application for the order is made in accordance with section 5I, and (d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.
In this matter, the parties agree, and I am independently satisfied, that the relevant pre-conditions for the making of an ESO have been satisfied, save for one matter to which I will return. That is, the parties agree that: 1. The defendant is an "offender" within the meaning of s 4A of the Act as he is over 18 years of age and has been sentenced to imprisonment to be served by way of full-time detention following conviction for a serious offence on two occasions; 2. The defendant is a "supervised offender" within the meaning of s 5I of the Act; and 3. The application has been made in accordance with ss 5I and 6 of the Act.
A matter not conceded is whether the defendant poses an "unacceptable risk" of committing a serious offence if he is not supervised. The defendant also submits there are discretionary reasons why the Court would not make an ESP. Further, the defendant opposes any of the proposed conditions if an ESO is made.
Thus, in this matter, the issues to be determined are; 1. Whether the defendant poses an "unacceptable risk" of committing a serious violence offence; 2. If so, whether the Court should exercise its residual discretion to not impose an ESO (because the defendant says as outlined below, it would be futile); and 3. If an ESO is made, what conditions should be imposed.
What must be determined as the first issue is whether the Court is satisfied to a high degree of probability that the defendant poses an "unacceptable risk" of committing another "serious offence" if not kept under supervision. Here, relevantly the "serious offence" is a "serious violence offence".
The Court is not required to determine that the risk of the defendant committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence (s.5D).
The term to a "high degree of probability" indicates: …"something 'beyond more probably than not"; so that the existence of the risk, that is the likelihood of the offender committing a further serious….offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt…" Cornwall v A-G for New South Wales [2007] NSWCA 374 at [21].
What is an "unacceptable risk" is not defined in the Act. In State of New South Wales v Cole [Final] [2024] NSWSC 1640 Yehia J said: "Unacceptable Risk [54] The CHRO Act does not define "unacceptable risk". Some insight into the term can be gleaned from s 5D of the CHRO Act which states: "…the Supreme Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence." [55] In State of New South Wales v Keech [2024] NSWSC 408 ("Keech") at [42]-[43], I observed: "[42] 'Unacceptable risk' is undefined and should be given its ordinary meaning having regard to the context of the objects of the Act. In determining whether the plaintiff has discharged its onus, I have had regard to the expert evidence; the assessment of risk; the nature of the offending; the defendant's progress and compliance with supervision; breaches of the previous ESO; and the objects of the Act, primary amongst them being the safety of the community. [43] Given the significant restriction placed upon defendants who are subject to any supervision order and the onerous conditions with which they must comply, the degree of risk must be sufficiently grave that the community cannot be kept secure without the order." [56] The expression "unacceptable risk" is to be understood according to its everyday meaning in the context of s 5B(d) and having regard to the objects of the CHRO Act: see Lynn v State of New South Wales [2016] NSWCA 57; (2016) 91 NSWLR 636 ("Lynn"). Noting the paramount concern for community safety, in State of New South Wales v Holschier (No 3) [2019] NSWSC 341 Campbell J at [49] observed that "guaranteeing community safety is, of course, an impossible task; making it secure is a relative, not absolute, standard." [57] In State of New South Wales v Rush (Final) [2022] NSWSC 984 at [36]-[38] I set out a number of cases which discuss the manner in which the principles relating to "unacceptable risk" ought to be applied: "[36] The meaning of an 'unacceptable risk' in s 5B(d) and the principles which are to be applied were summarised by Hoeben CJ at CL in State of New South Wales v Holschier (No. 2) [2018] NSWSC 1921 at [23] and [24] as follows: '[23] As to the meaning of the phrase "an unacceptable risk", the case law establishes the following: (a) What the court must find to be unacceptable is the "risk" of the offender "committing a serious [sex] offence if he or she is not kept under supervision" (see Lynn v State of New South Wales [2016] NSWCA 57; 91 NSWLR 636 at [51] (Beazley P)). (b) The word "unacceptable" - which means, relevantly, "so far from a required standard, norm, expectation etc as not to be allowed" - is one that "requires context in which, or parameters against which, the unacceptable risk can be measured" (see Lynn at [50]). (c) While the HRO Act does not specify "the precise parameters or standard or norm against which that determination (i.e. the determination whether an offender poses an unacceptable risk) is to be made", this "must be so" because "[a] determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made" (see Lynn at [51]). (d) The determination whether an offender poses an unacceptable risk has to be understood in the context of the objects or purposes of the Act; in particular, its purpose in ensuring the safety and protection of the community (see Lynn at [55]). (e) The right of an offender to his or her personal liberty at the expiry of a sentence of imprisonment is not relevant to the determination whether an offender poses an unacceptable risk (Lynn at [44], [55]-[58], [128], [148]). Nevertheless, as their Honours held, the intrusion on a subject's liberty and privacy are undoubtedly matters which the Court may take into account in its discretion to make an ESO. [24] The "unacceptable risk" inquiry is not discretionary, but it does involve an evaluative balancing exercise. It involves consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate: New South Wales v Simcock [2016] NSWSC 1805 at [71].' [37] In State of New South Wales v Pacey (Final) [2015] NSWSC 1983, Harrison J observed at [43]: 'It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable.' [38] These observations were affirmed by Wilson J in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 who noted at [71] that "unacceptability of risk involves consideration of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate": see also State of New South Wales v Chaplin [2019] NSWSC 471 at [15]. [39] In State of New South Wales v Loto [2018] NSWSC 1522, Rothman J stated the following at [14]-[17]: 'The ascertainment of a risk and its denotation as "unacceptable" occurs in the usual way. There are many areas of the law in which risk assessments are required to be undertaken and, generally, they identify and evaluate the possibility of an injury that may be sustained as a result of a possible (and often foreseeable) occurrence. In assessing risk and whether the risk is unacceptable, a court is required to deal with a matrix of considerations. First, there is the probability or possibility that the risk will manifest. Secondly, there is the seriousness of the harm that will ensue if the risk were to manifest. The matrix exists because of the need to balance the likelihood of the manifestation of the risk, on the one hand, and, on the other hand, the seriousness of the manifestation of that risk. Thus a risk, the consequences of which are catastrophic, may be unacceptable, even though the occurrence of that risk is only slightly possible. On the other hand, where the manifestation of a risk involves minor injury, such as a contusion, even a high probability of its manifestation may not render the risk unacceptable.'" See also Lonergan J's remarks in State of New South Wales v Tannous (Preliminary) [2022] NSWSC 1682 at [37]."

[15]

Report to Mr Patrick Sheehan dated 21 December 2024

Mr Patrick Sheehan, Forensic Psychologist, prepared a report for the proceedings dated 21 December 2024. The defendant initially failed to attend the interview and then discontinued the make-up interview after one hour. Mr Sheehan felt it unsafe to challenge him or seek to continue the interview.
Mr Sheehan opined that the defendant is in the high risk category of committing a violence offence relative to other men who have offended violently. It is more difficult to predict to what extent that any violence would approach the threshold of a "serious violence offence", however the defendant is currently at heightened risk of engaging in violent behaviour as his identified risk factors are at play and he is following a trajectory of worsening adjustment.
Mr Sheehan assessed the defendant to meet the criteria for severe ongoing polysubstance use disorder. He has a long history of affective dysregulation which is consistent with Antisocial Personality Disorder.
Mr Sheehan observed that the defendant has a history of chronic dysfunction with severe personality pathology, anger/arousal dysregulation and polysubstance abuse, which contribute to pervasive community maladjustment since childhood. The defendant is not oriented to rehabilitation and has shown a strong aversion to supervision but cannot manage himself and requires external intervention to attenuate his risk of a serious violence offence.
Mr Sheehan opined that if administered effectively, an ESO could reduce risk of a serious violence offence by interrupting the correlates of his violence such as substance use, unstable lifestyle, association with destabilising social influences. The chronicity of the related issues favours an ESO towards the upper end of the available five-year range; an ESO of three years is realistic in meeting rehabilitation targets.
Noting the limitations of risk assessments in accurately predicting whether an individual will offend, Mr Sheehan assessed the defendant's dynamic risk factors using the Violent Risk Scale (VRS) actuarial tool as follows: 1. Violent lifestyle and violence during institutionalisation; 2. Criminal personality, attitudes and peers; 3. Work ethic, including lack of orientation towards supporting himself in the community; 4. Little insight into violence, interpersonal aggression, poor emotional control and impulsivity; 5. Possessing a weapon in the community; 6. Unresolved substance abuse, linked to episodes of violence; 7. History of unstable mood and potential trauma psychopathology; 8. Unstable relationships and little positive community support; 9. History of release to high risk situations; 10. Cognitive distortion in relation to violence and blame of others; and 11. Poor compliance with supervision.
Mr Sheehan identified a "violence cycle" that pertains to the defendant's life: "There is an underlying pattern to Mr Galvin's violence relating to: relapsing to drug use, seeking out volatile social environment, progressively worsening his circumstances, becoming increasingly stressed due to those circumstances, with agitation, grievance and sense of persecution, with all of these factors leaving him primed to act violently if he encounters conflict. In my view, Mr Galvin is in his offence cycle currently."
Mr Sheehan opined that the defendant's pathway to violence is influenced by several key risk factors: "His unreasonable and pervasive perception of provocation further aggravates his already low frustration tolerance, causing him to react disproportionately with anger to encountering any barriers or even the mildest disagreement. He is hypervigilant and always on edge, feeling that he must carry a weapon for his own safety. He carries cumulative resentment and grievance, experiencing hardships or difficulties through the lens of these cumulated grievances, amplifying a sense of righteous indignation… He uses drugs to cope with distressing feelings but this only serves to further destabilise him emotionally, add to financial strain, and create a platform for crime. His association with antisocial, dysfunctional or other socially vulnerable groups also increases his risk of conflict, of substance use and of other criminal behaviours that could spill into violence with police or other parties."
Mr Sheehan found that the defendant is vulnerable to expressive violence and acting in anger in response to provocation. This would most likely occur in the context of peer conflict or against police or workers assisting in his management, and would likely involve verbal intimidation and threat but could also be a punch or kick. It cannot be excluded that it would involve a bladed weapon.
The defendant has very few identifiable protective factors. His age may be a protective factor over time, however Mr Sheehan noted that there is no evidence that this process of maturation is unfolding at this time.
Mr Sheehan was of the view that the supervision conditions are reasonable and necessary in the main in order to limit the defendant's risk of a serious violence offence, noting the following qualifications: 1. Employment, finance and education (conditions 15-17): Mr Sheehan commented that while it would be advantageous for the defendant to seek employment, it would be more realistically approached as a case management strategy than an enforceable condition of the order. 2. Drugs and alcohol (conditions 18 - 21): unfortunately, mandating involvement in treatment programs is not an effective means of achieving the goals of rehabilitation. 3. Non-association (conditions 22-24): the conditions are necessary and reasonable, although the defendant is clearly in breach of 23 in his current living arrangement. It is unclear why 24 is necessary. 4. Access to the internet and other electronic communications (condition 27): this condition is not central to managing the risk of a serious violence offence, and the order would not be weakened without it. 5. Search and seizure (conditions 28-29): the conditions have protective value in enforcing the substance use and weapon clauses, but the process is highly invasive and may risk being counterproductive by compromising the relationship between the defendant and DSO and reinforce the belief that Community Corrections are his enemy. 6. Medical intervention and treatment (conditions 41): Mr Sheehan was unsure why the disclosure of criminal history to any healthcare worker is necessary

[16]

Report of Dr Sally McSwiggan dated 17 January 2025

Dr Sally McSwiggan, Neuropsychologist, prepared a report for the proceedings dated 17 January 2025. She noted that the evaluation was limited by the defendant's lack of cooperation; he was highly reactive and ended the interview after 15 minutes (after missing the interview that was first scheduled). He was emotionally dysregulated and hostile to the point where it would not have been safe to be in the room with him.
Dr McSwiggan opined that the defendant poses a risk of committing a further "serious violence offence" as defined by the Act. She noted that his history of serious violence towards strangers has been infrequent and unpredictable, but that the risk of future serious violence will increase should he return to homelessness.
Dr McSwiggan found that Mr Galvin meets the diagnostic criteria for severe substance use disorder (for heroin and methamphetamine). She opined that his unstable early childhood gave rise to the risk of developing psychological vulnerabilities and maladaptive coping behaviours and that he is likely to continue on the path of unremitting substance use and offending until age or sickness replacing his lifestyle or he changes his substance use.
Noting the inherent limitations in any process of risk assessment for the prediction of violent offending, Dr McSwiggan assessed the defendant using the Violent Risk Appraisal Guide - Revised (VRAG-R) as falling within the High Risk Category (level 8 of 9). This is twice as high as the risk posed by the typical mid-range violent offender.
Using the Historical Clinic Risk (HCR-20 V3), Dr McSwiggan identified that the defendant's potential risk management factors are his lack of personal support in the community; his likely resistance to engage with a structured positive behavioural management plan and substance use treatment and his capacity to cope with future stressful life events and community interactions. His clinical factors include his limited insight into his violence related functioning and his substance use management/treatment. His dynamic risk factors relate to his stability, such as accommodation and substance use, and Dr McSwiggan noted in particular that should he become homeless again his interactions with the public will increase.
Using the Structured Assessment of Protective Factors for Violence Risk (SAPROF), the defendant's protective factors included his intact intellect and his flatmate, however he lacked any motivational protective factors, and his external protective factors were limited as he is isolated from relationships and the community due to institutionalisation.
Dr McSwiggan opined that the defendant primarily seeks and would benefit from secure accommodation that may tie him to a community, and that while an ESO would not assist him to obtain or maintain accommodation, it may provide a record of agency involvement and oversight. She observed that the defendant would be more likely to comply with conditions that do not require significant input from him or severely deters his substance use. She also noted that for the ESO to be implementable, the defendant requires the practical help of an experienced male case manager, a plan for suitable accommodation and an opioid replacement treatment. Alcohol and other drug intervention also requires the defendant's compliance.
Dr McSwiggan expressed the following opinions as to conditions: 1. Part A: Reporting and Monitoring Obligations: the defendant was not subject to electronic monitoring or scheduling during the ISO and his current monitoring conditions would provide some oversight of his lifestyle stability and are required to make the order effective. 2. Part B: Accommodation: the defendant's accommodation could be at risk should his flatmate find "any time visits" intolerable. The defendant would be unlikely to be able to secure his own housing on the private rental market and it is uncertain if having an ESO would facilitate or hinder this in a practical sense. 3. Part C: Place and travel restrictions: the defendant is unlikely to breach these conditions which are required for the order to be effective. 4. Part D: Employment, finance and education: the defendant is unlikely to seek employment, training or volunteer at this stage and seemed unwilling to engage with programs except for opioid replacement. 5. Part E: Drugs and alcohol: these conditions will likely be an issue at the outset given the defendant admitted to recent substance use while on an ISO. 6. Part F: Non-association: these conditions will likely be an issue from the outset given the defendant resides with a former offender who may have a history of illicit substance use. 7. Part H: Weapons: the defendant is not known to carry a weapon and is unlikely to breach these conditions which are required for the order to be effective. 8. Part J: Search and seizure: the defendant's substance use will be the most likely source of a breach during an unannounced search. 9. Part L: Personal details and appearance: the defendant is unlikely to breach these conditions which are required for the order to be effective. 10. Part M: Medical intervention and treatment: the defendant is unlikely to breach conditions related to his health however he will likely be resistant to being directed to see a psychologist. He does not have a major mental illness that would require involuntary treatment to stay well. Exchange of health information would be required for the order to be effective should he be prescribed medications such as opioid replacement.
Dr McSwiggan suggested that a three-year period would be reasonable to monitor his time in the community, noting that it would be his longest period in the community since early adulthood and the period of greatest risk for serious violence.

[19]

Risk Assessment Report

On 5 April 2024, Gillian Tulloh, Senior Psychologist, Violent Offender Therapeutic Program prepared a Risk Assessment Report (RAR) pursuant to s. 6(3)(b) of the Act. Ms Tulloh also prepared a Supplementary Risk Assessment Report on 28 July 2024 (Supplementary RAR).
In the RAR, Ms Tulloh: 1. Assessed the defendant as posing a high risk of committing a further violent offence based upon the following risk assessment results: ● Level of Service Inventory - Revised (LSI-R): high risk category. ● Violence Risk Appraisal Guide - Revised (VRAG-R): eighth out of nine "bins" (the ninth "bin" being the highest). ● Violence Risk Scale (VRS): high risk range. 1. Found that the following dynamic factors were relevant or potentially relevant when considering the defendant's risk of violent re-offending: ● Substance use, violent lifestyle, weapon use, criminal peers ● Criminal personality, criminal attitudes, cognitive distortions ● Impulsivity, poor emotional control, interpersonal aggression, lack of insight. ● Poor compliance with community supervision, release to high-risk situations, lack of community support. 1. Considered that the defendant's most likely scenario for further violent offending would begin with a relapse into substance abuse. Ms Tulloh considered that this may be triggered by a failure to obtain stable accommodation or have accommodation fall through due to behavioural issues, such as conflict with other house mates or neighbours. As such, the defendant may then fail to present for his opiate replacement therapy, and relapse into illicit substance abuse. Ms Tulloh found that the defendant would then be likely to return to those high-risk, but familiar areas of the inner city. If he is unable to secure his drug of choice, he is likely to use any available/affordable substances, such as methamphetamine. If he were to continue to use this drug over a period of days, it would likely increase his suspiciousness, irritability, and aggression. Ms Tulloh considered that if he were then involved in some kind of confrontation with police or a member of the public, he may respond to some perceived provocation with violence.
In the Supplementary RAR, Ms Tulloh considered additional and updated information about the defendant, and concluded: 1. Noting that the factors that the Historical Clinical Risk Management-20, Version 3 (HCR- 20) identifies are very similar to those risk factors identified by the VRS and discussed in the RAR - and in that sense doesn't provide any information additional to the information that the VRS provides - the defendant was nonetheless assessed using the HCR-20, which determined that the defendant requires a high level of effort to prevent further violence. The specific risk indicators in the HCR-20 tool include historical, clinical and risk management factors. 2. The defendant's composite/risk needs levels continues to fall in the high risk range. 3. The defendant's case is unusual due to the relatively late onset of offending and violence. 4. The circumstances in which a potential serious violence offence could occur in the future would involve the defendant being in a public place, under the influence of methamphetamine when some sort of confrontation occurs. The violence could be potentially "serious", particularly if the victim is vulnerable, that is, older, physically smaller or unprepared and noting that the defendant does not carefully plan to inflict a particular level of violence. Rather, the resultant level of violence is an interplay between his intentions, level of emotional arousal and the effects of substances. 5. Most violence, including the defendant's, falls short of the 'serious violence' referred to in the CHRO Act. 6. Overall, the defendant's risk of committing a further serious violence offence is "moderately likely", noting that his high score on the VRAG may indicate that that likelihood lies somewhere between 50 and 75% over the next 7 years.

[24]

The likelihood that the Offender will Comply with the obligations of an ESO

The defendant's counsel submitted that the evidence indicates that the defendant has said he is not willing to comply with any conditions of an ESO (defendant's written submissions at [29])
The plaintiff points to some recent events which indicate that there has been some benefit to him whilst being supervised under the ISO (the affidavit of Ellen Southwood affirmed 10 October 2024, OIMS notes and entry for 5 September, the affidavit of Luke Sampson affirmed on 1 November 2024, OIMS notes and entry for 10 October 2024, the affidavit of Luke Sampson affirmed 24 January 2025 and OIMS notes and entry 31 October 2024) . It is submitted this shows an improvement in the defendant's attitude and circumstances.
I accept there is evidence to the effect that the defendant has said he is unwilling to comply with any conditions imposed if an ESO is made. The likelihood of compliance with obligations under an ESO is a relevant matter the Court must take into account in determining whether to make the order (s.9(3)(e2)). However, it is but one of the matters the Court must consider. The paramount consideration in determining whether to make an extended supervision order, as mandated by s.9(2) of the Act, is the safety of the community.
There may be cases where it is unlikely that an offender would comply with the obligations of an ESO by reason of circumstances other than an unwillingness to do so. In such cases, that matter may have more weight in the Court's determination whether to make an ESO. Again, it would be but one matter for the Court to consider and would not be determinative. In cases such as this one, however, the likelihood of the offender complying with the obligations would be determined by the offender's willingness to comply. If all other factors, including the paramount factor of protection of the community weigh in favour of making an ESO, I consider it would be an extremely rare case (if ever) that such a factor would outweigh all others such that an ESO would not be made. Indeed, the unwillingness to comply with obligations imposed by an ESO, being an order of the Court, could be seen to further enliven the need for community protection by way of close supervision of the offender.
I will return to discuss this issue in more detail below in dealing with the Court's residual discretion as to whether to make an ESO if it is otherwise appropriate.

[26]

Plaintiff's Submissions

The plaintiff submitted that, taking into account the matters set out in s 9(3) of the Act and the evidence in support of the application, as well as the legislative requirement that the safety of the community as the paramount consideration, the Court would be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious violence offence if not kept under supervision. The plaintiff referred to the gravity of the risk posed, including the gravity of the consequences if the risk of further violence eventuated. The plaintiff submitted that the risk is that a further offence of violence would occur in a public place. It was submitted that as a consequence of this, the violence may be unpredictable, without any "lead up" to allow the victim to take evasive or preventative action, and may be instigated against the vulnerable person.
The plaintiff referred to and relied upon the assessment of the experts who consider there is a significant risk that the defendant will commit an offence of violence. The plaintiff accepted that the expert evidence is not clear-cut as to whether there is an unacceptable risk of the defendant committing a serious violence offence. The plaintiff submitted, however, that an offence of violence may escalate and become a serious violence offence by reason of the consequences on the victim of an offence of violence. As the risk includes a risk of offending in a public place, especially with the defendant's repeated homelessness, the unpredictable nature of the risk and the potential vulnerability of the victims would necessarily mean that there is a substantial risk of significant consequences such that the risk would be one of a serious violence offence.
The plaintiff referred to the fact there seems to be agreement amongst the experts of a high risk of future violence. It is submitted, however, whilst expert opinions are a central consideration, they are not determinative.

[27]

Defendant's Submissions

The defendant submitted that the expert reports were limited by the defendant's nature as a challenging interviewee and that he left both interviews early. I do not accept that this diminishes the value of those reports to any significant degree. Indeed, rather, his recalcitrance to attend and engage in those interviews in an appropriate manner which left each interviewee holding concerns for their safety if the interviews continued, is reflective of his general inability to engage with respect to his behaviour without resorting to threatening conduct.
The defendant also emphasised that the experts are not clear-cut on whether the risk posed by the defendant of committing an offence of violence would approach the threshold of serious violence as opposed to more general types of violence. It was submitted that there is a range of violent offending which is possible and a risk of violence at any level cannot be enough to satisfy the statutory test. It was submitted that when the court takes the expert opinions into account and looks at the evidence as to the defendant's background, there are some striking features which may suggest that his level of violence may not be unacceptable.
First, it was pointed out that at age 50 with a very extensive criminal history, there are limited offences of violence in his overall criminality. It is accepted there were two serious violence offences, but other than that there were only three other offences involving non-serious violence.
Additionally, whilst the experts point to a weapon risk, it was submitted that the evidence does not support a conclusion on this basis of an unacceptable risk of serious violence. Whilst true that the defendant has a large number of of knife offences that is because, it was submitted, he is a person who primarily lives on the streets and requires one to cut up his food. There were no offences with the use of weapons.
It was also submitted that having regard to his relatively advanced age, it is less likely he will commit, and be able to commit, serious violence offences. It was accepted this was an unusual case of an antisocial defendant who very rarely acted violently, who more often than not does not act in a seriously violent way and never appears to have used weapons. Further, the evidence indicates there is some stability in his accommodation at the moment which also would decrease the risk of commissions of serious violence offences.
It was submitted the court could not conclude to the relevant level of satisfaction that the defendant posed an unacceptable risk of the commission of a serious violence offence.

[28]

Conclusion on Unacceptable Risk

I have formed the view that the plaintiff's submissions should be accepted. I consider that on the whole of the evidence and taking into account the experts' material, the RAR and Risk Management Report, and having regard to the matters in s 9(3) of the Act, that there is an unacceptable risk that the defendant will commit a serious offence, being a serious violence offence, if not supervised. I have reached this conclusion to the relevant high degree of probability.
I have reached that conclusion having evaluated and balanced considerations of both the likelihood of the risk and the gravity of the risk that may eventuate (see New South Wales v Simcock [2016] NSWSC 1805 at [71]). As is accepted by the defendant's counsel, the experts are unambiguous in their opinions that the defendant is a high risk of future violence.
Whilst it is true, as the plaintiff concedes, it is not clear cut in the opinion of the experts that such violence would rise to the level of serious violence, I consider the risk that it will do so is unacceptable. That is because, as the plaintiff says, there is a real risk that such violence may occur in public, in an unpredictable way against a vulnerable person. I accept the plaintiff's submissions that the consequences of such violence may be significant such that there is a serious violence offence. The definition of "serious violence offence" includes a serious indictable offence constituted by a person 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. I accept the plaintiff's submission that potentially, the consequences of the defendant engaging in violence could escalate the offence to a serious violence offence. I note that it has been said that the unacceptable risk may exist where there is a low likelihood of risk, but the consequences are serious: see for example State of New South Wales v Devaney (Final) [2022] NSWSC 60 at [73], State of NSW v Davis (preliminary) [2020] NSWSC at [28], State of New South Wales v Loto [2018] NSWSC 1522 at [16-17] and State of NSW v Kamm (final) [2016] NSWSC 1 at [43].
The evidence indicates that the defendant has little to no insight into his offending behaviour. He responds with violence and aggression to perceived unfairness. This is illustrated by his recent eviction from Matt Talbot Hostel where he claims to have been attacked for no reason by a staff member.
I have not disregarded the factors said by the defendant to be protective which it was submitted mitigated the risk. In so far as the defendant's present accommodation in Wollongong is concerned, whilst it is stable accommodation the evidence indicates is unsuitable in that it contains drug paraphernalia indicating drug use. Indeed, the defendant accepted he has engaged in drug use whilst at the premises.
In so far as the defendant's age is concerned, I accept he is, at 50 years of age, not a young man. However, having regard to all of the other factors identified in the evidence, I do not consider this of itself is sufficient to mitigate the accepted risk of him committing acts of violence. I also accept that there is no evidence the defendant has used weapons in the relatively few acts of violence he has on his criminal record. However, that does not mitigate the risk of him committing violence and, indeed, the two acts of serious violence committed by him were committed without weapons.
In my opinion, none of the so-called protective factors persuade me to conclude that there is not an unacceptable risk of serious violence.
I also take into account that another, albeit secondary, purpose of an ESO is to aid in the rehabilitation of the defendant. Despite his posturing that he would not comply with any obligations under an ESO and some breaches of the conditions of the ISO to which he has been subject, as the plaintiff points out, there have been some signs of a positive benefit to the defendant of the supervision under the ISO. For example, he is now on a priority list for housing. Stable (and drug free) accommodation would be a significant benefit to the defendant. It would keep him from living on the streets and remove him from the unsuitable accommodation in which he presently resides. Additionally, the OIMS notes indicate that the supervisor of the defendant has started to get some rapport and is making headway with the defendant. It should not be thought, therefore, that being subject to an ESO with conditions will result only in disadvantage to the defendant.
In my opinion, the plaintiff has established to a high degree of probability that there is an unacceptable risk that the defendant will commit a serious offence if not supervised.

[29]

Discretionary matters- is an ESO Futile?

As I have touched upon above, the defendant submits that even if the Court reached the conclusion that the unacceptable risk test was satisfied, in the exercise of its residual discretion, it would refuse to make the ESO. That is because the defendant has said that he will not comply with an ESO and the order would thus be futile.
Counsel for the defendant concedes it would be a very rare case where an unacceptable risk test is made out, but the summons is dismissed in the Court's discretion. That is a concession well made (see for example State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [43] per Harrison J, as the Chief Judge then was who said it would be an "unusual case" where the Court was satisfied to the relevant standard that an offender was a high risk offender, but would decide in its discretion not to make an ESO). I consider it would be an even rarer case, if ever, where the unacceptable risk test is satisfied but the Court refused in its discretion to make an order merely because the defendant said he would not comply with it. I find it difficult to envisage a situation where it would be a proper exercise of the Court's residual discretion to refuse such an order, noting the paramountcy of community protection, because the defendant says he would breach it. Such a flagrant disregard to Court orders bespeaks the need for the defendant to be supervised.
Counsel for the defendant submits that as well as making the order futile, if the defendant follows through with his stated intention not to comply with it, it would quickly become punitive. It is submitted the consequences for non-compliance may include imprisonment with a risk that the defendant will spend years in prison not because he has committed a crime, but because he has beached an ESO.
I do not accept imprisonment is a probable result of non-compliance by the defendant. As the plaintiff notes, the evidence is that there has been non-compliance by the defendant with some of the conditions of the ISO. This includes his admissions to taking illicit substances on several occasions, each a breach of the conditions of the ISO.
Whilst he has prima facie been in breach of the conditions of the ISO, the defendant was frank and honest with those supervising him and the police about his taking illicit substances. That honesty can also be considered a positive development in that he did not attempt to lie to his supervisors or the police. Further, as counsel for the plaintiff pointed out, the evidence indicates that there has been a nuanced approach by those supervising the defendant under the ISO, and the police, to his breaches of the ISO. There is no one required outcome. There are several ways a breach can be dealt with, including pro-active and facultative responses which will not necessarily result in action being taken against the defendant. What action is taken is also not prescribed as imprisonment only, but other steps to try to have, and assist, the defendant comply with his obligations in the future.
Even if, ultimately or after a time, action for breach is taken against the defendant which may result in punishment, including potential imprisonment, this would be as a result of the defendant contumaciously breaching his obligations under the ESO. It cannot be the correct approach to deal with this possibility by failing to make the order in the first place.
I do not accept there are any discretionary reasons not to make the ESO.

[33]

SCHEDULE OF CONDITIONS OF SUPERVISION In these conditions: "Associate" includes, but is not limited to, being in company with, or communicating with by any means (including by post, facsimile, telephone, email or any other form of electronic communication). "CSNSW" means Corrective Services NSW. "Commissioner" means Commissioner for Corrective Services. "Defendant" means Stephen David Galvin, the defendant in these proceedings and the subject of the order. "DSO" means Departmental Supervising Officer, that is, any Corrective Services Officer supervising the defendant under the order. "NSWPF" means NSW Police Force. "Search" includes: a) A garment search, being a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body; and b) A pat-down search, meaning a search of the defendant where the defendant's clothed body is touched. Reporting and monitoring obligations 1 The defendant must accept the supervision and guidance of a DSO and obey all reasonable directions of a DSO. 2 Where a direction maybe given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service. 3 The defendant must truthfully answer questions from a DSO, or any other person supervising him, about: (a) where he is or has been; (b) where he is going; (c) who his is with or has been with; (d) what he is doing or has been doing; and (e) the nature of his associations. 4 The defendant must agree to any information relating to his risk, supervision or rehabilitation being shared between those persons and agencies that are involved in his supervision including, but not limited to, a DSO, NSWPF and CSNSW. Accommodation 5 The defendant must live at an address approved by a DSO and notify a DSO of any intention to change his approved address or living arrangements. 6 The defendant must allow a DSO to visit him at his approved address at any time and to enter the premises at that address. 7 The defendant must not spend the night anywhere other than his approved address or any alternative approved addresses without the approval of a DSO. 8 The defendant must promptly notify a DSO of any visitor entering and remaining his approved address. Note: If he is residing in shared accommodation, this condition only relates to his assigned room. 9 The defendant must not permit any person to stay overnight at his approved address (other than persons who ordinarily reside there) without the prior approval of a DSO. Note: If the defendant is residing in shared accommodation, this condition only relates to his assigned room. Place and travel restrictions 10 The defendant must surrender any passports held by him to the Commissioner, must not be in possession of any passports, and must not attempt to apply for any passports. 11 The defendant must not leave New South Wales without the approval of the Commissioner. 12 The defendant must not go to any place specified by a DSO. Employment, finance and education 13 The defendant must take all reasonable steps to participate in programs as recommended by a DSO, including the development of a case management plan which may include employment, education, training or participation in personal development activities. 14 The defendant must notify a DSO if he starts or changes any job, volunteer work or education course without the approval of a DSO. Drugs and alcohol 15 The defendant must not: a) Possess or use prohibited drugs; or b) Abuse prescription drugs which are not prescribed to him. 16 The defendant must submit to drug testing. 17 The defendant must attend and participate in programs and courses for drug and alcohol rehabilitation as reasonably directed by a DSO and must not discharge himself from such programs and courses without prior approval of a DSO. Non-association 18 The defendant must not associate with any person specified by a DSO. 19 Without limiting condition 18, the defendant must not associate with any person: (a) who he knows is consuming or under the influence of illegal drugs; or (b) held in custody without prior approval of DSO. Condition 18 does not apply to: i. Persons residing at share accommodation when present at the share accommodation; or ii. Persons attending interventions when present at the interventions Weapons 20 The defendant must not possess or use any of the following: (a) a firearm, firearm part or ammunition within the meaning of the Firearms Act 1996; or (b) a prohibited weapon within the meaning of the Weapons Prohibition Act 1998. 21 Without limiting or altering condition 20, the defendant must not possess or use any of the following, without a DSO's prior approval: (a) a knife, machete, sword or any other device that consists of a single-edged or multi-edged blade or spike that is designed or adapted to inflict violence, whether actual or threatened; (b) any other implement made or adapted for use for causing injury to a person; or (c) anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property. Note: Condition 21 does not apply to knives being used for ordinary domestic use. Access to the internet and other electronic communication 22 The defendant must submit to the search by a DSO (or any other person as directed by the DSO) of the defendant's person or residence, or any vehicle in which the defendant is travelling or which is under the defendant's control, or any item, computer, electronic or communication device, storage facility, garage, locker or commercial facility in the defendant's possession or under the defendant's control; and to the seizure of any object located during the search. 23 The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to this Order. Personal details and appearance 24 The defendant must not change his name from Stephen David Galvin or use any other name without notifying a DSO. 25 If the defendant significantly alters his appearance he must notify the DSO within 24 hours of the change. 26 The defendant must let a DSO photograph him, dressed, within one week of the commencement of these conditions and following any significant change to his appearance. 27 If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide a DSO with such details. Medical intervention and treatment 28 The defendant must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction. 29 If directed, the defendant must undergo an assessment for the purposes of a Mental Health Care Plan 30 The defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults relevant to drug treatment and/or prescribing medication. 31 The defendant must take medications that are prescribed to him relevant to drug treatment by his healthcare practitioners and only in the manner prescribed. 31 a) If the defendant is prescribed medication, he must only take it in the manner prescribed. 32 The defendant must notify a DSO immediately if he ceases to take or declines to commence taking any medication as referred to in the above condition. 33 The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with a DSO. 34 The defendant must agree to any information obtained under condition 33 being shared between those persons and agencies that are involved in his supervision including, but not limited to, a DSO, NSWPF and CSNSW. 35 The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him in relation to his risk of reoffending or rehabilitation.