State of New South Wales v Nixon

Statutory Scheme

1. Section 5B of the Act provides that the Supreme Court may make an ESO if it is satisfied: (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 defendant is a supervised offender (within the meaning of section 5I), and (c) an application for the order is made in accordance with section 5I [to be read as s 6],1 and (d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.
2. 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 a "serious offence".
3. A "serious offence" is defined in s 4 and includes a "serious sex offence" and a "serious violence offence".
4. A "serious sex offence" is defined in s 5 and includes certain offences under Division 10 of Part 3 of the Crimes Act 1900 (NSW) (as well as others). It is noted that not all sex offences are "serious sex offences".
5. A "serious violence offence" is defined in s 5A and includes a serious indicatable 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 (b) attempting to commit, or conspiring with or inciting another person to commit, an offence of a kind referred in in paragraph (a).
6. 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.
7. 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 combinations of two such persons) to examine the defendant and furnish reports to the Court.
8. 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.
9. 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 ("Lynn"): [1] "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."
10. 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…"
11. 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 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).
12. 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).

Relevant legal test in relation to preliminary orders

1. On an application for an ISO, the Court is not engaged in the task of weighing up the material contained in the evidence, or else predicting the ultimate result of the plaintiff's final substantive application.
2. Rather, first, pursuant to s 10A(a) of the Act, the Court must be satisfied that the offender's current custody or supervision will expire before the proceedings for an ESO are determined. Second, pursuant to s 10A(b) of the Act, the Court needs to be satisfied that the matters alleged in the supporting documentation provided by the plaintiff would, if proved, justify the making of an ESO.
3. The latter test has been said to be analogous to that which formerly applied to the determination of whether a prima facie case existed sufficient to justify the committal of a defendant to stand trial: see Attorney General for New South Wales v Kapeen bht Jennifer Thompson (Preliminary) [2018] NSWSC 619 at [16]; Attorney-General for New South Wales v Tillman [2007] NSWCA 119 at [38]; New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11].
4. Fullerton J observed in State of New South Wales v McGee (Preliminary) [2019] NSWSC 53 at [10] that: "the more accurate formulation, consistent with the test in s 5B(d), is for the Court to proceed on the assumption that the asserted facts are proved and then to consider whether, on that assumed basis, it is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision".
5. It is appropriate on an interim application such as this to have regard to the objects of the Act and to give weight to risk avoidance: see Attorney General for the State of New South Wales v Winters [2007] NSWSC 611 at [7]. Further, s 9(2) provides that in determining whether or not to make an ESO, the safety of the community must be the paramount consideration of the Court.
6. It is well settled that the test to be applied at a preliminary hearing for the making of an ISO is not a stringent test: see State of New South Wales v Lynn [2013] NSWSC 1147 at [17]-[18]; State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041; State of NSW v Sancar [2016] NSWSC 867.

The Evidence

1. The evidence relied upon by the plaintiff in support of the making of the ISO and other orders is as follows: 1. Exhibit A: Affidavit of Georgia Rose affirmed 2 September 2022; 2. Exhibit B: Affidavit of Georgia Rose affirmed 2 November 2022; and 3. Exhibit C: Affidavit of Kelli Grabham affirmed 2 November 2022.
2. The defendant relied upon the following material: 1. Exhibit 1: Affidavit of Dominic Gleeson sworn 26 October 2022.

Brief background and criminal history of the defendant

1. The defendant is an Indigenous man born in 1985. He is currently 37 years old.
2. The defendant has stated he was sexually abused as a four-year-old child. The defendant had violent and aggressive behavioural tendencies since he was a child, and his criminal history commenced when he was 13 years of age. He was expelled from school for repeated fighting and assaulting a teacher.
3. His criminal history is extensive. Early offending as a juvenile involved property offences and assault. As an adult, his criminal history includes assaults, stalk/intimidate offences, and several instances of custody of a knife in a public place. His most recent offending includes sexual and violence offences.
4. The report prepared by the High Intensity Sex Offenders Program (HISOP) on 11 November 2020 includes a history provided by the defendant that his mother abandoned him when he was two. It is also stated that violence quickly became entrenched as a primary means of coping. Rather than being taught to manage his emotions, his father and step-mother provided him with cannabis in an attempt to calm him down but this reinforced his deficits and led to further problems.
5. The defendant reports that he has a "good relationship" with his family including his father, sister and uncle. However, there are several indications in the material that his account is not reliable. He had very little contact with his family during his last decade in prison, and he is said to be prone to verbally abusing family members when his demands are not met.
6. Although the defendant was released to supervised parole on 6 September 2021, he was returned to custody on 18 March 2022 following a breach of his parole for "failure to adapt to lawful community life". He was again released to parole on 29 June 2022 and has remained in the community on parole since that time. His sentence for the index offending will expire on 30 November 2022.

Index offences

1. On 14 April 2010, the defendant pleaded guilty to three offences committed on 1 September 2009 at about 2am: robbery in company cause wounding (s 98 Crimes Act 1900 (NSW)); aggravated sexual assault in company (s 61JA Crimes Act) and aggravated indecent assault (s 61M(1) Crimes Act) ("the index offences"). The offences arose from the defendant and a juvenile co-offender (C1) having assaulted, robbed and indecently and sexually assaulted a 29-year old female passenger on a train between Gosford and Wyong. At the time of the index offences, the defendant was on bail for an offence committed against a former partner (sexual intercourse without consent).
2. The defendant had met C1 earlier in the evening and they had agreed to rob someone on the train. The defendant was in possession of two large kitchen knives which were subsequently given to C1, along with a beanie with two eyeholes cut out. C1 approached the victim with the beanie over his head, spraying her in the face with aerosol deodorant, before attempting to remove her handbag. The defendant then repeatedly punched the victim in the face and, at one point, slammed the victim's head against the window or wall of the train, causing a wound through the victim's eyebrow which required four sutures. The defendant kicked the victim's legs, but the victim refused to let go of her handbag. The defendant yelled for C1 to stab the victim, however, the handle of the victim's handbag broke and C1 was able to take the handbag.
3. The defendant continued to punch the victim in the head, undid her belt and pulled her jeans down enough to get his hands under her underpants. He then inserted his fingers into her vagina. The victim stated that the defendant's fingers were inside her for a number of minutes. C1 assisted the defendant by holding down the victim's arms (at the direction of the defendant). At some point during the incident, the defendant indecently assaulted the victim by biting her breast through her clothing. The defendant and C1 ran from the station as it stopped at Wyong train station.
4. C1 went to the police and reported the incident that morning. The defendant was arrested at 6:22am on 1 September 2009 and was in custody bail refused on these matters until being sentenced for the offending on 24 August 2010. Ellis DCJ sentenced the defendant on the three offences (plus an additional matter taken into account on a schedule involving goods in custody, being items which had been stolen from a sleeping man on a train) to a total effective sentence of 13 years 3 months, with a non-parole period of 9 years. The defendant's sentence will expire on 30 November 2022.

Sexual intercourse without consent - sentence date 3 March 2010

1. This is the offence for which the defendant was on conditional bail when he committed the index offences. The victim was his former partner.
2. The offence was committed on 29 April 2009. The victim and the defendant had ceased having a relationship about two days before the incident. The victim was having a shower when the defendant got into the shower and began to engage in penile-vaginal intercourse with her. The victim said, "No Nicko, don't do it". The defendant continued to have intercourse with the victim. The defendant conceded he was reckless as to whether the complainant was consenting to the sexual intercourse.
3. The defendant was sentenced in relation to this matter to a period of imprisonment for 18 months, wholly suspended upon entry into a good behaviour bond for 18 months. At the time of this sentence, the defendant was already in custody for the index offending.

Stalk/intimidate intend fear of physical/mental harm; common assault and contravene AVO - sentence date 13 February 2009

1. The defendant attended the victim's address on 11 August 2008, in breach of an Apprehended Domestic Violence Order (ADVO) in place between the defendant and the victim, his former partner. The defendant harassed the victim about her movements the night before, and then proceeded to drag her into the kitchen where he grabbed a meat cleaver and held it to her throat. The victim's dog then bit the defendant on the arm which allowed the victim to get away and call the police.
2. On 25 August 2008, the defendant had been released from custody relating to the events of 11 August 2008. Upon his release, he attended the victim's address again, in breach of an ADVO which remained in place between the defendant and the victim. The defendant threatened the victim with violence and proceeded to assault her by applying pressure to both sides of her face and pushing her head forcefully. The defendant said to the victim that he would "get a knife and cut [your] clothes off you and rape [you]". The defendant returned to the premises in the early hours of the morning and stood in the victim's loungeroom before being confronted by the victim who called the police.
3. On 13 February 2009, the defendant was convicted of two counts of contravening an ADVO, stalk/intimidate intend fear of physical/mental harm and two counts of common assault in relation to the events of 11 August and 25 August 2008.
4. He was sentenced to total effective sentences of 6 months imprisonment (reflecting time served) and a bond requiring him to be supervised by NSW Probation and Parole Services for 12 months upon his release.

Other offences

1. In addition to the offences outlined above, the defendant committed a large number of other offences before 2008 including larceny, several counts of custody of a knife in a public place, common assault and driving offences.
2. The defendant also has a lengthy juvenile criminal record which includes convictions for larceny, property offences, stalk/intimidate, custody of a knife in a public place and multiple breaches of bail, good behaviour bonds and community service orders.

Statutory pre-conditions are made out

1. As referred to above, the defendant concedes that the statutory pre-conditions for the making of the interim orders sought by the plaintiff are made out.
2. I am satisfied they are made out on the following basis:
3. First, s 10A(a) is satisfied as the defendant's current sentence expires on 30 November 2022, that is before the proceedings for the ESO are determined.
4. Second, on the basis of the following, s 10A(b) is satisfied, in that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, in accordance with s 5B.

Sentence of imprisonment for a serious offence: s 5B(a)

1. A "serious offence" is defined in s 4 of the Act to include a "serious sex offence". In turn, a serious sex offence is defined in s 5(1) as, relevantly, an offence under Division 10 of Part 3 of the Crimes Act where, in the case of an offence against an adult, the offence is punishable by imprisonment for 7 years or more and the offence is committed in circumstances of aggravation (within the meaning of the provision under which the offence arises).
2. As noted above, the index offences include an offence of aggravated sexual assault in company, contrary to s 61JA of the Crimes Act. The offence carries a maximum penalty of life imprisonment, and as such is a "serious sex offence" within the meaning of s 5(1)(a).
3. The defendant is serving a sentence of imprisonment (under supervision in the community) for a serious offence, which expires on 30 November 2022, and as such I am satisfied that the requirement in s 5B(a) is met.

The offender is a supervised offender: ss 5B(b), 5B(c)

1. The defendant is currently on parole (and therefore, serving a sentence of imprisonment for the purposes of s 5I) for the index offences which, as noted above, include a serious offence. I am therefore satisfied that he is a supervised offender for the purposes of s 5B(b).

Requirements with respect to application are met: ss 5B(c), 6

1. I am satisfied that the requirements in s 6 are met. As noted above, the defendant's current term of imprisonment will expire on 30 November 2022 (that is, in less than nine months from the date of the summons which was filed on 6 September 2022), and the application is supported by documents that address each of the matters in s 9 (including a risk assessment report completed by a registered psychologist).

Unacceptable risk of committing a serious offence: s 5B(d)

1. On the basis of the following matters, and assuming the matters in the supporting material can be proved, 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 an ESO.
2. I have come to this state of satisfaction on the basis of the relevant considerations set out in s 9, taking into account that the paramount consideration is the safety of the community.
3. In particular I note the following.

The reports and assessment of relevant experts: s 9(3)(c); Other information regarding the likelihood the offender will commit offences of a sexual nature: s 9(3)(i)

1. A Risk Assessment Report (RAR) dated 23 May 2022 was prepared by Mr Samuel Ardasinski, a Senior Psychologist at the Serious Offenders Assessment Unit. The report was based on an interview with the offender conducted for over an hour. Mr Ardasinski had previously assessed and prepared a psychological risk assessment report for the defendant in October 2011 ("the 2011 report") and he drew upon several of the past risk assessments in coming to his conclusions (particularly those which were based on static and unchangeable information about the defendant). Mr Ardasinski also had access to documentary material provided to him pursuant to s 25 of the Act.
2. Mr Ardasinski noted that the defendant was polite and compliant with the interview but was of the view that there was evidence of confabulation and self-deceptive enhancement in his account. Mr Ardasinski observed that the defendant presented as an "unreliable historian, as he had in 2011" and that he had failed to develop an adequate level of insight into his risks despite engaging in high-intensity group treatment in recent years.
3. Mr Ardasinski noted that the defendant continued to minimise his role in the index offences and that his attitude towards his offending has been "one of denial and minimisation throughout his time in custody". Mr Ardasinski was concerned with the defendant's lack of acceptance of responsibility for his offending and significantly, Mr Ardasinski reported the following: "The lengths to which [the defendant] remains willing to distance himself from the acceptance of responsibility for his serious offending is of concern, since denial and a lack of self-awareness has been identified as being risk-related by some researchers." (Emphasis added.)
4. Mr Ardasinski considered the absence of any significant history of psychiatric issues for the defendant but noted that as with his observations from the 2011 report, he assessed the defendant as demonstrating criminal personality factors which are somewhat maladaptive and problematic and likely to meet the diagnostic criteria for Antisocial Personality Disorder. It was noted that offenders diagnosed with this disorder typically begin to remit in their forties and that there is "likely to be a decrease in the full spectrum of antisocial behaviours and substance use".
5. The defendant's cognitive functioning was assessed as low in the 2011 report. However, despite the noted deficits in the defendant's cognitive functioning and literacy levels, Mr Ardasinski concluded that the pattern of results precluded a diagnosis of intellectual disability or cognitive impairment.
6. It was noted that the defendant had support from the National Disability Insurance Scheme (NDIS), but otherwise no professional support. His family connections were tenuous.
7. Mr Ardasinski referred to his 2011 report where he detailed the defendant's problematic illicit drug and alcohol use. As to alcohol, he had noted that the defendant: "minimised his use of alcohol, claiming to be a social drinker only, though his description of his use appeared to demonstrate a history of binge drinking to excess with peers".
8. A pre-release report prepared in May 2021 also recorded that the defendant acknowledged that he had a history of regularly smoking cannabis and that this was a factor in the days leading up to the index offending.
9. Mr Ardasinski agreed with the potential risk scenarios identified by the defendant's treating therapist, which included the following: "The most likely scenario for future sexual offending would involve a contact offence against a current or past romantic partner with the function being to punish or gain a sense of control over the potential victim… An alternative scenario may involve him sexually assaulting an adult female who he hopes to commence an intimate relationship with. His poor perspective taking combined with his intimacy deficits may distort him into perceiving that the potential victim is consenting to his sexual advances. Another potential risk scenario could involve a contact offence against a stranger adult female. This may occur within the context of emotional dysregulation or engaging in an impulsive, antisocial lifestyle… As Mr Nixon lacks insight into his early warning signs and will likely struggle to implement appropriate interventions to prevent reoffending, external management will be imperative in mitigating his risk."
10. Mr Ardasinski referred to historic risk assessments as well. As outlined further below, both the current and historic assessments concluded that the defendant presented a high risk of further serious sexual offending.
11. The aforementioned factors all contributed to a heightened risk profile for the defendant, who was assessed as in the "High risk category" relative to other men who had offended sexually. The defendant also posed a high risk of committing further violent offences in the future.
12. Mr Ardasinski opined that there was likely a greater need for external restraint, monitoring and surveillance in the defendant's community case management given how poorly he did in treatment and how little insight he had into his own mental and emotional processes.

The results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence: s 9(3)(d)

1. The defendant was the subject of a significant number of psychological or psychiatric assessments during his time in custody for the index offences. These were conveniently summarised or otherwise referred to in the RAR, and included: 1. Static and Dynamic Risk Factors (Actuarial Assessment - General Offending) LSI-R - assessment conducted on 19 October 2021 shortly after the defendant's release to the community. The defendant was assessed as falling within the "High risk category" for general and violent offending. 2. Static Risk Factors (Actuarial Assessment - Sex Offending) STATIC-99R - assessment conducted in 2011 and again in 2020. On both occasions the defendant's total score was 7, which was previously described as being the "High risk category relative to other male sexual offenders". The most recent version of the STATIC-99R Manual now describes the score of 7 as "Well Above Average risk" of sexual recidivism relative to other male sexual offenders. 3. Static Risk Factors (Actuarial Assessment - Sex Offending) - STATIC-2002R - assessment conducted on 18 May 2022. The defendant's total score was 6, falling within the second-highest risk range of "Above Average" risk. The rate of recidivism for individuals with a STATIC-2002R score of 6 was estimated to be about two-and-a-half times higher than that of the "typical" sex offender. The main areas in which the defendant's risk was clustered from this assessment were in his relationship to victims (unrelated and stranger victims posed a higher risk), and his general criminality, including his prior history of non-sexual violence. 4. Static and Dynamic Risk Factors (Actuarial Assessment - Violent Offending) - VRS - assessment conducted (pre-treatment) on 22 September 2011 and again (post-treatment) on 19 May 2022. The defendant's risk of being convicted of further violent offences was estimated in 2011 as being within the "High risk range". The 2022 assessment saw a reduction in the defendant's dynamic risk and a 1-point reduction in his static score, but the defendant's overall risk was assessed as remaining within the High Risk range. 5. Dynamic Risk Factors (Actuarial Assessment) - Sexual Offending - STABLE-2007 - assessment conducted on 19 February 2021. The defendant's score of 18 suggested a "High density of criminogenic needs relative to other male sexual offenders". Areas of clinically significant concern for the defendant were "Significant Social Influences, Capacity for Relationship Stability, Hostility Towards Women, Lack of Concern for Others, Impulsivity, Poor Cognitive Problem Solving and Poor Cooperation with Supervision". The STABLE-2007 can be combined with the STATIC-99R (or STATIC-2002R) to generate a "composite assessment of risk/needs" for the defendant. The results of the combined assessment indicated that the defendant will require a "High level of intervention and/or supervision". 6. Dynamic Risk Factors (Structured Professional Judgment - Sexual Violence) - RSVP - assessment conducted on 19 May 2022 by Mr Ardasinski. The defendant's risk for repeat sexual violence was assessed as falling within the "Elevated risk category". 7. Combined Risk Factors (Structured Professional Judgment - Sexual Violence) - SVR-20 - assessment conducted by Mr Ardasinski in the 2011 report. The defendant's risk for sexual violence was estimated to be within the "high range" relative to other sexual offenders. His score was elevated by the presence of significant risk factors in each of the relevant domains, namely "Psycho-social Adjustment, Sexual Offences and Future Plans".

Corrective Services Report regarding community management: s 9(3)(d1)

1. A Risk Management Report (RMR) was prepared on 22 June 2022 by Mr Ryan Gaffney, a Community Corrections Officer. In preparing the report, Mr Gaffney had access to the defendant's interviews, the RAR prepared by Mr Ardasinski (dated 23 May 2022), the Judge's remarks on sentencing, police facts and criminal history, and Corrective Services records.
2. The defendant's limited support network in the community was noted, as was his unsatisfactory recent response to Community Corrections supervision during his first period on parole from September 2021 to March 2022. It was noted that he continually deviated from his approved schedule of movements, failed to comply with officer directions and struggled to engage in any other interventions. The defendant's presentation and lifestyle was described as "chaotic" and his engagement with his supervising officer was described as "superficial".
3. The report outlined a set of conditions which, in the opinion of Community Corrections, would be sufficient to manage the defendant's risk in the community. The proposed conditions included the following: 1. A schedule of movements with a curfew, electronic monitoring and the establishment of exclusion zones to ensure the defendant's compliance with the schedule of movements. 2. Place and travel restrictions to assist in managing the defendant's movements. 3. Monitoring the defendant's potential engagement with employment and education to assist with overall monitoring. 4. A non-association condition requiring the defendant to notify his Departmental Supervising Officer (DSO) of any person with whom he intended to associate or form a relationship with. This was proposed in addition to a condition allowing Community Corrections to make disclosures of the defendant's offending history to such persons as deemed necessary. The defendant would also require the approval of his DSO to join or affiliate with any club or organisation, including any internet or social media networking service. 5. An electronic communications and internet access condition to enable the remote monitoring of any issues arising from the defendant's use of the internet or in relation to his use of social media accounts. 6. A search and seizure condition where Community Corrections were permitted to conduct searches of the defendant's electronic devices, his residence, his person or anything under his control or in his possession. This was considered necessary to ensure the defendant was complying with his order and not engaging in risk related behaviour. 7. Drug and alcohol conditions were proposed to ensure the defendant's continued abstinence from illicit drugs and alcohol and to assist in monitoring his risk. 8. Medical intervention and treatment conditions where the defendant was required to attend psychiatric and psychological treatment. 9. Conditions relating to the defendant's engagement in community-based interventions to support his reintegration into the community and to address his outstanding criminogenic needs. 10. A condition was also proposed that the defendant should be required to have the approval of his DSO to significantly change his appearance or to change his personal details.

Treatment and rehabilitation of the defendant: s 9(3)(e)

1. I have referred to the HISOP report above at [30]. The defendant participated in the High Intensity Treatment Program between June 2019 and July 2020 and the report is dated 11 November 2020. The defendant's participation in the program was longer than the standard treatment period because he required extra time to understand and process the treatment content, as well as to complete the task work.
2. The defendant's lower cognitive functioning, tendency for rigid thinking and easy distractibility presented issues for him, and he received four warnings for verbal threats and general non-compliance. It was observed that this demonstrated his overall difficulties in regulating his emotions. It was, however, also noted that he expressed a strong motivation to change his behavioural tendencies towards aggression and violence, and to make active attempts to better manage his emotions, including accepting a Behaviour Support Plan to assist him in implementing appropriate strategies.
3. It was noted that the defendant struggled to develop insight into his sexual offending and maintained his innocence in relation to the sexual components of his offences. Various factors were identified by the defendant as resulting in him being convicted for sexual offences: antisocial peers and attitudes, poor problem solving, problems with relationships, using sex to cope, fearing rejection, low self-esteem, impulsivity, willingness to use violence, seeking power and control, poor coping, and not asking for help. However, he did not accept the following additional factors as contributing to his risk: hostility towards women, using sex as a weapon, sexual preoccupation, deviant sexual arousal (i.e. potential arousal to being in a position of power), and lack of concern for others.
4. After taking into account the static and dynamic factors, the defendant's combined risk rating was assessed as "Well Above Average".
5. It was also noted in the HISOP report that the defendant had completed the 'Managing Emotions' program in 2012 and his participation was good. He had also completed the Getting SMART addiction program and a number of vocational courses.
6. The report noted that the defendant had been approved to receive NDIS support of approximately $13,000 to assist in daily living, employment and support co-ordination.

Options available to reduce the offender's risk: s 9(3)(e1)

1. The RMR referred to above at [65] set out a number of matters relevant to the defendant's risk in the community. These will be referred to in more detail when the appropriateness of certain conditions is discussed below. The plaintiff, in its submissions, also notes that the NDIS support may incidentally assist in relation to the risk.

Likelihood the defendant will comply with the obligations of an ESO: s 9(3)(e2); and his past compliance with parole: s 9(3)(f)

1. A number of the reports indicated that the defendant had issues with compliance in the past, including non-compliance with parole and supervision. This of course raises doubts as to whether the defendant would comply with the obligations of an ESO. However, I also note that he has had certain periods of successful compliance, such as between September 2021 and March 2022. The defendant was also released to parole again in June 2022 and has remained in the community on parole since that time.
2. The first breach of parole came about through problems around the defendant's accommodation and with a recent relationship with a female person who "would be considered a vulnerable person".
3. A further breach of parole was identified in a report dated 26 October 2022 as a result of the defendant deviating from his approved schedule for which he received two written warnings. The recommendation of that report was that a warning should be issued.
4. On the basis of the material I have seen, including practical suggestions that the defendant needs clear and unambiguous instruction and reinforcement around what is expected of him, I am of the view that if there are carefully crafted conditions which are properly explained and reinforced in a manner which resonates with him, the defendant is capable of complying with an ESO.

The defendant's compliance with any obligations under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004: s 9(3)(g)

1. The defendant has not been subject to any obligations under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004.

The defendant's criminal history: s 9(3)(h)

1. As noted above, the defendant's criminal history reveals regular disobedience to the law, starting with relatively low-level criminal offences, but escalating over the course of his adulthood. Since 2008, the offending has included violent or intimidating attacks on both intimate ex-partners and a stranger, with the index offending representing his most serious criminal offending to date.
2. Since the breaches of the ADVO in 2008, the defendant has had very little time in the community without committing offences. There was only a very short period of offence free time between the defendant's release from custody on 13 February 2009 (for the ADVO contraventions) to the commission of the offence of sexual intercourse without consent on 29 April 2009. Only just over four months later, whilst on bail, the defendant committed the index offences.
3. The defendant's sentence for the index offending was lengthy and he was first released to supervised parole on 6 September 2021. He was returned to custody on 18 March 2022 for breaching his parole but was again released to parole on 29 June 2022 and has remained in the community on parole since that time.
4. It is clear that the pattern of offending, with the palpable escalation culminating in the index offending, is an important factor contributing to the need for the defendant to be under supervision.

The views of the sentencing court: s 9(3)(h1)

1. Ellis DCJ, the sentencing judge, assessed the bulk of the defendant's index offending as just below the mid-range. Ellis DCJ stated that the "Court is unable to say that he is unlikely to re-offend and unable to define what his prospects of rehabilitation are, if any". The plea of guilty was noted as indicating some acknowledgement of responsibility, but it was also noted that his ability to empathise was limited.
2. The sentencing judge noted that the defendant had indicated that "he was prone to more extreme displays of anger including damage to property and threats to assault others". Additionally, the sentencing judge noted "the fact that he argued the details of the offence rather than the offence itself confirms the profile, which indicates a lack of empathy and his hostility and bitterness".

Consideration

1. I have had regard to the supporting documentation in the context of the relevant statutory factors and I am satisfied that, if proved, that material would enable the Court to be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another "serious sex offence" if not kept under supervision under the order. [2] In arriving at that conclusion, I have had regard to the paramount consideration of the safety of the community as required by s 9(2) and to the s 9(3) factors summarised above.
2. The next question is to determine the appropriate conditions for the ISO.
3. Section 11 of the Act provides that an ESO or ISO "may direct an offender to comply with such conditions as the Supreme Court considers appropriate" and provides a non-exhaustive list of possible conditions. The discretion to impose such conditions is broad: Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 at [47].
4. Many of the conditions are not in contention. Of those in dispute, I note that the plaintiff did not ultimately press some of them, or agreement was reached as to altered wording. Accordingly, I will only direct my attention to those which remain contested.

Schedule of Movements - conditions 6, 7, and 8

1. The plaintiff proposes that these conditions should read as follows: "6. If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start. 7. If the defendant wants to change anything in his schedule of movements once it is approved by a DSO, he must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period. 8. The defendant must not deviate from his approved schedule of movements except in an emergency."
2. In lieu of those conditions, the defendant seeks the following: "6. If directed by his DSO, the defendant is to provide an honest summary of his anticipated movements each week limited to places he intends to travel to, the purposes and means of his travel to those places, and the dates of travel, but unconfined by any travel route or timetable. If so directed, such a summary is to be provided on, or before the Friday prior to each week (or as otherwise agreed between the defendant and his DSO). 7. If the defendant wants to change anything in his summary of anticipated movements once he has notified a DSO, he must notify a DSO about the change 24 hours in advance, unless a DSO approves a shorter period. 8. The defendant must not deviate from his approved schedule of movements except in case of any circumstances which the defendant reasonably regards as being an emergency. In such circumstances, the defendant is to notify a DSO of that deviation without delay."
3. It is argued by the defendant that he has exhibited difficulties in adhering with his schedule since being on parole, and that there is concern that his cognitive difficulties make it difficult to achieve compliance. The defendant, however, also fairly acknowledges that not all the problems with compliance arise from cognitive limitations and there are examples of wilful non-adherence in some instances, perhaps in part due to the defendant not wanting the people he is with to suffer because of his conditions. It is also fairly acknowledged that Community Corrections have exercised discretion under his parole order in relation to these difficulties.
4. The plaintiff, on the other hand, notes that the defendant's impairment should not be overstated, and that senior psychologist Mr Ardasinski had identified some cognitive deficits but found no evidence of intellectual disability or cognitive impairment. The plaintiff also submits that the conditions proposed by the defendant are not necessarily easier to understand than those proposed by the plaintiff. Further, appropriate guidance can and has been provided to the defendant which shows that when he is uncertain about the requirements of scheduling, he is able to ask his supervising officer for an explanation. The evidence of Ms Grabham suggests that an appropriate level of flexibility is likely to be afforded to the defendant. Further and importantly, the evidence of Ms Grabham is that the more flexible scheduling conditions (known as "dry scheduling") sought by the defendant are of no use to the Electronic Monitoring team, because "the latter unit cannot monitor if the defendant is not at the location when he says he will be. The upshot is that there is no real time monitoring of a defendant with a 'dry schedule". Ms Grabham states, and I accept, that real time monitoring is, from a practical perspective, more protective of the community. Finally, the plaintiff argues that the defendant should not be effectively "rewarded" for failing to comply with his scheduling conditions by having the conditions watered down.
5. In my view, conditions 6 - 8 as proposed by the plaintiff are appropriate. They allow for real time monitoring of the defendant's movements. They are clear and unambiguous. If they are clearly and patiently explained and enforced with the sort of discretion which has been apparent to date, they are an appropriate component of the package of conditions which ameliorate the defendant's risk.

Accommodation - condition 10

1. The plaintiff proposes that this condition should read as follows: "The defendant must be at his approved address between 9PM and 6AM unless other arrangements are approved by a DSO."
2. The defendant proposes additional wording (underlined) as follows: "The defendant must be at his approved address between 9PM and 6AM unless other arrangements are approved by a DSO, or he is directly attending or returning from a place of employment which has been approved by a DSO under Condition 19."
3. The defendant contends that the additional words would make it clear to those supervising the defendant that an exception to curfew for employment purposes is foreseen in appropriate circumstances. The plaintiff, however, submits that the original wording is clearer and that the defendant's proposal introduces unnecessary complexity. I agree with the plaintiff, and I am of the view that the original wording is appropriate.

Accommodation - conditions 12 and 13

1. The plaintiff proposes that these conditions should read as follows: "12. The defendant must not spend the night anywhere other than his approved address or any alternative approved addresses (if relevant) without the approval of a DSO. 13. The defendant must promptly notify a DSO of any visitor entering and remaining at his approved address and must not permit any person to stay overnight, at his approved address (other than persons who ordinarily reside at his approved address), without the prior approval of a DSO."
2. The defendant proposes additional wording (underlined) as follows: "12. The defendant must not spend the night anywhere other than his approved address or any alternative approved addresses (if relevant) without the approval of a DSO. The defendant is permitted to spend the night at the address of a 'direct family member' unless a DSO, having regard to present concerns the DSO has about the defendant's risk, directs the defendant not to stay at the address of the 'direct family member'. 13. The defendant must promptly notify a DSO of any visitor entering and remaining at his approved address and must not permit any person to stay overnight, at his approved address (other than persons who ordinarily reside at his approved address), without the prior approval of a DSO. The defendant is allowed to permit an approved romantic partner (which means a person approved by a DSO for the purpose of this condition) to stay at his approved address if he notifies a DSO of his intention to permit the person to stay overnight."
3. The "direct family member" definition proposed by the defendant means "the defendant's siblings and Brenda Avery".
4. As to condition 12, the defendant contends for the qualifications in order to assist in fostering links with his family members, in relation to whom there are no present risk concerns, as part of the defendant's rehabilitation. The plaintiff opposes the qualifications. The plaintiff contends that whilst there is evidence of a close relationship with his siblings and his stepmother, and there is no evidence they are a negative influence on him, whether a visit on a particular occasion is appropriate (including its nature, or the suitability of other people present) is not necessarily known at any particular point, and as such the tighter level of control (at this preliminary stage) is appropriate. The point is also made by the plaintiff that the defendant's proposed additional words would change the role of the DSO from one of approving an overnight visit in advance, to one of potentially blocking such a visit or visits if problems were to arise. This could put unwarranted strain on this important relationship.
5. I am of the view that the plaintiff's submissions have force. Whilst I acknowledge the defendant wishes to continue to develop his relationship with his family, I am of the view that the plaintiff's proposed wording of condition 12 does not prevent this occurring and is otherwise appropriate.
6. As to condition 13, the defendant points to the current stability of the defendant's romantic relationship, now of some months, and contends that that should be recognised in the revised wording, which has appropriate safeguards. The plaintiff notes the past tendency of the defendant to develop relationships with vulnerable people, and the fact that the risk identified for future offending may involve a contact offence against a current or recent romantic partner. It is also noted that such a relationship may fluctuate over time. As noted by the plaintiff, overnight stays may be appropriate at some times, and not at others. I agree with the plaintiff that the plaintiff's wording addresses these issues whilst the defendant's wording does not. Accordingly, I am of the view that the plaintiff's version of condition 13 is the appropriate version for the time being.

Employment - condition 19

1. The plaintiff proposes that this condition should read as follows: "The defendant must not start on his own initiative any job, volunteer work or educational course without the approval of a DSO."
2. The defendant proposes that this condition should read as follows: "The defendant must give his DSO at least 2 working days' notice before commencing any paid employment, volunteer work or educational course and must comply with any direction from a DSO not to engage in particular paid employment, volunteer work or educational course."
3. The defendant contends that this condition allows the defendant to accept casual work fairly promptly while giving those supervising the defendant time to vet the proposed employment.
4. The plaintiff, on the other hand, points to Ms Grabham's evidence which is to the effect that the vetting process can take longer than two days, and that time frame is in part out of their hands as other agencies are involved in the checking process. Further, the plaintiff's wording is less disruptive as it avoids a situation where the defendant commences employment and is then directed to cease employment should the risk assessment prove unfavourable.
5. I am of the view that the plaintiff's submissions are properly based, and that the plaintiff's version of condition 19 is the appropriate one.

Financial affairs - condition 21

1. The plaintiff proposes that this condition should read as follows: "The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by a DSO."
2. The defendant opposes this condition being made.
3. The plaintiff contends that this provides an "additional layer of monitoring" and would assist in the identification of risk factors. The plaintiff points to Ms Grabham's evidence that it would allow the DSO to monitor his use of finances for potential purchasing of drugs and alcohol, and would only be implemented, in a practical sense, when there are other indicators of elevated risk, stress or dysregulation. The plaintiff also states that it would also allow for the monitoring of spending on items such as gifts, which may flag new or problematic relationships being formed. The defendant contends the level of monitoring provided by the other conditions is sufficient; that suspicious transactions could be concealed by the use of cash; and interference with the defendant's autonomy compared to the minimal benefit obtained by this condition is such that the condition is not warranted.
4. There is force in the defendant's submissions. I do not accept that this condition is reasonable or appropriate at this time, particularly in light of other conditions and the risk that I have identified.

Access to licensed establishments - condition 25

1. The plaintiff proposes that this condition should read as follows: "The defendant must not enter any licensed premises including hotels, bars, racecourses and licenced clubs, but excluding cafes and restaurants, without the prior approval of a DSO."
2. The defendant proposes that this condition should read with the additional suggested words underlined as follows: "The defendant must comply with any direction by a DSO, having regard to present concerns the DSO has about the defendant's risk, not to enter any licensed premises including hotels, bars, racecourses and licenced clubs, but excluding cafes and restaurants."
3. Whilst I note the defendant's submission that it is not suggested that the defendant's index offending involved alcohol, I am of the view that there is some material indicating previous binge drinking, and when this is combined with the recent lengthy incarceration of the defendant, it is appropriate to supervise the defendant in the way set out in the plaintiff's condition.

Non-association - conditions 27, 28, and 31

1. The plaintiff proposes that these conditions should read as follows: "27. The defendant must not associate with any person or persons specified by a DSO. 28. Without limiting condition 27, the defendant must not: a. associate with any people who he knows are consuming or under the influence of alcohol without the prior approval of a DSO. A DSO may approve a particular person or particular people in advance. b. associate with any people who he knows are consuming or under the influence of illegal drugs. c. associate with any person held in custody without prior approval of a DSO." "31. The defendant must obtain written permission from a DSO prior to joining or affiliating with any club or organisation."
2. The defendant proposes that these conditions should read with the additional wording suggested in underline as follows: "27. The defendant must not associate with any person or persons specified by a DSO, except for a 'direct family member'. In addition, the defendant must comply with any direction by a DSO, having regard to present concerns the DSO has about the defendant's risk, not to associate with any 'direct family member'. 28. Without limiting condition 27, the defendant must not: a. associate with any people who he knows are consuming or under the influence of alcohol without the prior approval of a DSO. A DSO may approve a particular person or particular people in advance. In addition, the defendant must comply with any direction by a DSO, having regard to present concerns the DSO has about the defendant's risk, not to associate with any 'direct family member' who he knows are consuming or under the influence of alcohol. b. associate with any people who he knows are consuming or under the influence of illegal drugs. In addition, the defendant must comply with any direction by a DSO, having regard to present concerns the DSO has about the defendant's risk, not to associate with any 'direct family member' who he knows are consuming or under the influence of illegal drugs. c. associate with any person held in custody without notifying a DSO, and the defendant must follow a DSO's directions in respect of the association, including not to associate with the person." "31. The defendant must notify a DSO within 48 hours of any clubs or organisations he becomes affiliated with."
3. In accordance with previous observations, I am of the view that the plaintiff's versions of these conditions are appropriate as they provide a suitable level of supervision for this defendant who, amongst other things, has recently spent a lengthy time in custody. The plaintiff's versions are also more clearly expressed and are therefore more appropriate for a person labouring under cognitive deficits and who requires an appropriate level of structure, guidance and support.

Weapon - condition 33

1. The plaintiff initially proposed that this condition should read as follows: "The defendant must not carry on his person, at any time he has left his residence, any knife or other cutting instrument."
2. By way of a joint note filed on 11 November 2022 after the hearing, the plaintiff and defendant agreed to amend the condition with the additional suggested words underlined as follows: "The defendant must not carry on his person, at any time he has left his residence, any knife or other cutting instruments. The defendant is permitted to carry one bait knife between 6am and 6pm for the sole purpose of fishing, and he must have it in a locked tacklebox at all times, other than when he is at his residence or fishing."
3. I am of the view that the condition, with the agreed amendments, is appropriate, subject to adding the following words at the beginning of the condition: "Subject to the following".

Internet access and other electronic communications - conditions 35 - 45

1. The plaintiff seeks a suite of conditions allowing for the monitoring of the defendant's electronic devices and internet usage, including social media.
2. It is contended by the plaintiff that these are required in order to enable the DSO to monitor or assess whether the defendant has entered into any antisocial associations and, in particular, to monitor his relationships. The defendant contends that these conditions are overly intrusive and prescriptive, were not part of his parole conditions, and are of some complexity such that the defendant may face difficulties in compliance.
3. I am of the view that in light of all the other conditions imposed, and given the nature of the particular risk identified, these conditions are not reasonable or appropriate, and I decline to impose them.

Orders

1. Accordingly, I make the following orders: 1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW): 1. Appointing two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court. 2. Directing the defendant to attend those examinations. 1. An order pursuant to ss 10A and 10C of the Crimes (High Risk Offenders) Act 2006 (NSW) that the defendant is to be subject to an interim supervision order for a period of 28 days commencing on 29 November 2022. 2. Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is directed to comply with the conditions set out in the Schedule annexed to these orders for the period of the interim supervision order referred to in Order 2 above. 3. Access to the court file in respect of any document in this proceeding shall not be granted to a non-party without the leave of a judge of the Court. If any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access. Nixon Schedule of Conditions ISO (135924, pdf)

Endnotes

1. State of New South Wales v Kaiser [2022] NSWCA 86 at [77] (Simpson AJA).
2. Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [50]-[51]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 November 2022