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[2025] NSWSC 547
General information, not legal advice.
Supreme Court of NSW
2025-05-29
Chen J
Original judgment source is linked above.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: State of New South Wales v Joseph Rosenburg (Final) [2025] NSWSC 547
Hearing dates: 22 May 2025
Date of orders: 29 May 2025
Decision date: 29 May 2025
Common Law
Before: Chen J
Decision: (1) 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 5 years from the date of the order; and
(2) 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.
Catchwords: HIGH RISK OFFENDER – application for extended supervision order – very serious sexual offender – community safety paramount – whether there is an unacceptable risk that the defendant will commit a serious offence – unacceptable risk found – dispute as to the length of the order – proposed exception to curfew – whether the defendant should be able to ride his motorbike at night along an approved route to alleviate alleged stress – route passes many parks and suburbs – proposed exception inappropriate – extended supervision order imposed
Legislation Cited: Child Protection (Offenders Registration) Act 2000 (NSW)
Crimes Act 1900 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: State of New South Wales v Rosenburg (Preliminary) [2025] NSWSC 191
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
Category: Principal judgment
Parties: State of New South Wales (Plaintiff)
Joseph Rosenburg (Defendant)
Representation: Counsel:
I Fraser (Plaintiff)
J Cooper (Defendant)
Solicitors:
NSW Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)
File Number(s): 2024/00458463
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW), publication of the name of the complainant or any matter that could identify them is prohibited.
Joseph Rosenberg (‘the defendant’), also known as Joseph Vozila, is a convicted sex and violent offender. The circumstances surrounding his sexual offending are extremely serious. His offences against a five-year-old girl and a young woman – both of whom were vulnerable and defenceless – were particularly predatory and disturbing.
The State of New South Wales (‘the plaintiff’ or ‘the State’) alleges that the defendant continues to pose an unacceptable risk of committing another serious offence, such that final orders should be made against him pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (‘the Act’). All references to legislative provisions in these reasons are, unless otherwise specified, references to the Act.
The plaintiff moved on an amended summons dated 7 May 2025 (‘the amended summons’) that was filed without objection in Court on 22 May 2025. By the amended summons, the plaintiff seeks an extended supervision order (‘ESO’) for a period of five years. The defendant, who has not previously been subject to an ESO under the Act, accepts that the statutory preconditions to the making of final orders have been satisfied – in fact, he does not wish to be heard against making an ESO. The defendant nevertheless opposes the making of an ESO for five years. During submissions, however, the defendant clarified his position: he does not oppose the making of an ESO if it is confined to a period of two years.
Further, the defendant does not oppose the conditions sought by the plaintiff. However, in relation to condition 10 – a condition which essentially imposes a curfew on the defendant, and which is presently subject to limited exception – the defendant seeks a further exception that, if allowed, would permit him to ride his motorcycle between the hours of 9pm and 6am along a 26km route through the suburbs of Sydney.
On 12 March 2025, McNaughton J made an interim supervision order (‘the ISO’) and a range of ancillary orders that affected the defendant (State of New South Wales v Rosenburg (Preliminary) [2025] NSWSC 191; ‘the preliminary hearing judgment’). These included an order that two qualified psychiatrists or two registered psychologists separately examine the defendant, and then furnish reports to the Court on the results of such examinations.
Dr Gordon Elliott, forensic psychiatrist, and Ms Laura Durkin, clinical and forensic psychologist, were duly appointed to assess the defendant. Each has prepared a report. Dr Elliott’s report is dated 16 April 2025 (‘GE report’) and Ms Durkin’s report is dated 30 April 2025 (‘LD report’). Dr Elliott gave evidence, but Ms Durkin did not.
The ISO has been extended on a number of occasions and will expire on 6 June 2025. It is agreed that, by operation of s 10C(2), the last date on which the defendant may be subject to the ISO is 14 June 2025.
The plaintiff read, in support of the orders, the affidavits of Jessica Murty, affirmed 9 December 2024 (including exhibit JM-1 as an annexure) and 7 May 2025 and, pursuant to s 21A(4), placed a victim statement from ‘V1’ before the Court for consideration, without objection.
The defendant read the affidavits of Susannah Coles, affirmed 14 and 21 May 2025, and Victor Vozila, affirmed 4 February 2025.
The parties each prepared written submissions and a “joint statement of agreed facts” (dated 19 May 2025; ‘agreed facts’) in accordance with Supreme Court Practice Note SC CL 12.
(a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and
(b) the person is a supervised offender (within the meaning of section 5I), and
(c) an application for the order is made in accordance with section 5I, and
(d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.
“8. A “supervised offender” is defined in s 5I(2) and (3) to include someone who is in custody, or on parole, while serving a sentence for various offences, including a “serious offence”.
- A “serious offence” is defined in s 4 and includes a “serious sex offence” and a “serious violence offence”.
- A “serious sex offence” is defined in s 5 and includes certain offences under Div 10 of Pt 3 of the Crimes Act 1900 (NSW) (as well as others). It is noted that not all sex offences are “serious sex offences”.
- A “serious violence offence” is defined in s 5A and includes a serious [indictable] offence (relevantly, within the meaning of the Crimes Act) that is constituted by a person:
(a) engaging in conduct that causes the death of another person or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person, or
[…], or
(b) attempting to commit, or conspiring with or inciting another person to commit, an offence of a kind referred to in paragraph (a) […]
- An application for an ESO is to be supported by the documentation specified in s 6(3). This includes a risk assessment report from a qualified psychiatrist, registered psychologist or registered medical practitioner, and documentation addressing each of the matters referred to in s 9(3) of the Act.
- Section 7(4) of the Act provides that if following the preliminary hearing, I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, I must make orders appointing two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) to examine the defendant and furnish reports to the Court.
- Section 5D of the Act provides that the 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.
- The meaning of “unacceptable risk” is not defined in the Act. Its meaning was considered by Beazley P 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.” (Emphasis in original.)
- In Lynn, Basten JA stated at [126]:
“[…] The nature of the risk […] posed had 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. The assessment must be based on an absence of protective measures. The criterion of unacceptability will no doubt depend upon these matters, together with a comparison, to the extent that the evidence permits, of what may be described as the background level of risk to the community […].”
- 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. Unacceptability of risk involves a 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).
- 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)”.
The parties agreed that all preconditions to the making of the ESO have been satisfied, with the exception of s 5B(d) (agreed facts at [33](a)-(d)). I accept and find this to be so. In relation to s 5B(d) – essentially, the “unacceptable risk” element – the defendant’s position should, however, be noted.
In his written submissions, the defendant indicated that he “does not wish to be heard against the order for an ESO” (defendant’s submissions at [6](a)). However, the defendant clarified his position at the hearing by accepting that there was evidence, open to be accepted, to support a finding that there was an “unacceptable risk” of the kind contemplated by the terms of s 5B(d).
Section 6 sets out numerous requirements with respect to an application for an ESO. One is that the application “may not be made until the last 9 months of the offender’s current custody or supervision” (s 6(1)). It is an agreed fact that this element is satisfied (agreed facts at [33](e)), and I find that it is.
Further, the material that accompanies the ESO application must address the matters in s 9(3), pursuant to s 6(3)(a), and include a report from a qualified psychiatrist, registered psychologist or registered medical practitioner that “assesses the likelihood of the offender committing a serious offence”, pursuant to s 6(3)(b). I am satisfied that these requirements have been met. It was an agreed fact that they were (agreed facts at [33](e)).
The application may also indicate the “kinds of conditions…that are considered to be appropriate for inclusion” under s 11, should an ESO be made: s 6(4). This material was included in the application (as Schedule A to the summons filed 9 December 2024) and contained supervision conditions that were to be sought by the plaintiff.
Section 7 prescribes a number of pre-trial procedures relating to making and dealing with an application for an ESO. The application must be served on the offender (the defendant) within two business days of the application being filed, or within such further time as the Court may allow (s 7(1)), and the State must disclose to the offender material relevant to the application (s 7(2)). I am satisfied that these procedures have been complied with. A preliminary hearing has occurred (s 7(3)).
The defendant was born in 1963 and is currently 61 years old. The evidence suggests that the defendant had a difficult upbringing and suffered from physical and emotional abuse. Some material suggests that he was also sexually abused.
The defendant is reported to have abused alcohol from a young age and to have been a regular user of drugs from, at least, his early twenties. Precisely when he stopped using drugs is unclear, although his cessation is not suggested to be recent. Dr Elliott remarked in his report that, whilst it appeared “that [the defendant] has been abstinent for many years, for most of that time he was in custody” (GE report page 33).
The defendant’s employment has been, at best, intermittent. This is explained partly by the fact that the defendant has spent considerable time in custody for his sexual and other offending. The defendant is not currently employed. Since October 2023 – when the defendant was granted parole for the sexual offending that occurred in 2016 in custody (see [49]ff, below) – the defendant has received a carer’s pension, given the care he provides to his elderly mother.
The defendant currently lives in a Department of Housing apartment in Waterloo.
On the evening of 22 February 1993, the defendant, then aged 29, entered the bedroom of a five-year-old girl. He did not know her or her parents.
Upon entering her bedroom, he committed various sexual acts upon or in the presence of her. The defendant masturbated near her and requested that she lick his penis, which she declined to do. The defendant then placed his tongue in her vagina.
The defendant was indicted on six counts of sexual offending against the girl, being:
enter building with intent to commit a felony, contrary to s 114(1)(d) of the Crimes Act 1900 (NSW) (count 1);
commit acts of indecency with or towards a person under the age of 10 years, contrary to s 61O(2) of the Crimes Act (counts 2 (masturbation in the girl’s presence) and 3 (compelling the girl to touch his penis));
incite a person under the age of 10 years to commit an act of indecency, contrary to s 61O(2) of the Crimes Act (count 4 (requesting the girl to lick his penis));
sexual intercourse with a child under 10, contrary to s 66A of the Crimes Act (count 5 (inserting his tongue into the girl’s vagina)); and
indecent assault of a person under the age of 10 years, contrary to s 61M(2) of the Crimes Act (count 6, as an alternative to count 5).
The defendant entered pleas of not guilty to all counts and was tried before his Honour Judge Ducker and a jury. The jury returned verdicts of guilty in respect of all principal indictment counts (counts 1-5).
Ducker DCJ sentenced the defendant to imprisonment for 6 years, commencing 17 June 1994 and expiring on 16 June 2000, with a 3 year non-parole period, expiring on 16 June 1997 (agreed facts at [10]).
On 21 December 2003, the defendant was charged with common assault, contrary to s 61 of the Crimes Act, following an altercation that he had with his 13-year-old niece.
It appears that, after a short conversation, the defendant’s niece started ignoring him, which apparently agitated the defendant. She attempted to call police from a nearby payphone but the defendant hung up the telephone on both occasions. She then attempted to call police using a telephone in a convenience store, but the defendant:
“pushed her upper arm with his open right hand, poked her upper chest 10-15 times and kicked her upper thigh and bottom region with his right leg while yelling abuse”.
“You will be sucking a paedophile’s dick by the time you are sixteen”, “slut”, “whore”, “I’m going to put a bullet through you and your mothers (sic) head” and “[w]ait till I get my hands on you [niece’s first name] you little slut. You and your fucking mother. You’re not going to want to come around here or be in Sydney, you or your mother. You shut your fucking mouth you little bitch or I’ll kill you”.
On Christmas Day in 2006, the defendant arrived uninvited at a family Christmas party. When the defendant’s brother-in-law “went to see what was happening” the defendant struck him several times with an iron bar, fracturing his skull.
The defendant was charged for this offending and was tried before his Honour Judge Blackmore SC and a jury. The jury returned a verdict of guilty to one count of maliciously inflict grievous bodily harm with intent, contrary to s 33 of the Crimes Act.
Judge Blackmore SC sentenced the defendant to imprisonment for 5 years, commencing 15 May 2007 and expiring on 14 May 2012, with a 3 year, 9 month non-parole period, expiring on 14 February 2011 (agreed facts at [14]). The commencement date of this sentence was backdated to account for 159 days of pre-sentence custody.
On 19 May 2007, the defendant was in Annandale and on bail, when he crossed a street to speak with a 9 and 10-year-old girl, who were both playing in their front yard, about furniture and other items outside their property.
Later that evening, he approached a window of the house where the girls were playing and spoke with them. He offered them money for a bike and spoke with them about boys. He offered to give them his number (agreed facts at [21]).
The girls could not identify the defendant, but his fingerprints (more particularly, a palm print) were found on the windowsill of the home. Notwithstanding, he denied the offending.
The defendant was convicted in the Local Court of NSW of two offences, namely, entering enclosed lands without lawful excuse and being a child sex offender loitering in or near a public place frequented by children (and at which children were present at the time of loitering). He was sentenced to imprisonment for 3 months, commencing 27 July 2007, and a fine (agreed facts at [22]). The defendant appealed to the District Court of NSW, but his convictions were confirmed (agreed facts at [22]).
This offending, which was accepted to constitute a serious sex offence under s 5 and which is described in the agreed facts as the ‘index’ offending (a description which it is convenient to adopt), relates to the defendant sexually assaulting a young female on 29 August 2013 in Hyde Park, Sydney (agreed facts at [16]).
A little after midnight, the victim, having drunk a large amount of alcohol at a nightclub on Oxford Street, laid down on a concrete ledge across from Hyde Park. She sent messages to her friends and asked to be picked up. One friend agreed to come and collect her.
Whilst she was waiting to be collected, the defendant approached her and sat down near her feet. He put his hand under her dress and began touching her vagina on the outside of her underwear, despite her attempts to push his hand away.
The victim then attempted to get away from the defendant by crossing the road and entering Hyde Park. The defendant followed her and again placed his hand under her dress and touched her vagina on the outside of her underwear. The victim said “please don’t do this, stop touching me”.
The defendant then asked the victim to perform oral sex on him. She asked “are you going to kill me?” He said words to the effect of “no, I’m not going to kill you if you go with it”. He placed his penis in her mouth and then pushed the victim’s underwear to the side and touched her vagina.
The victim was distressed and crying, and sent text messages to her friends, asking for help. The defendant said words to the effect of “you are not wet there [describing the victim’s vagina] so I’m going to have to lick you” and used his mouth to perform oral sex on her. The defendant then inserted his penis into her anus.
After the attack ended, the victim, who was crying and hysterical, got up and spoke with her friend on the telephone. The victim said “he raped me, he raped me. He hurt me, he hurt me”.
The defendant was charged with six sexual offences arising out of these events:
sexual intercourse without consent, contrary to s 61I of the Crimes Act (counts 3, 5 and 6); and
indecent assault, contrary to s 61L of the Crimes Act (counts 1, 2 and 4).
The defendant was tried before his Honour Judge Hanley SC and a jury. The jury returned verdicts of guilty in respect of all counts. His Honour subsequently sentenced the defendant to imprisonment for 11 years, commencing 15 March 2014 and expiring on 14 March 2025, with an 8 year, 3 month non-parole period, expiring on 14 June 2022 (agreed facts at [17]).
The defendant was released to parole on 27 October 2023 (agreed facts at [27]). His parole, and thus his sentence, expired on 14 March 2025.
“…sexual activity with two girls in a car, a father or parental figure installing a camera in a little girl’s room and watching her masturbate for his sexual gratification, and a little girl behaving provocatively towards the author before they engage in sexual activity in a garden”.
The defendant did not dispute producing the material. However, he did dispute that the material described children under 16 years-of-age and therefore argued that the material could not, in the circumstances, be characterised as offensive child abuse material within the meaning of s 91H of the Crimes Act (agreed facts at [24]).
The defendant was tried before his Honour Judge Arnott SC and was found guilty of that offence (agreed facts at [24]).
His Honour subsequently sentenced the defendant to imprisonment for 12 months, commencing 15 March 2022 and expiring on 14 March 2023, with a 9 month non-parole period expiring on 14 December 2022 (agreed facts at [21]).
The effect of the above sentence was to add an additional 6 month non-parole period to the sentence imposed by Hanley SC DCJ for the 2013 ‘index’ offending (agreed facts at [24]).
On 6 June 2024, the defendant was charged with three counts of failure to comply with reporting obligations, contrary to s 17(1) of the Child Protection (Offenders Registration) Act 2000 (NSW) (‘CPOR Act’) (agreed facts at [28]).
On 8 April 2025, the defendant pleaded guilty to one count of failing to comply with reporting obligations (count 1). The two other counts were withdrawn or dismissed. The offending, to which the defendant pleaded guilty, was described in the agreed facts as relating to (agreed facts at [30]):
“…social media accounts (Facebook and Instagram) and an email address, which had not been reported to Police in accordance with his obligations in accordance with his obligations under the CPOR Act. When examined by Police on 3 June 2024 the defendant’s mobile phone was logged into the Facebook account in question (account name “Joe Vozilla”). The account had ‘liked’ a number of other pages which had names including “CuteGirls_Baby”, “Junior Idols”, “Dasha Kovalenko TOP kids model” and “MaYa Sarasota Queens All-National America’s Jr Pre-T Miss”. The accounts had profile pictures of young girls, some of which were pre-teenagers”.
The defendant was sentenced for this offending on 21 May 2025. The solicitor for the defendant, in her affidavit affirmed 21 May 2025, attached a JusticeLink matter outcome for that sentence hearing.
The defendant was sentenced to a community correction order (‘CCO’) for a period of 12 months, commencing 21 May 2025 and expiring on 20 May 2026. However, the remarks of the sentencing court were not available, and no submissions were made by either party about what occurred when the defendant was sentenced.
“a. sexually explicit phone calls with a female during which he was heard to be expressing sexual fantasies involving school-aged children and buying lost little girls who “cannot find their daddies” (July 2018);
b. possession of sexually explicit letters (although it appears no sanctions were imposed) (August 2018);
c. possession of “child-related drawings and magazine cut outs” (June 2019); and
d. possession of a sexually graphic drawing believed to be of a “young [adolescent] Asian appearance female lying in bed naked with her legs apart”, and reportedly explaining to his cell mate what sexual acts he would perform on children (February 2022)”.
The question remaining is whether the terms of s 5B(d) are satisfied. That section, as earlier noted, 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 to make an ESO, the “safety of the community” must be 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).
The 12 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].
Following the orders made by McNaughton J, the defendant was assessed by Dr Gordon Elliott and Ms Laura Durkin. Their reports are detailed and substantial.
Given the nature of the issues that arise on the current application, it is only necessary to emphasise the key parts of the reports, and the opinions expressed by the experts.
Dr Elliott assessed the defendant on 9 April 2025.
A summary of the key points from his report is as follows:
There was no evidence, at the time of Dr Elliott’s assessment, that the defendant “suffers from a major mental illness. More specifically, there was no evidence of a chronic psychotic illness such as Schizophrenia or of a Major Mood Disorder”: GE report at [41].
The defendant’s offending history – notably his conviction for the 1993 sexual offences committed upon a five-year-old girl as well as his “confused and contradictory remarks about whether or not he is sexually attracted to children, made to multiple clinicians since” and to Dr Elliott – strongly suggested that the defendant “does have paedophilia of a non-exclusive sub-type, namely he is sexually attracted to children and to adults”: GE report at [42]. Later, in his conclusion, Dr Elliott expressed the opinion that it was more probable than not that the defendant met the criteria for such a diagnosis: GE report pp 26-27.
Dr Elliott considered that the defendant, in adulthood, has displayed “pervasive and sustained maladaptive personality traits of a varied nature”; has a “deeply disturbed personality structure”, including “marked anxiety and unease regarding his own sense of self or identity and he views others as untrustworthy”; and holds “distorted and disturbing views regarding women that are conflicted and unresolved” that were “best typified in his persisting views” regarding the index offence, which included what Dr Elliott described as “laboured, convoluted claims for innocence”: GE report pp 26-27. Dr Elliott considered that the defendant’s “maladaptive personality traits are entrenched and enduring features of his personality structure”: GE report p 27.
The conditions diagnosed contribute to the defendant’s “risk of committing both a serious sex offence or a serious violent offence. His distorted and conflicted ideas with regards [to] children and women persist and were a key element of his prior sex offending”: GE report p 27. Dr Elliott returns to this later in his report, expressing the opinion that the defendant was “a moderate to high risk of further serious sexual offending and a moderate risk of further serious violent offending” within the terms of the Act: GE report pp 28-29.
After completing an actuarial risk assessment of the defendant’s risk of sexual recidivism using the STATIC-99R standard (a standard that Dr Elliott described as “the most commonly used actuarial risk assessment for this group”), the defendant’s total score was seven, thus “placing him in the well above average risk range of sex offenders”: GE report pp 31-32. After completing a structured, formal risk assessment, Dr Elliott expressed the opinion that the defendant fell “within a group of offenders considered a moderate to high risk of further serious violent re-offending”: GE report page 31.
Dr Elliott, whilst noting that the defendant appeared to be engaging with Forensic Psychology Services (‘FPS’) and had attended treatment programs including the High Intensity Sex Offender Program (‘HISOP’), nevertheless expressed concerns about “whether he has genuinely progressed at all”: GE report p 28. Dr Elliott also considered that the defendant should undergo further assessment at the Treatment and Rehabilitation Clinic – a specialist treatment service offered by the Community Forensic Mental Health Service of Justice Health for convicted sex offenders – with any such assessment to determine whether the defendant would benefit from anti-libidinal medication: GE report p 28.
Dr Elliott expressed the opinion that the defendant’s “risk of committing either a further serious sex offence or a further serious violent (sic) offence” could not be “managed without an ESO”: GE report p 32.
Dr Elliott, although observing that the plaintiff sought an ESO for two years only, held concerns about the length of the orders sought. His concern was that the defendant “has made little progress from the time of his index offences” and that it was also plain from the assessment that the defendant “remains preoccupied with sex, and with having a sexual relationship, in the near future, and yet his distorted views regarding [women] also remain much in evidence” – features that Dr Elliott considered were “unlikely to change in the next two years and [therefore] recommend[ed] a five year ESO”: GE report page 35.
Ms Durkin assessed the defendant on 8 April 2025.
A summary of the key points from her report is as follows:
Ms Durkin noted that the defendant “readily engaged in the interview process” but that there was “evidence of impression management” in the defendant’s account, as well as “notable inconsistenc[ies] between his responses at the…interview as compared to the information outlined in the file documentation”. She also observed that, on occasions, “he did not provide direct responses to some pertinent questions”: LD report at [10] and [12].
In relation to the ‘index’ offence, Ms Durkin noted that the defendant “has persistently denied this offending and maintained that the victim’s accusation of sexual assault was a ‘scam’” (emphasis in original). She later reported that the defendant “repeatedly stressed…that no offending took place… and that the sexual contact that occurred was consensual” and, by his conduct during the assessment, “confirmed his lack of insight into his risk and highlight[s] his problematic attitudes and beliefs about women, sex, sexual intimacy and sexual abuse”: LD report at [65] and [67].
Ms Durkin conducted a psychological assessment of the defendant, noting that a number of different diagnoses had been made – including that of schizophrenia, which she considered had “been largely discounted”, observing that there was nothing to suggest from the interview she had with the defendant that he would “meet [the] criteria for that condition”: LD report at [74] and [75]. Ms Durkin considered, however, that there was a “significant body of information available” that suggested that the defendant “would meet [the] criteria for antisocial personality disorder”: LD report at [76]. Ms Durkin also considered that the available information indicated that the defendant “struggles considerably with anger dysregulation and that he has long experienced this issue” and that, whilst the defendant maintained during the interview that he was not a violent person, Ms Durkin expressed the opinion that it was “unclear whether such a belief reflects a lack of insight, distortions in thinking due to his lifestyle and experiences or if it is a function of deceitfulness”: LD report at [79].
In terms of treatment (including offence specific treatment), Ms Durkin considered that the defendant’s motivation to engage was “lower than most individuals” and that the defendant “offered little in terms of how he can manage his risk for sexual or violent…offending”: LD report at [88]-[89]. In fact, Ms Durkin expressed the opinion that, despite the “years of intervention he has reportedly received”, the defendant “seemed remarkably uninsightful (or unwilling to discuss and disclose) his understanding of his risk factors and his offending cycle…”: LD report at [89]. As to the defendant’s current treatment, Ms Durkin noted that he is “reportedly currently engaged” with the FPS and, in terms of the groups and treatment that the defendant has engaged in, she described the defendant’s progress as being:
“varied, but reports suggest, overall, that while he is obliging and superficially engaged…he persistently resists completing tasks, meaningfully engaging in treatment and that he may, indeed, be resistant to the process of change. His ongoing engagement in problematic behaviour would at least suggest that is the case but so too does his account of his beliefs and attitudes and his general cognitions surrounding his offending…[his] behaviour remains disparate from some of the seemingly positive comments he makes in treatment regarding his insight, beliefs and purported gains” (LD report at [94]).
In relation to the risk assessment tool known as STATIC-99R, which Ms Durkin considered had “moderate levels of predictive accuracy”, the defendant was assessed as having a “well above average risk for being charged with/convicted of another sexual offence within five years [from] now. This means he is considered to present a perceptibly greater risk of reoffending than typical…offenders in the middle of the risk of distribution”: LD report at [101]. A further risk assessment using the Risk for Sexual Violence Protocol Version 2 tool suggested that the defendant posed “a high risk of re-offence”: LD report at [104].
A Risk Assessment Report (‘RAR’) dated 5 August 2024 was prepared by Holly Cieplucha, a senior psychologist with Corrective Services NSW, for the purpose of s 6(3)(b).
A summary of the key points from the RAR is as follows:
The defendant initially declined to participate in the interview but, after consulting with his therapists from community sex offender programs, agreed to participate in it: RAR at [3]. The defendant attended the interview with his brother as a support person and was considered to have “engaged appropriately”: RAR at [6].
Ms Cieplucha noted that the defendant had been diagnosed as suffering from various psychiatric conditions, including chronic schizophrenia, residual schizophrenia (or schizotypal personality disorder) and antisocial personality disorder, but that the defendant disputes each of them: RAR at [14]-[15].
Ms Cieplucha assessed the defendant’s static and dynamic risk factors using actuarial and structured professional judgement tools. Based on actuarial measures, the defendant was assessed as falling in the “Well Above Average risk range for sexual offending relative to other adult male sexual offenders and has a high density of criminogenic needs”: RAR at [82] (emphasis in original).
Based on dynamic risk factors, Ms Cieplucha identified a number of matters (described as “criminogenic needs”) that are “relevant or potentially relevant” to the defendant’s risk profile, including: the defendant “continues to display hostility towards the victim of his offence [being the index offence], women in authority and women more generally” (RAR at [73](a)); the defendant has a history of poor compliance with supervision and, during the then current parole period, noted that he had been described as “defiant and resistant to supervision directions, particularly related to high-risk behaviours including frequenting parks and the Kings Cross area late at night, despite being directed not to” and expressed “displeasure with female supervising officers” – matters that she considered reflected that the defendant had “antisocial attitudes” and a “lack of insight” (RAR at [73](b)); the defendant’s attitude towards his offending behaviour and the victim of the index offending “remains poor. He has consistently denied or minimised his sexual offending” (RAR at [73](c)); and sexual preoccupation and sexual deviance – matters that “remain highly relevant considerations for risk management” (RAR at [73](g)).
Ms Cieplucha formulated the most likely risk scenario as involving (RAR at [76]):
“…future sexual violence [that] would include non-consensual penetrative sexual activity with a female (which could include vaginal, anal and oral intercourse). The victim is likely to be vulnerable either due to intoxication and/or by virtue of her young age. Offences are likely to occur late at night and may occur in public places such as parks or secluded areas within the inner city, but could also occur in a victim’s home”.
Based on the defendant’s “offence history”, Ms Cieplucha considered that he had “the potential to engage in serious violence in the future” (RAR at [77]).
Ms Cieplucha prepared a supplementary RAR dated 1 November 2024 (‘SRAR’). The SRAR was prepared to address additional material that had become available since the preparation of the RAR, and to clarify aspects of it.
A summary of the key points from the SRAR is as follows:
Ms Cieplucha confirmed her earlier opinion – namely, that the defendant’s risk of sexual reoffending, using an actuarial risk assessment measure, fell into the “Well Above Average risk range”; that, based on a dynamic risk assessment, the defendant was assessed as “having a high density of outstanding criminogenic needs”; and that the defendant’s risk of violent re-offending was “assessed as falling in the High risk range using an actuarial risk assessment measure”: SRAR p 2.
In relation to the 2024 offending (see [54]ff, above), Ms Cieplucha expressed the opinion that the “nature of [the] content ‘liked’ on Facebook suggests the potential presence of deviant interests”: SRAR p 3.
The evidence also contained progress notes from Matthew Raymond, a psychologist from Corrective Services NSW. He assessed the defendant on 10 August 2015 (when he was reportedly in custody, but still had an outstanding conviction appeal for the index offending) to conduct actuarial testing “to help in determining [the] level of risk for program planning”. The interview was wide-ranging, and included the following:
The defendant reported that Hyde Park was a “‘brothel’ where people go…for sex each night” and that the defendant went there “on a daily basis late at night to meet people, have sex or simply pass through. He described frequently going there and having oral sex or both vaginal and anal intercourse with many different women over the years in Hyde Park”.
The defendant indicated that he continues to have “frequent fantasies” – extending to sexual fantasies – with “girls around the age of [five]”.
The defendant reported that he “continues to have interest and fantasies pertaining to prepubescent girls”, and other deviant sexual interests; and
Based upon the results of the STABLE-2007 evaluator, the defendant “was assessed in the high range of risk”. The results of the STATIC-99R evaluator also placed him “in the high range”. When the results of these two assessments were combined, he was in the “priority category of Very High”.
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”.
A Risk Management Report (‘RMR’), dated 4 September 2024, was prepared by Corrective Services NSW for use in the current application.
A summary of the key points from the RMR is as follows:
The defendant’s risk of reoffending, essentially based upon assessments conducted by Ms Cieplucha and the risk factors identified by her, was noted and informed the risk management plan that was prepared (RMR p 1).
Whilst on parole, the defendant’s “response to supervision has been mixed”. Although he attends interviews and consistently returns negative results to drug testing, “his capacity to accept certain conditions relating to his risk factors has…been poor and he has consistently maintained an oppositional disposition during interview” (RMR pp 2-3). It was observed, however, that the “perceived difficulties” with his supervision “may have related to his hostility toward women and the fact that his community corrections officer was female”. Case notes described the defendant’s comments “directed toward females during interview as disparaging and/or inappropriate” (RMR p 3).
Given the defendant’s risk factors, risk scenarios and prior offending, a suite of conditions were recommended to support a risk management plan, including electronic monitoring, adherence to a schedule of movements and place and travel restrictions.
The plaintiff’s submissions summarised aspects of the RMR, consistent with what has been set out above. I accept that the recommendations, including the conditions referred to in the RMR, support the nature and extent of the conditions sought by the plaintiff.
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.
Whilst in custody, the defendant completed, or was found eligible for, a number of courses – as follows (agreed facts at [26]):
“a. In 1997, the Defendant completed a 10-week Alcohol and Drug Program, and a Sex Offender Re-direction Training Program, with feedback noting that his engagement went “well beyond mere attendance or superficial participation” and demonstrated “considerable insight into issues of victim empathy, poly drug abuse and his sexually abusive offence cycle”.
b. In 2010, the Defendant completed a 24-session Controlling Anger and Learning to Manage it (CALM) program. However, program facilitators opined that his understanding of the program “may be minimal given his continual denial of anger related issues and his tendency to deviate from the subject”.
c. The Defendant was found eligible for the Explore, Question, Understand, Investigate, Practice, Succeed (EQUIPS) Foundation, Addictions and Aggression Programs, but was withdrawn from the Foundation Program in 2021 due to COVID restrictions. He declined a later placement that year citing personal safety concerns; however, said he was willing to complete required programs at MSPC.
d. The Defendant participated in the High Intensity Sex Offender Program (HISOP) from June 2022 to August 2023. Usually the program lasts 7-11 months, but throughout treatment the Defendant had to be prompted to complete task work, which extended his treatment time. He was an involved group member who attempted to demonstrate implementation of skills. The treatment report noted the Defendant’s combined risk rating using the STATIC-99R and STABLE-2007 tools was “well above average”. Treatment providers opined that reoffending by the Defendant would most likely include contact offences against a post-pubescent adolescent female or adult woman, in a situation where the Defendant has befriended them and is experiencing sexual preoccupation and low self-esteem and is seeking connection. He could incorrectly interpret their behaviour as a sexual advance, resulting in him engaging in sexual acts. Further, given the Defendant’s history and “the indication of potential deviant thoughts” a risk scenario involving children “isn’t completely inconceivable”. This may be more likely to occur if he is experiencing social disconnection, substance abuse and perceives his sexual opportunities with adult women to be hindered.
e. The Defendant also participated in the Real Understanding of Self Help (RUSH) program between 9 February 2023 and 9 May 2023 (overlapping with his time in HISOP). His participation in the program was described in positive terms. He was observed to show genuine interest in the program, frequently engage in group discussions, demonstrated a desire to learn and would often try RUSH skills between sessions, showing great pride in sharing his experiences and learning.
f. The Defendant also completed Learning, Language and Numeracy Courses (Level I and II), Food Safety course, Workplace Health & Safety, Health Survival Tip, PrivProV Workplace Hygiene”.
In relation to the defendant’s participation in these offending-related courses, there remain questions about whether, and if so to what extent, they have been successful in addressing the defendant’s criminogenic needs and dynamic risk factors. For example:
Ms Cieplucha noted that, notwithstanding the defendant having completed “a high intensity treatment program to address his sexual offending, he has continued to deny and minimise his sexual violence”: RAR at [82]. Further, in the SRAR, Ms Cieplucha gave specific consideration to the sessions that the defendant was having with FPS and observed that, whilst the defendant appeared to have made some positive progress, those changes were “relatively recent, and he continues to present with a number of outstanding criminogenic needs” and difficulties with, inter alia, “emotion regulation…denial…problems with intimate and non-intimate relationships and antisocial attitudes”: SRAR p 3. Ms Cieplucha expressed the opinion that, in order for the defendant “to reduce his assessed level of risk, he would need to demonstrate relevant behavioural change over an extended period of time, and across a range of contexts”: SRAR p 3.
Dr Elliott observed that, even following completion of the HISOP and the defendant’s “continued psychological support”, the defendant “continues to display many of the concerning features that were evident before he engaged with this care. He remains a highly fragile individual”: GE report p 31. Further, Dr Elliott expressed “concern” in an ESO having a duration of two years only given, in his opinion, the defendant had “made little progress from the time of his index offences”: GE report p 35.
Ms Durkin expressed the opinion that the defendant had “not seemingly gained from the significant treatment he has participated in historically and there is evidence that the superficiality of his engagement…does not reflect meaningful change or benefit from the various interventions that he has engaged in”: LD report at [105]. Ms Durkin had previously observed that the defendant’s “motivation to engage in treatment is lower than most individuals” and that, despite the interventions the defendant has received, “he seemed remarkably uninsightful (or unwilling to discuss and disclose) his understanding of his risk factors and his offending cycle with either aggression or sexual offending”: LD report at [88]-[89]. As earlier noted, in the summary of her report (see [67(4)], above), Ms Durkin questioned whether the defendant in fact meaningfully engaged in the treatment and observed that his progress had been “mixed” and “varied”: LD report at [93]-[94].
Given the above, I am unpersuaded that the defendant’s participation in the abovementioned offending-related treatment programs has addressed, at least meaningfully, his criminogenic needs and dynamic risk factors. I am further unpersuaded that his participation has been anything other than superficial. More generally, I accept, as the plaintiff submitted, that the overall progress that the defendant is alleged to have made must be questioned, given the circumstances of the most recent offending for failing to comply with reporting requirements under the CPOR Act.
The plaintiff noted that the defendant has continued to consult with FPS. The defendant submitted that he “reliably attends weekly group offence specific treatment with a psychologist and openly participates” (defendant’s submissions at [25](d)) and, in the course of Dr Elliott’s cross-examination, attention was drawn to records from FPS dated 8 May 2024 – in particular, the remarks by Katie Kirkpatrick, a psychologist, to that broad effect. The point also sought to be made, based upon that entry, was that, whilst the defendant “often makes comments that indicate he has a poor attitude towards compliance, in general he does appear to comply with his parole conditions” and that when he did not comply, it was reactive to his experience whilst on parole. The defendant’s parole compliance is dealt with later when addressing that specific consideration under s 9(3)(f): see [90]ff, below.
In relation to the defendant’s engagement with FPS, it may be accepted that his attendance is reliable. However, based upon that isolated part of one entry, I am not prepared to find that the defendant’s participation is necessarily favourable, as sought to be suggested. This can be illustrated by referring to an earlier part of the same entry relied upon by the defendant as being demonstrative of his degree of participation: having entered the group room, and having been observed to converse “in a more terse/brusque tone than usual”, the defendant “then disengaged for the entirety of [the] group [session] as he sat with a mask over his eyes and headphones in and appeared to be asleep”. Moreover, notwithstanding the defendant’s “participation” – at whatever level – the fact remains that the expert evidence, which I accept and which has been summarised previously, provides a far more measured and circumspect assessment of the defendant’s participation and progress with his treatment, including that with FPS.
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”.
The plaintiff noted that the defendant’s obligations under the CPOR Act are suspended, by s 15(1)(d) of that Act, whilst the defendant is subject to an ESO.
The plaintiff also drew attention to the importance of continued treatment including, as per the recommendation of Dr Elliott, the defendant being assessed for anti-libidinal medication and monitoring his movement and activities – including his online activities and other indicators of sexual preoccupation with deviance.
Section 9(3)(e2) requires the Court to consider “the likelihood that the offender will comply with the obligations of an [ESO]”.
The plaintiff noted that the defendant “generally complied with his ISO, although there remain some issues regarding his compliance with conditions regarding electronic communication devices”, albeit that he had not been the subject of any action in respect of this suggested breach (plaintiff’s submissions at [38]). The defendant submitted that he would comply, and that that was demonstrated by his compliance with his ISO.
I am not prepared to make anything other than a highly qualified finding about the likelihood of the defendant complying with the obligations of an ESO. In my view, the defendant’s difficulties with parole (addressed later: see [90]ff, below), his further offending when released to parole, what I regard to be his anti-social attitudes and absence of insight into his behaviour and offending, and his sexual preoccupation and deviance all combine to suggest that compliance with aspects of his obligations under an ESO will present a challenge.
Section 9(3)(f) requires the Court 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.
The defendant has not been subject to an earlier ESO.
The defendant’s compliance with parole has been problematic.
Following the defendant’s release to parole on 16 June 1997, his parole was revoked on 21 August 1997 for breach of the condition requiring him not to be in the company of children under 16 years-of-age. Whilst the defendant initially “denied the circumstances that led to the revocation of his parole”, he ultimately admitted his guilt.
The defendant was again released to parole on 5 December 1998, but that parole was again revoked on 11 March 1999 on the basis that the defendant allegedly sexually assaulted a 20-year-old woman in Hyde Park and was observed by police in the company of children in his flat.
The defendant was further released to parole for the index offending on 27 October 2023. In relation to his compliance with parole since that time, the defendant further offended by failing to comply with his reporting obligations under the CPOR Act. The plaintiff also drew attention to the defendant’s compliance as described in the RAR prepared by Ms Cieplucha, as follows (RAR at [60]-[61]]):
“[the defendant] has demonstrated some resistance to supervision, has been combative with supervision expectations, disregarding directions related to entering parks and engaging in risky behaviours [like] attending Kings Cross late at night, despite being directed not to….
Following internal breach discussions in early March 2024, revocation of parole was recommended after [the defendant] was sighted near a park with children’s (sic) play equipment for 15 minutes, despite being given both verbal and written directions not to enter parks of any nature. He was described as remaining defiant with supervision expectations, being unresponsive to officer directions and fixated on his parole conditions impacting the implementation of case management strategies…”.
The defendant made a general submission that sought to excuse, or explain, his various difficulties or non-compliance with parole as possibly being reactive to particular situations involving authority, or because he is deeply distrustful of authority figures, with the result that statements made by him do not represent a balanced view of himself or his mental state. I do not accept this submission.
The defendant’s conduct following his release to parole is, to say the least, deeply troubling. The plaintiff’s submission was that this conduct demonstrates enduring cause for concern in relation to the areas of risk, and the defendant’s inability to identify and manage them in the absence of supervision. I agree.
As earlier noted (see [54]-[56], above), the defendant pleaded guilty for failing to comply with his reporting obligations under the CPOR Act*.*
On 21 May 2025, the defendant was sentenced to a CCO for a period of 12 months, commencing 21 May 2025 and expiring on 20 May 2026.
When sentencing the defendant for the 1993 sexual offending, Ducker DCJ described the defendant’s offending as “bizarre behaviour, that gives me great concern” and considered that, so long as the defendant “is capable of acts of this nature, it is clear that he is a danger to the public, particularly to young children. I think in his own confused mind, he does have a genuine but warped fondness for children”.
When sentencing the defendant for the 2006 offending against his brother-in-law, Blackmore SC DCJ noted that the offending involved a “degree of premeditation” and, despite the jury’s verdict, the defendant still denied taking and using the iron bar. His Honour also noted that, having read a letter prepared by him, it “does little credit to him. It is clear that he is angry about the conviction and has shown no remorse whatsoever”.
When sentencing the defendant for the index offending, Hanley SC DCJ was satisfied that the case against the defendant was “overwhelmingly strong” and, notwithstanding his conviction, that the defendant “has shown no remorse, and it appears that he does not accept responsibility for his actions”. His Honour was satisfied that the defendant had “little or no comprehension of the effect that his actions have had upon…the young woman” and that it was “clear from his comments…that he has no contrition at all and in fact, quite surprisingly, seems to hold her responsible in some way”. The defendant’s likelihood of reoffending was assessed as high “and his prospects of rehabilitation as very poor”.
When sentencing the defendant for the 2016 offending, Arnott SC DCJ noted that the material (being the stories) that had been produced by the defendant “inappropriately sexualised young girls and suggested the children were sexually active and willing sexual participants with adult men”. Further, his Honour found that the defendant “produced the material and kept it for his own sexual gratification”, has “demonstrated no contrition and remorse”, and found his “prospects of rehabilitation and not reoffending to be poor”.
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”.
Neither party drew attention to any other matter under this section.
I have already found that the matters in ss 5B(a)-(c) are satisfied: see [13], above.
Having regard to the matters under s 9(3) (referred to above), as well as the safety of the community under s 9(2) – this being a particularly significant consideration in the present matter – 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).
In arriving at that conclusion (and state of satisfaction), I am particularly mindful of the following matters.
First, the nature, extent and frequency of the defendant’s prior offending, particularly the offending that is accepted to be “serious offending”. The offending has been predatory and his victims – which included a five-year-old girl and a young woman – were vulnerable and defenceless. Plainly, a repeat of any such conduct would be grave, and unacceptable.
Secondly, the evidence from each Court appointed expert (earlier set out) was that the defendant, based upon his presentation and their review of the material briefed, presented an unacceptable risk of committing another serious offence if not kept under supervision. This evidence was not challenged, and I accept it.
Thirdly, put simply, in relation to his risk profile for sexual reoffending, the defendant has been assessed as: falling in the “Well Above Average risk range for sexual offending relative to other adult male sexual offenders and has a high density of criminogenic needs” (by Ms Cieplucha: RAR at [82] (emphasis in original)); having a “moderate to high risk of further serious sexual offending…as defined in the Act” (by Dr Elliott: GE report pp 28-29); and as falling “in the high risk range for further sexual offending” (by Ms Durkin: LD report at [106]). I accept these assessments.
In making that finding, I have not overlooked the fact that there are recognised limitations in using risk assessment (and actuarial) tools to predict the risk of reoffending in an individual case. However, this is not a situation where the results of the assessments point in different directions, thereby casting doubt about the predictive accuracy of the defendant’s risk profile. On the contrary, the consistency of the assessments made by Ms Cieplucha, Dr Elliott and Ms Durkin, in my view, demonstrates that there exists an unacceptable risk in the sense required by s 5B(d).
Fourthly, in my view, the evidence demonstrates that the defendant’s risk profile has not materially changed over time, when assessed using actuarial risk assessments. For example, as earlier noted, the defendant was assessed by Matthew Raymond, a psychologist from Corrective Services NSW, in 2015 using actuarial tools – STATIC-99R and STABLE. The defendant was assessed under each as “in the high range of risk” and, by their combination, as a “priority category of Very High”.
In 2024, Ms Cieplucha assessed the defendant, using those same actuarial tools, as in the “Well Above Average” risk (emphasis in original; this being the “highest risk category described by the tool” and reflecting the “use of new terminology to describe the categories of risk”: RAR at [67]), as having a “High density of criminogenic needs” (RAR at [68]) and, by the combination of the assessments, as in the “Above Average Risk level”.
Fifthly, I consider the nature of the defendant’s diagnoses and how they manifest to be significant. The defendant has been assessed by Dr Elliott as having a sexual attraction to children and adults (resulting in the diagnosis of paedophilia of a non-exclusive subtype); displaying “pervasive and sustained maladaptive personality traits of a varied nature”; having a “deeply disturbed personality structure”, including “marked anxiety and unease regarding his own sense of self or identity and he views…others as untrustworthy”; and holding “distorted and disturbing views regarding women that are conflicted and unresolved” and that were “best typified in his persisting views” regarding the index offence, which included what Dr Elliott described as “laboured, convoluted claims for innocence”: GE report pp 26-27. Dr Elliott considered that the defendant’s “maladaptive personality traits are entrenched and enduring features of his personality structure”: GE report p 27.
Sixthly, this is not a case where it could be said that the defendant has undergone extensive and sustained treatment and rehabilitation, such that one could reach the view that the defendant’s risk profile has significantly reduced in consequence. Rather, in my view, the defendant, as the plaintiff essentially submitted, has only undertaken some psychological treatment since his release from custody, and that treatment has been limited as to its nature, duration and effectiveness. The defendant plainly requires further and sustained treatment, as the Court appointed experts have suggested.
For example, as Dr Elliott remarked, the defendant “has made little progress from the time of his index offences” (GE report p 35) and, notwithstanding the psychological support he has been provided, “continues to display many of the concerning features that were evident before he engaged with this care. He remains a highly fragile individual” (GE report p 31). In short, despite the treatment and rehabilitation, I do not consider that there has been any material moderation of the defendant’s risk profile over time.
Seventhly, I consider the nature and timing of the defendant’s non-compliance with parole (and the circumstances involved) provide practical illustration of the currency of the defendant’s risk.
Finally, when sentenced in connection with the index offence, Hanley SC DCJ noted that the defendant had shown no remorse or contrition, that his likelihood of reoffending was assessed as “high” and that his prospects of rehabilitation, and not reoffending, were poor. Arnott SC DCJ made similar findings when sentencing the defendant for the 2016 offending. These observations largely align with the assessment that I have made.
The plaintiff submitted that the ESO should be for a period of five years. The plaintiff, who relied upon the opinion expressed by Dr Elliott to that effect (see [65(8)], above), submitted that this period was appropriate given the defendant’s “apparent entrenched sexual interest in children, his apparent lack of substantive progress” and the unlikelihood of the defendant’s risk profile reducing in a short period of time.
The defendant, however, submitted that the period of any ESO should be for no longer than two years, and advanced three matters in support of the shorter duration: that the defendant “is doing well in the community” (defendant’s submissions at [23]); that his “protective factors are continuing” (defendant’s submissions at [24]-[25]); and that the “length of the order could undermine his progress” (defendant’s submissions at [26]).
In relation to the submission that the defendant is “doing well in the community”, given the defendant was released to parole on 27 October 2023 and offended in June 2024, and has other issues in relation to compliance with his parole (matters discussed in the context of those matters under s 9(3)(f)), I am quite unable to accept that that constitutes “doing well”. Rather, in my view, it is demonstrative of the currency of the risk that I have found exists, and the need for him to be supervised under an ESO.
The defendant also submitted that he “has been complying with the ISO” since March 2025. That may be so, but he is required to. Further, contrary to what the defendant appeared to argue, compliance with an ISO does not axiomatically translate into the defendant “doing well”, particularly given the further offending and issues with parole compliance earlier referred to.
In relation to the submission about the presence of “protective factors”, the presence of such factors is accepted by all experts to inform the defendant’s risk profile.
To illustrate, Dr Elliott accepted in his report that matters such as the availability of housing and the support provided to the defendant by his brother were “strong protective factor[s]”: GE report p 29. Ms Durkin, by way of further example, considered that “there were a few protective factors in [the defendant’s] case” including his episodic work, his “intact cognitive functioning, his stable housing and his engagement in offence specific treatment”, but that these factors were “relatively general”. However, against these protective factors were an array of risk factors that I am satisfied are present in the defendant’s case. They have been summarised earlier in these reasons, but include, as Ms Durkin catalogued in her report summarised at [67(6)], the chronicity of the defendant’s sexual violence and its diversity; the defendant’s problems with his minimisation and denial of sexual violence; his sexual deviance, as well as his “paedophilic/hebophilic sexual interest”. In my view, these risk factors overwhelm the limited protective factors raised by the defendant.
The defendant’s third submission was that the length of the order “could undermine his progress”. As is apparent from its terms, the submission assumed that the defendant had made some “progress”. I am not prepared to make that finding. The submission also assumed that an order of the length sought by the plaintiff would have a negative impact. To the extent this “could” occur, this was very much theoretical. In any event, I am unpersuaded that the order will necessarily have such an impact. In this last respect, I would observe that Dr Elliott, who gave evidence, and who had expressed an opinion that the length of any ESO should be of five years duration – giving clear and detailed reasons for that opinion – was not asked any questions about this topic at all.
Nor do I accept the defendant’s argument that there will be a natural lessening of his risk profile as he ages – thereby supporting an ESO of a shorter duration. Whilst the generality of that submission may be accepted to a point, I am unpersuaded that it is applicable here, given Dr Elliott’s opinion about the recommended length of the ESO (which I accept), but also his specific opinion (which I also accept) that, whilst acknowledging that the risk of reoffending reduces as the defendant ages, “there is no current indication of him becoming old and infirm”: GE report p 29. Again, Dr Elliott was not cross-examined on this opinion.
I am satisfied that the ESO should be for five years. I accept the opinion from Dr Elliott to that effect. In particular, the length of the ESO has been informed by the fact that the defendant has made no material progress in addressing his criminogenic needs, his diagnoses and the entrenched and ingrained nature of the personality structure and traits described by Dr Elliott in his report, as well as his recent offending.
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). Thus, as is apparent from the language of the section, the power of the Court to impose conditions as part of an ESO is limited by the requirement that the conditions be “appropriate”.
When an ESO is made, it must include a condition “requiring the offender not to leave NSW except with the approval of the Commissioner of Corrective Services”: s 11(2). This is the plaintiff’s proposed condition 15.
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 ESO 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 State proposed a schedule of conditions of supervision that were annexed to the amended summons. They mirror those imposed under the ISO except in one respect, namely, proposed condition 51. Proposed condition 51 provides that “you must notify a [Departmental Supervising Officer] immediately if you cease to take or decline to commence taking any medication as referred to in the above condition [50]”. This proposed condition is not opposed by the defendant.
In relation to proposed condition 51, the plaintiff submitted that, given Dr Elliott recommended that the defendant be assessed for anti-libidinal medication, a condition of that kind is an important one and is directly relevant to an assessment of the defendant’s risk. The plaintiff emphasised that the importance of such a condition would arise in the event that medication was prescribed to the defendant. The existence and terms of the proposed condition would ensure that those managing him in the community would being notified of any changes to the defendant taking (or declining to take) such medication. I agree.
The defendant does not oppose the remaining conditions. They are contained in a joint schedule of proposed conditions, pursuant to Supreme Court Practice Note SC CL 12. I am satisfied that each of the conditions proposed by the plaintiff are reasonable and appropriate to impose, so as to address the risk of future offending: Wilde at [53].
The defendant, however, proposes an additional exception to the curfew provided by condition 10. I turn now to address the argument raised by the defendant to support that further exception.
Condition 10, unless “other arrangements are approved by a [Departmental Supervising Officer]”, imposes a curfew on the defendant between the hours of 9pm and 6am, subject to some exceptions. That condition was imposed when the ISO was made. The defendant does not oppose that condition being imposed as part of an ESO in the terms sought by the plaintiff but seeks an additional exception to it. Condition 10, as imposed as part of the ISO, is set out below, and includes the annotated amendments sought by the defendant:
10. Unless other arrangements are approved by a DSO, between 9 PM and 6 AM, you must be…:
(a) [at] your approved address;
(b) [at] an alternative approved address;
(c) in transit between approved addresses via the most direct route; or
(d) attending to the urgent toileting needs of your dog(s); or
(e) travelling on [your] motorbike along the approved route.
The defendant submitted that the further exception should be made because he “wishes to be able to go for a ride on his motorbike at night when stressed” and, when doing so, would adhere to a proposed route contained in Exhibit 2 (defendant’s submissions at [27]). The route appears to be slightly over 26km and extends from Pitt Street, Sydney, to Vaucluse and back, via various suburbs. The defendant submitted that the variation would be “effective”, relying in this respect on the account that the defendant told Dr Elliott that he “enjoy[ed] motorbike riding” (GE report at [27]). The defendant also submitted that the variation was balanced because it “does not create risk” (defendant submissions at [29]).
I do not accept the defendant’s submissions. I am not satisfied that an amendment to the condition to provide for the exception sought by the defendant is reasonable or appropriate, for the following reasons.
First, putting to one side the fact that the exception sought by the defendant was not conditioned upon the defendant experiencing actual “stress”, I do not accept that riding a motorbike at night is a way of appropriately managing the defendant’s “stress” during the curfew. The evidential basis for the defendant having, and thus needing to relieve, his alleged “stress” was not identified, nor were any surrounding details such as its frequency and intensity. I am unpersuaded about the existence of the alleged “stress” and, in particular, I am entirely unpersuaded that, even if it existed from time to time, this particular method of de-stressing the defendant is in any way appropriate.
Secondly, given the defendant’s history of sexual offending at night and in parks, and what I accept is his lack of insight into his offending and his risk profile, the exception carries with it unnecessary and increased risk.
By its proposed terms, on any occasion that the defendant felt so inclined, he would be free to ride his motorcycle along the proposed route at any time between the hours of 9pm and 6am, and thus subvert the curfew. In this respect, I note that these precise concerns were expressed by Dr Elliott in his evidence when he was asked about the appropriateness of the exception.
Dr Elliott, having observed that the proposed route “circles past most of the parks in the inner…city and in the eastern suburbs and comes within two blocks of Hyde Park”, was “concerned” that the defendant would be on his motorcycle late at night in areas where “he could reoffend and where he [may] be tempted to offend”. Further, in relation to Hyde Park, Dr Elliott gave evidence that the defendant had described to him “at length…and to other clinicians” about how he perceived that park “as a pick up area where people are having sex every night…He sees these as [unlit recreational] areas where he can have sexual encounters”. Dr Elliott considered these areas to be of particular risk (it will be recalled that the defendant expressed similar views about Hyde Park to Mr Raymond in 2015). It should be noted that Dr Elliott was not directly cross-examined upon this evidence, and I accept it.
Thirdly, the defendant submitted that he would be monitored more or less “in real-time” with the consequence that, if there were a deviation from the proposed route, it would be detected immediately and steps would be put in place to remedy it. In aid of this submission, it was pointed out that the defendant is required to have a mobile telephone, so could apparently easily and simply be contacted at any time during the night if a concern arose.
It may be true that, if a deviation was detected whilst the defendant was riding his motorcycle in, say, the early hours of the morning, that the defendant’s Departmental Supervising Officer could be contacted and, if necessary, police could be alerted. But such an arrangement is hardly “real-time”. It is also entirely unrealistic to think that there is no risk, as was argued.
As the plaintiff submitted by way of example, electronic monitoring will not be able to identify “whether the defendant has stopped due to an innocent reason (such as traffic), or whether he has stopped to interact with a vulnerable person” (plaintiff’s submissions in reply at [10](c)). The defendant did not contest this limitation.
Accordingly, I make the following orders:
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 5 years from the date of the order; and
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 of Conditions (201 KB, pdf)
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State of New South Wales
Joseph Rosenburg
(2020) 103 NSWLR 183
(2016) 91 NSWLR 636