State of New South Wales v Hona (Final)

Catchwords: HIGH RISK OFFENDERS – extended supervision orders – violent offender – whether there is an unacceptable risk that the defendant will commit a serious offence – where defendant has recently relapsed into drug use and lost stable employment, accommodation and prosocial relationship – recent developments post-date reports of Court appointed experts – unacceptable risk found – dispute as to conditions – no issue of principle – extended supervision order imposed

Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW)

Cases Cited: State of New South Wales v Hona (Preliminary) [2021] NSWSC 373
State of New South Wales v Hona (Preliminary) [2024] NSWSC 1618
State of New South Wales v O’Hara (Final) [2024] NSWSC 225
State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813
Tannous v State of New South Wales (2020) 103 NSWLR 183; [2020] NSWCA 261
Wilde v State of New South Wales [2015] NSWCA 28; (2015) 249 A Crim R 65

Texts Cited: Practice Note SC CL 12

Category: Principal judgment

Parties: State of New South Wales (Plaintiff)
David Hona (Defendant)

Representation: Counsel:
K Curry (Plaintiff)
J Wilcox (Defendant)
Solicitors:
NSW Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s): 2024/00400530

Publication restriction: Nil

JUDGMENT

Introduction

1. David Hona (‘the defendant’) is 31 years of age. He has had extensive interactions with the criminal justice system. He “first got into trouble with the law” when aged 14. His offending has involved violence, on occasions with weapons, on his own but sometimes with others, within domestic settings and against police and strangers on public streets.

2. By summons filed 28 October 2024, the State of New South Wales (‘the plaintiff’ or ‘the State’) alleges that the defendant poses an unacceptable risk of committing another serious offence such that final orders should be made against him under the Crimes (High Risk Offenders) Act 2006 (NSW) (‘the Act’).

3. The defendant, who has previously been subject to an extended supervision order (‘ESO’) made under the Act, opposes the making of such an order: he contests that he poses an unacceptable risk of committing another serious offence. The defendant also argues, if the Court does make an extended supervision order, that only some, but not all, of the conditions sought by the State should be imposed.

4. The plaintiff read, in support of the orders, the following affidavits:

5. Affidavits of Catherine Moore sworn 28 October and 19 November 2024 and 3 and 17 March 2025.

6. Affidavit of Jessie Slattery-McDonald affirmed 6 December 2024.

7. The plaintiff also tendered the Court Attendance Notice and police facts sheet – which relates to the defendant returning a positive drug test performed on 8 March 2025 (exhibit B). As a result of that failed test, the defendant was charged on 14 March 2025 with failing to comply with conditions 18 and 21 of the Interim Supervision Order (‘the ISO’) made by R A Hulme AJ on 16 December 2024 which commenced on 4 February 2025.

8. The defendant read, in opposition to the orders, the following affidavits:

9. Affidavit of Joseph Harding affirmed 11 March 2025.

10. Affidavit of the defendant affirmed 11 March 2025 (with the exception of par 17, which was not read).

11. Affidavit of Zenah Moussaoui affirmed 2 December 2024.

12. The defendant also tendered an email which recorded the details of the defendant’s acceptance into a rehabilitation program (exhibit 1).

13. There was no cross-examination of any deponent.

14. The parties prepared a joint statement of agreed facts dated 14 March 2025 (‘the agreed facts’) in accordance with Practice Note SC CL 12.

15. All references to legislative provisions in these reasons are, unless otherwise specified, references to the Act.

The issues

The issues agreed

11. The parties agreed (and I find) that all preconditions to the making of the ESO, other than whether there is an unacceptable risk within s 5B(d), have been satisfied (agreed facts at [14]).

12. The parties also agreed (and I also find) that the requirements with respect to the application, as set out in ss 6(1), (3) and (4) of the Act, have been complied with, as had the pre-trial procedures relating to the making of, and dealing with, the application for an ESO, as set out in s 7 of the Act (agreed facts at [15]).

The issue in dispute: s 5B(d)

13. Thus, the remaining issue is, as I have identified – namely, whether the terms of s 5B(d) of the Act are satisfied. That section requires the Court to be “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 determining whether (or not) to make an ESO, the “safety of the community must be the paramount consideration” (s 9(2)) and the Court must also have regard, in addition to any other matter it considers relevant, to the matters set out in s 9(3), but is not to consider any intention of the offender to leave New South Wales (s 9(4)).

14. The concept of “unacceptable risk” is expanded upon by s 5D, which is in the following terms:

For the purposes of this Part, 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.

15. The concepts “high degree of probability” and “unacceptable risk”, referred to within s 5B(d), have been widely discussed. In State of New South Wales v O*’*Hara (Final) [2024] NSWSC 225 at [31]-[32] and [34], they were summarised in these terms:

High degree of probability

31 The high degree of probability “qualifies the state of the judge’s satisfaction, not the degree of the risk”: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [122] (‘Lynn’).

32 The Court must be satisfied that the likelihood of the defendant committing a further serious offence is higher than the civil standard of proof – in other words, it is “beyond more probable than not” – but it is not a requirement that the finding be made to the criminal standard of beyond reasonable doubt: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]; State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041 at [14] (‘Golding’); State of New South Wales v Shields (Preliminary) [2022] NSWSC 469 at [12].

Unacceptable risk

…

34 The concept of an “unacceptable risk” has, unsurprisingly, been the subject of considerable judicial consideration, which establishes the following:

(1) The phrase is to be given its everyday meaning within its context, having regard to the objects of the Act: Lynn at [55]-[58].

(2) What the Court must find to be unacceptable is the risk that the offender poses of committing another serious offence if not kept under supervision; that is, an assessment of the likelihood in the absence of any supervision: Lynn at [51] and [55]; State of New South Wales v Donovan [2015] NSWCA 280 at [24]. That finding provides the basis for imposing control on the offender: Lynn at [127].

(3) The interests of the offender in liberty and privacy are not relevant to the assessment of whether there is an “unacceptable risk”, but can be taken into account when considering whether to make, under s 9 of the Act, an ESO or to dismiss the application: Lynn at [44], [143] and [148]-[149].

(4) Unacceptability of risk “involves considerations of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate”: State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71]; State of New South Wales v Chaplin [2019] NSWSC 471 at [15]. The nature of the risk “posed ha[s] to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition”: Lynn at [126].

(5) An offender may pose an unacceptable risk, even where the likelihood of committing another serious offence is low, if the likely consequences of such an offence are very grave: State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41] and [43]; Golding at [16]; State of New South Wales v Devaney (Final) [2022] NSWSC 60 at [73].

16. The parties did not dispute these background principles; rather, the dispute was confined to whether, on the facts as ultimately found, the Court should be satisfied to the requisite degree that the defendant poses an unacceptable risk within the terms of s 5B(d) of the Act.

Background

General

17. Although the defendant’s offending commenced before this time, it is convenient to commence the summary of the defendant’s criminal history in 2011.

18. The defendant was involved in two episodes of offending in 2011, when he was 17 years of age. It is presently necessary to refer only to the second, which was more serious than the first: on 17 September 2011, the defendant threatened a victim whilst holding a knife to his throat and then stabbed a second victim twice in the stomach “requiring surgical repair” (agreed facts at [3]-[4]). For this offending, the defendant was convicted of two offences – being, use offensive weapon with intent to commit an indictable offence (intimidation) and reckless wounding in company. Although initially sentenced in the Children’s Court, on appeal to the District Court the defendant was sentenced to a term of 100 hours community service for the intimidation offence and a 15-month control order, suspended, for the reckless wounding offence (agreed facts at [4]).

The index offence

19. The index offending, a “serious offence” for the purposes of the Act, involved the defendant recklessly causing grievous bodily harm to a young man – who he “deliberately sought out” and who the sentencing judge described as “demonstrating he did not want to engage in any sort of confrontation” – in Bondi in the early hours of 14 December 2013. The events were described in the agreed facts in these terms (at [5]-[7] – footnotes omitted):

“5. During the night of 13 and 14 December 2013, when the Defendant was 19 years old, he was drunk and affected by the consumption of prohibited drugs. He and a cousin had been ejected from a hotel in Bondi at approximately 1:00am. The cousin became involved in a verbal confrontation with the victim, and the cousin ripped the victim’s t-shirt. The Defendant followed the confrontation, crossing Campbell Parade. The Defendant approached the victim, who was standing facing him with arms extended and palms open. The Defendant then struck the victim in the face with his right elbow. The victim fell to the ground, struck his head and lost consciousness. The Defendant proceeded to stomp forcefully on the victim’s upper chest. The victim suffered a very severe traumatic brain injury requiring surgery and rehabilitation.

6. Hock [D]CJ described the objective gravity of the offending as “high and well above the mid-range for such an offence” stating that it was a “particularly despicable and cowardly act”, a “completely gratuitous act of violence”. Her Honour sentenced the Defendant for a period of 6 years and 9 months for the charge of recklessly cause grievous bodily harm, with a non parole period of 4 years and 9 months, commencing 16 June 2014 and expiring 15 March 2021.

7. On 21 June 2016, the Court of Criminal Appeal dismissed the Defendant’s appeal against sentence, per Wilson J (Basten JA and Schmidt J agreeing).”

20. To these agreed facts should be added the following.

21. After attacking the victim in the way described, the defendant fled, leaving the victim unconscious on the ground. As the agreed facts note, the victim sustained a very severe traumatic brain injury, requiring surgery and rehabilitation, which the sentencing judge described in these terms (exhibit CM-1, tab 13, pages 209-210):

As a result of the assault [the victim] suffered a severe head injury and was taken by ambulance to St Vincent’s Hospital. He was found to be deeply unconscious and to have a Glasgow Coma Score of 3 at the scene and on arrival. Examination revealed a fracture of the occipital bone at the base of the skull and an extensive acute subdural haemorrhage. Emergency surgery was required to remove an acute subdural haematoma and relieve the pressure within the skull which required removal of a bone flap from the skull. [The victim] remained in a medically induced coma for 8 days. During this time in response to ongoing elevated intracranial pressure he was returned to surgery to have a temporary drain fitted to the brain. He remained in intensive care for 9 days.

Subsequently he developed right bi-lobe pneumonia which grew into a staphylococcal infection requiring antibiotics. In the opinion of the treating neurosurgeon, Dr Malcolm Pell the “head injury was severe and without surgery and intensive medical management in the intensive care unit it would have been fatal”.

On release from hospital [the victim] has required rehabilitation of his motor functions and physiotherapy. He was required to wear a protective helmet as part of his skull had been removed. On 14 February 2014 he underwent surgery, a cranioplasty to replace the bone flap which had been removed from his skull in the initial operation.

22. The sentencing judge accepted the victim’s injuries were “life-threatening, a result which was only avoided because of medical intervention” (exhibit CM-1, tab 13, page 212).

23. At the time of committing this offence, as the sentencing judge noted, the defendant was on bail for two separate sets of offences (exhibit CM-1, tab 13, page 213).

The defendant’s release to parole

24. The defendant was sentenced for the index offence on 10 October 2014, with the sentence commencing on 16 June 2014. The non-parole period expired on 15 March 2019, and he was released from custody at that time (exhibit CM-1, tab 31, page 357).

25. On 21 August 2019, the defendant’s parole was revoked on the basis that there had been repeated failures by the defendant to report to his Community Corrections officer at the times and places directed by them (exhibit CM-1, tab 33, page 361).

26. It appears that the defendant was again released on parole on 22 January 2020. Subsequently, on 15 February and 20 March 2020, the defendant was charged with fraud and dishonesty offences. On 26 March 2020, he was sentenced at the Downing Centre Local Court for this offending, where he received a two-year Community Corrections Order (exhibit CM-1, tab 34, page 362).

27. Following the defendant’s release on parole in January 2020, the defendant failed to report, as he was required, to his parole officer. Given the defendant failed to engage with Community Corrections following his release, and had “reoffended on two separate occasions”, Community Corrections recommended, in a “Breach of Parole Report” dated 23 April 2020, that the defendant’s “parole order be revoked” (exhibit CM-1, tab 34, page 363).

28. Although the sentence imposed for the recklessly causing grievous bodily harm offence expired on 15 March 2021, it appears, apparently due to the revocation of parole, that the total term expired on 30 April 2021: see State of New South Wales v Hona (Preliminary) [2021] NSWSC 373 at [2]-[3].

The earlier ESO and current ISO

29. On 27 July 2021, Button J ordered the defendant be subject to an ESO for a period of 18 months (agreed facts at [9]). That ESO was suspended while the defendant spent additional periods of time in custody, with the consequence that the ESO expired on 4 February 2025 (agreed facts at [9]).

30. On 16 December 2024 an ISO was made by R A Hulme AJ: State of New South Wales v Hona (Preliminary) [2024] NSWSC 1618. The ISO will expire on 1 April 2025 (agreed facts at [1]).

The offending: 2021 to date

31. Following (and notwithstanding) the imposition of the ESO in 2021, the defendant’s offending, summarised in what follows, has continued.

32. On 10 October 2021, the defendant was charged with assault occasioning actual bodily harm (DV) against his then-girlfriend. The assault included him stomping on the victim’s head, causing a fracture to her left orbital bone and serious bruising to her eye. The bruising was also described as extending to the “entirety of the left side of the [v]ictim’s face” and “approximately 15-20cm in length with swelling in her cheek” (agreed facts at [10]; exhibit CM-1, tab 20, page 255). For this offending, the defendant was convicted and sentenced to imprisonment for two years, with a non-parole period of 12 months expiring on 8 March 2023 – the date upon which he was released from custody (agreed facts at [10]). However, as next explained, he returned to custody some six weeks later for further offending.

33. On 21 April 2023, the defendant was charged with failing to comply with his ESO, intimidating a police officer in execution of duty without actual bodily harm and possess a prohibited drug (agreed facts at [11]; exhibit CM-1, tab 22, page 260). The circumstances of this offending, given the recent drug use and offending by the defendant, is significant (and necessary to return to, later). They are drawn from the police facts sheet (and referred to in full, in the Risk Assessment Report from Samuel Ardasinski, dated 11 July 2024, later referred to) for this charge (H346051498: exhibit CM-1, tab 22, page 262-263):

“Between 17 March and 31 March 2023 the [defendant] was subjected to three oral fluid drug tests; all of which showed a positive result for Methylamphetamine, Morphine and Amphetamine. It was decided that police would work alongside Community Corrections to attempt to assist the [defendant] to refrain from using prohibited drugs, rather than arrest.

The [defendant] was directed to participate in a drug rehabilitation program and is known to have been attending the program over the last two weeks; however it has not made any significant difference to his behaviour and he has continued to use prohibited drugs over this period.

On 12 April 2023 Community Corrections attended the home of the [defendant] and he was submitted to a further oral fluid drug test.

The [defendant] was frequently reminded by his Corrective Services Officer that he was not going to be given any further warnings in relation to his drug use and that any additional positive tests would result in his arrest. Community Corrections would also phone him regularly reminding him to attend his drug and alcohol rehabilitation program and he failed to attend his scheduled meeting on 19 April 2023.

The results of the drug test taken on 12 April 2023 were received by police on 19 April 2023 and they showed the presence of Amphetamine, Morphine and Methylamphetamine.

On 21 April 2023 the [defendant] was arrested and cautioned at his home. He was highly agitated and appeared to be drug and/or alcohol affected. Whilst police were attempting to get him to sit in the caged truck, the [defendant] said, “Do you want an easy day or a hard day; I’ll break your nose”. The [defendant] pushed back against police and made attempts to stop police from being able to get him into the caged truck. Police eventually were able to get him inside the truck and he was conveyed to Sydney City police station.”

34. On 13 July 2023, the defendant was convicted on all counts and sentenced to imprisonment for nine months, commencing 21 April 2023 and expiring on 20 January 2024, with a non-parole period of four months – however, despite the non-parole period, the defendant was only released to parole on 4 December 2023 (agreed facts at [11]).

35. On 4 January 2024, the defendant was charged with failing to comply with his ESO for using methamphetamine (agreed facts at [12]; exhibit CM-1, tab 24, page 265). The drug was detected when the defendant was subjected to an oral fluid drug test, conducted by a Departmental Supervising Officer (‘DSO’) on 28 December 2023 (exhibit CM-1, tab 24, page 266). He was subsequently convicted and sentenced to a 12-month Community Corrections Order, which expired on 4 January 2025 (agreed facts at [12]).

36. On 10 January 2025, the defendant disclosed to a case worker “that he had used heroin on Saturday night 4 Jan. This was the night prior to his random drug test, which [Community Corrections had] not yet received the results back for” (affidavit of Catherine Moore sworn 3 March 2025, annexure C: exhibit A, tab 15, page 219). As it happens, the drug test was negative (affidavit of Catherine Moore sworn 3 March 2025, annexure C: exhibit A, tab 15, page 220).

37. On 7 February 2025, the defendant was “charged and convicted for failing to comply with his ISO, after returning a positive drug test for morphine, codeine, 6-acetyl morphine and methylamphetamine” and sentenced to a 12-month Community Corrections Order expiring on 6 February 2026 (agreed facts at [12]). The drug test was performed on 26 January 2025, and the results received on 7 February 2025 – the date that the defendant was arrested and charged (affidavit of Catherine Moore sworn 3 March 2025, annexure B: exhibit A, tab 15, page 216).

38. On 14 March 2025, the defendant was charged with failing to comply with the ISO made by R A Hulme AJ on 16 December 2024 – specifically, condition 18(b), which provides that the defendant “must not use prohibited drugs, or abuse drugs unlawfully obtained”. The offence arose out of a DSO, on 8 March 2025, subjecting the defendant to a drug test. The sample returned a positive result for methylamphetamine and amphetamine, leading him to be arrested and charged.

The assessment of the risk

Introduction

39. Section 9(1) of the Act empowers the Court, when determining an application for an ESO, to make such an order (s 9(1)(a)) or to dismiss the application (s 9(1)(b)).

40. As I have earlier noted, in determining whether or not to make an ESO, the “safety of the community” is the paramount consideration of the Court: s 9(2). Further, the Court must take into account – in addition to any other matter the Court considers relevant – the matters in ss 9(3)(b)-(i), but is not to consider “any intention of the offender to leave New South Wales (whether permanently or temporarily)”: s 9(4).

41. The twelve matters that must be considered, under s 9(3), “fall into two broad categories: first, there are reports and sources of information which may be provided in evidence, including, for example, the criminal history of the offender. The other category identifies evaluative judgments which must be made”: Tannous v State of New South Wales (2020) 103 NSWLR 183; [2020] NSWCA 261 at [18].

The matters in s 9(3) of the Act

Reports under s 7(4) of the Act, and the level of the offender’s participation in such examinations: s 9(3)(b)

42. Following the orders made by R A Hulme AJ, the defendant was assessed by Dr Sally McSwiggan, consultant neuropsychologist, and Dr Jeremy O’Dea, forensic psychiatrist.

43. Given the limited nature of the issues that arise on the current application, it is only necessary to emphasise parts of these reports, and the opinions expressed by each expert. Significant portions of the reports were contained in the agreed facts, as set out below.

44. The Court appointed experts were not called to give evidence, nor were they required for cross-examination.

45. The parties accepted that the Court appointed experts were not given a history relating to the defendant’s drug use this year, or of him being convicted or charged in connection with that use (as earlier set out: see [37]-[38], above), nor were they asked to assume these matters in order to formulate their opinions.

Reports from Dr Sally McSwiggan dated 12 and 21 February 2025

46. Dr McSwiggan prepared reports dated 12 and 21 February 2025.

47. The agreed facts referred to the following matters from the report dated 12 February 2025:

48. That the defendant would benefit from a further 12-month ESO which would “allow for graduated reduction in oversight to reinforce his maintenance of recent changes” (agreed facts at [47]).

49. That the defendant’s risk would “lessen the longer he remains in the community without reoffending”. Further, that the defendant’s dynamic risk factors that had shifted over the course of the previous ESO, and the current ISO, include “not using illicit substances (it appears she was not aware of his recent positive drug test); not associating with criminal peers; not expressing pro-criminal attitudes; demonstrating better emotional control; developing a work ethic; and compliance with supervision” (agreed facts at [48]).

50. That whilst the defendant did not present with symptoms consistent with any major mental illness, he nevertheless would meet the diagnostic “criteria for substance use disorder (in remission in a controlled environment) and anxiety disorder” and whilst “that anxiety disorder would not directly affect risk…the [d]efendant’s risk would be self-medicating using substances”. Dr McSwiggan considered that the “risk of relapse for substance use disorder remains high given the recency of abstinence and external controls used to achieve it” (agreed facts at [49]).

51. In relation to the report dated 21 February 2025, the agreed facts referred to Dr McSwiggan’s opinion that the defendant continued “to pose a risk of committing a further ‘serious violence offence’, as not enough time has passed to conclude that he would not present an elevated risk” (agreed facts at [50]).

52. The following further matters from Dr McSwiggan’s report dated 12 February 2025 should be added, by way of supplementation to the above:

53. As was noted in the agreed facts at [49] (set out in [47](3), above), Dr McSwiggan expressed the opinion that the defendant met the diagnostic criteria for a substance use disorder: “Substance Use Disorder (Stimulants, Opioids, Polypharmacy) (in remission with semi-controlled environment)” and “Anxiety Disorder” (report pars 64-65). In relation to the substance use disorder, Dr McSwiggan diagnosed this as “severe” and that it had been in “remission for the last six months”, albeit that the defendant was still in a controlled environment “to a degree (random drug screens). His risk of relapse remains high given the recency of abstinence and external controls required to achieve remission” (report par 67). Dr McSwiggan considered that the consequences for the defendant, in terms of offending “including the risk of violent offending, should he return to illicit substance use makes this his primary risk management need” (report par 67).

54. When invited to undertake a “statistical or other assessment” of the likelihood of the risk of reoffending, Dr McSwiggan considered there were “inherent limitations” in such process and that what is more “effective is risk formulation, utilising evidence-based risk factors for the purpose of informing ongoing management and rehabilitation” (report par 75).

55. Dr McSwiggan considered that the defendant’s “[ESO] response, has taken time. His trajectory has recently changed where there has been a reduction in dynamic risk factors but not his static risk… [h]e requires a period of maintenance of compliance for the changes he has made to be reinforced. He requires a step-wise reduction in oversight to make it through all the stages before there is no external oversight” (report par 85). (In relation to the reduction in “dynamic risk factors”, as noted in the agreed facts at [48], Dr McSwiggan was not aware of the defendant’s positive drug test on 7 February 2025 nor, as I later explain, the defendant’s drug use during 2025).

56. Dr McSwiggan considered that the defendant “would benefit from a further 12 months” under supervision, which would “allow a graduated reduction in oversight to reinforce his maintenance of recent changes on a background of seriously violent offending” (report par 98).

57. In relation to Dr McSwiggan’s report dated 21 February 2025, the following should be added to the agreed fact (referred to in [48], above):

58. In terms of risk profile, and whether the defendant posed a risk of committing a further “serious violence offence”, Dr McSwiggan agreed that the defendant did pose such a risk given the shift in the defendant’s “dynamic risk factors have been recent (<12 months). Not enough time has passed to conclude he would no longer present an elevated risk (Moderate/High) of committing a serious violent offence” (report par 1).

59. Dr McSwiggan confirmed that the longer the defendant can remain “in the community without reoffending, the less his risk of reoffending becomes” (report par 5). Dr McSwiggan noted that the explanation for the reduction in the defendant’s dynamic risk profile included the fact that the defendant was “not using illicit substances, not associating with criminal peers, not expressing pro-criminal attitudes, demonstrating better emotional control, developing a work ethic and compliance with supervision” (report par 6).

60. It is appropriate at this point to deal with a submission made by the defendant about Dr McSwiggan’s principal report, and an opinion expressed within it by her. The defendant submitted that Dr McSwiggan “appeared to agree with Mr Ardasinski’s opinion that the defendant’s dynamic factors have shifted, positively, under the current ESO” (defendant’s submissions at [30]). This submission is, I consider, only partly accurate. I will explain why.

61. This submission contains an assumption that, although not expressed, should be identified. It is that, given the apparent consensus between Dr McSwiggan and Mr Ardasinski relating to a reduction in the defendant’s dynamic risk factors and, as a consequence, his risk profile, the Court should have a measure of comfort about the correctness of their opinions – and act upon them.

62. The immediate difficulty with accepting and acting upon this common opinion is that much has occurred since each expert gave their opinion (notably, Mr Ardasinski whose report is dated 11 July 2024). Thus, whilst each expert (as the defendant emphasised) considered there were positive developments that lessened the defendant’s risk profile, those developments have not, I find, endured. Thus, contrary to the history that Dr McSwiggan was provided (report pars 19-20), the defendant, I find, is no longer in a relationship, his employment is sporadic and his housing situation is unstable and it is no longer correct to say, given the defendant’s drug use and drug offending in 2025, that the defendant was “not using illicit substances” or that his substance use (and/or the “severe substance use disorder”) was “in remission”. In relation to this last matter (the defendant’s drug use and drug offending), it is apparent that Dr McSwiggan was not told about these matters, by way of history or assumption, when she prepared her reports. The position is broadly the same in connection with Mr Ardasinski: his assessment of the dynamic risk factors informing the defendant’s risk profile occurred in July 2024 – well before there was an alteration in those factors.

Report from Dr Jeremy O’Dea dated 24 February 2025

54. Dr O’Dea prepared a report dated 24 February 2025.

55. The agreed facts referred to the following matters from this report:

56. In terms of diagnosis, whilst Dr O’Dea did not diagnose the defendant with any major psychiatric illness, he did express the opinion that the defendant met the diagnostic criteria for “Substance Use Disorder (including opioid and amphetamine use disorder and a history of alcohol and cannabis use disorder) in remission at the time of the assessment” and also expressed the opinion that the defendant “would meet the diagnostic criteria for Personality Disorder with significant antisocial traits” (agreed facts at [52]).

57. That the defendant “should continue in structured and supervised alcohol and drug counselling in the long term as part of overall risk management” (agreed facts at [53]).

58. That long-term abstinence from alcohol and illicit substance use and “addressing specific risk factors, including antisocial associates, stressful relationships and gambling, are also likely to assist in the process of managing and modifying [the defendant’s] personality, and risk of engaging in further offending behaviours” (agreed facts at [54]).

59. That the defendant has a “significantly high risk of engaging in further violent offending, particularly if he were to resume substance abuse” and that it would “seem reasonable to consider that there would be a significantly high degree of probability that Mr Hona would be likely to commit a further ‘serious violence offence’… if a structured, supervised and assertive community treatment and risk management program were not continued to be successfully implemented” (agreed facts at [55]).

60. That the defendant’s risk was likely to be long-term “and from a psychiatric risk management perspective, a risk management program should be long term and at least of 5 years duration with regular monitoring and review” (agreed facts at [56]).

61. The following further matters from Dr O’Dea’s report should be added, by way of supplementation to the above:

62. Dr O’Dea reported that the defendant “appeared to display a somewhat nonchalant manner, speaking of his criminal history in a somewhat blasé [manner], conveying limited remorse, contrition, empathy and/or insight regarding his offending behaviour” (report par 83).

63. In terms of diagnosing the defendant as meeting the criteria for a substance use disorder, and that the disorder was “in remission” (as noted in the agreed facts at [52], set out in [55](1), above), the full quotation from Dr O’Dea’s report was that the disorder was “in remission since February 2024 in the context of ongoing supervision” (report par 87). In this respect, it should be noted that Dr O’Dea formulated his opinions on the basis that the defendant had “reported abstinence from opioid, amphetamine and benzodiazepine use from February 2024” and that the defendant had had ongoing problems “with at least opioid and amphetamine abuse and dependence, including under supervision, prior to February 2024” (report par 88). It is clear, however, that Dr O’Dea was unaware, given he interviewed and assessed the defendant on 16 January 2025 (report par 6), of the defendant’s failure to comply with his ISO, after returning a positive drug test on 7 February 2025 (agreed facts at [12]), as well as the other matters relating to his drug use and drug offending in 2025 (set out in [37]-[38], above). Dr O’Dea also expressed the opinion that a substance use disorder “is often a chronic and relapsing condition, even after significant periods of abstinence[,] requiring long term and assertive commitment by the individual to abstinence … and compliance with the overall treatment program in the long term” (report par 89).

64. In terms of diagnosing the defendant as meeting the criteria for a “Personality Disorder with significant antisocial traits” (agreed facts at [52], set out in [55](1), above), Dr O’Dea noted that personality disorders, and in particular antisocial personality disorders, “are usually considered enduring conditions”, characterised by “repeated antisocial behaviours, impulsivity, repeated failure to conform to lawful behaviours, irritability and aggressiveness, disregard for the safety of others, and problems with remorse” (report par 91). Dr O’Dea considered that personality disorders, and antisocial personality disorders in particular, are generally considered to have “limited amenability to treatment and fundamental change”, but are also considered to be “manageable and therefore modifiable, particularly with external supportive controls being successfully put in place” (report par 92).

65. In relation to “risk issues”, Dr O’Dea expressed the opinion that it was generally accepted that the “best predictors of future violent offending are past violent offending, and ongoing substance abuse, particularly in individuals with [a] Personality Disorder, with antisocial and psychopathic traits” (report par 96). Dr O’Dea thus considered that, based upon the defendant’s “history of repeated violent offending; including whilst under the provisions of an ESO; and his [p]ersonality; it would seem reasonable to assume that he has a significant risk of engaging in further violent offending behaviours in the community in the long term, including of committing a further serious violent offence … particularly if he were to resume substance abuse” (report par 97).

66. Dr O’Dea expressed the opinion that “caution should be used in relying on risk assessment tools including the LSI-R, VRAG-R, VRS, SARA and HCR 20 in predicting the risk of an individual engaging in future violent offending in general, but even more so in predicting risk of an individual committing a further serious violence offence” and in “translating these predictions to treatment and supervision of individuals” (report par 99). Those risk assessment tools, according to Dr O’Dea, have “often discussed limitations” and that his risk formulation draws upon a range of matters, including the application of clinical judgement based upon “a full clinical psychiatric risk assessment and risk management approach” (report par 100). Following that approach, Dr O’Dea expressed the opinion that the defendant’s “risk of engaging in further violent offending behaviours in the community in the long-term would be considered significantly high, particularly if he were to resume alcohol or illicit substance use…” (report par 101) or, as later stated and largely reflected in agreed facts at [55], “there would be a significantly high degree of probability that [the defendant] would be likely to commit a further ‘serious violent offence’…in the community in the long-term, if a structured, supervised and assertive community treatment and risk management program were not continued to be successfully implemented” (report par 102).

The results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment: s 9(3)(c)

The 2021 Court appointed experts

57. The Court appointed experts, following the preliminary hearing in 2021, were Dr Christopher Lennings, clinical psychologist, and Dr Anthony Samuels, consultant psychiatrist. Aspects of the reports they prepared were set out in the agreed facts.

58. Dr Lennings prepared a report dated 3 June 2021 (exhibit CM-1, tab 11, page 154). The parties agreed that Dr Lennings expressed the opinion that the most likely risk scenarios identified “involve situations where the [d]efendant would be using substances and becoming emotionally reactive in the company of criminal peers and loses control of his behaviour” (agreed facts at [29]).

59. In terms of diagnosis, Dr Lennings did not diagnose any “serious mental disorder”, albeit he acknowledged that the defendant may have developed anxiety and low mood, as well as admitting to the possibility that the defendant met the criteria for depression (report par 71). He also raised a “question as to whether or not [the defendant] might suffer from a personality disorder, with anti social [sic], borderline and paranoid type personality traits” which needed to be considered, but assessed the “most concerning diagnostic condition is his potential for explosive violence” (report par 71).

60. Dr Lennings considered that the defendant presented “as a person who has failed to develop self-regulatory skills” and that he remained “impulsive, emotionally reactive and mood[y], hostile and suspicious of others, but paradoxically insightful whilst at the same time helpless to take agency and to manage his behaviour” (report par 69). Further, Dr Lennings noted that whilst the defendant did have some supports – notably his mother and girlfriend and a strong work ethic – those supports had “not proven to be sufficient in the past to control or regulate his behaviour and it is unlikely if left to themselves they will be sufficient in the future” (report par 69).

61. When formulating a risk scenario, Dr Lennings considered that the defendant was “at risk of a further serious violence offence in certain situations” (report par 73). When describing the level of risk, and the factors that contribute to that risk, Dr Lennings relevantly said (report par 74):

“The first … condition that can elevate his risk to that of a serious violence offence is if he was involved in substance abuse, which dulls his though[t] processes and prevents self-monitoring and leads to disinhibition of behaviour. The second is that he becomes emotionally reactive and he is unable to monitor his behaviour and he responds instinctively.”

62. Dr Samuels prepared a report dated 9 June 2021 (exhibit CM-1, tab 12, page 174). The parties agreed that Dr Samuels diagnosed the defendant as showing features of Conduct Disorder and Adult Antisocial Personality Disorder, as well as meeting the criteria for polysubstance use involving alcohol, marijuana, speed, ice, heroin and benzodiazepines (agreed facts at [32], report par 170). Dr Samuels, although noting that the defendant reported symptoms of depression and anxiety, did not regard him as meeting the diagnostic criteria for a major depressive or anxiety disorder (agreed facts at [32], report par 170).

63. Dr Samuels considered the defendant was at “high risk of ongoing future violence” (report par 173) and as being “at risk of committing a further serious offence” (report par 176). Dr Samuels identified that factors contributing to that risk were “association with antisocial peers, opportunities for offending, substance misuse and his underlying aggression and propensity for interpersonal violence which relates to his antisocial personality structure” (agreed facts at [34], report par 177). Dr Samuels considered that if the defendant were to be exposed to these factors “they would impact on the likelihood of reoffending behaviour” (agreed facts at [34], report par 178).

The Risk Assessment Reports from Samuel Ardasinski

64. Samuel Ardasinski is a senior psychologist with the Serious Offenders Assessment Unit, Corrective Services NSW. He prepared a report dated 22 October 2020 in connection with the earlier application for an ESO, and a report dated 11 July 2024 in connection with the current one.

65. In relation to the report dated 22 October 2020 (exhibit CM-1, tab 9, page 124), it was an agreed fact that Mr Ardasinski assessed the defendant as “posing a high risk of future violence” and that he also expressed the opinion that the defendant did “possess some self-awareness of the risk factors which are most likely to precipitate a return to criminality and violence, and has potential to make lasting changes to divert the trajectory [away from] a life of continued crime and violence” (agreed facts at [41]; report par 52).

66. Mr Ardasinski formulated the most likely risk scenario “for further violent offending” as involving the defendant “using the methamphetamine ‘Ice’ and either using violence instrumentally to further fund a daily habit or he could engage in interactions with inebriated persons at night and may react to some perceived slight and engage in violence which may approach the threshold for a serious violence offence” and, further, that the “overall totality of evidence suggests that [the defendant] falls in the [h]igh risk category for violent offending relative to other adult male violent offenders” (report pars 45 and 48).

67. In relation to the report dated 11 July 2024 (exhibit CM-1, tab 4, page 49), it was an agreed fact that Mr Ardasinski formulated the most likely risk scenario in similar terms to the formulation in his earlier report; that is, it was agreed that the most likely risk scenario would involve “the use of methamphetamines, and using violence to further fund a daily habit or engaging with inebriated persons at night, reacting to a perceived slight” (agreed facts at [22]).

68. The risk scenario formulation in the report was expressed by Mr Ardasinski in these terms (report par 31: exhibit CM-1, tab 4, page 63):

“Given his recent behaviour in the community on parole, I would consider that [the defendant’s] most likely scenario for further violent offending would involve his using the methamphetamine ‘Ice’, and either using violence instrumentally to further fund a daily habit or he could engage in interactions with inebriated persons at night and may react to some perceived slight and engage in violence which may approach the threshold for a serious violence offence.”

69. The parties agreed that Mr Ardasinski considered this risk scenario retained validity “given the [d]efendant’s action in committing the [assault occasioning actual bodily harm offence] in October 2021 involving the use of methamphetamine, interacting with an inebriated person (his girlfriend) at night, reacting to a perceived slight” (agreed facts at [22]; report par 32).

70. The parties also agreed that Mr Ardasinski assessed the defendant as in “the Moderate or ‘Average’ risk category relative to other men who have offended violently” and “given his recent criminal association and difficulty avoiding methamphetamines in the community means, it is possible that future reactive violence could include a ‘serious violence offence’” (agreed facts at [24]; report par 34).

71. It is important, given the defendant’s contention that he no longer poses a risk of the kind to justify the making of an ESO and his reliance upon Mr Ardasinski’s assessment of the defendant’s risk profile, to note the following about Mr Ardasinski’s report and the opinions expressed by him. It is, I consider, clear that the assessment made of the defendant that he was “no longer in the highest category on the relevant risk assessments” was based upon what Mr Ardasinski described at that time (being July 2024) as the defendant’s “progress…and the number of protective factors present in his current situation” (report par 33). The “progress” was informed by the fact that the defendant had “remained abstinent from illicit drugs” since the episode resulting in the defendant being charged on 4 January 2024 and that the defendant had developed a prosocial existence (report pars 10D, 12 and 14).

72. That assessment of the defendant’s “progress”, to that point, may be described as unexceptional, and largely in accordance with the defendant’s trajectory at that time. But it is apparent that the position is now different, and significantly so: the defendant has returned to using drugs as is evident from the events in January, February and March 2025, earlier described that have resulted in the defendant seeking drug rehabilitation, quite recently. Further, matters that were relevant to the defendant’s dynamic risk profile have, I accept, now changed: see [53].

Report from Dr Jonathon Adams dated 25 September 2014

73. Dr Adams, forensic psychiatrist, prepared his report for the purposes of the defendant’s sentence hearing for the index offence.

74. Dr Adams excluded the defendant as suffering from any symptoms of major mental illness, including an anxiety, mood or psychotic disorder (agreed facts at [38]). Dr Adams expressed the opinion that the defendant’s use of drugs was consistent with a cannabis dependence disorder and alcohol abuse disorder, “which has resulted in the most deleterious impact on his behaviour and level of functioning, increasing his propensity for emotional dysregulation and aggressive behaviour” (agreed facts at [39]).

Statistical and other assessments on the likelihood of the offender committing a further offence: s 9(3)(d)

75. Section 9(3)(d) refers to the “results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence”.

76. These matters have been addressed in other parts of these reasons.

77. I have not placed any significant reliance upon any statistical assessments, essentially for the reasons given by Dr O’Dea, which I accept, about their limitations generally, but also because none of the assessments have assessed the defendant recently having regard to the recent matters (including his drug use and drug offending) informing the defendant’s current dynamic risk profile.

Corrective Services reports as to the extent to which the offender can reasonably and practicably be managed in the community: s 9(3)(d1)

78. Section 9(3)(d1) requires the Court to consider “any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community”.

79. A Risk Management Report, dated 2 August 2024, was prepared by Corrective Services (exhibit CM-1, tab 5, page 71) to address, inter alia, the requirements of this section.

80. The plaintiff drew attention to the range of strategies used by the ESO team in its supervision of the defendant (plaintiff’s submissions at [55]-[56]). Those strategies included: weekly face-to-face interviews; scheduled and unscheduled home visits, field visits and surveillance; substance use intervention; and monitoring strategies such as random drug and alcohol tests and mobile phone searches (Risk Management Report, page 4: exhibit CM-1, tab 5, page 74).

81. The Risk Management Report also set out a number of recommended conditions to support the risk management plan that included electronic monitoring and schedule of movements, assessment and monitoring of accommodation as to its suitability, place and travel and non-association restrictions, psychological and medical intervention and treatment (Risk Management Report, pages 5-7: exhibit CM-1, tab 5, pages 75-77; agreed facts at [45]).

82. The report noted that the defendant’s response to his ESO (Risk Management Report: exhibit CM-1, tab 5, page 73; agreed facts at [44]):

“…has been largely unsatisfactory. Despite his willingness to engage in intervention and his general positive attitude towards his supervising officers, he has struggled to maintain sobriety and remove himself from high-risk situations and criminal associates. However, the most recent 6 months of supervision has been overwhelmingly positive. [The defendant] has secured independent accommodation, obtained employment and has successfully managed to cease substance use.”

83. Two matters should be noted. First, I am satisfied, based upon the Risk Management Report, including the nature and extent of the suggested conditions proposed, that the defendant can reasonably and practicably be managed in the community. Secondly, as is apparent given the date of the report, the Risk Management Report was prepared before, and thus, without regard to, the defendant’s illicit drug use and offending in 2025.

Treatment or rehabilitation programs etc: s 9(3)(e)

84. Section 9(3)(e) requires the Court to have regard to “any treatment or rehabilitation programs in which the offender has had an opportunity to participate”, as well as “the willingness of the offender to participate in any such programs” and the level of any participation.

85. The plaintiff noted that the defendant had engaged in appropriate interventions, as summarised in the plaintiff’s statement of case (‘PSC’) filed 28 October 2024 (plaintiff’s submissions at [53]). Those interventions were as follows (PSC at [39]-[42] – footnotes omitted):

“39. The Defendant has engaged in appropriate interventions including the Intensive Drug and Alcohol Treatment Program, the EQUIPS - Foundation Program; EQUIPS - Addiction, Young Adult Offenders Program and EQUIPS - Aggression.

40. The Defendant completed the Violent Offenders Therapeutic Program (VOTP) in custody prior to the imposition of his ESO. The Defendant was referred to VOTP maintenance once he completed treatment in custody and has participated willingly in this program since that time. The value of many of these sessions, however, has been limited by the Defendant’s ongoing drug use.

41. On 28 August 2023, the Defendant completed the 20-session EQUIPS-Aggression program. The RMR notes that [t]he Defendant has been referred to commence the EQUIPS-Domestic and Family Violence program in October 2024.

42. In addition to these programs aimed at addressing the Defendant’s violence, he has also recently retained the services of a private psychologist to manage anxiety and mental health concerns separate to his offending. He has also utilised the services of Rendu House, a non-residential alcohol and other drug (AOD) program since February 2024. The Defendant has been noted to regularly engage in meaningful conversations with his DSO about substance use, criminal peers and other stressors that contribute to his risk of relapse. The Defendant also attends Campbelltown Drug Health Service monthly for opioid replacement treatment.”

86. These remarks are also recorded in the Risk Management Report dated 2 August 2024 (exhibit CM-1, tab 5, page 73).

87. The plaintiff drew attention to the defendant’s treatment with VOTP Maintenance (plaintiff’s submissions at [54]) – in particular, to what was contained in the ESO completion report dated 12 March 2024 (exhibit CM-1, tab 3, page 46):

“[The defendant’s] Forensic Psychologist reported ‘his willingness to have contact with VOTP Maintenance (both in custody and the community), however the value of many of these sessions has been limited by ongoing drug use. While on the ESO, most of [the defendant’s] time in the community has been spent in a perpetual cycle of drug use and a toxic intimate relationship. Currently, [the defendant] is reportedly drug-free and has entered a relationship with a seemingly pro-social person. In his most recent sessions, [the defendant] has been genuinely open and insightful. He has reflected on his criminal identity and the impact drugs, peers and crime has had on his life. [The defendant] has spoken about leaving this lifestyle behind and “starting fresh”. He is putting strategies in place to make this happen, as already outlined in this report. Continued contact with VOTP Maintenance is available to [the defendant] for the duration of his supervised Order’”.

88. The defendant relied upon select parts of what is recorded in the above quotation, submitting that they demonstrate “an intrinsic, prosocial shift in the defendant’s thinking and actions” (defendant’s submissions at [21]), and a case note detailing the defendant’s hesitancy towards a suggestion that he move into accommodation with his then-girlfriend to demonstrate the “defendant’s lack of impulsivity and capacity for long-term thinking” (defendant’s submissions at [23]). The overall thrust of these submissions were in aid of the ultimate submission that the defendant no longer posed a risk of the kind that justified the making of the orders sought by the plaintiff.

89. I do not accept the defendant’s submissions, for the following reasons.

90. First, it is, I consider, important to consider what is recorded in the case notes not in isolation but in context. Approaching the matter in this way, whilst I accept that the defendant has expressed matters and acted in a way that gives cause for some degree of optimism, I am not prepared to accept that what is recorded demonstrates something of a watershed moment. That is not only because other parts of the Risk Management Report paint a somewhat different picture (for example, that the defendant’s response to his ESO “has been largely unsatisfactory” and that he has “struggled to maintain sobriety and removed himself from high-risk situations and criminal associates”), but because recent events (the drug use and offending in 2025) significantly undercuts what was argued by the defendant.

91. Secondly, the defendant has, on earlier occasions, expressed matters that, at face value, were also suggestive of an apparent prosocial shift in his thinking and attitude, but that has not prevented further offending, including violent offending. Further, it is also important to recognise, in this broad respect, as Dr Lennings noted in his report, “whether he had the internal fortitude to maintain those changes” was unclear. Dr Lennings considered that the defendant was someone who had “failed to develop self-regulatory skills” and that he remained “impulsive, emotionally reactive…hostile and suspicious of others, but paradoxically insightful whilst at the same time helpless to take agency, and to manage his behaviour”, notwithstanding there were some supports in place: Dr Lennings expressed the opinion that these “have not proven to be sufficient, in the past, to control or regulate his behaviour, and it is unlikely if left to themselves, they will be sufficient, in the future” (report pars 9 and 69).

92. Thirdly, I am satisfied, in line with the opinion expressed by Dr O’Dea, that the defendant has a personality disorder with significant antisocial traits, which is an enduring condition with limited amenability to treatment and fundamental change. It may well be, as Dr O’Dea suggested, that the defendant’s condition can be managed and modified, but only with long-term management and treatment – appreciably longer than what I consider has occurred to date. The existence of this disorder thus undermines the likelihood that there has been a shift in the way argued by the defendant.

93. Thus, overall, I entertain some considerable doubt about whether the defendant has the level of insight, as argued but, even if he does, critically, I am unpersuaded that he is sufficiently equipped, without significant external intervention and support, to make the necessary changes to modify and manage his behaviour (including his drug use) in an enduring way and I am presently unpersuaded that he has made those changes.

94. The defendant also relied upon the fact that he has consulted a “private” psychologist, whilst in the community – Ryan Hook. The defendant first saw him in August 2024 – initially once per fortnight, but then once every three weeks: defendant’s affidavit affirmed 11 March 2025, par 23. Those consultations ceased, it appears, some “4-6 weeks” ago (defendant’s affidavit affirmed 11 March 2025, par 24: exhibit A, tab 21, page 265).

95. There is no report in evidence from Mr Hook nor are his treatment records – or indeed any evidence about the exact nature and extent of the treatment he provided to the defendant. Given the paucity of evidence on this topic I am not placed to make any firm findings about this treatment.

96. The defendant also relied upon the fact that he had “referred [himself] to Rendu House” shortly after he “first got released from custody” (defendant’s affidavit affirmed 11 March 2025, par 25: exhibit A, tab 21, page 265). The defendant’s affidavit did not address the nature of the treatment he received whilst attending Rendu House. In the Risk Assessment Report dated 11 July 2024, it was noted that the defendant had “utilised the services of Rendu House, a non-residential alcohol and other drug (AOD) program for people seeking treatment for AOD dependents or misuse in the Campbelltown area, run by the St Vincent de Paul Society” (Risk Assessment Report par 18: exhibit CM-1, tab 4, page 57).

97. The defendant recently re-enrolled in the “Day program” with Rendu House, commencing 17 March 2025 (exhibit 1). The defendant submitted that this re-engagement should be considered a positive step. I accept it is. The need for this re-engagement appears to have been discussed with his DSO in the period following the negative drug test, and is recorded in the case note dated 21 January 2025 in these terms (affidavit of Catherine Moore sworn 3 March 2025, annexure C: exhibit A, tab 15, page 221):

“We discussed strategies to ensure that he does not lapse again in the future and this included

- More regular drug testing

- [The defendant] to contact Rendu House for a follow-up appointment”

98. Although I have accepted that the re-engagement with Rendu House was a positive step, it was, I consider, a necessary one given the defendant’s drug use and drug offending in 2025.

Options (if any) available if the offender is kept in custody or is in the community that might reduce the likelihood of the offender re-offending over time: s 9(3)(e1)

99. Section 9(3)(e1) requires the Court to consider “options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time”.

100. The plaintiff addressed this matter in its consideration of s 9(3)(e).

The likelihood that the offender will comply with the obligations of an ESO (s 9(3)(e2)) and the level of the offender’s compliance with any obligation to which they have been subject while on parole or an earlier ESO: s 9(3)(f)

101. Section 9(3)(e2) requires the Court to consider “the likelihood that the offender will comply with the obligations of an [ESO]” and s 9(3)(f) requires the Court, without limiting s 9(3)(e2), to have regard to the level of the offender’s compliance with any obligation to which they have been subject while on parole or an earlier ESO.

102. It is convenient to deal with these considerations together, as the plaintiff did.

103. The plaintiff submitted that the defendant’s “compliance with parole has generally been poor” and noted, in this respect, the finding made by Campbell J (who imposed an ISO in 2021) that, when released to parole, the defendant’s compliance has “involved other offending … but it has also been characterised by a complete neglect of his obligations towards supervision” (plaintiff’s submissions at [57]; State of New South Wales v Hona (Preliminary) [2021] NSWSC 373 at [41]). In my view, the plaintiff’s submission accurately describes the defendant’s poor compliance with parole: see [24]-[27], above.

104. The plaintiff also submitted that the defendant’s parole order was revoked in August 2019, and that the defendant was returned to custody at that time. That submission is consistent with the summary earlier set out (see [24]-[27], above) and the description of the defendant’s community supervision contained in the Risk Assessment Report dated 22 October 2020. The defendant did not submit to the contrary.

105. The defendant’s compliance with parole in 2023 has been earlier referred to: see [32]ff, above.

106. In terms of compliance with the earlier ESO, the plaintiff submitted that the defendant “had been charged on five occasions with failing to comply with his ESO” (plaintiff’s submissions at [58]). The plaintiff cross-referenced this submission with the agreed facts (agreed facts at [11]-[12]) and the PSC (PSC at [46]).

107. From these references, the occasions on which the defendant has been charged with non-compliance with an ESO are 17 September 2021, 21 April 2023, 4 January 2024 and 7 February 2025 (agreed facts at [11]-[12]; PSC at [46]). The fifth occasion was on 10 October 2021 – this being the occasion where the defendant was charged with assault occasioning actual bodily harm (DV), against his girlfriend described in [32], above (agreed facts at [10]; PSC at [16]).

108. The plaintiff also submitted that, in addition to the breaches, resulting in charges, the defendant has also failed to comply with his ESO “on multiple occasions through the provision of positive drug tests for [m]ethamphetamine, deviating from his approved schedule, as well as transgressions detected on his mobile telephone” (plaintiff’s submissions at [58]). The plaintiff cross-referenced this submission with the PSC (at [47]-[49]), which provides:

“47. In addition to the breaches resulting in formal charges, the Defendant has also failed to comply with his Extended Supervision Order on multiple occasions through the provision of positive drug tests for Methamphetamine, deviating from his approved schedule, as well as transgressions detected on his mobile telephone, as described below. While these breaches were managed with the issuing of a written warning, they demonstrate a pattern of antisocial behaviour that the Defendant has continued since the commencement of his Extended Supervision Order.

48. The Defendant’s most recent release from custody was to CSNSW transitional accommodation at the Integrated Support Centre (ISC) on 4 December 2023. The Defendant was approved to have overnight leave to his mother’s residence over the Christmas period. Upon return to the ISC he was subjected to a random drug test. This test was carried out on 28 December 2023 and returned a positive result for methamphetamine. The Defendant was subsequently arrested on 4 January 2024 and released the following day after being sentenced to a 12-month Community Corrections Order.

49. On 9 February 2024 a random mobile phone search was conducted which identified several significant breaches of the Defendant’s ESO. These breaches related to meeting his partner without approval at scheduled activities, communicating with associates online that were known from custody and/or are known to have connections to Organised Criminal Networks, accessing encrypted mobile phone applications, using an online alias and possessing an undeclared mobile telephone.”

109. In relation to the random mobile telephone search on 9 February 2024, the plaintiff also relied upon a case note of that date (exhibit CM-1, tab 29, page 329):

“… [The defendant] had changed phones from what was listed on his device declaration form. He had advised that this may occur approx a month ago before I went on leave, however, he did not provide any further update. David stated that the other phone is at his mother’s and that it isn’t in use. Device declaration form updated.

Multiple breaches detected on phone. These include; [sic] clear details of drug dealing, e.g. prices and quantities, photos of associating with persons not disclosed on schedule of activities, speaking with gang affiliated persons, having encrypted app and a VPN.

David denied that he used Threema (encrypted app). This was in response to questions about why it was on his phone. Photos were then taken of David sharing his Threema ID with another person.”

110. The plaintiff’s submissions, whilst noting that the ESO completion report recorded that since the search of 9 February 2024 the defendant had made significant positive changes and developed protective factors to assist him in leading a prosocial life, emphasised that the report noted the changes were recent, leaving “insufficient time to comment as to whether he will be able to sustain these protective factors and complete the remainder of his [ESO] without issue” (plaintiff’s submissions at [59], citing the ESO completion report, page 3: exhibit CM-1, tab 3, page 46).

111. It is also relevant to note three further matters from the ESO completion report. First, as noted elsewhere, the defendant’s response to his ESO was considered to be “unsatisfactory” because, despite the defendant’s apparent willingness to engage in intervention and his general “positive attitude towards his supervising officers, he has struggled to maintain sobriety and remove himself from high-risk situations and criminal associates” (ESO completion report, page 2: exhibit CM-1, tab 3, page 45). Secondly, in relation to the non-compliance with the ESO that did not result in charges, the view was expressed that those acts demonstrated “a pattern of antisocial behaviour that [the defendant] has continued since the commencement of his [ESO]” (ESO completion report, page 4: exhibit CM-1, tab 3, page 47). Thirdly, although the term of the ESO was 18 months, due to the reoffending and non-compliance with the ESO, the expiration date of the ESO has extended to a term of 2 years, 10 months and 29 days (ESO completion report, page 3: exhibit CM-1, tab 3, page 46).

112. The plaintiff submitted that, given the defendant’s demonstrated non-compliance with his ESO, “it is possible that he may continue to experience challenges in complying with his order” albeit having regard to his “recent improvement it is hoped that he will continue along the same trajectory” (plaintiff’s submissions at [60]).

The level of the offender’s compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004: s 9(3)(g)

113. This legislation was not raised as being relevant to the present application.

The offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history: s 9(3)(h)

114. I have addressed the defendant’s offending history earlier in these reasons: see ‘Background’ at [17]ff, above.

The views of the sentencing court at the time the sentence of imprisonment was imposed on the offender: s 9(3)(h1)

115. As earlier noted, the defendant was sentenced by Hock DCJ on 10 October 2014 for the offence of recklessly causing grievous bodily harm on 14 December 2013.

116. The plaintiff’s submissions emphasised that her Honour found the objective gravity of the offending to be “high” and “well above the middle range for such an offence”, that her Honour described the defendant’s actions as involving “gratuitous violence” and the following remarks (plaintiff’s submission at [23]; exhibit CM-1, tab 13, page 211):

In assessing the seriousness of this offence it is important to note that the [defendant] deliberately sought out another young man, in that he crossed the road to attack him. He did so when [the victim] was, by his stance, demonstrating he did not want to engage in any sort of confrontation. The [defendant’s] response was to elbow him to the face with such force that he fell backwards so heavily that he sustained a very severe head injury. Then to stomp on him as he lay prone, unresponsive and defenceless on the ground is a particularly despicable and cowardly act. The consequence of an offence [is] also relevant to the assessment of its objective gravity. Here the injury sustained was life threatening, a result which was only avoided because of medical intervention.

117. In terms of the defendant’s prospects of rehabilitation, the sentencing judge found this “difficult to assess… at this stage. They appear to be reasonable, if he does abstain from drinking alcohol and using illegal drugs on his release” (exhibit CM-1, tab 13, page 215).

Any other information that is available as to the likelihood that the offender will commit a further serious offence: s 9(3)(i)

118. Section 9(3)(i) requires the Court to have regard to “any other information that is available as to the likelihood that the offender will commit a further serious offence”.

119. Neither party drew attention to any other matter under this section.

The ESO should be made: unacceptable risk

120. It was agreed between the parties, and I have found, that the matters in ss 5B(a)-(c) of the Act are satisfied: see [11], above.

121. For the plaintiff, it was essentially submitted that, despite there being some relatively recent signs that the defendant’s risk trajectory had favourably altered, he nevertheless posed an unacceptable risk of committing another serious offence if not kept under supervision, particularly given his recent drug use and offending and the alteration in the dynamic risk factors that otherwise tended to reduce the defendant’s risk profile. As I will explain in what follows, I accept the plaintiff’s submission.

122. Having regard to the matters under s 9(3) referred to above, as well as the safety of the community (s 9(2)), I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order: s 5B(d).

123. In arriving at that conclusion (and state of satisfaction), I am particularly mindful of the following matters.

124. First, I accept the evidence of the Court appointed experts and, in particular, I accept their assessments of the defendant’s risk profile. By way of summary: Dr McSwiggan expressed the opinion that, although the defendant’s dynamic risk factors have altered (a matter to which I have elsewhere referred), given the recency of that alteration, not “enough time has passed to conclude he would no longer present an elevated risk (Moderate/High) of committing a serious violent offence (as defined in the Act)” (report dated 21 February 2025 par 1); and Dr O’Dea expressed the opinion that the defendant had a “significant risk of engaging in further violent offending behaviours in the community in the long term, including of committing a further serious violent offence, as defined in the [Act], particularly if he were to resume substance abuse” (report par 97).

125. Secondly, I regard the defendant’s relapse into drug use in 2025 as significant, as it enhances the prospect of further serious violent offending. As the plaintiff submitted, that the defendant has returned to drug use demonstrates the accuracy and currency of the risk scenario that Mr Ardasinski postulated in his report dated 11 July 2024 – namely: the defendant’s “most likely scenario for further violent offending would involve his using the methamphetamine ‘Ice’, and either using violence instrumentally to further fund a daily habit or he could engage in interactions with inebriated persons at night and may react to some perceived slight and engage in violence which may approach the threshold for a serious violence offence” (report par 31). That risk scenario was similar to that formulated by Dr O’Dea (report par 97; see [124], above).

126. Thirdly, to the extent that the defendant relied upon Mr Ardasinski’s 2024 assessment of the defendant’s risk profile as demonstrating a reduction when compared to the assessment in 2020, and otherwise demonstrating the defendant’s “positive trajectory” (defendant’s submissions at [11]-[13]), I do not accept the 2024 assessment given it is premised upon facts and circumstances relating to the defendant’s dynamic risk factors that do not accord with their present-day position. Thus, unlike when the defendant was assessed by Mr Ardasinski in July 2024, the defendant’s domestic relationship has ceased, his employment is sporadic and his housing situation has become unstable (see [53], above). More importantly, the defendant’s drug use and offending in 2025 post-dates Mr Ardasinski’s assessment and report. Thus, unlike when the defendant was assessed by Mr Ardasinski in July 2024, it is not correct to describe the defendant as abstinent from illicit drugs. To be clear, Mr Ardasinski was not asked to revisit his 2024 opinion given these various developments.

127. Fourthly, although the defendant has undertaken some treatment and rehabilitation, in connection with the various disorders for which I am satisfied he suffers, I do not accept that this treatment and rehabilitation has been of sufficient duration and intensity to have effected pronounced and meaningful change by way of reduction in the defendant’s risk profile and to his behaviour more generally. The fact that the defendant has relapsed into drug use, and is to undergo further drug rehabilitation, is a practical demonstration that his substance use disorder – which Dr McSwiggan diagnosed as, and I accept is, “severe” – has not been successfully treated. That is in no way surprising, I should add, given the defendant’s history of drug use and abuse and the evidence that there was the ever-present, not to mention high, risk of relapse. Further, as Dr O’Dea noted (and as I have accepted), the defendant has a personality disorder with significant antisocial traits – a condition that Dr O’Dea described as one that is usually considered “enduring” and “characterised by repeated antisocial behaviours, impulsivity … irritability and aggressiveness, disregard for the safety of others, and problems with remorse” (report par 91). That condition was also considered by Dr O’Dea to be not readily amenable to “treatment and fundamental change” (report par 92). Nothing has been suggested by the defendant to have been put in place to deal with that condition. As I have noted elsewhere, although for a time the defendant sought treatment from a “private” psychologist, the evidence about the nature and extent of that treatment was somewhat meagre – to be clear, there was no report from that psychologist tendered nor were his treatment records in evidence: see [94]-[95], above.

128. Fifthly, this is not a case where there has been demonstrated change in patterns of behaviour consolidated over time. His period of abstinence from drug use was contextually short and has now ended. In my view, although there have been qualified statements about the defendant’s overall progress, they are just that: qualified. In any event, the difficulty with accepting the broad thrust of such statements, qualified though they are, is that they have not taken into account the defendant’s recent drug use and offending in connection with that drug use. Nor have they taken into account that there has been an alteration in the protective factors said to assist in the minimisation of risk – namely, the cessation of his domestic relationship; the absence of consistent employment (albeit that, so it was submitted, the defendant is actively seeking employment opportunities); and the loss of housing (albeit there are measures in place, such that he will not become homeless). Contrary to what the defendant submitted, I am unable to accept that he has, in the present circumstances, a “prosocial trajectory” (defendant’s submissions at [6]-[7]).

129. Sixthly, and following on from the above matter, I regard the defendant’s behaviour and offending during the period 2023 to date – built upon the earlier offending – to be significant and there is considerable force, in my view, to Dr O’Dea’s reservations about the extent to which the defendant could realistically have made – less still actually made – lasting, positive change. Pausing for a moment to recap. The defendant assaulted his girlfriend (including stomping on her head) in October 2021. Following his release from custody to parole on 8 March 2023, the defendant was, on 21 April 2023, charged with failing to comply with his ESO, intimidating a police officer and possessing a prohibited drug (agreed facts at [11]). The detail of this offending has earlier been set out (see [33], above). It is presently sufficient merely to record that this offending involved four failed drug tests (positive results for methylamphetamine, morphine and amphetamine) roughly over a four-week period and when arrested, the defendant presented in a “highly agitated” manner – that included threatening violent conduct towards police. The defendant was sentenced to imprisonment and, following his release to parole on 4 December 2023, he again failed a drug test on 28 December 2023 – resulting in his conviction, on 4 January 2024, for failing to comply with his ESO (see [35], above).

130. There are some further matters, including some matters argued by the defendant, which I will address, for completeness.

131. The defendant was, at least implicitly, somewhat critical that Dr O’Dea had recorded that the defendant impressed as somewhat “‘blasé’ in his discussion of his criminal history”, submitting that that impression was “significantly at odds with all of the psychologists and supervisors who have recently engaged with the defendant, and seems to be rather an outlier view” (defendant’s submissions at [34]). It is difficult to meaningfully address the submission, particularly when Dr O’Dea was not required to attend to be cross-examined about the impression he recorded. Further, the only other psychologist who had recently engaged with the defendant was Dr McSwiggan. The defendant did not identify in what respects the impression that Dr O’Dea formed was in any way at odds, or inconsistent, with anything contained within Dr McSwiggan’s report.

132. The defendant also sought to emphasise that Dr O’Dea’s view about the length of the ESO was something of an “outlier” view. It is certainly different to the length suggested by Dr McSwiggan. But the experts were not called to expand upon why each of them formed the view that they did. I do not regard Dr O’Dea’s view to be of the character suggested by the defendant: his reasons for why he formulated the length of any possible ESO were fully exposed (see his report pars 96-104) and, given the matters I have referred to above, readily understandable.

133. Nor do I regard the plaintiff seeking only a 12-month ESO to somehow be, in and of itself, necessarily supportive of the defendant’s overall position, as it appeared to be argued. Presumably the duration of the ESO sought by the plaintiff reflected the position adopted by Dr McSwiggan based upon the facts as then known. But the recent events (namely, the defendant’s drug use and drug offending) certainly put a distinctly different complexion on the defendant’s risk profile in my view. Notwithstanding those developments, it appears that the Court appointed experts were, perhaps surprisingly, not asked to revisit their opinions.

134. The ESO should be for the period sought by the plaintiff in the summons – namely, 12 months.

The conditions

The statutory provisions and principles

135. An ESO may direct an offender to comply with such conditions as the Court considers appropriate, including but not limited to those conditions specified in ss 11(1)(a)-(n) of the Act. Thus, as is apparent from the language of the section, the power of the Court to impose conditions as part of an ESO is delimited by the requirement that the conditions be “appropriate”.

136. When an ESO is made, it must include a condition “requiring the offender not to leave New South Wales except with the approval of the Commissioner of Corrective Services”: s 11(2). This is the plaintiff’s proposed condition 15.

137. Failure by a person to comply with the requirements of an ESO is an offence, punishable by a fine, imprisonment, or both: s 12.

138. In State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813 at [44], Hoeben CJ at CL identified the following principles to be considered in relation to the imposition of conditions:

(i) having served a sentence of imprisonment for their offences, an offender has a right to personal liberty, however, this right is not absolute: State of New South Wales v Donovan at [83];

(ii) in imposing conditions, the Court needs to strike a balance between competing considerations: Attorney General for NSW v Tillman at [68];

(iii) a relevant consideration in imposing conditions is that a breach gives rise to a criminal penalty: State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36];

(iv) conditions do not have to have a demonstrated link to past offending, but they should address the risk of future offending based on the scope, purpose and objects of the Act: Wilde v State of New South Wales [2015] NSWCA 28 at [53];

(v) conditions should not be designed toward future general criminal conduct, but instead focussed on mitigating the risk of a serious offence: State of New South Wales v Green (Final) [2013] NSWSC 1003 at [36]-[38];

(vi) conditions must not be unjustifiably onerous or punitive, “nor should they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision”: State of New South Wales v Bugmy [2017] NSWSC 855;

(vii) conditions “must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice”: State of New South Wales v Ley Thomas Baker (No 2) at [36];

(viii) to ensure a balance between the community interests and personal liberty, the Court should impose conditions that are the least intrusive possible: Lynn v State of New South Wales [(2016) 91 NSWLR 636] at [129]-[131].

The proposed conditions

139. The State proposed a schedule of conditions of supervision that were annexure A to the summons. That schedule of proposed conditions was superseded by a revised schedule – annexure B to the plaintiff’s reply submissions dated 17 March 2025 (‘annexure B’).

140. The plaintiff seeks the imposition of 43 conditions. The defendant did not oppose a considerable number. In relation to the conditions that were not contested, they should be imposed: I am satisfied each of them are reasonable and appropriate. The disputed conditions were confined and related to: condition 5 (electronic monitoring); conditions 6-8 inclusive (schedule of movements); condition 10 (permitting the imposition of a curfew); condition 24 (disclosure of criminal history); and conditions 39-43 inclusive (medical intervention and treatment).

Condition 5 (electronic monitoring)

141. The plaintiff sought a condition that required the defendant to wear electronic monitoring equipment, if directed to do so by a DSO if they form the opinion, on reasonable grounds, that the defendant’s risk factors have elevated or that the defendant has shown a significant regression in rehabilitation.

142. The form of the condition sought by the plaintiff was that ordered by R A Hulme AJ following the preliminary hearing. It reflects what was described during submissions as a risk management tool – namely, if the DSO forms, on reasonable grounds, the view that electronic monitoring is necessary in one of the two circumstances identified.

143. In my view, this condition should be imposed. Its imposition was supported, for example, by Dr McSwiggan, so as to permit gradual reduction in oversight and to assist with consolidation of gains (report par 87). The form in which the condition has been sought is appreciably less intrusive than what Dr McSwiggan, in fact, was prepared to support.

144. As to the arguments about progression to stage 4 of electronic monitoring (the defendant is currently on stage 3), given the form of the proposed condition, the applicability of the various stages is of potentially limited materiality. Putting that matter to one side, I accept, as was submitted by the plaintiff that, based upon the evidence of Jesse Slattery-McDonald (affidavit affirmed 6 December 2024, pars 13-14), the progress to stage 4 (where there is no electronic monitoring) turns upon the progress of the individual: in short, with good compliance and a positive trajectory, an offender can move, sometimes rapidly, between various stages. However, it should be emphasised, the form of this condition is not linked to linear progression through the various stages, given its terms.

145. I do not accept, as the defendant submitted, that “there haven’t been any real concerns of late that would justify this condition continuing” (Tcpt, 19 March 2025, p 31(26)): the defendant’s recent drug use and offending coupled with the change in the defendant’s dynamic risk profile, in my view, is a “concern” that would justify the continuation of the condition in the form sought. Nor do I accept, as the defendant also submitted, that because the plaintiff seeks an ESO of 12 months duration, that stands against the imposition of this condition: the argument was that, as the defendant would be “in the community completely unsupervised” at the end of that period (Tcpt, 19 March 2025, p31(31)), the condition should not be imposed so as to give the defendant “an opportunity to practise life without intensive supervision” (Tcpt, 19 March 2025, p32(9)). In my view, the premise of this submission is unsound, and I do not accept it. Whether, at the end of the current ESO, a further one is sought by the plaintiff remains to be seen. It would be a matter for the plaintiff, in all the circumstances, to determine this.

Conditions 6-8 inclusive (schedule of movements)

146. The plaintiff sought the imposition of conditions relating to the provision of a schedule of movements, if directed to do so by a DSO “having formed the reasonable belief that there has been an increase in risk”.

147. Condition 6 is expressed in similar language to the electronic monitoring condition imposed with the ISO by R A Hulme AJ. The defendant did not raise any concern about the difference in language between the two, nor any concern about the form of the condition more generally.

148. The plaintiff essentially argued that these conditions, with the electronic monitoring and curfew conditions, “complement one another” (Tcpt, 19 March 2025, p28(2)) and sought its imposition essentially for the same reasons as those advanced in relation to electronic monitoring.

149. In my view, these conditions are reasonable and appropriate risk management tools that are targeted in the sense that the requirement to provide a schedule of movements (and to depart from them etc. which is the broad effect of conditions 7 and 8) turns upon the DSO having a “reasonable belief that there has been an increase in risk”.

150. The defendant essentially advanced the same submissions to those raised in opposition to the condition relating to electronic monitoring – namely, that the defendant had demonstrated “overall stability” (Tcpt, 19 March 2025, p32(34)). Given his recent drug use, and offending, I am not prepared to make that finding. In any event, given the defendant is on stage 3 monitoring, it was accepted that he is not required to provide a schedule of movements and to re-emphasise, the proposed condition does not require this: it only permits the DSO to require the defendant to provide a schedule of movements if the pre-conditions are met, and not otherwise.

Condition 10 (permitting the imposition of a curfew)

151. In relation to this proposed condition, the parties advanced the same arguments to those relating to electronic monitoring and the schedule of movements.

152. As the plaintiff noted in annexure B, given the defendant is on stage 3 monitoring, he is not subject to a curfew. In my view, this condition is reasonable and appropriate for the reasons that I have given for the imposition of the electronic monitoring and schedule of movements conditions. Again, I emphasise, like those conditions, the imposition of a curfew would only be “if directed”.

Condition 24 (disclosure of criminal history)

153. This condition relates to the disclosure of the defendant’s criminal history to any person with whom the defendant has an intimate relationship. A proposed amended condition was advanced by the plaintiff in the following terms:

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

154. The defendant initially opposed the imposition of this condition because it had not been imposed as part of the earlier ESO. However, subsequently, the defendant accepted that, chronologically, it could not have been: the offending that involved the defendant attacking his former domestic partner, and stomping on her head, occurred on 9-10 October 2021, whereas the ESO was imposed on 27 July 2021.

155. The defendant, whilst accepting the rationale for why the condition should be introduced, argued that it was not necessary because the administration of the existing ESO had not been “frustrated by the absence of this condition to date” (Tcpt, 19 March 2025, p33(1)). I do not accept this submission. In my view, the condition is reasonable and appropriate. It should be noted that the proposed condition does not mandate a DSO disclosing the defendant’s criminal history. Putting that matter to one side, the proposed condition is, I consider, directly responsive to the risk scenarios that I have accepted are present. Indeed, the agreed facts, notes the following in relation to Mr Ardasinski’s report dated 11 July 2024 (agreed facts at [22]):

“[T]he most likely risk scenario would involve the use of methamphetamines, and using violence to further fund a daily habit or engaging with inebriated persons at night, reacting to a perceived slight. [Mr Ardasinski] states that this risk scenario retains validity, given the [d]efendant’s action in committing the [assault occasioning actual bodily harm offence] in October 2021, involving the use of methamphetamine, interacting with an inebriated person (his girlfriend) at night, reacting to a perceived slight.”

156. Although, as earlier noted, it is unnecessary that any conditions imposed by the Court are required to have a demonstrated link to past offending (Wilde v State of New South Wales [2015] NSWCA 28; (2015) 249 A Crim R 65 at [53]), the fact that it does reinforces why I consider it to be reasonable and appropriate.

Conditions 39-43 inclusive (medical intervention and treatment)

157. These conditions relate to medical intervention and treatment. The dispute about these conditions was narrow: the plaintiff sought their imposition, submitting that they formed a critical part of the ongoing supervision of the defendant to ensure his engagement with the various treatment providers; the defendant essentially submitted that he was quite capable of doing these things himself, such that the conditions ought not be imposed.

158. I accept the plaintiff’s submissions and consider them to be reasonable and appropriate, particularly given the diagnoses and the need for the defendant to undergo sustained treatment to deal with what I consider to be entrenched conditions. Their imposition is supported by the expert evidence – for example, Dr McSwiggan, report dated 12 February 2025 par 96; Dr O’Dea, report dated 24 February 2025, pars 87-95, 101 and 103.

159. It follows from the above, the conditions that should be imposed are as set out in annexure B. They are reflected in Schedule A to this judgment.

Orders

160. Accordingly, I make the following orders:

161. Order, pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), that the defendant be subject to an extended supervision order (‘the extended supervision order’) for a period of 12 months from the date of the order.

162. Order, pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant, for the period of the extended supervision order, comply with the conditions set out in Schedule A to this judgment.

Schedule A (294690, pdf)

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