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File Number(s): 2026/153727

Publication restriction: Publication or broadcast of names and any information or material that may lead to the identification of the applicant or the complainants is prohibited: Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A

JUDGMENT

1. HER HONOUR: By Summons filed 14 April 2026, the State of New South Wales seeks final orders under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) that the defendant be subject to an extended supervision order (ESO) for a period of 2 years.

2. On 7 July 2026, I made an interim supervision order (ISO) to commence on 20 July and expire on 16 August 2026 and made orders that the defendant be examined by two court-appointed experts. My reasons for making these orders, State of New South Wales v KW (Preliminary) [2026] NSWSC 785 (Preliminary Judgment), set out much of the background to this application.

3. On 16 August 2026, Emmett J renewed the ISO for a further 28 days from 17 August 2026. The extension was again renewed by Emmett J commencing on 14 September 2026 to expire on 12 October 2026.

4. On 25 September 2026, there was a final hearing before me. The defendant opposes the imposition of an ESO, submitting that the Court would not be satisfied that the defendant poses an unacceptable risk of committing a further serious sexual offence if not subject to supervision. In the alternative, the defendant submits that, were the Court to be satisfied of the unacceptable risk test, the conditions sought by the State ought to be narrowed and the period of the ESO be shorter.

5. For the reasons set out below:

6. I am satisfied that the defendant poses an unacceptable risk of committing a further serious sexual offence if not subject to supervision under an ESO; and

7. I grant an ESO for a period of 1 year but vary the conditions sought by the State to which it will be subject.

Evidence

6. The State relies on the following material:

7. Affidavit of Nicholas McArdle affirmed 13 April 2026;

8. Affidavit of Nicholas McArdle-Pearson affirmed 31 August 2026;

9. Exhibit NM-1 to the Affidavit of Nicholas McArdle affirmed 13 April 2026;

10. Expert report of Dr Sally McSwiggan dated 21 August 2026;

11. Expert report of Dr Timothy Roach dated 24 August 2026; and

12. Updated Offender Integrated Management System (OIMS) notes.

Background

7. The following matters of factual background are common ground:

8. The defendant was born in 1986 in Orange, NSW and is a 40-year-old male, living in the community, and is currently subject to an ISO.

9. The defendant experienced an “extremely dysfunctional and traumatic childhood which included exposure to alcohol and substance abuse” and, it is alleged, serious sexual abuse and neglect by both his parents. He is the eldest of five children; however, his younger brother was killed in an accident in 1996.

10. The defendant was placed in foster care at the age of 13. He left school in Year 9 and has since then been employed for short periods doing unskilled work.

11. The defendant has a mild intellectual disability.

12. On 28 April 2023, the defendant was released from custody and has resided continuously in the community since.

13. The defendant was made the subject of an ESO by order of Weinstein J on 7 July 2023 (the prior ESO): State of New South Wales v KW (Final) [2023] NSWSC 849 (Prior ESO Judgment). The prior ESO commenced on 20 July 2023 for a period of three years. In the proceedings before Weinstein J, the defendant did not oppose the making of an ESO, but rather argued it should be for a shorter duration and that it include fewer conditions: Prior ESO Judgment at [103]-[139]. The defendant has not returned to custody since the imposition of the prior ESO, which expired on 20 July 2026.

14. As set out above, I imposed an ISO on 7 July 2026 to commence on 20 July 2026, which has since been extended on two occasions until 12 October 2026.

15. The defendant is a registrable person under the Child Protection (Offenders Registration) Act 2000 (NSW) (the Child Protection Act) and has been subject to the Child Protection Register for 15 years, following his conviction for the index offences (which are described below). The defendant’s reporting obligations are suspended whilst he is subject to an ESO: s 15(1)(d) of the Child Protection Act.

Criminal history

11. The relevant background and the defendant’s criminal history is set out in the Preliminary Judgment at [12]-[18]:

“Prior offences

[12] In 2001, when the defendant was 14 years old and in foster care, he was convicted of aggravated indecent assault against his sister (who was under the age of 16 years), contrary to (now repealed) s 61M(1) of the Crimes Act 1900 (NSW). The defendant was sentenced to a two-year supervised recognisance order.

[13] In 2013, the defendant was convicted of aggravated indecent assault against his then ex-wife’s 11-year-old daughter, contrary to (now repealed) s 61M(2) of the Crimes Act. On 30 May 2018, the defendant was sentenced to imprisonment for 18 months with a non-parole period of nine months in relation to this offence.

[14] Although s 61M is now repealed, these offences constitute a ‘serious sex offence’ for the purposes of the Act because at the time they were committed, the offences fell under Division 10 of Part 3 of the Crimes Act and were punishable by imprisonment of 7 years or more: ss 5(1)(a) and 5(1)(d) of the Act.

Index offences

[15] The index offences consist of two counts of sexual intercourse with a child between the ages of 14 and 16, contrary to s 66C(3) of the Crimes Act, and one count of aggravated indecent assault against a person under the age of 16 years, contrary to (now repealed) s 61M(2) of the Crimes Act (the index offences).

[16] It is common ground that the index offences constitute ‘serious sex offences’ pursuant to s 5(1)(a)(i) of the Act in that they are offences under Division 10 of Part 3 of the Crimes Act, where the offence is punishable by imprisonment for 7 years or more. As for the offence against s 61M(2), it is common ground that it is a ‘serious sex offence’ for the same reason set out in [14] above.

[17] The index offences were committed on 18 and 19 April 2018. The defendant was charged with the index offences on 1 May 2018. In [State of New South Wales v KW (final) [2023] NSWSC 849], Weinstein J, at [27], described the offending as follows:

‘The index offending involved offences against a 14-year old girl whom the defendant met on Facebook. The offending occurred whilst [the defendant] was on bail for the offence committed against his stepdaughter […] He arranged to meet the victim at night at a McDonald’s carpark and assaulted the victim after driving her to a remote grassed area. The offending involved touching the victim’s breast, rubbing her vagina, digital vaginal penetration, and two instances of penile vaginal penetration.’

[18] On 14 December 2018, the defendant was convicted and received an aggregate sentence of imprisonment of 4 years and 6 months, with a non-parole period of 2 years and 6 months. The non-parole period expired on 28 April 2021, and the head sentence expired on 28 April 2023.”

12. In an Amended Joint Statement of Agreed Facts and Issues dated 21 September 2026, the parties clarified that the prior offences and index offences committed under the now repealed s 61M(2) of the Crimes Act 1900 (NSW) constitute “serious sex offences” for the purposes of the Act because, at the time they were committed, they were offences under Division 10 of Part 3 of the Crimes Act and punishable by imprisonment of 7 years or more (ss 5(1)(a) and 5(1)(d) of the Act).

Legislative framework

13. The relevant legislative framework is set out in the Preliminary Judgment at paragraphs [21]-[25], [27]-[32] and [34]-[35]:

“[21] As referred to above, the relevant test in s 7(4) of the Act, is whether this Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. If I am not so satisfied, I must dismiss the application: s 7(5) of the Act.

[22] Section 5B of the Act sets out four preconditions that must be met before the Court may make an order for an ESO:

(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.

[23] Section 5B(d) contains an important concept within the Act, namely whether an offender poses an ‘unacceptable risk’ of committing another serious offence if not kept under supervision pursuant to an ESO.

[24] Section 5D provides:

For the purposes of this Part, the Supreme Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence.

[25] By s 9(2) of the Act, the Legislature has provided that in determining whether or not to make an ESO, ‘the safety of the community must be the paramount consideration of the Supreme Court’.

…

[27] Section 9(4) of the Act provides that ‘[i]n determining whether or not to make an extended supervision order in respect of an offender, the Supreme Court is not to consider any intention of the offender to leave New South Wales (whether permanently or temporarily)’. On the facts of this matter, this does not appear to be an issue. In any event, I do not take this matter into account given the terms of s 9(4).

[28] Here, the defendant accepts that the three preconditions (or ‘threshold requirements’) in s 5B(a)-(c) are met but contests the State’s assertion that the fourth is made out being, ‘that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order’: s 5B(d).

[29] In relation to s 5B(a), I observe as follows. The offence under s 66C(3) of the Crimes Act was committed by the defendant against a person between 14 and 16 years of age. It follows that this offence meets the description of a ‘serious sexual offence’ within the meaning of s 5(1)(a)(i) of the Act which is, in turn, a type of ‘serious offence’ as defined in s 4 of the Act. It follows that the defendant is an ‘offender’ within the meaning of s 4A of the Act.

[30] In relation to s 5B(b), the defendant is a “supervised offender” as he is presently the subject of an ESO: see [State of New South Wales v KW (final) [2023] NSWSC 849] at [142] (Weinstein J).

[31] In relation to s 5B(c), it is common ground that the State has made an application for a new ESO in respect of the defendant in accordance with s 5I of the Act.

[32] The key issue in this matter is the fourth precondition; being s 5B(d).

…

[34] The State accepts, correctly, that even where the Court has the power to make an ESO, it nevertheless retains a discretion as to whether an ESO will actually be made: State of New South Wales v Anderson [2015] NSWSC 1515 at [30] (Hamill J); Wilson at [24]; State of New South Wales v Shields [2022] NSWSC 469 at [12] (Wright J). As the defendant submitted, while the impact of an ESO on the offender is not relevant to the determination of whether the unacceptable risk threshold in s 5B(d) is met, the Court may take that into account in the exercise of its discretion under s 9 of the Act: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [44], [56]-[57] (Beazley P), [126] (Basten JA) and [148] (Gleeson JA).

[35] I accept that these principles are relevant not only to the question whether an order should be made, but also in respect of the conditions to be imposed on any such order: State of New South Wales v Sines (No 3) [2017] NSWSC 985 at [47] (Wright J).”

Mandatory considerations in s 9(3)

14. Section 9(3) of the Act provides for a series of matters the Court must have regard to in determining whether to make an ESO. I deal with each below.

Reports received from the persons appointed under section 7(4) to conduct examinations of the offender, and the level of the offender’s participation in any such examination – s 9(3)(b)

15. As referred to above, on 7 July 2026, I made orders that the defendant be examined by two court-appointed experts.

16. On 21 August 2026, Dr Sally McSwiggan, a court-appointed neuropsychologist, prepared her report. Dr McSwiggan also prepared a report about the defendant for the purposes of the prior ESO proceedings before Weinstein J. On 24 August 2026, Dr Timothy Roach, a court-appointed forensic psychiatrist, prepared his report.

Dr Sally McSwiggan

17. In an agreed statement of facts, the parties summarised Dr McSwiggan’s report as follows:

“[28] On 21 August 2026, Dr McSwiggan, neuropsychologist, furnished an expert report after assessing the defendant on 14 August 2026.

[29] Dr McSwiggan considered the defendant met the diagnostic criteria for the following conditions ([41]-[43]):

a) Mild Intellectual Disability given his Adaptive Function in the community has met the NDIS threshold for occupational therapy and support needs.

b) Major Depression and Anxiety.

c) Borderline Personality Disorder.

d) Polysubstance Dependence Disorder in remission with Opioid Replacement Therapy.

e) He would likely fulfil the criteria of Paedophilic Disorder (13 years and under) nonexclusive type, and Hebephilia.

[30] In Dr McSwiggan’s opinion, the defendant’s Borderline Personality Disorder coupled with his Mild Intellectual Disability manifests in him a ‘pattern of external locus of control where he perceives blame for all negatives be attributed to others or circumstances.’ ([44]).

[31] Given that the defendant has an enduring intellectual disability and personality disorder, Dr McSwiggan observes that there is no available treatment (other than continued supportive counselling). However, Dr McSwiggan opined there was ‘no urgency’ for this treatment ‘given he has been in the community for three years without reoffending.’ ([45]).

[32] Dr McSwiggan observed that the defendant’s risk of sexual recidivism ‘is reducing given he has stayed in the community for three years’ ([50]).

[33] Dr McSwiggan also opined that, ‘while it would be true that supervision means time offence free in the community does not reduce his risk at the same rate as no supervision, supervision does not stop a person trying to offend, it allows attempts to reoffend be detected faster.’ ([50]).

[34] Dr McSwigggan stated in her report that for KW to be in the community for three years and not reoffend was extremely positive for a child sex offender ([51]).

[35] Dr McSwiggan ultimately concluded that ‘rapid responses’ are no longer required to respond to the defendant ([52]) and that, ‘after three years without incident associated with sexual offending’, less restrictive means such as a Child Protection Prohibition Order would provide a sufficient alternative means of managing any risk that he may pose ([53]).”

18. I also note the following paragraphs of Dr McSwiggan’s report:

“[11] In response to questioning, KW proposed he would not like the ESO to finish suddenly. He found the idea quite destabilising and provoked an anxiety response. Specifically he would mourn the sudden loss of contact with the DSO ‘Phil’ (which I found somewhat concerning that he has idealised this relationship). KW then proposed having a period of step-down rather than the ESO not being renewed as he would like to have time to process the change in his circumstances. He said it has taken time to get used to the oversight and felt in the last 12 months he had made the most gains personally.

…

[14] He reported having 40 hours of psychology, paid for by victim services, that he arranged and will utilise soon. He spoke of EMDR (eye movement desensitisation and reprocessing) as a form of therapy he would like. It would be focussed on his childhood trauma, not his offending.

[15] He reported having a partner for the last 6 months after helping her move house. She was known to him from 23 years ago. She lived close by and had no children. He described her as supportive and they shared a warm and uncomplicated relationship. He admitted they don’t have intercourse as he was impotent, but they were content with other forms of physical affection. He expressed strong feelings for her (‘love, a special connection, she knows what I have been through, she has been through a lot, we get along so well, we understand each other’).

…

Please comment on whether and how KW’s psychiatric or psychological condition contributes to his risk of committing a ‘serious sex offence’.

[44] KW’s Borderline Personality Disorder with the addition of low intellect manifests as a pattern of external locus of control where he perceives blame for all negatives be attributed to others or circumstances. He lacks the agency and maturity expected of a middle-age man. When faced with rules and boundaries, he complains often and blames everyone but himself for the positions he finds himself in. It is this lack of personal responsibility which may contribute to the risk of committing a serious sex offence. He identifies his ‘trigger’ (for sexual offending) are when ‘lots of things go wrong’. He does not identify that it would be linked to his unwillingness to manage his own deviant sexual urge/fantasy.

…

Whether less restrictive mechanisms or orders, such as a Child Protection Prohibition Order, would provide a sufficient alternative means of managing any risk that he may pose.

[53] Yes, after three years without incident associated with sexual offending this would suffice. It is KW who does not want the order to lapse suddenly, referring to it as anxiety provoking and he would likely see it as very destabilising.

…

Are there any other relevant matters that should be brought to the Court’s attention in relation to KW.

[64] KW has not offended in the last three years. His attitude and conduct towards others over the last three years may be quite juvenile at times but that does not increase his dangerousness. He is a low functioning man but would not fulfill an Anti-Social Personality Disorder where he routinely breaks societal rules and impinges on the rights of others. He no longer showed an obvious negative attitude towards all women or callous disregard for all his victims.

[65] While he maintained an external locus of control whereby others are blamed for his negative outcomes, he rightly assessed if he wanted to offend an ESO would not have stopped him over the last three years. His greatest period of risk, the period of time post release, has passed without unlawful behaviours.”

19. Dr McSwiggan considered that the defendant’s engagement was “cooperative and engaged” and that he was emotionally regulated during the interview. She also observed that he did not appear to have any symptoms consistent with an “(an untreated) Major Psychotic Illness... or Major Mood Disorder...” (at [20]-[24]).

20. The defendant told Dr McSwiggan that his own preference is for an ESO to continue for a period. This appeared to be because he finds his relationship with his current DSO supportive. He does not want his supervision to end suddenly as he would find that destabilising. Thus, he himself has proposed a “step down” over 12 months: at [10]-[11]. Dr McSwiggan observed in this respect that “if he was planning to sexually offend or return to illicit substance use it seems unlikely he would be suggesting continuing the order”. She supported “a further 12 months for a step down”: at [63].

Dr Timothy Roach

21. In an agreed statement of facts, the parties summarised Dr Roach’s report as follows.

“[37] On 24 August 2026, Dr Roach, psychiatrist, furnished an expert report after assessing the defendant on 11 August 2026.

[38] Dr Roach considered the defendant met the diagnostic criteria for the following conditions:

a) He more likely than not meets the criteria for paedophilic disorder ([69]);

b) He met the diagnostic criteria for:

i. Post-traumatic stress disorder ([70]);

ii. Borderline personality disorder ([72])

iii. Mild intellectual disability ([76]); and

iv. Substance use disorders ([77]).

[39] With respect to the defendant’s views on his offending and any prospective ESO, Dr Roach reported that the defendant expressed the view that an ESO was ‘pointless’ and was ‘wasting taxpayers’ money’ because he was ‘barely’ being monitored at present, for example, he was not subject to electronic monitoring. The defendant noted he had ‘earnt the right to move forward [without an ESO]’ and that he has taken responsibility for his offending. ([63]).

[40] In terms of his stressors, the defendant reported that his strategies for managing stress are sound, and that ‘everything works well, I’ve got a system, I’m not changing it.’ ([65]). When asked how he would cope if his stressors increased in the way similar to what happened prior to his index offending, the defendant stated he would ‘deal with [it] when it happens’ adding, ‘I doubt that will happen.’ ([65]).

[41] Dr Roach opined that the defendant posed a risk of committing a further serious sex offence, having regard to both his static and dynamic risk factors ([78]). Using the static risk assessment tool of Static-99R, when combined with a structured professional judgment tool (the RSVPV2), Dr Roach opined that the defendant was an ‘above average risk’ of committing a further serious sex offence ([84]).

[42] Dr Roach opined that the defendant’s diagnosis of paedophilic disorder, along with his antisocial personality traits and substance use disorders, increased his risk of committing a further serious sex offence ([93]).

[43] As to whether the defendant could be managed without an ESO, Dr Roach opined that the defendant would benefit from ‘ongoing supervision to mitigate the risk of further sexual offending’ ([102]).

[44] Dr Roach observed that the defendant has not engaged in an intensive treatment program for sex offending, and approximately 12 months ago his SSRI medication was ceased. Taking these factors into account, noting also the defendant’s current and historical views regarding treatment and supervision and his past breaches, in Dr Roach’s opinion, an ESO is necessary to effectively mitigate his risk of committing a further serious sex offence ([102]).”

22. Dr Roach also expressed the following views in his report:

“[93] In my opinion, KW’s diagnosis of paedophilic disorder along with his antisocial personality traits, increases his risk of committing a serious sex offence. His substance use disorders also increase his risk noting that substance use can cause disinhibition, sexual arousal, and aggression. Protectively, KW has not used substances for several years.

…

[102] In my opinion, KW would benefit from ongoing supervision in the community to mitigate the risk of further sexual offending. In my view, he presents with an above average risk of committing a further serious sex offence. On the RSVP-V2 he demonstrated a high loading of risk factors and notably, he has few protective factors. He does not appear to ever have engaged in an intensive treatment program for sex offending, and approximately 12 months ago his SSRI medication was ceased. Taking into account all these factors, and noting his current and historical views regarding treatment and supervision and his past breaches of conditions (e.g., contravening AVOs and offending while on bail), in my view an ESO is necessary to effectively mitigate his risk of committing a further serious sex offence.

[103] As I have indicated above, restrictive measures such as reporting obligations as a ‘registrable person’ under the Child Protection (Offenders Registration) Act 2000 (NSW) would be protective and reduce the risk of KW committing a further serious sex offence. However, such reporting obligations are not, in my opinion, sufficient to manage KW’s risk of committing a further serious sex offence. My understanding is that Child Protection Prohibition Orders aim to prohibit certain types of conduct, such as associating with children, being in specific locations, and engaging in specific behaviour (such as working in occupations where one has access to children). Child Protection Prohibition Orders are primarily a system of reporting and enforcement rather than a system of active supervision, treatment, or risk management. While registrable persons are required to provide significant information to police and are subject to certain restrictions, the scheme does not provide frequent oversight of behaviour, nor does it address dynamic risk factors that increase sexual offending risk. In my view, it is mostly a reactive rather than a proactive approach to managing risk and is insufficient to effectively manage KW’s risk of committing a further serious sex offence.”

Joint evidence at hearing

23. Dr McSwiggan and Dr Roach gave evidence concurrently at the final hearing before me.

24. Dr Roach confirmed his view that an ESO was necessary given the defendant’s risk of committing a further serious sex offence.

25. Dr McSwiggan confirmed that she was not of the view that an ESO was not required to manage the defendant’s risk, stating that he had indicated to her that he would feel “very anxious and destabilised” if the ESO was to stop suddenly and that would be detrimental in terms of risk. Her view was that an ESO “should continue for a washout period of time and not stopped straight away”, in a form that provides support, but minimal oversight of the defendant.

26. I address other aspects of Dr McSwiggan’s and Dr Roach’s oral evidence where relevant to the criteria below.

Other reports

27. I have also taken into account reports that were prepared under s 7(4) of the Act as part of the prior ESO proceedings before Weinstein J, being reports of Dr Gordan Elliot and Dr McSwiggan.

Reports of a psychiatrist, psychologist or medical practitioner regarding the likelihood of the defendant committing an offence and the results of statistical or other assessments – s 9(3)(c)-(d)

28. I incorporate by reference here paragraphs [39]-[52] of the Preliminary Judgment and have reviewed all of the material referred to therein for the purposes of making this decision.

29. Statistical assessments of the defendant were also conducted by Dr Roach and Dr McSwiggan, which I have taken into account.

Report prepared by Corrective Services NSW of the offender in community – s 9(3)(d1)

30. I have reviewed and taken into account the Risk Management Report dated 7 November 2025 prepared by Phillip Johns, Senior Community Corrections Officer.

Treatment or rehabilitation programs – s 9(3)(e)

31. I incorporate by reference here paragraph [56] of the Preliminary Judgment which sets out a number of matters that are common ground in relation to the defendant’s treatment and programs.

32. The defendant has not participated in any treatment to address the risk associated with his paraphiliac disorders. However, the State accepted in its written submissions that part of this lack of treatment has been associated with the challenges of providing an option that would be appropriately tailored to the defendant’s need, especially in light of his mild intellectual disability. The State also accepted that no inference ought to be drawn that he is not willing to participate in any such program.

33. At the final hearing, Dr McSwiggan and Dr Roach gave evidence about the fact that the defendant had not undergone any targeted sexual intervention treatment. This became particularly pertinent given the defendant’s apparent ongoing lack of insight in relation to the fact that a 13 to 14-year-old girl cannot consent to sexual intercourse. When Dr Roach explored this issue during his assessment with the defendant, he still maintained his view that it was a “grey” area. By contrast, he had appeared to show more insight about this to Dr McSwiggan. Dr McSwiggan gave oral evidence about this difference as follows:

“So I would say that it does impact my thoughts about his level of insight because I think KW may be presenting one view to some people and another view to others, and that’s as evidenced by what he’s told Dr Roach about still maintaining a view about a grey area, whereas with me, noting that that was a concern three years ago and it was highlighted in my report about the level of concern, I think he has presented a slightly more favourable version of his insight to me.”

34. During the course of the hearing, the State indicated that there is a targeted sexual intervention treatment known as Risk Management Intervention (RMI), involving one-on-one sessions with a psychologist employed by Corrective Services NSW which would be made available to the defendant if he were subject to a further ESO.

Progress on the ESO; the likelihood that the offender will comply with the obligations of the ESO; the level of the offender’s previous compliance with any earlier ESO, supervision and restrictions – s 9(3)(e2)-(f)

35. As recorded in the Preliminary Judgment at [62]-[64], there were two instances where the defendant was formally warned for breaches of his ESO.

36. The defendant points to the fact that during the approximately three years of the prior ESO, he has not been charged with or convicted of any sexual offences; nor were there been reports of findings of contact with children, attempted contact, grooming behaviour or any predatory conduct of a sexual nature during this time. It is submitted that this prolonged absence of sexual misconduct under intensive supervision is an important factor when assessing risk and undermines any conclusion that the defendant presently poses an unacceptable risk of committing a further sexual offence.

Views of sentencing court – s 9(3)(h1)

37. I have reviewed and considered the remarks on sentence of Wells SC DCJ dated 14 December 2018.

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

38. The State accepts that there have been no reported breaches under either act by the defendant, but observes that his obligations under the Child Protection Act are suspended by operation of s 15(1)(d) of that Act for the duration of the ESO.

Relevant criminal history and any pattern of offending behaviour – s 9(3)(h)

39. I have summarised these matters at [11] above.

Any other information – s 9(3)(i)

40. The updated OIMS notes tendered by the State revealed that the defendant has recently found a job as a truck driver. Both court-appointed experts saw this as a positive development and a protective factor in terms of risk.

41. Both court-appointed experts also gave oral evidence about the defendant’s relationship with his partner, being a mature woman of like age with no children, as being a protective factor in terms of risk.

Determination

42. Both experts concluded that the level of risk that the defendant posed of committing another serious sexual offence was “Above Average”, with the key difference between the two experts being how that risk ought to be managed.

43. Dr Roach’s view was that an ESO is necessary to effectively mitigate his risk of committing a further serious sex offence. Dr McSwiggan opined in her report that “a less restrictive” ESO is appropriate to manage the defendant.

44. The experts were agreed that there are some protective factors in the case of the defendant, in particular the fact that he is now employed, has a partner and is willing to engage in treatment. But the effectiveness of those protective factors appears to depend, to some degree, on the nature of the supervision and treatment that can be provided to the defendant under an ESO.

45. The defendant submits that Dr McSwiggan’s opinion should be preferred to that of Dr Roach. Dr McSwiggan assessed the defendant in 2023 for the purposes of the ESO made by Weinstein J and assessed him again on 14 August 2026 for the purposes of her latest report. Thus, it is submitted, she is the only expert with a longitudinal view of the defendant’s rehabilitation and risk across the life of the previous ESO. However, as set out above, Dr McSwiggan confirmed in her oral evidence that she was of the view that an ESO “should continue for a washout period of time and not stopped straight away” and be made in a form that provides support, but minimal oversight, of the defendant.

46. Taking all of the above matters into account, I am satisfied that the defendant poses an unacceptable risk of committing a further serious sexual offence if not subject to supervision for a period of 12 months. I have reached this state of satisfaction based on all of the material outlined above, but I have placed particular weight on the following matters:

47. The fact that both experts identified as a significant concern the fact that the respondent has not undergone any targeted sexual intervention treatment (at [32]-[34] above);

48. The fact that the defendant maintained his view to Dr Roach that whether a 13 to 14-year-old child can consent to sexual intercourse is a “grey” area, which caused Dr McSwiggan to change her views about his level of insight (at [33] above);

49. The views of Dr McSwiggan that the defendant would find the immediate cessation of the support he receives under the ESO regime “destabilising” given he has a borderline personality disorder which would generate risk, noting the defendant himself has proposed a “step down” over 12 months (at [20] above).

50. I accept the submission of the defendant that the two-year period sought by the State for an ESO is not supported by the evidence and is longer than required. As discussed below, it is apparent from the expert evidence that recognising and validating the progress the defendant has made will be protective in terms of mitigating risk going forward.

Conditions

48. As described at [34] above, the State has indicated it will make the RMI treatment available to the defendant, being a treatment targeted at sex offenders, that could then be the subject of a direction by the DSO under condition 29. That treatment has the benefit of being addressed to the type of intervention that both court-appointed experts identified as necessary to address risk in this case. If a direction is given to the defendant to attend those treatment sessions under condition 29, the defendant must comply.

49. There was a large amount of agreement as to the appropriate conditions, were I to be satisfied, as I am, that the criteria in s 5B are met. I only address the conditions that are disputed in these reasons.

Conditions 30-36

50. The only conditions in dispute are Conditions 30-36, which provide:

30. The defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults.

31. The defendant must attend, upon the direction of a DSO, any therapy sessions, support and treatment programs the subject of the direction.

32. The defendant must take medications that are prescribed to him by his healthcare practitioners for any alcohol or drug programs or for any mental health conditions and only in the manner prescribed.

33. The defendant must notify a DSO immediately if he ceased to take or declines to commence taking any medication as referred to condition 32 above.

34. The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with a DSO.

35. The defendant must agree to any information being shared between those persons and agencies that are involved in his supervision including, but not limited to, a DSO, NSWPF and CSNSW**.**

36. The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him, so far as it is relevant to his risk.

51. While these types of conditions may well be warranted in other cases, in my view, it is not the case here.

52. The defendant has already been subject to extensive conditions of this nature under the prior ESO. Dr Roach accepted that a downside of such conditions is that they interfere with the normal confidentiality that exists between a patient and their health care provider and could, in some cases, be counter-productive to the therapeutic alliance between a patient and health practitioner.

53. Both court-appointed experts acknowledged that the defendant had made progress under the supervision provided by the prior ESO and that imposing onerous conditions under any new ESO could be counterproductive in the sense of having the potential to reduce the defendant’s sense of autonomy, make him feel invalidated and that he has “gone backwards” when he has been compliant with the prior ESO and has not reoffended. Given his diagnosis of borderline personality disorder, that could be destabilising for him and generate risk in the future.

54. Since being subject to the prior ESO, the defendant has made considerable progress in his life, including in terms of gaining employment and maintaining a relationship with his partner. It is apparent from the expert evidence that recognising and validating the progress the defendant has made will be protective in terms of mitigating risk going forward. In my view, Conditions 30-36 are not appropriately tailored to the current risk and, in fact, have the potential to be counterproductive.

55. For these reasons, I do not impose Conditions 30-36.

56. I make the following orders:

57. An order pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) that the defendant be subject to an extended supervision order for a period of 1 year.

58. An order pursuant to s 11 of the Act, directing that the defendant, for the period of the extended supervision order, comply with the conditions set out in Schedule A to these reasons.

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Schedule A Conditions (586 KB, pdf)