State of New South Wales v O'Hara

Extended supervision orders

1. In State of New South Wales v BG (Preliminary) [2022] NSWSC 1065 at [8]-[16], I set out the legislative scheme, and organising principles, relating to continuing detention, and extended supervision, orders.
2. What follows draws largely upon what is there set out.
3. The Act has two express objects. The primary object "is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community" (s 3(1)). Another object "is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation" (s 3(2)). These objects are protective, not punitive: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [5]; Kamm v State of New South Wales (No 4) (2017) 95 NSWLR 179; [2017] NSWCA 189 at [147].
4. The Act seeks to fulfil these objects by conferring jurisdiction on the Supreme Court to make orders, extending beyond the terms of imprisonment imposed by sentencing courts, for the extended supervision (s 9(1)), or for the continuing detention (s 17(1)), of convicted offenders: State of New South Wales v Kaiser [2022] NSWCA 86 at [6] ('Kaiser').
5. Section 5H of the Act permits the State to apply for an ESO "against an offender". However, s 5I(1) qualifies this by providing that an order can only be made against a "supervised offender".
6. The agreed facts include that the defendant is a supervised offender for the purposes of s 5I (agreed facts at [2]), and I find that he is. That is because when the application was made (by the filing of a summons on 25 September 2023), the defendant was under an existing extended supervision order: s 5I(2)(b).
7. Section 6 of the Act sets out a number of requirements with respect to an application for an ESO. One is that the application "may not be made until the last 9 months of the offender's current custody or supervision" (s 6(1)). It is an agreed fact that this element is satisfied (agreed facts at [3]), and I find that it is.
8. Another requirement is that the material that must accompany the application for an ESO addresses the matters in s 9(3) of the Act (s 6(3)(a)) and includes a report from a qualified psychiatrist, registered psychologist or registered medical practitioner that "assesses the likelihood of the offender committing a serious offence" (s 6(3)(b)). I am satisfied that the material in the affidavit of Nicholas McArdle and the exhibit to that affidavit addresses these matters (some of which are dealt with, later in these reasons, when addressing the matters in s 9(3) of the Act), and the defendant accepted that it did (agreed facts at [3]).
9. The application may also indicate the kinds of conditions that are considered appropriate for inclusion under s 11 - in the event that an ESO is made: s 6(4). This occurred: schedule A to the summons filed 25 September 2023 contained a schedule of conditions of supervision that were to be sought by the plaintiff. Again, the parties accepted that this requirement had been met (agreed facts at [3]).
10. Section 7 of the Act prescribes a number of pre-trial procedures relating to the making of, and dealing with, an application for an ESO: the application must be served on the offender (the defendant) within 2 business days of the application being filed, or such further time as the Court may allow (s 7(1)); the State must disclose to the offender material relevant to the application (s 7(2)); and the Court must hold a preliminary hearing within 28 days of the filing of the application, or within such further time as the Court may allow (s 7(3)). I am satisfied that these pre-trial procedures have been complied with and the defendant made no contrary submission.
11. The parties agreed that the current interim supervision order ('ISO') is to expire on 16 March 2024 and the last date on which the defendant may be subject to an ISO is 23 March 2024 (agreed facts at [8]-[9]).

Sections 5B and 5C of the Act

1. I will start by addressing the statutory provisions that relate to the making of an ESO.
2. In relation to an application for an ESO, ss 7(4) and 10A(b), by their reference to the requirement that the Court be satisfied that the matters alleged in the supporting documentation "justify the making of an extended supervision order", direct attention to s 5B of the Act. Section 5B contains four cumulative criteria that must be satisfied in order for an ESO to be made. They have been described as "identifying the conditions of engagement of statutory powers to make continuing detention orders or extended supervision orders": Tannous v State of New South Wales (2020) 103 NSWLR 183; [2020] NSWCA 261 at [14] ('Tannous').
3. By s 5B, the Court may make an ESO upon satisfaction of the matters in ss 5B(a)-(c) and, by s 5B(d), of satisfaction to "a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order".
4. The defendant has accepted that the statutory preconditions in s 5B(a)-(c) of the Act have been met (see [2], above). I find that they are, for the following reasons.
5. Section 5B(a) requires the defendant to be "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".
6. In order to consider whether the requirements of this section are met, it is necessary to make reference to some other sections which define concepts within s 5B(a).
7. Section 4A of the Act relevantly defines "an offender" to be a "person who - (a) is of or above 18 years of age and, (b) has at any time been sentenced to imprisonment…to be served by way of full-time detention…following the person's conviction for a serious offence". It is clear that the defendant is above 18 years of age: s 4A(a). And it is also clear (and agreed by the parties: agreed facts at [1]), and I find, that the defendant satisfies s 4A(b), for the following reasons.
8. Section 4(1) of the Act defines, relevantly, "serious offence" as meaning "(a) a serious sex offence, or (b) a serious violence offence". The term "serious violence offence" is defined by s 5A(1): it is an agreed fact (agreed facts at [1]) that the defendant has served a sentence of full-time imprisonment following his conviction for a serious violence offence - namely, the offences of murder (1995), inflict grievous bodily harm with intent (2009) and recklessly commit grievous bodily harm (2017), each of which is a "serious violence offence".
9. Section 5B(b) requires the defendant to be "a supervised offender (within the meaning of s 5I)". I have earlier made a finding about this: see [13], above. He is, therefore, a "supervised offender".
10. Section 5B(c) requires the application for the order to be made in accordance with s 5I. However, the reference in s 5B(c) to s 5I is "a drafting or cross-referencing error and should have been a reference to s 6": Kaiser at [124]. I have previously made findings that the requirements stipulated by s 6 have been met: see [14]-[16].
11. Having established the matters in ss 5B(a)-(c), s 5B(d) of the Act remains to be considered. That section requires the Court to be "satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order". In determining whether (or not) to make an ESO, the "safety of the community must be the paramount consideration" (s 9(2)) and the Court must also have regard, in addition to any other matter it considers relevant, to the matters set out in s 9(3), but is not to consider any intention of the offender to leave NSW (s 9(4)).
12. Before addressing the terms of s 5B(d) of the Act, some of the concepts within the section will first be addressed.

High degree of probability

1. The high degree of probability "qualifies the state of the judge's satisfaction, not the degree of the risk": Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [122] ('Lynn').
2. The Court must be satisfied that the likelihood of the defendant committing a further serious offence is higher than the civil standard of proof - in other words, it is "beyond more probable than not" - but it is not a requirement that the finding be made to the criminal standard of beyond reasonable doubt: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]; State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041 at [14] ('Golding'); State of New South Wales v Shields (Preliminary) [2022] NSWSC 469 at [12].

Unacceptable risk

1. The concept of "unacceptable risk" is expanded upon by s 5D, which is in the following terms: For the purposes of this Part, the Supreme Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence.
2. The concept of an "unacceptable risk" has, unsurprisingly, been the subject of considerable judicial consideration, which establishes the following: 1. The phrase is to be given its everyday meaning within its context, having regard to the objects of the Act: Lynn at [55]-[58]. 2. What the Court must find to be unacceptable is the risk that the offender poses of committing another serious offence if not kept under supervision; that is, an assessment of the likelihood in the absence of any supervision: Lynn at [51] and [55]; State of New South Wales v Donovan [2015] NSWCA 280 at [24]. That finding provides the basis for imposing control on the offender: Lynn at [127]. 3. The interests of the offender in liberty and privacy are not relevant to the assessment of whether there is an "unacceptable risk", but can be taken into account when considering whether to make, under s 9 of the Act, an ESO or to dismiss the application: Lynn at [44], [143] and [148]-[149]. 4. Unacceptability of risk "involves considerations of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate": State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71]; State of New South Wales v Chaplin [2019] NSWSC 471 at [15]. The nature of the risk "posed ha[s] to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition": Lynn at [126]. 5. An offender may pose an unacceptable risk, even where the likelihood of committing another serious offence is low, if the likely consequences of such an offence are very grave: State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41] and [43]; Golding at [16]; State of New South Wales v Devaney (Final) [2022] NSWSC 60 at [73].

General

1. The defendant is currently 48 years of age. He has, as earlier noted, a lengthy criminal history.
2. The defendant's childhood involved deprivation as well as trauma. The defendant has spent much of his adult life in custody. The defendant has abused drugs, including, from his early 20s, heroin. The defendant has sought a disability support pension, and is currently on the methadone program - apparently having commenced this in around 2016.
3. The defendant's relevant violent offending history was set out in the agreed facts (agreed facts at [12]-[17]), from which the following is largely drawn. (A more detailed history is contained in Dr O'Dea's report).
4. In 1989, the defendant was convicted of assault occasioning actual bodily harm and, in 1993, of assault police and common assault (involving a correctional officer). Two further charges of assault and one of possess firearm from 1994 were marked "adjourned generally", in the context of the defendant being charged with murder.
5. The murder offence involved, on 4 March 1995, the shooting of a security guard at premises that the defendant and others planned to burgle. As the sentencing judge (Sully J) recorded in his remarks on sentence, this was the second attempt made to rob the premises and on this occasion the defendant was armed with a loaded revolver. Sully J could not find beyond reasonable doubt that the defendant had any intent to kill, or cause serious bodily harm, but rather proceeded on the basis that the defendant acted with reckless indifference to human life when he fired the revolver in the direction of the security guard (remarks on sentence, pp 13-14). It is also relevant to note that Sully J made the further finding that the "indifference [was] of a very high degree of recklessness" (remarks on sentence, p 14).
6. On 1 October 2009, while serving a sentence for the above murder, the defendant struck another prisoner in the head with a sandwich maker that had been concealed in a pillow case - rendering that other prisoner unconscious. The defendant then struck the victim again with a weapon in the face before another inmate intervened and prevented further violence. The defendant has characterised his actions as being something of a "pre-emptive strike" - suggesting that he believed the victim was intending to kill him.
7. On 8 November 2010, approximately seven months after the expiration of the defendant's sentence for murder, the defendant was involved in the reckless wounding of a person in a bar following an altercation - an offence that involved the defendant stabbing a person.
8. In December 2016, whilst the defendant was in custody, he attacked another inmate from behind in a communal kitchen - striking that person in the right side of the head, causing a mildly displaced tripod fracture of the face.
9. On 17 April 2023, the defendant was refused entry onto a bus as he did not have a working Opal card. After a "heated argument", the defendant struck the bus driver in the nose - causing a laceration and considerable bleeding - whilst the driver was seated in the driver's seat: it is agreed that the blow was described in the police facts sheet, and in the appeal judgment of Haesler SC DCJ as a "punch". Having done so, the defendant exited the bus. Police were called and arrived shortly after the incident. Following a small foot pursuit, the defendant was arrested as he tried to climb over a gate. When searched, police located a 15cm knife in his right pocket, which he told police he used to "eat apples". Whilst in police custody, following his arrest, the defendant punched and broke a perspex screen.
10. The defendant was convicted and sentenced in the Local Court, but he appealed the severity of the sentence to the District Court. As ultimately imposed by that Court, the defendant was sentenced for the assault occasioning actual bodily harm to 12 months imprisonment, with a non-parole period of 4 months. The non-parole period of the sentence commenced on 17 April 2023 and expired on 16 August 2023. As the defendant was subject to an ESO which included a condition that precluded him carrying a knife in the circumstances identified, the defendant was convicted in connection with that breach and sentenced to 4 months imprisonment to be served concurrently with the non-parole period of the other sentence of imprisonment.

The interim supervision order

1. On 24 February 2022, Lonergan J imposed an ESO of 18 months duration on the defendant.
2. On 15 December 2023, Ierace J made an ISO, and a range of ancillary orders, including that the defendant be assessed by two qualified psychiatrists or psychologists to conduct separate examinations, and to furnish reports to the Court on the results of such examinations ('the preliminary hearing judgment').
3. Dr Carollyne Youssef, consultant forensic psychologist, and Dr Jeremy O'Dea, consultant forensic psychiatrist, were duly appointed to assess the defendant, and each has prepared a report: Dr Youssef's report is dated 31 January 2024, and Dr O'Dea's report is dated 6 February 2024.
4. The ISO has been extended on a number of occasions. Most recently, on 14 February 2024, Yehia J made an order extending the ISO, with such order to operate until 16 March 2024. As I have earlier noted, as a consequence of s 10C(2), it is agreed that the last date on which the defendant may be subject to an ISO is 23 March 2024.

The determination of the application: assessment of the risk

1. Section 9(1) empowers the Court, when determining an application for an ESO, to make such an order (s 9(1)(a)) or to dismiss the application (s 9(1)(b)).
2. As I have earlier noted, in determining whether or not to make an ESO, the "safety of the community" is the paramount consideration of the Court: s 9(2). Further, the Court must take into account - in addition to any other matter the Court considers relevant - the matters in ss 9(3)(b)-(i), but is not to consider "any intention of the offender to leave New South Wales (whether permanently or temporarily)": s 9(4).
3. The 12 matters that must be considered, under s 9(3), "fall into two broad categories: first, there are reports and sources of information which may be provided in evidence, including, for example, the criminal history of the offender. The other category identifies evaluative judgments which must be made": Tannous at [18].

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

1. Following the orders made by Ierace J, the defendant was assessed by Dr Youssef and Dr O'Dea. Those reports are thorough, and substantial. Given the - relatively - confined nature of the issues that arise on the current application, it is necessary to only emphasise particular parts of the reports, and the opinions expressed by each expert. There was a significant measure of agreement between the two experts (and much the subject of agreed facts), albeit that the two experts differed in terms of the appropriate length of any ESO that might be ordered.
2. The Court appointed experts were not called to give evidence, nor were they required for cross-examination.
3. Given the earlier ESO, expert reports were prepared in connection with the application for final orders: a report from Dr Amanda White, forensic psychologist and clinical neuropsychologist, dated 20 January 2022 and a report from Dr Kerri Eagle, forensic psychiatrist, dated 24 January 2022. I will deal, albeit briefly, with these reports (principally by reference to Lonergan J's reasons), before dealing with the experts that were appointed by orders made by Ierace J.

The experts appointed for the 2022 hearing

1. The opinions expressed by each of the experts in the earlier proceedings for an ESO were covered by Lonergan J in her Honour's judgment.
2. In relation to Dr Eagle, Lonergan J summarised the key parts of her evidence as follows (at [36]-[37]): 36. Dr Eagle concluded that Mr O'Hara is in a category of offenders at a high risk of violent reoffending with predominant factors being "entrenched antisocial cognitions regarding the world and others", his emotional instability and a susceptibility to substance abuse and peer influence. She noted a significantly elevated risk of reoffending without appropriate support and interventions. 37. Dr Eagle concluded that it was "likely to take at least 4 years of supervision and support for Mr O'Hara to address his risk factors for offending and sustain his lifestyle, allowing for a gradual withdrawal of supervision".
3. In relation to Dr White, Lonergan J summarised the key parts of her evidence as follows (at [42]-[45]): 42. In addressing risk formulation, Dr White observed: "Mr O'Hara has a chronic history of violent offending and antisocial behaviour commencing at an early age across multiple contexts (school, home, community and institutions), inclusive of critical developmental stages. His acts of violence have resulted in serious physical injuries and death. He has had little opportunity to establish prosocial and meaningful relationships of both an intimate and non-intimate nature, with most of his associations being with offenders. From an early age Mr O'Hara had violence modelled and encouraged as a way to resolve conflict, manage his emotions and protect himself from perceived or real threat. Violence and aggression garnered him respect in the institutional setting during his formative years when one's sense of identity is being established, and a reputation and status which he came to seek out and need. His violence and reputation have given him his identity and formed a large part of his character, and has been entrenched for over 30 years. He was a victim of emotional and physical abuse at home and then at boys' homes. He never felt safe and developed a deep anger and resentment towards those who were in positions of authority and those meant to "care" for him. He entered the criminal justice system at a young age and has spent the overwhelming majority of his life in custody. In the world he has known, he has found violence a means of survival and used this as an effective coping strategy. He is destabilised by perceived injustices, sometimes considering himself as an avenger, punishing those he determines 'bullies'. He will react if challenged or provoked, with reduced self-regulation in these circumstances. He has a low level of education and no significant employment history. He has a history of substance use reflecting poor coping mechanisms and it is likely this is still a relevant issue for him. He self-discloses a constant state of anger and heightened hypervigilance, suspicion and defensiveness, which have fed into his cycle of violent offending and are likely underpinned by personality dysfunction typified by antisocial traits. His trauma response and violent tendencies have been reinforced through his experiences. He is yet to develop a sense of identity outside the prison context, has limited exposure to life in the community, and is yet to develop an awareness and understanding of potential triggers, stressors or challenges in this setting, and how to respond. Without adequate outlets and ways to identify and manage hypervigilance and perceived threats, he is likely to respond with violence. He has not yet ascertained the level of assistance required to address trauma and alter his thinking. He presents with some longstanding cognitive distortions, some of which appear to be starting to shift but would benefit from further exploration and fostering. He demonstrates a history of minimising his role in violent acts and externalising issues. In recent years there appears to have been a reduction in violence, better engagement, a shift in his cognitive thinking, and motivation to change the course of his life. Largely, this hinges on a promise made to his mother that he would not return to gaol and resolve to keep his word. He presents with reduced insight into his triggers for aggression and need for treatment to address his violent offending and risk, and perhaps at best a naïve view that he has his behaviour under control and will not relapse. His level of responsiveness to more intensive psychotherapy to address his violent offending cycle and trauma is yet to be determined, although history suggests some resistance to the intensive nature of this and the level of work required. Overall, Mr O'Hara does not present with any well-formed plans regarding treatment, or the amount and intensity required to address his level of risk." 43. These are similar concerns to those voiced by Dr Eagle in particular regarding "minimising his role in violent acts" and "externalising issues". 44. Dr White's conclusions and recommendations are: "Overall, results from the current assessment indicate that Mr O'Hara currently requires a high level of intensive intervention and supervision to prevent further violent offences. Despite apparent improvement over the past few years and evidence of reduced violence, Mr O'Hara has significant risk factors which place him at risk of further violence for which he has not received adequate treatment. In particular, these include ingrained response to utilise violence and aggression, particularly in response to perceived threats and trauma. It is anticipated that he will face challenges transitioning to the community and his support network is limited. However, it is important to recognise that an individual's overall risk level is dependent upon the level of supervision being received and can fluctuate over time depending on the presence or absence of certain factors. Currently under his ISO he is receiving a high level of supervision. As noted above, Mr O'Hara also possesses several mitigating factors that may serve to reduce his risk including family support and contact, abstinence from substances which can destabilise his thought processes and routine, and engagement in the community, which if fostered and sustained will likely assist to reduce his risk of violence over time." Dr White referred to both 2 and 3 years as appropriate periods for supervision in her report but in a follow up email, prompted by an email from the plaintiff's solicitor, she stated that she had concluded a period of 3 years supervision was appropriate.
4. The defendant, although acknowledging these reports (and the opinions expressed by the experts), submitted that "little weight can be given to them", essentially because they have been overtaken by more recent events (defendant's preliminary submissions at [27]). I agree with that submission. For this reason, the defendant did not address the detail of these reports in the submissions prepared for the final hearing, or during oral submissions. The plaintiff, for its part, did not place any particular reliance upon those reports either.

The experts appointed for the current hearing

1. The plaintiff and defendant addressed the detail of each of the reports from the Court appointed experts in their written submissions. The defendant, both in the statement of agreed facts but also during the course of the hearing, accepted that the import of the evidence of the Court appointed experts was sufficient to ground a finding, to the requisite degree, that the defendant continued to pose an unacceptable risk of committing another serious offence if not kept under supervision within s 5B(d). The review of the evidence that follows takes into account the position adopted by the parties, and specific attention will be given to the key paragraphs from the reports from each expert that are directed to the issues that remain in dispute or otherwise require some particular elaboration.
2. In relation to the report from Dr O'Dea dated 6 February 2024, although not diagnosing the defendant as suffering from a major psychiatric illness, Dr O'Dea expressed the opinion that the defendant met the "psychiatric diagnostic criteria for a personality disorder with significant antisocial and psychopathic traits. He would also meet the psychiatric diagnostic criteria for Substance Use Disorder, namely Cannabis Use Disorder and Opioid Use Disorder, both currently in remission with active treatment": report par 82. Dr O'Dea also considered that the defendant's "ongoing symptoms" were suggestive of PTSD "that should be a long-term focus of psychiatric treatment": report par 83.
3. Dr O'Dea considered that the defendant's ongoing problems with anxiety, depression, anger, aggression, violence and low frustration tolerance were likely better understood as referable to his personality rather than part of a major psychiatric illness: the diagnosis in this respect was a personality disorder, with anti-social and psychopathic traits: report pars 84-86, 90 and 93. Given that it was reported that the defendant's illicit substance abuse and problems with anxiety, depression and PTSD were reportedly under adequate control, Dr O'Dea considered that the commission of the further offence on 17 April 2023 was "likely related to his ongoing problems with low frustration tolerance, impulsivity, anger, aggression and violence, likely related to his Personality Disorder": report par 90. In relation to these issues and problems, in addition to continuing his community treatment, Dr O'Dea considered that the defendant should be referred to a forensic psychiatrist and forensic psychologist "for more assertive treatment": report par 91.
4. In terms of risk profile, whilst acknowledging that risk assessment tools were useful, Dr O'Dea emphasised that the results needed to be treated with a measure of caution, and that the assessment of a person's risk profile ultimately turned upon clinical judgment, adopting what Dr O'Dea considered was a "full clinical psychiatric risk assessment and risk management approach": report par 96. Assessed from that perspective, and utilising various risk assessment instruments, Dr O'Dea considered that the defendant's "risk of engaging in further violent offending behaviours in the community in the long term would be considered significantly high and appropriate for ongoing treatment as detailed above" and that there was a "significantly high degree of probability that [the defendant] would be likely to commit a further 'serious violent offence'… in the community in the long term, if a structured, supervised, and assertive community psychiatric treatment and risk management program were not successfully implemented": report pars 97 and 98.
5. Dr O'Dea did not express an opinion by way of potential risk scenarios, but I took his opinion to be largely that the relevant risk scenarios would mirror prior offending: report pars 93-94. Further, and consistent with what I have earlier set out, those risk scenarios are principally, but by no means exclusively, sourced to the defendant's anti-social personality disorder.
6. Dr O'Dea considered that the defendant's risk was "likely to be long term, and potentially of at least 5 years duration", albeit that Dr O'Dea considered that any risk management program "should be regularly monitored and reviewed every 6 to 12 months dependent on his progress": report par 100.
7. It is convenient to now deal with an issue raised by the defendant in connection with Dr O'Dea's opinions. The defendant submitted that the Court should be slow to accept Dr O'Dea's opinions because he had failed to deal with, or sufficiently deal with, the defendant's progress following his release from custody in November 2021 and whilst the defendant was on the previous ESO. In this respect, the defendant emphasised the favourable comments, and opinion, expressed by Mr Ardasinski in his report dated 7 July 2023 - notably, what was recorded in par 40 of Mr Ardasinski's report. The essential submission by the defendant was that the risk the defendant posed was reduced and "has been moderated to a significant extent by his positive response to supervision since 2021" (T 12.1).
8. I set out some of the detail arising out of Mr Ardasinski's reports, including the report dated 7 July 2023, when dealing with my consideration of "other assessments" under s 9(3)(c): see [74]ff below. It is sufficient, in order to address the defendant's submission, to note that Mr Ardasinski did suggest that the defendant had a relatively positive trajectory including what he described as "excellent compliance with his supervision requirements" (see the executive summary to that report, and also pars 11-16); that the risk the defendant "poses as his ESO comes to an end is reduced, but not gone - it may never be gone altogether. However, it has been moderated to a significant extent by his positive response to supervision since 2021" (report par 40); and that his overall risk assessment had reduced, albeit that Mr Ardasinski suggested that "there is an ongoing risk for repeat violence, and that may escalate to serious violence given the right conditions" (report par 41).
9. In my view, contrary to what was submitted, it is clear that Dr O'Dea not only dealt with, but "sufficiently" dealt with, the defendant's progress following his release from custody in November 2021, as well as the defendant's progress on the previous ESO. That is apparent from the fact that Dr O'Dea was cognisant that the defendant was released from custody in November 2021 (report par 2); he considered the report from Mr Ardasinski, dated 7 July 2023, and expressly noted that the assessments were, broadly, in the "Medium risk category" (report par 53); he specifically dealt with the defendant's progress on his ESO in a separate section of his report headed: 'Progress on ESO from November 2021' (report pars 55-59); and he dealt with the defendant's current circumstances (report pars 72-76). I do not accept anything more was required to be done by Dr O'Dea, and the weight that he attached to what was said to be the defendant's progress on the ESO and how he was to 'deal' with that broad topic was entirely a matter for his professional assessment.
10. Separately, I do not accept the defendant's submission for a further reason. The premise of the submission is that, to the extent that Mr Ardasinski expressed a favourable and optimistic assessment of the defendant, the Court would accept that assessment. Proceeding upon the assumption that that is the correct way to characterise the overall thrust of Mr Ardasinski's opinion (a matter that might be doubted given those parts of the report that I have referred to), I am only prepared to make a more circumscribed finding - namely, that although the defendant has made some progress under, or by reason of, the previous ESO or, most likely, in consequence of the support and treatment he has received, that progress is limited and the defendant's risk profile remains, in my view (and as I later explain: see [112]ff, below), of the kind that satisfies s 5B(d). My finding reflects and is informed by a number of matters, including the following: (a) the treatment that the defendant has received has been over a confined period and itself relatively limited; (b) the evidence (notably from the Court appointed experts) clearly establishes that more extensive and sustained treatment and rehabilitation is necessary; (c) the recent offending that occurred in April 2023; and (d) the rather more cautious opinions expressed by the Court appointed experts when compared to the (assumed) thrust of Mr Ardasinski's opinion. Thus, I do not accept that the opinion expressed by Mr Ardasinski, particularly in his report at par 40, provides a basis upon which to discount what Dr O'Dea had to say and, to the extent there is any inconsistency between the positions, I prefer the opinion from Dr O'Dea as the Court appointed expert.
11. I turn now to address Dr Youssef's report. The focus of the parties' submissions in connection with Dr Youssef's opinion was across four broad issues: psychiatric diagnosis; risk assessment; and her opinions on the length of any ESO and the "reasonableness" of the proposed conditions of any ESO (based upon what was contained in the summons filed by the plaintiff). I will deal separately with Dr Youssef's opinion in connection with the length of the ESO and conditions later in these reasons, but will deal with the first two issues in what follows.
12. Before detailing these matters, it should be noted that Dr Youssef considered that when provided with a "good supervision regime and intervention, this has offered invaluable support and stability. Therein will lie the key to the management of his risk of future violence": report par 107. Further, whilst Dr Youssef accepted that the defendant had shown motivation to commit to the process of reintegration into the community and transformation of his identity, the defendant "still has a way to go": report par 108.
13. In terms of diagnosis, Dr Youssef opined that the defendant met the diagnostic criteria for Complex Post-traumatic Stress Disorder (report par 109.3.1), for Anti-Social Personality Disorder (report par 109.3.4), for Cannabis Use Disorder (report par 109.3.7), for Sedative Use Disorder (report par 109.3.8) and Opioid Use Disorder (report par 109.3.9).
14. Dr Youssef identified potential risk scenarios were the defendant to reoffend. In this respect, Dr Youssef considered that the likely reoffending would be "reactive and impulsive and less likely to be premeditated or instrumental", and various triggers were identified, including a perception by the defendant of wrongdoing on the part of any potential victim or of being "invalidated, undermined, threatened, criticised, or obstructed from achieving his goal(s)": report par 100; see also par 104. Dr Youssef also described the defendant as having the capacity "to overreact violently to perceived threat or obstruction": report par 108. Dr Youssef considered that any offending by the defendant was likely to be "on his own" and "likely to involve physical violence, with or without the use of a weapon" - violence that Dr Youssef considered was "likely to be of the more serious kind, causing actual bodily harm that may be grievous": report par 100.
15. In terms of risk assessment, and risk factors, Dr Youssef considered, having undertaken risk assessments, that the defendant "has a high degree of outstanding dynamic risk needs… and static variables that place him in the highest risk category for violent recidivism…": report par 109.4.1; see also par 97. The risk factors there identified included poor general self-regulation, anti-social peers, violence-supportive attitudes and the fact that the defendant has had short survival periods in the community following his release from prison. Dr Youssef also expressed the opinion that the defendant continued "to pose a risk of committing a further violent offence, if he is not supported with another period of supervision in the community": par 109.6.1.

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

1. The plaintiff and defendant both drew attention to the reports from Samuel Ardasinski, psychologist, dated 1 April 2021 and 7 July 2023. Mr Ardasinski is a forensic psychologist currently working for Corrective Services NSW ('CSNSW').
2. The key points from the 2023 report may be summarised as follows: 1. The defendant demonstrated compliance with the supervision requirements of his ESO and had proceeded through the relevant stages without major issue. This progression was also noted by Ierace J in his judgment, where his Honour described the defendant as having proceeded to stage 2 of the ESO in August 2022 and to stage 3 in or around February 2023, following which he was not required to submit schedules of his movement: the preliminary hearing judgment at [22]. 2. The defendant had previously undergone assessment using actuarial risk assessment tools (notably in 2022 and 2023) in order to determine the risk of general and violent reoffending: he was assessed as having a medium risk and a moderate risk. This was to be contrasted to earlier risk assessments that placed the defendant in the high-risk category for violent offending. Furthermore, given that Mr Ardasinski had previously assessed the defendant, Mr Ardasinski expressed the opinion that the defendant "no longer presents a significant risk of serious violence, over and above the possibility that any form of violence could approach that threshold given the right environmental factors…". 3. Despite the above assessment, he considered that there was "an ongoing risk for repeat violence, and that may escalate to serious violence given the right conditions", but noted that the most recent offending did not constitute a "serious violence offence", that the defendant had not "returned to the criminal element" and that the defendant has controlled his temper "on many other occasions", albeit not following his interaction with the bus driver in April 2023.
3. Mr Ardasinski had previously prepared a report dated 1 April 2021. His essential conclusion in that report, as I have earlier noted, was that the defendant was a person "whose risk of violent reoffending is estimated to be in the High risk category…".
4. The defendant was also assessed in December 2022 by Lauren Heywood, clinical psychologist from the Serious Offenders Assessment Unit, who prepared a report dated 7 December 2022. This report was described as an ESO Completion Report.
5. The key points from that report may be summarised as follows: 1. Engagement with supervision and CSNSW psychology sessions have provided the defendant "with a substantial amount of support to address difficulties reintegrating into the community" as well as coping and risk mitigation skills, and the opinion given was that the defendant had developed "a more comprehensive understanding of his own risk factors and underlying beliefs, which he is now able to manage well in the community". 2. The most likely scenario for reoffending would involve the defendant "feeling threatened, either through some perceived slight or being challenged, and retaliating or engaging in some 'pre-emptive strike' to avoid being harmed himself" and that considering the defendant's "capacity for serious violence, these risks cannot be ignored". 3. An additional risk scenario for the defendant returning to violent offending "may involve substance use relapse, remaining in accommodation surrounded by anti-social peers, or limited social contact with others and engagement in the community". 4. The defendant's risk of "violent reoffending" was estimated to be in the moderate risk level relative to other adult male violent offenders. 5. The report noted that, following his release from custody in 2021, the defendant has attended "psychology appointments when requested on a 4-8 weekly basis" and engaged meaningfully during those appointments. 6. Although the defendant had made "significant gains in his rehabilitation", he nevertheless presents with "some outstanding treatment targets".

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

1. Section 9(3)(d) refers to the "results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence".
2. These matters have been addressed in other parts of these reasons.

Corrective services reports: s 9(3)(d1)

1. Section 9(3)(d1) requires the Court to consider "any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community".
2. A Risk Management Report, dated 3 August 2023, was prepared by Corrective Services. That report noted that the defendant was assessed as having a medium risk level for general reoffending and a moderate risk for violent offending. The report also noted a psychological risk assessment had identified risk factors that also informed the risk assessment. The report did not suggest that the defendant could not be reasonably and practicably managed in the community.
3. The plaintiff, although drawing attention to, and setting out parts of, the content of this report, did not seek any particular finding based upon it.

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

1. Section 9(3)(e) requires the Court to have regard to "any treatment or rehabilitation programs in which the offender has had an opportunity to participate", as well as the willingness of the offender to participate in any such programs and the level of any participation.
2. In the Risk Management Report dated 3 August 2023, the following was noted about the defendant's involvement in offence-related programs and treatment (report p 3): During previous periods of incarceration, [the defendant] was discharged from the Violent Offender Therapeutic Program (VOTP) in 2003 and 2005 for disruptive behaviour. He later declined to participate in the VOTP program in 2016. [The defendant] completed the 20 session EQUIPS Aggression program in 2019, and the 20 session EQUIPS Addiction program in 2020.
3. In relation to the VOTP program, as the plaintiff pointed out, an assessment of the defendant in 2021 found him unsuitable for operational reasons (apparently a non-association restriction), and he was considered unsuitable for a group program.
4. The Risk Management Report also noted that the defendant had been attending "individual risk management intervention sessions with a CSNSW Senior Psychologist in lieu of group programs, during his most recent term of supervision" (report p 3). The report also noted that the defendant was not eligible for educational programs and, although he had participated in employment in custody, in the community the defendant is exempt from any job seeking requirements "to allow him to focus on reintegration and rehabilitation" (report p 3).
5. The defendant relies upon daily opioid replacement treatment and is reportedly compliant with this treatment.
6. Dr Youssef, in her report at par 81, reported that, aside from the psychological assessments and treatment under the methadone program, the defendant "was not currently engaged in any other programs", albeit that the defendant was agreeable to undergoing Victim's Services counselling.
7. The evidence concerning the defendant's ongoing treatment needs is principally contained within the reports from the Court appointed experts. Dr O'Dea considered that the defendant's PTSD "should be a long-term focus of psychiatric treatment" (report par 83) and that the defendant "should be referred to a forensic psychiatrist and forensic psychologist, for more assertive treatment of his low frustration tolerance, impulsivity, anger, aggression and violence" (report par 91). These recommendations were in addition to the psychological treatment and medication that, apparently, the defendant is currently receiving. Dr Youssef also made recommendations about treatment, including psychotherapy (report par 109.3.6) and therapy largely directed to the defendant's "hypervigilance and his negative attribution bias which continues to leave him susceptible to reactive aggression" (report par 109.4.2).
8. The defendant's written submissions noted that the defendant had engaged "consistently with the individual risk management intervention sessions with a CSNSW Senior psychologist" (defendant's preliminary submissions at [34]). There is some historical detail of the psychological treatment that the defendant underwent in the ESO Completion Report dated 7 December 2022, pars 37-38. But, as that report concluded, the defendant (even at that time) presented "with some outstanding treatment targets": report par 56.
9. During the course of submissions, the defendant also drew attention to the plaintiff's desire to take up funding so as to secure counselling via Victims Services. The plaintiff indicated, during the course of reply submissions, that that counselling is to commence on 8 March 2024. The plaintiff also indicated that there was a referral to a community based psychologist, but as yet that referral has not been implemented. The other counselling with a psychologist, to which reference has been made, I was advised was provided - either principally or exclusively - whilst he was in custody.
10. The evidence upon what I consider to be an important topic was somewhat limited, and that necessarily informs the qualified findings that I make. I am prepared to accept that the defendant's treatment is reportedly having a positive effect upon him. Nevertheless, I consider, as Dr Youssef expressed, that the defendant's treatment "still has a way to go". That was essentially the opinion expressed by Ms Heywood and Dr O'Dea, which I also accept. In my view, that finding necessarily follows, not merely because of the limited nature of the evidence dealing with the defendant's treatment, but is also informed by a range of other matters - including his historical offending (and the nature of it), the offending that occurred in April 2023, the psychiatric diagnoses made and the opinions from each of the Court appointed experts. Put simply, it cannot be said that the defendant has undergone sufficiently sustained and sufficiently extensive treatment or rehabilitation necessary to enable a conclusion to be reached that the defendant has been successfully, or even substantially, rehabilitated. Consistent with the opinions expressed by the Court appointed experts, further, important, treatment and rehabilitation is still required.

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

1. Section 9(3)(e1) requires the Court to consider "options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time".
2. This matter was not the subject of submissions by the defendant.
3. The plaintiff submitted that although the defendant would be subject to a community corrections order ('CCO') until 2025, that order "lacks the intensity and overview and engagement of an ESO" (plaintiff's preliminary submissions at [106]). I accept this submission and deal later with the defendant's submission in connection with the interplay between the community corrections order currently in force and any ESO: see [116], below.

The likelihood that the offender will comply with the obligations of an ESO (s 9(3)(e2))

1. Section 9(3)(e2) requires the Court to consider "the likelihood that the offender will comply with the obligations of an [ESO]".
2. The plaintiff submitted that, if the defendant was subject to "a further ESO, the level of future compliance will… be high" (plaintiff's preliminary submissions at [107]). This matter was not expressly addressed in submissions by the defendant, but given the defendant's other submissions that dealt broadly with how the defendant had performed under the previous ESO, I took the defendant's position to be largely in line with the plaintiff's submission.
3. Given the proposed conditions of the ESO sought by the plaintiff, and their similarity to the previous ones, I am satisfied that the defendant is likely to comply with the obligations of a further ESO.

The level of the offender's compliance with any obligation to which they have been subject while on parole or an earlier ESO: s 9(3)(f)

1. Section 9(3)(f) requires the Court to have regard to the level of the offender's compliance with any obligation to which they have been subject while on parole or an earlier ESO.
2. The defendant submitted that the material demonstrated that his compliance with supervision had been "very high" (defendant's submissions at [21]). The plaintiff largely accepted as much, submitting that - but for the offending in April 2023 - the defendant had shown an "ability to perform well under supervision under the current ESO" (plaintiff's preliminary submissions at [98]).
3. I am satisfied that there has been broad compliance with the previous ESO: I have made the finding in those terms because clearly the offending in April 2023 - involving possession of the knife - contravened the conditions of the previous ESO. There were other instances involving contravention of conditions referred to in the ESO Completion Report at pars 23 (downloading, without approval, an application on his phone) and 25 (a failed drug test). That report records, it should be added, that the defendant was apologetic and regretful for these breaches.
4. The material did not, at least clearly, identify the periods when the defendant has been on parole - as the plaintiff submitted, there is "little information to address compliance with parole" (plaintiff's preliminary submissions at [98]).

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

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

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

1. I have addressed the defendant's offending history earlier in these reasons: see [37]-[44], above.

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

1. I have earlier set out the circumstances of the offending, in particular the offending that constitutes a "serious violence offence" and the 2023 offending.
2. Neither the plaintiff, nor defendant, invited any particular findings based upon the views of the sentencing courts. The views of the sentencing courts were set out in Lonergan J's judgment at [21]-[24], and I have considered those views. Given the time that has elapsed, the most relevant, in my view, are the ones referable to the offending in 2023.
3. When resentenced by Haesler SC DCJ on appeal, his Honour remarked: "if you do not change as a person you are going to spend the rest of your life in custody". His Honour also emphasised the importance of the defendant being subject to "supervision". These are important views which I have taken into account, and I will return to them later.

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

1. Section 9(3)(i) requires the Court to have regard to "any other information that is available as to the likelihood that the offender will commit a further serious offence".
2. Neither party drew attention to any other matter under this section.

The ESO should be made: unacceptable risk

1. I have already found that the matters in ss 5B(a)-(c) of the Act are satisfied: see [21]-[28], above.
2. Having regard to the matters under s 9(3) referred to above, as well as the safety of the community (s 9(2)), I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order: s 5B(d).
3. In arriving at that conclusion (and state of satisfaction), I am particularly mindful of the following matters: 1. First, the nature, extent and frequency of the defendant's prior offending (particularly that offending that is accepted to be "serious offending" under the Act), I regard as particularly significant. Plainly, a repeat of any such conduct would be grave, and unacceptable. The fact that the defendant engaged in the offending in April 2023 - including possession of a 15cm knife at that time - underscores not only the existence of the unacceptable risk, but its currency. 2. Secondly, the most likely explanation for the offending in April 2023 was not the materialisation of the risk of the defendant lapsing into substance abuse or the risk of the defendant associating with "antisocial elements" (as the plaintiff's submissions noted), but referable to features of what Dr O'Dea and Dr Youssef described as the defendant's anti-social personality disorder. That disorder was described by Dr O'Dea as one that is usually considered "enduring" and "characterised by repeated antisocial behaviours, impulsivity… irritability and aggressiveness, disregard for the safety of others, and problems with remorse": report par 85. That condition was also considered by Dr O'Dea to be not readily amenable to treatment and fundamental change but, in any event, had not been fully addressed by treatment and behavioural therapy. Further, and importantly, that offending very closely correlates with the risk scenarios identified by Dr O'Dea (see [61] and [63], above), by Dr Youssef (see [72], above) and by Ms Heywood (see [78], above). In this last respect, the prediction made by Ms Heywood in December 2022 about the defendant's "most likely scenario for reoffending" essentially materialised. 3. Thirdly, and partly following on from the above, this is not a case where it could be said that the defendant has undergone extensive and sustained treatment and rehabilitation, such that one could reach the view that the defendant's risk profile had significantly reduced in consequence of that treatment and rehabilitation. On the contrary, in my view, the defendant, as the plaintiff essentially submitted, has only undertaken some psychological treatment since his release from custody (in 2021 and, later, in 2023) and that treatment has been limited, both as to its nature and duration. The defendant plainly requires further, most likely sustained, treatment as the Court appointed experts have suggested. As Dr Youssef remarked, "there is still some way to go" in terms of the defendant's treatment. Absent that treatment and rehabilitation, I do not consider that it is open to find that there has been any significant and sustained amelioration of the defendant's risk profile. 4. Fourthly, whilst it is possible to detect some hint of optimism about the defendant's prospects of rehabilitation in some of the sentencing remarks - for example, when sentenced in 2012, the defendant was said to have "some prospects of rehabilitation" - in my view, the most relevant and important sentencing remarks were those made by Haesler SC DCJ when the defendant appealed his sentence to the District Court in April 2023. Those sentencing remarks were measured, and included two important observations: first, that if the defendant "[did] not change as a person…[he was] going to spend the rest of [his] life in custody"; and, secondly, the importance of the defendant being subject to "supervision" upon his release was emphasised. In relation to the first observation, it is not realistic to think that the defendant's underlying issues (as identified by the Court appointed experts - some of which are lifelong) could be expected to have meaningfully been addressed since that time. 5. Fifthly, the evidence of each of the Court appointed experts (which I have earlier set out and which I accept), was that the defendant, based upon his presentation and their review of the material briefed, presented as posing an unacceptable risk of committing another serious offence if not kept under supervision.
4. The plaintiff submitted that, consistent with what was sought in the amended summons (prayer 3), the ESO should be for a period of two years (plaintiff's submissions at [54]). The defendant, however, submitted that the period of the ESO should be for not longer than 18 months, and in this respect relied upon the opinion of Dr Youssef: it was said that "Dr Youssef suggested an ESO period of 18 months" (defendant's submissions at [15]).
5. In my view, the ESO should be for a period of two years, as the plaintiff submitted. That is for the following reasons. First, and contrary to what was submitted by the defendant, Dr Youssef did not suggest an ESO for a period of 18 months: her evidence was that there should be an ESO "of at least a further 18 months", so as to give the defendant an opportunity "to be connected to community services" whilst under supervision (report pp 38 and 39). Secondly, that period is not inconsistent with the broad opinion expressed by Dr O'Dea - he considered that an appropriate risk management program should be longer term, in the order of five years duration, albeit that it should be regularly monitored and reviewed depending on progress. Put another way, although Dr O'Dea considered that the management of the defendant is likely to extend over many years, he appropriately recognised that this would be dependent upon progress. Thirdly, I consider that an order of this length - rather than one that is shorter - is not only proportionate, but better serves the objectives in ss 3(1) and (2).
6. The defendant raised the utility of, and need for, an ESO, given that the defendant is currently under supervision by reason of a community corrections order due to expire, according to the plaintiff, in August 2025 (the evidence as to the date of expiration of that order was inconsistent: for example, the Criminal History - Bail Report suggests that, perhaps, the date is 19 June 2025; nothing turns on this possible difference). I do not consider the existence of the CCO is a basis to decline to order the defendant be supervised under an ESO. That is for the following reasons. First, I accept, as the plaintiff submitted, there are substantive differences not only between the orders (they are set out in pars 33-34 of the affidavit from Jessie Slattery-McDonald affirmed 9 November 2023 and annexure "B" to the affidavit of Tracy Reynolds affirmed 31 October 2023) but also in the resources that are available under an ESO for matters such as supervision and psychological treatment (set out in pars 14-29 of the affidavit from Jessie Slattery-McDonald) - matters that I regard as critical for the defendant's rehabilitation and progression and community safety more generally. In my view, the more rigorous regime provided by an ESO is the appropriate order and I do not doubt, particularly given the evidence from Ms Slattery-McDonald, it is likely to be more effective. Secondly, the ESO that I propose to impose (for two years) extends well beyond when the defendant's supervision under the CCO would expire.

The statutory provisions and principles

1. An ESO or an ISO may direct an offender to comply with such conditions as the Court considers appropriate, including but not limited to those conditions specified in ss 11(1)(a)-(n) of the Act. Thus, as is apparent from the language of the section, the power of the Court to impose conditions as part of an ESO (or ISO) is delimited by the requirement that the conditions be "appropriate".
2. When an ESO or ISO is made, it must include a condition "requiring the offender not to leave New South Wales except with the approval of the Commissioner of Corrective Services": s 11(2). This is the plaintiff's proposed condition 15.
3. Failure by a person to comply with the requirements of an ESO or ISO is an offence, punishable by a fine, imprisonment, or both: s 12.
4. In State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813 at [44], Hoeben CJ at CL identified the following principles to be considered in relation to the imposition of conditions: (i) having served a sentence of imprisonment for their offences, an offender has a right to personal liberty, however, this right is not absolute: State of New South Wales v Donovan at [83]; (ii) in imposing conditions, the Court needs to strike a balance between competing considerations: Attorney General for NSW v Tillman at [68]; (iii) a relevant consideration in imposing conditions is that a breach gives rise to a criminal penalty: State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36]; (iv) conditions do not have to have a demonstrated link to past offending, but they should address the risk of future offending based on the scope, purpose and objects of the Act: Wilde v State of New South Wales [2015] NSWCA 28 at [53]; (v) conditions should not be designed toward future general criminal conduct, but instead focussed on mitigating the risk of a serious offence: State of New South Wales v Green (Final) [2013] NSWSC 1003 at [36]-[38]; (vi) conditions must not be unjustifiably onerous or punitive, "nor should they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision": State of New South Wales v Bugmy [2017] NSWSC 855; (vii) conditions "must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice": State of New South Wales v Ley Thomas Baker (No 2) at [36]; (viii) to ensure a balance between the community interests and personal liberty, the Court should impose conditions that are the least intrusive possible: Lynn v State of New South Wales [(2016) 91 NSWLR 636] at [129]-[131].

The proposed conditions

1. The State proposed a schedule of conditions of supervision that were annexure A to the amended summons. The dispute between the parties was confined to 13 of the proposed conditions. During the course of the hearing (or leading up to it), there was a further narrowing of the disputed conditions. The remaining disputed conditions are next addressed, but where there is some overlap, they will be dealt with together.
2. Before addressing the contested conditions, the following matters should be noted by way of emphasis (in addition to those identified in [120], above). First, having regard to the fact-sensitive and discretionary nature of what is required by s 11 of the Act, reference to other authority (unrelated to the defendant) - and what conditions have been imposed in those cases - is of limited utility. Secondly, as earlier noted, it is unnecessary that any conditions imposed by the Court are required to have a demonstrated link to past offending: Wilde v State of New South Wales [2015] NSWCA 28 at [53]. In that case, the Court held, in relation to ordering conditions under s 11 of the Act: "[r]ather, the court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order": see also State of New South Wales v Davis (Preliminary) [2021] NSWSC 53 at [13]; State of New South Wales v Ibrahim (Final) [2021] NSWSC 793 at [358]. Thirdly, to the extent that there had been an attempt to re-draft some of the conditions by the plaintiff, that was a product of events that occurred in and around the preliminary hearing: it is unnecessary to refer to those events (they were touched upon by counsel for the defendant during the course of submissions), but they explain why there was an attempt to refine them.
3. The reference to condition numbers in what follows are a reference to the numbering of the proposed conditions as they appear in annexure A to the amended summons.

Conditions 1 and 2

1. These conditions relate to monitoring and reporting. The plaintiff proposed revised conditions that combined, in effect, conditions 1 and 2.
2. On that basis, the defendant did not oppose the form of that combined condition.

Conditions 4-7

1. These conditions relate to permitting the reintroduction of electronic monitoring and schedules of movements if there has been a breach of identified conditions of the ESO or a Departmental Supervising Officer ('DSO') forms the opinion, upon reasonable grounds, that there is an increased risk of the defendant committing a serious offence.
2. The plaintiff submitted that, given the progress that the defendant made under the previous ESO in connection with electronic monitoring and the provision of schedules of movement, a reintroduction of those requirements was not sought - merely an opportunity, if the circumstances require it, for them to be re-implemented to reflect the degree of risk that was anticipated to the present: if a breach of identified conditions occur or the DSO forms the requisite opinion as to the need for their reintroduction.
3. The defendant did not contest the form of the conditions, but nevertheless opposed their imposition, submitting that: (a) the defendant had already progressed, on the previous ESO, past the stage of requiring him to wear electronic monitoring equipment; (b) the defendant's conduct does not "reflect any risk that could be managed by [electronic monitoring]"; and (c) there is no support for the need for electronic monitoring in the evidence and, in this respect, Dr Youssef expressly considers electronic monitoring unnecessary.
4. It appears that, following the defendant's release from custody in 2023, he was subject to electronic monitoring as well as being subject to schedules of movement on a short-term basis. It was anticipated that, after a short period, the defendant would progress to stage 3 of monitoring: that stage provides for electronic monitoring but no requirement for the defendant to provide a schedule of movements. The defendant's electronic monitoring was removed on 18 December 2023 which, according to the CSNSW material, meant that the defendant had achieved what was described as stage 4 monitoring. It should be emphasised, however, that the conditions imposed under the previous ESO made provision for the defendant to wear electronic monitoring equipment as directed by a DSO and to provide a schedule of movements if requested to do so: see conditions 4-7. Based upon the CSNSW material, the progress made by an offender determines whether, and if so to what degree, monitoring intensity is to be decreased.
5. Although it is true, as the defendant submitted, that the defendant's most recent offending was unlikely to have been avoided by the use of electronic monitoring, the relevant enquiry is not so limited and plainly must extend to whether the condition addresses the risk of future offending based on the scope, purpose and objects of the Act. Thus, I do not accept the defendant's second submission, referred to in [128], above. Nevertheless, in my view, it is significant that the defendant has progressed, with the support of CSNSW and the DSO, through the various stages of monitoring such that he was assessed as not requiring either electronic monitoring or the provision of schedules of movement and that has been the case since at least the end of 2023: see in this respect the ESO request for ESO Monitoring Stage Progression reports dated 5 August 2022 and 1 December 2022. The (undated) ESO Report to the Attorney General also noted that the defendant had "progressed through ESO monitoring stages without incident" and did not identify any concerns about that progress, or any anticipated future progress in connection with electronic monitoring (in particular, its absence).
6. If there was any concern on the part of the DSO, or CSNSW more generally, about the appropriateness of this (notwithstanding the defendant had been assessed as suitable to progress through the monitoring stages, as I have earlier referred to), then I have no doubt that evidence to that effect would have been adduced by the plaintiff. But there is no such evidence. Further, I consider it also to be significant that the Court appointed experts do not, in terms, support the imposition of this condition. I will explain this further, in what follows.
7. Dr O'Dea addressed conditions in general terms - essentially considering them to be adequate and appropriate but without giving specific attention to any particular conditions: report par 99. Dr Youssef dealt with the conditions somewhat more exactly. In connection with electronic monitoring, Dr Youssef noted that the defendant was "currently on Stage 3 supervision and as such it is not necessary that [the defendant] be subject to electronic monitoring and schedules, however he would still benefit from ongoing reporting, which is expected through to Stage 4 supervision": report par 109.7.3. It is, thus, apparent that Dr Youssef has not, in terms, supported the continuation of electronic monitoring or a condition requiring the provision of a schedule of movements.
8. In my view, given the progress that has been made by the defendant under the watchful eye of CSNSW and the DSO through the various stages of monitoring, the absence of evidence from CSNSW and the DSO identifying any particular concerns about the absence of electronic monitoring (or a suggested need for its "reintroduction"), and the opinion expressed by Dr Youssef, I am not persuaded to impose the electronic monitoring and schedule of movements conditions as the plaintiff sought. It should be emphasised that I have not, in so determining, overlooked the safety and protection of the community. Nevertheless, in the particular circumstances presented, I do not consider that these conditions are "appropriate" given the matters that I have referred to. In reaching that conclusion, it should be emphasised that there are conditions (which the defendant did not oppose, and are to be imposed) that deal with monitoring and reporting - conditions 1 and 3 - conditions that can require the provision of information from the defendant about his movements (amongst other matters) past or prospective. Further, as the defendant submitted, if the circumstances change, it would be open for the plaintiff to seek a variation of the supervision order under s 13(1).

Conditions 9-13

1. These conditions generally relate to the defendant's "Accommodation". The form of the conditions proposed by the plaintiff is substantially the same as in the previous ESO.
2. The defendant opposed these conditions, arguing: (a) there was no evidence that he presented any risk associated with persons being at his address or in staying at another address, indeed emphasising that he has been described as "asocial" by Dr Youssef; and (b) that there is another condition that is available to deal with "the general background risk of association" - namely, condition 3, which is a condition that, in general terms, deals with the defendant truthfully answering questions from a DSO etc.
3. The plaintiff emphasised, however, that the conditions are not designed merely to deal with any "background risk of association", but are also necessary for what were described as "operation needs" - such as for home visits, and to ensure that the defendant is living in appropriate accommodation and living appropriately. Whilst the plaintiff accepted that, aside from conditions 9 and 10, the other conditions were directed to that risk, and to ensure that the defendant is not exposed to anti-social influences, they were not disproportionate nor unnecessarily intrusive.
4. During the course of submissions, the defendant did not, as I understood it, oppose the imposition of conditions 9 and 10 (to the extent the defendant may have done so, I regard them as reasonable, proportionate and appropriate), but maintained his objection to conditions 11-13.
5. In my view, conditions 11-13 are reasonable and proportionate and therefore appropriate. They are directed to dealing with particular risks that are present, as identified by Dr Youssef, including "impulsivity and an unstable lifestyle", as well as "negative/anti-social associates". Further, as Dr Youssef indicated, the "Accommodation" conditions are designed (as are others) to provide "stability and routine and are helpful to have for [the defendant]": report par 109.7.4.

Condition 22

1. This condition is one of a number of drug and alcohol conditions sought by the plaintiff.
2. The defendant submitted that the condition should not be imposed or, if it is, it requires revision, because it was unclear by reason of its reference to "licensed premises": it was said that uncertainty is created because the defendant is not to know what is, or is not, a "licensed premises". In aid of this submission, the defendant, by reference to material from Liquor Licence NSW, sought to emphasise that, at least potentially, a range of different businesses are eligible for an "on-premises licence", and thus could be "licensed premises", with the consequence that the defendant could, inadvertently, be in breach of this condition.
3. I am unpersuaded that this condition is unclear so as to warrant its revision. It was imposed, in precisely the same terms that are now objected to, in the previous ESO. Although it was suggested that this condition had a tendency to reinforce the defendant being "asocial" and that he avoided going to certain places, there was no evidence about this from the defendant - that is, there was no evidence to the effect that it had curtailed his activities in this way nor was there any evidence, say, that he had raised issues with his DSO about the places that he could attend and not be in breach of this condition.
4. The defendant, although submitting in writing that the condition was disproportionate, refined his argument during submissions, in the way I have outlined. Separately, I do not regard the condition as being disproportionate: it forms part of other drug and alcohol conditions that were not opposed and, in any event, was the subject of general support by the Court appointed experts.

Condition 27

1. This condition relates to the defendant's access to the internet and other electronic communication.
2. The condition was the subject of re-drafting by the plaintiff as reflected in the conditions attached to the amended summons that was filed in Court.
3. The defendant opposed the revised condition, submitting that, by its terms, it created a measure of ambiguity that, given the consequences of failing to comply with it, were not only undesirable but justify the Court in refusing to impose it. In this respect, the defendant submitted that the requirement that the DSO have "reasonable cause" should not form part of any condition - rather, at best, it should be substantially pared back, and confined to the direction: "The defendant must obey a direction [by a DSO] about communication, Internet access and use of electronic devices".
4. In my view, there is force to these submissions. There were, in addition, some other difficulties with the way in which it had been drafted but it is unnecessary to dwell upon, or address, them given the ultimate position adopted by the parties - which I will now address.
5. The defendant submitted that, rather than impose condition 27, the Court should simply revert to conditions 27 and 28 (as they appear in the summons filed on 20 September 2023).
6. The plaintiff, whilst arguing for the imposition of condition 27 (as it appeared in the amended summons), submitted, as a "fall-back", that if the re-drafted condition 27 was not imposed, the Court should impose the conditions contained in Part H of the amended summons - that is, conditions 27-32.
7. The defendant opposed the imposition of conditions 29-32 and, in this respect, submitted that Dr Youssef, in very broad terms and relying upon what was said at par 109.7.8 of her report dated 31 January 2024, did not support the imposition of those conditions. Put simply, the defendant submitted that Dr Youssef did not, in terms, support the categorical imposition of all conditions proposed by the plaintiff. I am unable to accept that submission. Focusing, correctly in my view, upon the risks that underpinned these conditions, Dr Youssef did support the imposition of all conditions because they covered risks she considered to be present - namely, "negative/antisocial associates" and "use of violence": report par 109.7.2. I accept that evidence.
8. The broad subject matter of these conditions are the defendant's access to the internet and other electronic communications. The defendant has accepted the reasonableness of him obeying directions about communication, internet access and the use of electronic devices, and to provide information that would facilitate access to those devices (which are covered by conditions 27 and 28). It is, in my view, not possible to provide a principled basis upon which to impose conditions 27 and 28 (which the defendant did not oppose) and not impose conditions 29-32 (which the defendant did oppose) simply because, as the plaintiff submitted, the broad effect of conditions 27 and 28 is to require the defendant to provide information referable to devices or electronic communications such as login details, passwords to applications used etc. Conditions 29-32 then make provision for a DSO to require the defendant to provide a list of devices used (condition 29); requiring the defendant to provide consent for a DSO to access the device or accounts etc to monitor compliance (condition 30); to prevent the defendant from deleting material from electronic devices without prior approval of a DSO (condition 31); and requiring the defendant to provide consent for the defendant's telephone provider and internet service provider to share information about his accounts with a DSO (condition 32).
9. I am satisfied in the circumstances, given the evidence from Dr Youssef, that the further conditions sought by the plaintiff (namely 29-32 in the summons) are reasonable and proportionate and thereby appropriate.

Orders

1. Accordingly, I make the following orders: 1. Order, pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) that the defendant be subject to an extended supervision order ("the extended supervision order") for a period of two years from the date of the order; and 2. Order, pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant, for the period of the extended supervision order, comply with the conditions set out in schedule A to this judgment.

Schedule of Conditions (141013, pdf) 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: 08 March 2024