State of New South Wales v Johnston

Cases Cited: Attorney General for New South Wales v Tillman [2007] NSWCA 119
Kamm v State of New South Wales (No 4) (2017) 95 NSWLR 179; [2017] NSWCA 189
Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57
State of New South Wales v Chaplin [2019] NSWSC 471
State of New South Wales v Devaney (Final) [2022] NSWSC 60
State of New South Wales v Kaiser (2022) 108 NSWLR 476; [2022] NSWCA 86
State of New South Wales v Kamm (Final) [2016] NSWSC 1
State of New South Wales v Simcock (Final) [2016] NSWSC 1805
Wilde v State of New South Wales [2015] NSWCA 28; (2015) 249 A Crim R 65

Texts Cited: Nil

Category: Principal judgment

Parties: State of New South Wales (Plaintiff)
Peter Johnston (Defendant)

Representation: Counsel:
A Tembe (Plaintiff)
H Webb (Defendant)
Solicitors:
K Smith, Crown Solicitor (NSW) (Plaintiff)
C Pittman, Legal Aid NSW (Defendant)

File Number(s): 2025/00191480

Publication restriction: Nil

JUDGMENT

1. The defendant, Peter Johnston, is a 63-year-old man who has been on parole since 4 December 2024. He has spent much of his adult life in custody. He is currently subject to an Interim Supervision Order (“ISO”) ordered by Fagan J on 27 August 2025, which commenced on 15 September 2025. Having been extended several times, it is due to expire on 7 December 2025.

2. The plaintiff, the State of New South Wales, has brought proceedings against the defendant pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) by way of summons filed on 19 May 2025, with an amended summons filed on 24 October 2025. The amendments are limited to the Schedule of Conditions which now seek, in final form, the conditions imposed by Fagan J following the preliminary hearing. At the hearing of this matter on 26 November 2025, I granted leave, without objection, for the plaintiff to rely on the amended summons. The plaintiff seeks final relief in the nature of a two-year Extended Supervision Order (“ESO”) subject to certain conditions. The plaintiff seeks the ESO having regard to the defendant’s assessed risk of sexual offending in the context of the extent and severity of his offending history which includes 25 convictions as an adult for sexual offences committed inside someone’s home and 17 convictions as an adult for breaking and entering a residential premises and either committing or intending to commit a sexual offence.

3. On 27 August 2025, as well as ordering that the defendant be subject to an ISO, Fagan J ordered the appointment of two experts to examine the defendant and that they furnish their reports to the Court. In accordance with those orders, Mr Patrick Sheehan (Forensic Psychologist) and Dr Carollyne Youssef (Clinical and Forensic Psychologist) provided reports to the Court dated 4 October 2025 and 9 October 2025 respectively.

4. The final hearing of the plaintiff’s application came before me on 26 November 2025. Mr Tembe appeared for the plaintiff and Ms Webb appeared for the defendant. I am grateful for their assistance and that of their instructing solicitors.

5. The following documentary material was read without objection:

6. on behalf of the plaintiff:

(a) evidence originally adduced at the preliminary hearing:

(i) affidavits of Briony O’Loughlin affirmed 19 May 2025, 3 July 2025 (including Exhibit BO-2) and 19 August 2025; (ii) affidavit of Kelli Grabham affirmed 3 July 2025; and (iii) the Joint Statement of Agreed Facts and Issues dated 19 August 2025.

(b) additional affidavit of Briony O’Loughlin affirmed 24 October 2025. (c) the two Court-appointed experts’ reports:

(i) report of Mr Patrick Sheehan, dated 4 October 2025; and (ii) report of Dr Carollyne Youssef, dated 9 October 2025.

(d) Supplementary Joint Statement of Agreed Facts dated 18 November 2025.

2. on behalf of the defendant:

(a) affidavits of Elizabeth Tsitsos affirmed 7 August 2025 and 10 November 2025.

6. Written submissions prepared by each party were also provided.

7. The making of the ESO is not opposed by the defendant, and, on the understanding that one of the conditions (Condition 18) sought by the plaintiff is not pressed, nor is there any opposition to the conditions sought. It is still necessary for the Court, however, to be satisfied that the ESO, together with the conditions as agreed between the parties, should be made.

8. For the reasons that follow, I am satisfied that an ESO of two years should be made, subject to the conditions sought by the plaintiff in the amended summons, other than Condition 18. The conditions I order are set out in an annexure at the conclusion of these reasons.

Principal issues for determination

9. The principal issues for determination by the Court are as follows:

10. whether an ESO should be made; and

11. if an ESO is made, the conditions which the Court considers appropriate as part of the ESO.

The statutory scheme

10. As set out in s 3, the primary object of the Act is to provide for the extended supervision and continuing detention of (relevantly) high risk sex offenders so as to ensure the safety and the protection of the community. Another object of the Act is to encourage high risk sex offenders to undertake rehabilitation.

11. The objects of the Act are protective, not punitive: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [5]; Kamm v State of New South Wales (No 4) (2017) 95 NSWLR 179; [2017] NSWCA 189 at [147].

12. Section 5B of the Act specifies the circumstances in which the Court may make an ESO (often referred to as the “threshold requirements”):

5B Making of extended supervision orders—unacceptable risk

The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if—

(a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and

(b) the person is a supervised offender (within the meaning of section 5I), and

(c) an application for the order is made in accordance with section 5I [to be read as s 6 [1] ], and

(d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.

13. “Serious offence” is defined in s 4 of the Act as a serious sex offence or a serious violence offence. In this matter, the relevant type of serious offence is a serious sex offence. A “serious sex offence” is defined in s 5(1) of the Act.

14. Section 5D of the Act provides that 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. “Unacceptable risk” is not defined in the Act and its meaning was considered by Beazley P of the Court of Appeal in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [50]-[51]:

“As the respondent pointed out in its submissions, by reference to dictionary definitions, the word ‘unacceptable’ requires context in which, or parameters against which, the ‘unacceptable’ risk can be measured. Thus, according to the Macquarie Dictionary, that which is unacceptable is ‘so far from a required standard, norm expectation, etc as not to be allowed’. The Oxford Dictionary defines the word by reference to its antonym ‘acceptable’. Something is ‘acceptable’ if it is ‘tolerable or allowable, not a cause for concern; within prescribed parameters’.

What the court, therefore, must find to be unacceptable is the ‘risk’ that the offender poses ‘of committing a serious violence offence if … not kept under supervision’. The respondent accepted that the precise parameters or standard or norm against which that determination is to be made are not immediately evident from the text of the provision. That must be so. A determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made.”

16. The “unacceptable risk” inquiry is not discretionary, but it does involve an evaluative balancing exercise to be undertaken in the overall context of the primary object of the Act, that being to ensure the safety and protection of the community: s 3(1) of the Act. Importantly, unacceptability of risk involves consideration of both the 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] (Wilson J); State of New South Wales v Chaplin [2019] NSWSC 471 at [15] (Rothman J).

17. 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]-[43] (Harrison J); State of New South Wales v Devaney (Final) [2022] NSWSC 60 at [73] (Dhanji J).

18. The impact an ESO may have on the defendant’s liberty is not a relevant consideration for the purposes of assessing whether the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision. That factor, however, may be relevant to the exercise of the Court’s discretion pursuant to s 9 of the Act: Lynn at [44], [56]-[58] (Beazley P), [126]-[128] (Basten JA), [148] (Gleeson JA).

19. In determining whether or not to make an ESO, s 9(2) of the Act provides that the safety of the community must be the paramount consideration of the Court.

20. Section 9(3) of the Act sets out a list of factors which the Court “must also have regard to […] in addition to any other matter it considers relevant” in determining whether or not to make an ESO. These factors go to the evaluative determination required by s 5B(d), and also to the exercise of the discretion in s 9 of the Act.

Background

Past sexual offending

21. As conveniently set out by Fagan J in his judgment following the preliminary hearing in this matter, the defendant’s background (concentrating on his sexual offending), up to his most recent offending, can be summarised as follows:

“He was born in February 1962. He is presently 63 years old. In June 1980 at the age of 18 years the defendant committed offences of wilfully exposing himself by attending separate residences in the area where he lived and pulling down his trousers and fondling his penis in view of residents who were inside their home.

His next offending was committed over the years 1983 to 1984 when he was aged 20-21 years. Over those two years the defendant committed no less than 6 offences of breaking and entering private residences and carrying out indecent assault upon young females. The victims were in the age range between 13 years and 17 years. In the same period, he committed a further five offences against other young females in similar circumstances which did not result in actual assaults but were break and enters with intent to commit such assaults. The victims were in the same age bracket. The defendant also committed two offences of wilfully exposing himself.

[…] The defendant was sentenced in the District Court at Penrith matters on 25 May 1984 to a term of imprisonment of six years but with a non-parole period of 8 months. [Fagan J noted] [t]he Court has no information before it today to explain why that extraordinarily lenient non-parole period was adopted. It would seem to bear no relationship to the degree of seriousness of the cumulative effect of the offences. But without access to the lower court records it is not possible to say more as to whether there may have been some very strong compelling subjective circumstances that would explain the outcome. As it happened, due to industrial action of Corrective Services Officers, the defendant spent only a period of a few weeks in prison on account of these matters.

The defendant’s subsequent offending in 1990 [and] 1998 was significantly more serious again. I will recount briefly the nature of it and I will state the total period of imprisonment. It is not useful to relate the individual sentences to individual offences or groups of offences because the sequence in which these crimes were investigated and attributed to the defendant was such that he received sentences for earlier crimes while in prison for later crimes. It is the overall sentencing effect that is of significance.

Turning first to the nature of the crimes: In June 1990 and again in December 1990 the defendant, then aged 28 years, broke into the homes of two young women. Both of them were aged 28 years at the time. He carried out, upon each of them, a series of sexual outrages with significant violence, with threats of further violence and in a manner that was calculated to terrify the victims and detract from their sense of security for the rest of their lives.

In early March 1998, at the age of 36 years, the defendant acted in a similar way against another female victim and in September 1998 another victim, this time a young woman aged only 17 years was violated by the defendant in a violent and terrifying circumstances, with repeat sexual assaults.

Without separating out the individual penalties for each matter the upshot of the sentences imposed was that the defendant was required to serve an overall head term of imprisonment that ran from 4 January 1999 to 3 January 2024. His earliest date for release to parole was 3 January 2017. He was not, in fact, released to parole until 1 November 2019, by which time he had served 19 years and 10 months continuously in prison for all the offending that I have described from 1990 and 1998.

At the date of his release to parole, the defendant was 56 years of age. One year and 10 months later, in early September 2020, he committed further offences [the index offences] against two young females on separate occasions in breach of his parole. At the date of those offences he was aged 58. Contrary to the common expectation that a tendency towards aggressive sexual offending would normally diminish in a male with increasing years, that regrettably has not been the case with the defendant.”

Non-sexual offending

22. Between 1976 and 1996, the defendant was also convicted for non-sexual offences including property offences (stealing, possess stolen property, steal motor vehicle, steal motorcycle, break, enter and steal); driving offences (unlicenced driver, disqualified driver), and substance use related offences (smoke Indian hemp, high range PCA).

The index offences

23. I now turn to the offences committed by the defendant which underpin the bringing of the application for an ESO. As noted by Fagan J, these offences were committed in breach of his parole.

One count of sexual touching contrary to s 61KC(a) Crimes Act 1900 (NSW)

24. Around 12:45 am on 7 September 2020, the victim (AB) arrived home in Summer Hill after finishing work. The defendant lived nearby at a boarding house. When the victim arrived at her home, she saw the defendant standing in her front yard, behind a locked gate. She shone the light on her phone at the defendant, who hid behind a tree. She called out but he did not respond. She then called her flatmate and asked her to call the police. The defendant ran out from behind the tree, concealing his face with his arm.

25. The defendant said to the victim, “Don’t call anybody” and the victim replied, “Just go”. He started to walk away but stopped, turned around and walked towards the victim. He grabbed her by both arms and pushed her to the ground. The victim yelled, “Just go away, go away”. The defendant then offered to help her up, he then crouched down on top of the victim, touching her breasts on the outside of her jumper. At this point, the flatmate walked out of their home and was standing in the front yard, in line of sight of what was happening. The victim attempted to kick the defendant off, but he continued to squeeze her breasts. He then reached down and touched her vagina on the outside of her jeans for about 30 seconds. The victim continued to tell him to go away, and he eventually ran off.

26. On 16 September 2020, the defendant was arrested by police following a trace of DNA tape lifted from the victim’s clothing matching his DNA. He told officers he could not explain it.

One count of break and enter and commit sexual touching contrary to s 112(1)(a) Crimes Act 1900 (NSW)

27. On 12 September 2020, the victim (CD) was alone at her home in Liverpool. At around 2am, the defendant (who was, at the time, still living at Summer Hill, some distance away) entered her apartment via a window. He entered her bedroom, where she was asleep, and placed his hand over her mouth. He then placed a blanket over her face and pushed down so that she was struggling to breathe. She started to scream and attempted to fight. The defendant said, “Don’t shout, I don’t want to kill you, but if you shout, I will kill you.” The victim and the defendant struggled for a period and the victim bit the defendant’s finger while he was holding the blanket and pillow down on her face.

28. The victim attempted to negotiate with him. He then removed the pillow from her face and left the blanket there, covering her face with his hand over her mouth. The victim said, “I will do whatever you want, but you have to release me first.” The defendant moved away, and the victim managed to pull the beanie off his head. He grabbed it and put it back on. The victim pulled on his beard. The defendant told her to leave or he would kill her. The victim was able to remove the blanket from her face and see him. He eventually said, “Just let me touch your boobs and I’ll be gone” and attempted to grab her breasts. The victim was able to grab the defendant’s penis and eventually break free. He fled the apartment.

29. On 28 November 2020, the defendant was charged with this second offence and elected not to comment during a police interview.

30. The defendant pleaded guilty to the index offences at the earliest opportunity. He was sentenced by Robinson DCJ to an aggregate term of imprisonment of 4 years and 6 months with a non-parole period of 2 years and 11 months, commencing on 15 March 2021. The non-parole period expired on 14 February 2024 and the balance of the term expired on 14 September 2025.

Other background matters

31. On release from parole on 4 December 2024, the defendant resided at the Integrated Support Centre in Campbelltown until 3 March 2025, when he moved to private rental accommodation in Liverpool until 22 June 2025. From 23 June 2023, he has resided in rental accommodation in Warwick Farm, with the lease set to expire on 20 June 2027.

Threshold requirements

32. It is conceded, and I so find, that all statutory preconditions to the making of the ESO sought have been satisfied, other than the “unacceptable risk” precondition in s 5B(d) of the Act (which I consider further below). That is:

(a) The defendant is an “offender” as he is over 18 (being aged 63) and has been sentenced to imprisonment to be served by way of full-time detention following his conviction for a serious offence (ss 4A(a) and (b) of the Act). The defendant meets that criterion as a result of serving sentences of imprisonment for the following serious offences:

(i) Enter dwelling with intent to commit a Sexual Assault (Cat 2) offence committed on 10 June 1990, pursuant to s 111 of the Crimes Act 1900 (NSW) (which meets the definition under s 5(1)(b) of the Act); (ii) Threat to inflict bodily harm by means of an offensive weapon with intent to have sexual intercourse offence committed on 17 December 1990, pursuant to s 61C(1)(b) of the Crimes Act 1900 (NSW), which meets the definition under s 5(1)(a) of the Act on the basis that it would have now been charged pursuant to s 61K(b) or s 61J(2)(b) of the Crimes Act 1900 (NSW); (iii) Two counts of Aggravated break, enter and commit felony, sexual intercourse without consent offence one committed on 30 September 1998, and on committed on 14 December 1998, pursuant to s 112(2) of the Crimes Act 1900 (NSW), which meets the definition under s 5(1)(b) of the Act; and

(b) The defendant is a “supervised offender” as defined by s 5B(b) of the Act because, at the time the application for the order was made (19 May 2025) he was under supervision by way of parole (which has since expired on 14 September 2025) (s 5I(2)(b) of the Act) whilst serving a sentence of imprisonment for an offence of a sexual nature (pursuant to s 5(2)(a)(ii) for the first of the index offences; and pursuant to s 5(2)(b) for the second); and (c) The application was made within the last 9 months of the defendant’s supervision (s 6 of the Act); and (d) The application is supported by documentation referred to in s 6(3) of the Act.

First matter for determination: should an ESO be made?

33. My satisfaction under s 5B(d) (that is, satisfaction “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*”*) is a further precondition to the exercise of the power in s 9 of the Act. As noted above, this is an evaluative task.

34. Section 9(1) provides that I may determine the application either by making an ESO or dismissing the application. Section 9(2) provides that in determining to make an ESO, the paramount consideration must be the safety of the community. Section 9 requires the exercise of a discretionary judgment, both as to whether such an order is to be made and to the nature of the supervision. A non-exhaustive list of matters I must consider is found in s 9(3). I may also have regard to “any other matter [I] consider relevant”.

35. To the extent that material of the type referred to in s 9(3) is to be considered, that material is to be found in the tendered material. I now turn to those matters set out in s 9.

Safety of the community (s 9(2))

36. The defendant’s prior offending is serious, persistent and disturbing. His lengthy criminal history for offences including sexual violence, dishonesty, burglary, and driving commenced when he was 14 years old. His serious sexual offending shows a dreadful pattern of breaking into and sexually assaulting females in their homes. These grave offences must have caused extreme terror and ongoing trauma for each of the victims. The most recent offences show that despite his advancing years, the defendant’s propensity to offend sexually against women unknown to him has not declined.

The reports received from the court-appointed experts and the level of the defendant’s participation in any such examinations (s 9(3)(b)); and the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the defendant committing a further serious offence (s 9(3)(d))

Report of court appointed expert Patrick Sheehan (Forensic Psychologist)

37. Having conducted an in-person psychological assessment of the defendant on 2 October 2025, Mr Sheehan prepared a report detailing his assessment. He noted that the defendant was of the view that the making of an ESO was inevitable. Mr Sheehan found the defendant met the diagnostic criteria for Polysubstance Use Disorder (mild, in remission), and noted the likely presence of personality disturbance characterised by relationship instability, fears of abandonment and emotional dysregulation. His history also pointed towards an Antisocial Personality Disorder given early conduct disorder in adolescence and a history of impulsivity, irritability, and repeated rule violation in adulthood. His history reveals episodes of disordered sexual behaviour over four decades, strongly suggesting a diagnosis of Unspecified Paraphilic Disorder. Mr Sheehan considered but rejected other diagnoses of Frotteuristic Disorder, Pedophilic disorder and Sexual Sadism Disorder.

38. Mr Sheehan noted that the defendant acknowledged his history of repeat sex offending. He found the defendant’s account that he had never planned to sexually attack women and that each offence was spontaneous as “implausible and reveals the type of self-deception that has underpinned his offending”. He opined that the defendant had an ongoing capacity for self-deception in the build-up to his offending, and that his failure to take ownership over his own self-deceptions remained a clear ‘blind spot’ for him.

39. Mr Sheehan assessed the defendant using the Static-99R with the result indicating an Above Average Risk categorisation. Using the Risk of Sexual Violence Protocol – Version 2 (RSVP-V2), he noted the following dynamic risk factors: the sexual violence is chronic in terms of persistence and at times frequency, with some limited diversity in offence type, but his offending is largely stereotypical, occurring against women late at night after having broken into homes. There is evidence of physical violence and psychological coercion, and evidence of clear escalation from hands off offences to serious high consequence offences over time. As to his psychological adjustment, the defendant acknowledged his sexual offending behaviour and the consequences to victims, but there was some minimisation in his reluctance to directly acknowledge rape fantasies. His offence dynamic implies a deep ambivalence in his attitudes to women, a mix of need, fear and resentment. Mr Sheehan also noted the defendant’s problems with self-awareness in making realistic self-appraisal and ability to recognise his risk of reoffending. His offending is linked to maladaptive ways of responding to relationship or other stressors in his life.

40. Mr Sheehan noted he had a mild history of vulnerability to mood disorder. Further, his most recent offending reveals that substance use is not a necessary precondition to his offending. Mr Sheehan opined that the defendant’s sexually violent ideation remains unknown despite his extensive treatment. He found no compelling evidence for the presence of psychopathic personality. He has serious problems with intimate relationships and relationship instability appears linked to his offending. He has problems benefitting from treatment and has shown difficulty in drawing upon treatment insight during supervision. Mr Sheehan noted that the defendant’s sex offending in 2020 reveals that it may not be evident to supervisors when he is at imminent risk.

41. Mr Sheehan concluded that the defendant “continues to carry a high risk of reoffending sexually in the absence of intensive supervision.” Mr Sheehan identified the most likely risk scenario as the defendant attacking stranger females in their homes in the middle of the night when they are asleep, most likely adult women, but that does not exclude younger women being targeted. His offending would likely involve threatening the victims, sexually touching them and seeking to make them submit to various acts of sexual intercourse. He may have a knife or tell the victim he has a knife. There may be elements to his sexual acts that degrade or humiliate the victim. Mr Sheehan opined that aggravating elements of breaking into the home and/or threatening the victim with a knife with intent to have sexual intercourse increase the likelihood that the defendant’s offending could meet the threshold for a serious sexual offence as defined in the Act. Further, atypically, the defendant’s age was not sufficiently protective.

42. Mr Sheehan also expressed his views in relation to the proposed conditions being necessary and reasonable overall. As to proposed Condition 18 he noted that while the defendant’s offence history did not promote a direct link to amusement parlours, libraries or cinemas, his offending has included minors and stated, “in my view the conditions should remain, relying on proportionate and case by case judgement of the DSO”.

43. Finally, Mr Sheehan considered the two-year term sought by the plaintiff was “the minimum period within which to realistically meet the goals of supervision”.

Report of court appointed expert Dr Carollyne Youssef (Clinical and Forensic Psychologist)

44. Dr Youssef assessed the defendant in person on 19 September 2025. Dr Youssef opined that the defendant met the diagnostic criteria of Frotteuristic Disorder, Voyeuristic Disorder and Exhibitionist Disorder. She noted that the defendant previously met the diagnostic criteria for Cannabis, Alcohol and Stimulant Use Disorder all now in sustained remission. The advancing age of the defendant, whilst typically considered a protective factor, did not appear to be such a factor in him. Dr Youssef assessed the defendant using the Static-99R and placed him in the “Above Average” risk category. Using the STABLE-2007 tool, she found him to have a ‘High’ level of stable dynamic risk factors related to sexual offending. The combined Static-99R and STABLE-2007 results placed the defendant in the ‘Above Average’ category.

45. Using the RSVP-V2 framework, Dr Youssef noted the defendant’s offending to be chronic and persistent, with a diversity of behaviour, and involving physical and psychological coercion. The offending escalated over time, and the recent Summer Hill offence could reflect more brazenness in that he sexually touched the victim whilst there was a witness present, in a public setting. He continued to lack insight into his own general mental processes. Dr Youssef also noted the defendant’s ongoing struggle in coping with stress, as well as his long-standing problems of attachment and trust in his intimate relationships. He has had lengthy periods of unemployment which is a risk factor as his acquisitional offending ultimately provided him opportunities to sexually offend.

46. Dr Youssef identified some protective factors, such as intact cognitive functioning and that in recent times he appears to be trying to manage general life stressors in effective ways, without the use of externalising behaviours. However, he would benefit from a focus on more practical skills rather than avoidance coping to manage his general life stress.

47. Dr Youssef summarised the defendant’s risk factors as requiring ongoing specialised intervention and opined that he has a “High” likelihood of sexual recidivism and a “High” imminence of sexual offending assuming no special management plans are implemented. Dr Youssef identified key risk factors including intimacy deficits, difficulties with general and sexual self-regulation, an unstructured life and difficulties with managing financial, relational and emotional stressors. Dr Youssef observed that it is notable that the defendant has reported not knowing why he offended, especially with his most recent offending. He would benefit from increasing his prosocial network, participation in structured activities and the like.

48. Dr Youssef identified the most likely risk scenarios as similar to those identified by Mr Sheehan. Factors most likely to increase his risk of reoffending included wandering the streets at night, usually with intention to break and enter, financial difficulties, an unstructured lifestyle, difficulty coping with emotions, feeling inadequate or lonely, boredom, using sex to cope, having interpersonal difficulties, poor problem solving and being sexually preoccupied.

49. Dr Youssef opined that the defendant’s risk could be effectively managed under an ESO and went on to make comments about the overall appropriateness of the proposed conditions whilst expressing a reservation, relevantly, in relation to proposed Condition 18, noting that the venues did not appear to be related to the defendant’s risk scenarios.

50. Dr Youssef was also of the view that an ESO of at least two years was appropriate.

51. It is clear that both experts agree that the defendant poses a risk of committing further serious offences if not supervised under an ESO, and that the defendant requires an ESO to manage his risk factors. They both agree that a minimum period of 2 years is required. They agree that the defendant has not significantly benefited from treatment to date. He continues to display limited insight into his risk factors and minimises the role of his sexual deviance in the commission of his offences. He attracts certain diagnoses including paraphilic disorder and his age is not currently a protective factor for him. The type of offence the defendant might be at risk of committing aligns with his previous offending.

52. As to other statistical assessments conducted just prior to the preliminary hearing and earlier, it can be observed that they accord with the results recorded by the court appointed experts. Gillian Tulloh’s assessment recorded in her Risk Assessment Report is discussed under the next heading.

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

53. In the Risk Assessment Report of Gillian Tulloh, Chief Psychologist, Correctional Practice, Corrective Services NSW, dated 9 December 2024, she observed that the defendant’s most consistent diagnosis has been anxiety and depression, and that he has displayed features of borderline personality disorder. She noted that in terms of his sexual offending behaviour, he has been diagnosed with exhibitionism and voyeurism and frotteuristic disorder. Ms Tulloh also observed that the risk assessment tools categorised the defendant as in the medium-high category for reoffending in relation to sexual offending, with the following risk assessment results: “Medium-High Risk category” (STATIC-99R); “High density of criminogenic needs” (STABLE-2007) and “High risk” (VRAG-R). In light of his history of offending, outstanding criminogenic needs and assessed risk level, the defendant could commit a serious sexual offence as defined in the Act.

54. Ms Tulloh also reported, based on the STABLE-2007, a number of criminogenic needs and dynamic risk factors as being relevant to the defendant: deviant sexual interests, sex as coping and sexual drive/preoccupation; poor cognitive problem solving, impulsivity and problems with stress or coping; negative emotionality, general social rejection; and co-operation with supervision. She considered the most likely risk scenario for future sexual offending to be an opportunistic contact offence against an adult female who is a stranger to him, most likely to occur in the process of or during a break and enter offence, in or around the female’s residence. It is likely to occur late at night or in the early morning. The defendant may also engage in non-contact offending by exposing himself to unsuspecting victims or peeping and prying through windows, again, most likely at night or in the early morning, in and around private residences. The likelihood of the defendant engaging in these behaviours would increase if he experienced a significant adverse life event, or a build-up of life stressors.

Any report prepared by Corrective Services NSW as to the extent to which the defendant can reasonably and practicably be managed in the community s 9(3)(d1)

55. Ms Susan Page prepared a Risk Management Report on 30 January 2024 for the purposes of the application under the Act. Ms Page recommended intense supervision and case management to manage the defendant’s high risk of re-offending. She proposed a risk management plan which included monitoring and weekly schedules, place and travel restrictions, accommodation and curfew conditions. Ms Kelli Grabham, a Community Corrections Officer of the Extended Supervision Team, agreed with Ms Page’s recommendations.

Any treatment or rehabilitation programs in which the defendant has had an opportunity to participate, the willingness of the defendant to participate in any such programs, and the level of the defendant’s participation in any such programs (s 9(3)(e)); and options (if any) available if the defendant is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the defendant re-offending over time (s 9(3)(e1))

56. The defendant participated in and completed a number of programs while in custody. In 2002, he completed the EQUIPS Foundation with 100% attendance and in 2003, he undertook Education for Sex Offenders. He completed 16 hours of sex offending rehabilitation; in 2007, he undertook the Sex Offender Pre-Treatment Program, where he performed well; in 2008, he undertook the Goulburn Sex Offender Treatment Program; in 2017 he completed CUBIT where it was observed his active participation increased over time; and in August 2024, he completed HISOP for the second time, where he was noted to be “valuable group member”.

57. Whilst on parole and prior to committing the index offences, the defendant engaged with Forensic Psychology Services (FPS) in the community but was recorded as stating in February 2019, “quite honestly, look, I’m probably shooting myself in the foot here, but I’m only doing it to tick a box”. He also stated that he “doesn’t want to know what [the other offenders] are there for”. The FPS case notes record “inadequate engagement and participation.” At the same time, his psychologist told his parole officer that “there were no issues with his engagement with FPS either in group or individual basis”. In 2024, he said he was diagnosed with depression in 2019.

58. The material indicates that whilst the defendant has a large family, their support has been limited since the commission of the index offences. He has lost the support of his ex-partner who he had described as “a main and protective factor for him”. It can be observed that his family also clearly failed to be a protective factor when he was released to parole and after less than two years went on to commit the index offences. He presently has no friendships. He has no current employment and in recent years he left a job he obtained as he could not manage it.

The level of the defendant’s compliance with parole conditions and the likelihood that the defendant will comply with the obligations of an extended supervision order (ss 9(3)(e2)–(f))

59. Given the length of the defendant’s sentence, he has had little time in the community as an adult. Until his index offending whilst on parole, he was generally compliant with his parole conditions for almost two years, with only minor breaches in 2019 in relation to which no response was required. He has not breached parole conditions during his latest period on parole.

The defendant’s level of compliance with the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004 (s9(3)(g))

60. The defendant was placed on the Child Protection Register for 15 years in 2002. Having been registered on 2 November 2018 on release from custody, his obligations continue until 2035 (accounting for suspension for periods he has spent in custody).

The defendant’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))

61. The defendant’s criminal history and pattern of offending behaviour has been canvassed above.

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

62. Sentencing courts have consistently recognised the risk to the community posed by the defendant, and his need for long-term treatment.

63. In 2000, Gibson QC DCJ stated when sentencing him:

“[…] unless treated, [the defendant] is dangerous to the community. Both reports indicate that he is in need of long term treatment, and indeed he has said he is willing to undergo treatment. And even then, when released, he would need careful monitoring because of his present risk of re-offending and his propensity to violence.”

64. In 2005, Nicholson SC DCJ, when sentencing him, found that his prospects of rehabilitation were in “negative territory”, and despite some treatment in custody, in the absence of “intensive and successful rehabilitation programs [he is] at a high risk of re-offending”.

65. More recently, in 2021, Robinson DCJ, when sentencing him for the index offences, stated:

“[…] noting the [defendant] has committed to further engagement in offence specific treatment whilst in custody and his sworn evidence of his intention to continue with recommended treatment on his return to the community, coupled with his limited, albeit superficial, engagement in counselling whilst on parole recently, I accept that he has some prospects of rehabilitation. Those prospects are, of course, contingent upon his engagement in sex offender treatment whilst in custody and his acceptance of direction from Community Corrections on his return to the community. I accept that he is likely to continue to be supported by some family members when that occurs.

Although there is no report before the Court directed to this issue, I conclude that he continues to present with a risk of reoffending, particularly for sexual offences given the very fact of this offending at a time when he was on parole for very similar behaviour.”

Conclusion as to whether the ESO should be made

66. As noted above, the defendant does not oppose the making of the ESO.

67. I have already found that the matters in s 5B(a)-(c) of the Act are satisfied.

68. As to s 5B(d) of the Act, taking into account all the evidence I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious sex offence if not kept under supervision.

69. In coming to this satisfaction, I note, in particular, a number of matters. The Court’s paramount consideration is the safety of the community. The evidence shows that the seriousness and timing of the defendant’s index offences, committed at the age of 58 years old, seen in the context of the pattern of his serious prior offending, puts him on a trajectory for further serious offending. The defendant has consistently ranked in ‘above average’ categories of risk for sexual reoffending on empirical actuarial risk tools. Despite targeted interventions and a prolonged period of exclusion from the community, his risk of offending has not been reduced. Despite, at times, showing some remorse for his offending and some empathy for his victims, the defendant continues to exhibit a concerning lack of insight as to the triggers for his offending. When these factors are combined with his lack of engagement in pro-social activities and a limited amount of support in the community, in my view it is abundantly clear that the defendant poses an unacceptable risk of further serious offending without supervision.

70. The s 5B threshold provision is therefore satisfied and pursuant to s 9(1) of the Act, I am of the view that I should make an ESO, subject to conditions.

71. Both experts opined that at least two years was an appropriate length for the ESO, and the defendant does not contend to the contrary. I am of the view that a period of two years is appropriate.

Second matter for determination: Appropriate conditions

72. Section 11(1) of the Act provides that an ESO may direct an offender to comply with such conditions as the Court considers appropriate and sets out a non-exhaustive list of potential conditions. Section 11(2) mandates the inclusion of a condition requiring the offender not to leave New South Wales except with the approval of the Commissioner of Corrective Services.

73. In determining what is “appropriate”, it is accepted that the discretion is broad but must be exercised having regard to the scope and purpose of the Act and its objects: Wilde v State of New South Wales [2015] NSWCA 28; (2015) 249 A Crim R 65 at [47] (per the Court). At [53], the Court further stated:

“[…] Section 11 does not require that there must be a specific demonstrated link to the past offending which is the basis of the order made under the Act. Rather, the court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order.”

74. The determination of appropriate conditions is a balancing exercise “in the sense that the court will seek to impose the least intrusive conditions consistent with its assessment of the risk and a further assessment as to what kind of conditions are likely to be effective”: Lynn at [129]. It is accepted that this step engages a balancing exercise involving possible intrusions on the offender’s liberty and privacy: Lynn at [130]. It must also be borne in mind that a failure by a person to comply with the requirements of an ESO is an offence pursuant to s 12 of the Act and is punishable by a fine, imprisonment, or both.

75. As noted above, the plaintiff seeks the conditions imposed by Fagan J following the hearing relating to the ISO. Subject to an objection to the continued inclusion of Condition 18, the defendant did not oppose any of those conditions. At the hearing on 26 November 2025, the plaintiff indicated that if Conditions 6 and 17 were to be made, the plaintiff would not press Condition 18.

76. Proposed Condition 18 provides that the defendant must not go, without the prior approval of a DSO, to amusement parlours, amusement parks and theme parks; libraries and museums and cinemas, concerts and theatre shows.

77. Proposed Condition 6 provides that the defendant must provide a schedule of weekly movements if directed by a DSO. Proposed Condition 17 provides that the defendant must not frequent or visit any place or district as specified by a DSO.

78. I agree that proposed Conditions 6 and 17 provide sufficient scope for a DSO to control the defendant’s movements such that proposed Condition 18 is not required. Given I am of the view that Conditions 6 and 17 should be made, I note that proposed Condition 18 is no longer pressed.

79. Otherwise, the remaining uncontested conditions proposed by the plaintiff, as imposed by Fagan J are, in my opinion, appropriate.

Orders

80. The orders I make are as follows:

81. Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), I order that the defendant be subject to an extended supervision order for a period of two years commencing on 8 December 2025.

82. Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), I direct that the defendant comply with the conditions set out in the Schedule annexed to this judgment for the period of the extended supervision order.

Annexure - Schedule of Conditions of Supervision

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Endnote

State of New South Wales v Kaiser (2022) 108 NSWLR 476; [2022] NSWCA 86 (per Simpson AJA) at [77], [124].