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Catchwords: HIGH RISK OFFENDER – preliminary hearing – serious sex offender – serious violence offender – application for interim supervision order – where making of order and nature of some conditions contested by defendant – whether parole conditions should be imposed under an Interim Supervision Order – whether there is high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order – interim supervision order imposed

Legislation Cited: Child Protection (Offenders Prohibition Orders) Act 2004 (NSW)
Child Protection (Offenders Registration) Act 2000 (NSW), s 16C
Classification (Publications, Films and Computer Games) Act 1995 (Cth)
Crimes Act 1900 (NSW), Div 10 Pt 3, ss 33, 61, 61I, 61J, 61L, 61O, 66A, 91H, 114
Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 4, 4A, 5, 5A, 5B, 5D, 5I, 6, 7, 9, 10A, 10C, 11, 12
Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
Justice Legislation Amendment Act (No 3) 2018 (NSW)

Cases Cited: Attorney General for New South Wales v Kapeen bht Jennifer Thompson (Preliminary) [2018] NSWSC 619
Attorney General for the State of New South Wales v Winters [2007] NSWSC 611
Attorney-General for New South Wales v Tillman [2007] NSWCA 119
Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57
New South Wales v Thomas (Preliminary) [2011] NSWSC 118
State of New South Wales v CD (Preliminary) [2021] NSWSC 1396
State of New South Wales v Chaplin [2019] NSWSC 471
State of New South Wales v Devaney (Final) [2022] NSWSC 60
State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041
State of New South Wales v Kaiser (2022) 108 NSWLR 476; [2022] NSWCA 86
State of New South Wales v Kamm (Final) [2016] NSWSC 1
State of New South Wales v Lynn [2013] NSWSC 1147
State of New South Wales v McGee (Preliminary) [2019] NSWSC 53
State of New South Wales v Simcock (Final) [2016] NSWSC 1805
State of New South Wales v Sleeman [2018] NSWSC 562
State of NSW v Richardson (Final) [2002] NSWSC 1809
State of NSW v Sancar [2016] NSWSC 867
Wilde v State of New South Wales [2015] NSWCA 28; (2015) 249 A Crim R 65

Texts Cited: Nil

Category: Principal judgment

Parties: State of New South Wales (Plaintiff)
Joseph Stephen Rosenburg (Defendant)

Representation: Counsel:
A Richards (Plaintiff)
J Cooper (Defendant)
Solicitors:
Crown Solicitor (NSW) (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s): 2024/00458463

Publication restriction: Nil

JUDGMENT

1. By way of summons filed on 9 December 2024, the State of New South Wales, the plaintiff, seeks relief by way of an order that Mr Joseph Stephen Rosenburg, the defendant (who prefers to be known by the surname Vozila), be subject to an Extended Supervision Order (“ESO”) for a period of two years and comply with conditions.

2. In the interim, and before the Court today, pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”), the plaintiff seeks orders for the appointment of two qualified psychiatrists and/or psychologists (or any combination of two such persons) to conduct separate examinations of the defendant and to furnish their reports to the Court as well as an order directing the defendant to attend those examinations.

3. The plaintiff also seeks an Interim Supervision Order (“ISO”) against the defendant, pursuant to section 10A of the Act, for a period of 28 days, as well as an order pursuant to s 11 of the Act, directing the defendant to comply with certain conditions set out in the schedule to the summons during the period of the ISO. The plaintiff also seeks an ancillary order.

4. Apart from the ancillary order (the making of which is not opposed by the defendant), the defendant otherwise opposes the making of the orders seeking reports or imposing an ISO. Should an order be made, the defendant’s primary position is that he opposes the conditions proposed by the plaintiff and submits the conditions should essentially reflect his present parole conditions, with a clarified parks place restriction. Should this position not be acceded to by the Court, the defendant has indicated which of the conditions proposed by the plaintiff are contested.

5. The Court must determine whether these interim orders for examination by experts and the ISO should be made under ss 7 and 10A of the Act respectively. If I am satisfied the statutory pre-conditions are met, the question is whether, upon the final hearing of this summons, if the matters appearing in the materials now provided to the Court are accepted and prove the facts to which they refer, the Court would be satisfied, to a high degree of probability, that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision: s 5B(d) of the Act. In this case, the serious offence is a “serious sex offence” as defined in ss 4 and 5 of the Act.

6. As noted, the defendant is contesting the imposition of the ISO, but concedes that the statutory preconditions, other than the “unacceptable risk” pre-condition in s 5B(d) of the Act, have been satisfied.

The statutory scheme

7. Section 5B of the Act provides that the Supreme Court may make an ESO if it is satisfied of the following:

5B Making of extended supervision orders—unacceptable risk

[…]

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

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

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

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

8. A “supervised offender” is defined in s 5I(2) and (3) to include someone who is in custody, or on parole, while serving a sentence for various offences, including a “serious offence”.

9. A “serious offence” is defined in s 4 and includes a “serious sex offence” and a “serious violence offence”.

10. A “serious sex offence” is defined in s 5 and includes certain offences under Div 10 of Pt 3 of the Crimes Act 1900 (NSW) (as well as others). It is noted that not all sex offences are “serious sex offences”.

11. 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

[…], or

(b) attempting to commit, or conspiring with or inciting another person to commit, an offence of a kind referred to in paragraph (a) […]

12. 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.

13. Section 7(4) of the Act provides that if following the preliminary hearing, I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, I must make orders appointing two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) to examine the defendant and furnish reports to the Court.

14. 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.

15. The meaning of “unacceptable risk” is not defined in the Act. Its meaning was considered by Beazley P in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [50]–[51]: [2]

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

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

16. 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 […].”

17. The “unacceptable risk” inquiry is not discretionary, but it does involve an evaluative balancing exercise to be undertaken in the overall context of the primary object of the Act, that being to ensure the safety and protection of the community: s 3(1) of the Act. Unacceptability of risk involves a consideration of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate: State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71] (Wilson J); State of New South Wales v Chaplin [2019] NSWSC 471 at [15] (Rothman J).

18. 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

19. 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.

20. 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.

21. 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], and involves the evidence being taken at its highest.

22. 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”.

23. 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.

24. 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]; S**tate of New South Wales v Golding (Preliminary) [2018] NSWSC 1041; State of NSW v Sancar [2016] NSWSC 867.

The evidence

25. The plaintiff relies on an affidavit of Jessica Murty, affirmed on 9 December 2024.

26. The defendant relies on an affidavit of Susannah Coles and an affidavit of Victor Vozila, both affirmed on 4 February 2025.

27. In the preparation of this judgment, I have utilised the helpful written summaries and submissions furnished by the plaintiff and the defendant, including a joint statement of agreed facts.

Brief background of the defendant

28. The defendant was born in Sydney in 1963 and is currently 61 years old. He was one of 12 children, and his parents separated when he was 4 years old. He often was moved between his mother and father (who lived in different states), and at times was made a ward of the state or housed in state institutions. His mother had unorthodox views about earning money, believing work was for “robots”. She spent time speaking at the Sydney Domain in support of various causes, and she, together with her children, often squatted in unoccupied houses. Some material suggested she was a sex worker. The defendant’s father reportedly drank to excess and physically abused him.

29. By the time the defendant had left school, he could not read or write with any proficiency. He advised a psychiatrist that he had suffered physical, emotional and sexual abuse as a child and has recently reported to the police that he was a victim of child sexual abuse.

30. The defendant has reported abusing alcohol by age nine, although recently has denied a history of problematic alcohol consumption, claiming his past use was “getting drunk on the odd occasion from time to time”. He contends that he doesn’t like drinking or getting drunk but “doesn’t mind a beer when going out”.

31. The defendant was a regular user of a large range of drugs by his early twenties, including regularly injecting amphetamines. His longest formal employment was as a cleaner in a Kings Cross nightclub for about three years. He has a history of unstable accommodation, often squatting in unoccupied houses.

32. The defendant has never had a long-term intimate relationship nor cohabited with a partner for more than six months and has no dependents. He reports no current friendships. He is close with his brother and one sister and provides care (with his brother) to his elderly mother.

33. The defendant’s brother, Victor Vozila (“Victor”), stated in his affidavit that he is pretty close to the defendant and that they see each other almost every day as they walk their dogs together. They share the caring responsibilities for their mother. She is quite incapacitated. Victor tends to do the cooking and cleaning whilst the defendant tends to help more with the hygiene side. The defendant helps wash and bathe her and also helps physically with her mobility as he is stronger. Sometimes they have to attend on their mother in the middle of the night. Since Victor lives closest, he mostly attends, but sometimes the defendant attends as well.

34. There are inconsistent reports as to whether the defendant has suffered from schizophrenia (albeit no recent reports), and also as to whether he has suffered from an anti-social personality disorder.

Criminal history of the defendant

Serious sex offending in 1994

35. In 1994, the defendant was charged with six counts of sexual offending against a child. These charges were in relation to events occurring on the night of 22 February 1993, when the defendant was 29 years old. He entered the bedroom of a five year old girl unknown to him. Once in her room, he masturbated in her presence, requested she lick his penis and placed his tongue in her vagina.

36. Even though his fingerprints were found on her bedroom door, the defendant went to trial by jury and was convicted on all counts (other than a backup charge). The convictions (including a “serious sex offence” pursuant to s 5 of the Act) were for the following offences:

(a) enter building with intent to commit a felony contrary to s 114(1)(d) Crimes Act); (b) sexual intercourse with person under 10 contrary to s 66A of the Crimes Act (insertion of tongue into vagina); (c) commit acts of indecency (2 offences) contrary to s 61O(2) of the Crimes Act (being masturbation in the child’s presence and inducing the child to touch his penis); and (d) incite person under 10 to act of indecency in contravention of s 61O(2) of the Crimes Act (requesting the child to lick his penis).

37. The defendant received a total sentence of 6 years commencing on 17 June 1994 and expiring on 16 June 2000 with a 3 year non-parole period. The then s 66A of the Crimes Act carried a maximum penalty of 20 years’ penal servitude. Although Div 10 of the Crimes Act did not exist at the time of this offending (referred to in s 5(1)(a) of the Act), the s 66A offence is a serious sex offence under s 5(1)(d) because if an offence of sexual intercourse with a child under the age of 10 was committed now, it would be caught under s 5(1)(a) as the maximum penalty is life imprisonment.

38. Further serious sex offending was committed by the defendant in 2013, which is dealt with under the heading “Index offending” below.

Serious violence offending in 2006

39. On Christmas Day in 2006, the defendant and his brother arrived at a family Christmas party uninvited. When one of the attendees (the defendant’s brother-in-law) went to see what was happening, the defendant struck him several times with an iron bar. The victim suffered a skull fracture. Following trial by jury, the defendant was convicted of one count of maliciously inflict grievous bodily harm with intent contrary to s 33 of the Crimes Act. This constituted serious violence offending pursuant to s 5A of the Act. He was sentenced to five years’ imprisonment with a non-parole period of three years and nine months.

Index offending (also constituting the 2015 serious sex offending)

40. On 2 February 2015, the defendant was found guilty following trial by jury of three counts of indecent assault contrary to s 61L of the Crimes Act (now repealed) and three counts of sexual intercourse without consent contrary to s 61I. This constitutes the index offending. It also constitutes serious sex offending pursuant to s 5(1)(c1) of the Act as the facts would constitute an offence under s 61J(2)(b1) of the Crimes Act at the time the application was brought (that subsequently having been introduced in 2018 pursuant to the Justice Legislation Amendment Act (No 3) 2018 (NSW)).

41. In short, on the evening of 29 August 2013, the young female victim went to a nightclub on Oxford Street in Sydney with a friend. Over the course of the evening, she drank a large amount of alcohol and eventually lay down on a concrete ledge near Hyde Park. A little after midnight, the victim began sending text messages to her friends asking to be picked up.

42. While the victim was waiting to be collected, the defendant approached the victim, sat down near her feet and put his hand under her dress. He began touching her vagina on the outside of her underwear, despite her attempts to push his hand away. The victim attempted to get away by crossing the road and entering Hyde Park. He followed her and again placed his hand under her dress and touched her vagina on the outside of her underwear. She said, “Please don’t do this, stop touching me.” The defendant then asked the victim to perform fellatio on him. She asked him, “Are you going to kill me?” He said words to the effect of “no, I’m not going to kill you if you go with it”, or possibly, “if you go along with everything”. He placed his penis in her mouth and then pushed the victim’s underpants to the side and touched her vagina.

43. The victim was distressed and crying and sent text messages to her friends asking for help. The defendant said, “you are not wet there [her vagina] so I’m going to have to lick you” and used his mouth to perform oral sex on her. The defendant then inserted his penis into her anus. After it ended, the victim called her friend, saying “He raped me”, and “He hurt me”.

44. Judge Hanley sentenced the defendant to an aggregate sentence of 11 years, with a non-parole period of eight years and three months.

45. In the course of dismissing the defendant’s appeal against his conviction (and sentence), the Court of Criminal Appeal noted that there was no evidentiary foundation there had been a conspiracy to deceive and to pervert the course of justice on the part of the victim as he now claimed.

Other offending

Common assault

46. On 21 December 2003, the defendant approached his 13 year old niece and her three friends. After a short conversation, the niece started ignoring the defendant who responded, “Don’t be a snobby little bitch to me or else I will come over there and sort you out right now.” When she attempted to call the Police, the defendant pushed her upper arm with his open right hand, poked her upper chest 10-15 times and kicked her upper thigh and bottom region with his right leg while yelling abuse, including “You will be sucking a paedophile’s dick by the time you are sixteen”, “slut”, “whore”, “I’m going to put a bullet through you and your mother’s head” and “Wait till I get my hands on you [victim’s name] you little slut. You and your fucking mother. You’re not going to want to come around here or be in Sydney, you or your mother. You shut your fucking mouth you little bitch or I’ll kill you”.

47. The defendant was convicted of one count of common assault contrary to s 61 of the Crimes Act, fined $500 and a three-year s 9 bond (pursuant to the Crimes (Sentencing Procedure) Act 1999 (NSW) was imposed.

Loiter near public place frequented by children and enter enclosed lands

48. On 19 May 2007, the defendant was in Annandale and crossed the street to ask two girls, aged 9 and 10, who were playing in a front yard, questions about furniture located outside the property. Later that evening, he entered that property through a side gate and came to a window to speak to the girls. He offered them money for a bike and spoke to them about boys. While the girls could not later identify him, the defendant’s fingerprints were found on the windowsill of the home. When interviewed, he denied the offending and that he had ever been in Annandale.

49. In the Local Court, the defendant received a sentence of 3 months’ imprisonment and a fine. His conviction was confirmed on appeal. On appeal, Finnane DCJ noted that the defendant’s account failed to explain the finding of his palm print on the house, and that he was “a man who gives a very strong impression of having being used to appearing in Courts and facing charges on other occasions.”

Possession of child abuse material

50. On 20 July 2016, while in custody for the index offending, 11 pages of handwritten notes were found in the defendant’s cell. The material contained three stories about sexual activity with little girls, namely: sexual activity with two girls in a car, a father or parental figure installing a camera in a little girl’s room and watching her masturbate, and a little girl behaving provocatively towards the author before they engage in sexual activity. The defendant contended that he had sent the material as a letter to his partner in another gaol and it was not intended for others to read. He was convicted of one count of produce child abuse material contrary to s 91H of the Crimes Act. He was sentenced to 12 months’ imprisonment with a non-parole period of 9 months. This sentence was backdated to add an effective 6 months’ non-parole period to the defendant’s sentence for the index offending.

Conduct in custody

51. Whilst in custody for the index offending (his most recent period of custody), in addition to his offending relating to possession of child abuse material (as set out above), the defendant also:

(a) made sexually explicit phone calls with a female during which he was heard to be expressing sexual fantasies involving school-aged children and buying lost little girls who “cannot find their daddies” (July 2018); (b) possessed sexually explicit letters (albeit it appears no sanctions were imposed) (August 2018); (c) possessed “child-related drawings and magazine cut outs” (June 2019); and (d) possessed a sexually graphic drawing believed to be of a “young [adolescent] Asian appearance female lying in bed naked with her legs apart” and reportedly explained to his cell mate what sexual acts he would perform on children (February 2022).

52. Whilst in custody, the defendant completed (or was found eligible for) a number of courses:

(a) 1997: A 10-week Alcohol and Drug Program, and a Sex Offender Re-direction Training program, with feedback including that his engagement went “well beyond mere attendance or superficial participation” and demonstrated “considerable insight into issues of victim empathy, poly drug abuse and his sexually abusive offence cycle”; (b) 2010: A 24-session Controlling Anger and Learning to Manage it (CALM) program, with feedback that his understanding of the program “may be minimal given his continual denial of anger related issues and his tendency to deviate from the subject”; (c) 2021: The defendant was found eligible for the Explore, Question, Understand, Investigate, Practice, Succeed (EQUIPS) Foundation, Addictions and Aggression Programs but was withdrawn because of COVID restrictions. He declined a later placement citing personal safety concerns, but said he was willing to complete required programs at the Metropolitan Special Programs Centre (MSPC); (d) June 2022 – August 2023: The defendant participated in the High Intensity Sex Offender Program (HISOP). The program usually lasts 7–11 months, but because the defendant had to be prompted to complete task work, his treatment time was extended. He was reported to be an involved group member who attempted to demonstrate implementation of skills. The treatment report noted the defendant’s combined risk rating using the STATIC -99R and STABLE-2007 tools was “well above average”. Treatment providers opined that reoffending by the defendant would most likely include contact offences against a post-pubescent adolescent female or adult woman, in a situation where the defendant has befriended them and is experiencing sexual preoccupation and low self-esteem and is seeking connection. He would incorrectly interpret their behaviour as a sexual advance, resulting in him engaging in sexual acts. Further, given the defendant’s history and “the indication of potential deviant thoughts” a risk scenario involving children “isn’t completely inconceivable”. This may be more likely to occur if he is experiencing social disconnection, substance abuse and perceives his sexual opportunities with adult women to be hindered; (e) February 2023 – May 2023: The defendant participated in the Real Understanding of Self Help (RUSH) program (overlapping with HISOP). His participation was described positively. He was observed to show genuine interest in the program, frequently engage in group discussions, demonstrate a desire to learn and would often try RUSH skills between sessions, showing great pride in sharing his experience and learning; and (f) The defendant also completed Learning, Language and Numeracy Courses (Level I and II), Food Safety course, Workplace Health & Safety, Health Survival Tips and PrivProV Workplace Hygiene.

Current status

53. The defendant was released on parole to the community on 27 October 2023. Since his release to the community, he has been in receipt of the carers pension as he cares for his elderly mother. On release, he first lived with his brother, but since April 2024, he has been living in his own apartment in Waterloo provided by the Department of Housing.

54. The defendant’s current sentence (and therefore his parole) expires on 14 March 2025.

55. The defendant is also currently on bail for three charges of failure to comply with obligations under the Child Protection (Offenders Registration) Act 2000 (NSW) (“CPOR Act”). He was charged with these offences in June 2024. At the hearing, I was informed that he has pleaded not guilty to those matters, and they were next in court for mention on 4 March 2025.

56. In relation to these current offences, the police facts allege that on 3 June 2024, police conducted a search of the defendant’s electronic devices under s 16C of the CPOR Act. Police located, among other things, the application Facebook, signed into the account “Joe Vozila”. That profile had allegedly “liked” the following Facebook pages: “Junior Idols”, “Dasha Kovalenko TOP kids model”, “MaYa Sarasota Queens”, “All-National America’s Jr. Pre-T Miss” and “CuteGirlsBaby”.

Risk assessment report

Statutory pre-conditions

57. As noted above, the defendant concedes that the statutory pre-conditions for the making of the interim orders sought by the plaintiff are made out, other than the “unacceptable risk” pre-condition in s 5B(d) of the Act.

58. Leaving aside unacceptable risk for the moment, I am otherwise satisfied that the statutory preconditions are made out as follows:

59. the defendant is an “offender” as defined in s 4A, in that he is above 18 years of age, and has been sentenced to imprisonment served by way of full-time detention for a serious offence;

60. the defendant has previously served a sentence of imprisonment for a serious offence (being a serious sex offence) for the purposes of s 5B(a) (see [35–38] and [40–45] above);

61. the defendant is a “supervised offender” within the meaning of s 5I (because at the time the application was made, he was serving a sentence of imprisonment for an offence of a sexual nature, being the index offending); and

62. the application is made in accordance with s 6 (as well as ss 7(1) and (2) of the Act). At the time of the making of the application on 9 December 2024, there was less than 9 months remaining of the defendant’s current custody or supervision. Pursuant to s 6(3)(a), the application is supported by documentation that addresses each of the matters in s 9(3) of the Act. As required by s 6(3)(b) of the Act, there is a Risk Assessment Report (“RAR”) and a supplementary RAR of Cherice Cieplucha, a registered psychologist, assessing the likelihood of the offender committing a serious offence.

63. As to the final pre-requisite under section 5B(d) of the Act, I must be satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious sex offence if not kept under supervision under the ESO. The matters in s 9(3) of the Act, to which I must have regard (in addition to other matters I consider relevant) are of assistance in informing the application of the unacceptable risk test. As noted above, s 9(2) of the Act provides that the safety of the community must be the paramount consideration in determining whether to make an order. As also noted above, the test to be applied at a preliminary hearing for the making of an ISO is not a stringent test. I now turn to the s 9(3) matters.

Sections 9(3)(c) and (d): results of statistical and other assessments

60. In 1983, Dr Godsall, psychiatrist, opined that the defendant was a chronic schizophrenic. A psychologist arranged to psychometrically test the defendant considered that he was psychotic.

61. In 1994, Dr Thomas Clark, psychiatrist, prepared a report for sentencing purposes following the defendant’s conviction for the 1994 serious sex offending. Dr Clark noted that the defendant reported he had been “taking a lot of speed”. He gave an account of the offending, realising the conduct was “sleazy” and said he felt shameful and sorry. Dr Clark considered it “probable” that the defendant had been in a drug-induced psychosis the night of the offending and that he should be “carefully supervised if returned to the community”.

62. In 1998, Dr Robert Finlay-Jones, consultant psychiatrist, examined the defendant. The defendant reported that he had had sex with 100–200 women, was interested in oral, anal and vaginal sex and fantasised about using a “little bit of force”. His sexual fantasies were dominated by “a desire to look through windows and see girls undress or older women masturbating” and that he “used to regard children as just a piece of meat”. He also said he had known the little girl the subject of the 1994 serious sex offending had lived at her home for at least six months and he had been drawn back to the place. Dr Finlay-Jones opined that he met the diagnostic criteria for an antisocial personality disorder, and showed no insight, consistent with that disorder.

63. In 2007, Mr Anthony Diment, consultant psychologist, assessed the defendant in the context of the charge of malicious grievous bodily harm with intent. The defendant said he had attended the Christmas party as he was concerned his niece had been the subject of sexual abuse. Mr Diment found the defendant to be in the “severe” range for anxiety and depression, but had a well-adjusted personality structure and no antisocial traits.

64. In 2015, Mr Matthew Raymond, psychologist conducted a detailed assessment of the defendant while he was in custody for the index offending. He assessed the defendant’s future risk as high using both the STATIC-99R and STABLE 2007 risk assessment tools, producing a “Very High” “priority category” when those scores were combined.

65. The defendant described Hyde Park as a “brothel” and claimed he had frequently had oral, vaginal and anal intercourse with women there, with no need for communication as simply being there indicated consent for sex. He reported that the “bitch” (the victim of the offending) consented because “she had not said no and did not make an effort to push [him] away, so she clearly wanted it”. He believed his sexual acts would improve her self-esteem given she was not attractive, and she would feel better about herself if he were to “give the gift of sex and my cock”. He said discussing the offending was “a pleasant and relieving experience”.

66. At around the time of the index offending, he would typically smoke two to three cones of cannabis each day or two, and spent time with strangers and homeless individuals who were frequently intoxicated, as well as drinking himself. He developed elaborate sexual fantasies about the underwear of, and sexual acts he would like to participate in with, girls around the age of five, and indicated he continued to have these frequent fantasies. He described an increased urge for sex or masturbation when stressed, angry, bored or not achieving his goals. He also said that when drinking he often thinks about sex.

67. In November 2023, as noted above, the HISOP treatment report noted that the defendant’s combined risk rating using the STATIC-99R and STABLE-2007 tools was “well above average”. The treatment providers opined that the defendant’s reoffending would most likely include contact offences against a post-pubescent adolescent female or adult woman, in a situation where he has befriended them and is experiencing sexual preoccupation and low self-esteem. It was further noted that given the defendant’s history and the “indication of potential deviant thoughts” a risk scenario involving children “isn’t completely inconceivable” if he is experiencing social disconnection, substance abuse and perceives his sexual opportunities with adult women hindered.

68. In the RAR and Supplementary RAR prepared in 2024, Ms Cieplucha noted that the defendant provided a “very elaborate and at times graphic explanation of the incidents leading up to and immediately following the index offending for over an hour, referring to it as a “total scam”. He claimed the sexual contact was consensual and that the victim was not heavily intoxicated. In relation to the 1994 serious sexual offending, the defendant claimed he was under the influence of amphetamine and marijuana, hallucinating and lonely, denying his motivation was sexual in nature and said he was looking for a friend. He claimed that after entering the room, the child asked him “where babies come from” which triggered a sexual fantasy and led him to hallucinating about an adult female. Ms Cieplucha observed that the defendant sought to minimise his behaviour.

69. The defendant received a total score of 6 on the STATIC-99R, placing him at “Well Above Average” risk of further sexual offending. The rate of recidivism for people with this score is estimate to be about 3.77 times higher than that of the “typical” sex offender. On the STABLE-2007, the defendant’s score suggested a high density of criminogenic needs relative to other sex offenders. Ms Cieplucha also used the Risk of Sexual Violence Protocol to assess the defendant’s relative risk factors. This assessment reflected a high density of criminogenic needs.

70. Ms Cieplucha noted the following dynamic risk factors as potentially relevant to the defendant’s risk of sexual reoffending:

(a) hostility towards women: describing all Australian women as “putrid”; (b) problems with supervision, treatment (partial) and antisocial attitudes: history of poor compliance with treatment but has made a more recent effort; defiant and resistant on his current parole; (c) problems with denial, attitudes that condone sexual violence, poor understanding of consent: consistently minimised or denied his sexual offending and lacks insight into high-risk situations and behaviours; holds attitudes such as “children can engage in and enjoy sexual activity”; (d) problems with stress or coping, negative emotionality and poor problem solving; (e) problems with relationships and general social rejection; (f) problems with substance use: history of substance use, including prior to committing sexual offences. While there is no recent evidence of substance use, monitoring is necessary as a relapse will “impact his capacity to manage his behaviour, could heighten paranoid thinking, exacerbate his fixation on perceived grievances and elevate his risk of both sexual and non-sexual offending”; (g) sexual preoccupation and sexual deviance: demonstrated a high level of sexual preoccupation and despite his current denial, has previously endorsed deviant sexual arousal and fantasies about sex with force; and (h) problems with employment and impulsivity.

71. Ms Cieplucha also assessed the defendant’s risk of future violent offending using the Violence Risk Appraisal Guide – Revised (“VRAG-R”). Compared with other offenders, the defendant is at High risk of further violent offending compared to other offenders, with 76% of offenders within the same “bin” reoffending violently within five years, and 87% within 12 years.

72. Given the defendant’s history of sexual offending is varied, Ms Cieplucha stated that her hypotheses regarding future sexual offending were “necessarily broad”. Her most likely scenario included non-consensual penetrative sexual activity with a female who is likely to be vulnerable (either due to intoxication and/or young age), at night, either in public or in the victim’s home. Should the defendant target a child victim, a period of observation is likely to occur, and such offending would likely be precipitated by increased sexual preoccupation, hostile attitudes to women and potentially deviant sexual arousal. Ms Cieplucha also noted increased feelings of loneliness, disconnection or a return to substance use could also increase the defendant’s potential for sexual offending. She also identified the defendant has the potential to engage in serious violence in the future, such as if a confrontation escalates and he engages in reactive violence, possibly with the use of a weapon.

73. In summary, Ms Cieplucha stated the following in relation to the defendant’s risk of committing a further serious offence:

He has been convicted of a serious sexual offence involving a pre-pubescent female and a sexual offence against a young adult female. He has also been convicted of a serious violence offence. Despite completing a high intensity treatment program to address his sexual offending, he has continued to deny and minimise his sexual violence. Although he has not been convicted of further sexual or violent offences since this time, given his history of offending and outstanding criminogenic needs, it is possible that he could commit a further “serious sexual offence” or a “serious violent offence” as defined in the [Act].

74. The defendant notes two points about the risk assessment evidence which means the evidence must be treated with caution. First, there are some limitations in the tools because they are not designed to isolate the risk of a “serious offence”, but rather are geared towards the risk of general offending. Further, the results do not directly reflect the risk of an individual, rather groups of individuals. As static tools, they do not take into account positive changes of individuals over time. In addition, the risk is discussed in terms of possibility rather the high degree of probability required by the statutory test.

Section 9(3)(d1): report prepared by Corrective Services NSW as to the extent to which the offender can be managed in the community

75. The plaintiff also relied upon a Risk Management Report (“RMR”), dated 4 September 2024, prepared by Mr Mick Glover, Senior Community Corrections Officer, Metropolitan Extended Supervision Orders Team. Mr Glover stated that the defendant self-reports he is doing a good job of reintegrating into the community and considers his mother (to whom he provides care), his residence, his dog and his motorbike to be protective factors.

76. Mr Glover describes the defendant’s response to parole supervision as “mixed”. His attendance has been good, and he has returned consistently negative drug tests, but his capacity to accept certain risk-related conditions has been poor. For example, his compliance with restrictions on access to locations such as parks frequented by children and Kings Cross late at night is “a constant cause for concern”. Further, whilst the defendant reported getting along with his current supervising officer better, this may be because his previous supervising officer was a woman.

77. Mr Glover notes the defendant is currently on electronic monitoring whilst on parole. He states that a continuation of this with a capacity to progress and regress the stages of electronic monitoring would allow Community Corrections to manage appropriately the defendant’s impulsivity and identify any concerning patterns in behaviour, such as a return to Kings Cross or repeated attendance at parks or other restricted areas.

78. Mr Glover supports the inclusion of conditions restricting access to certain places (such as where children congregate), restricting association with children, alcohol and other drugs and imposing a curfew (given further serious sex offending would be expected to occur at night), and conditions aimed at monitoring his electronic devices in light of his 2019 conviction for possessing child abuse material. He also suggests a condition prohibiting possession of weapons given the nature of the defendant’s previous serious violence offending.

Section 9(3)(e): treatment or rehabilitation programs

79. As referred to above at [52], the defendant completed programs in 1997, while in custody (a 10 week alcohol and drug program, and a sex offender re-direction training program). In 2010, the defendant completed a 24 session on ‘Controlling anger and learning to manage it’ program.

80. As also noted above at [52(d)], the defendant participated in HISOP commencing in June 2022. In the HISOP Treatment Report, dated 15 November 2023, he was described as attentive and involved in the group. At times, he would make problematic statements and seek to recant them which made it difficult for therapists to assist him to develop insight into problematic attitudes. He had interpersonal conflicts with a number of fellow group members, at one point being placed on a Behaviour Management Contract for appearing aggressive and making a threat of physical violence. However, following feedback and monitoring there were no further incidents observed involving aggressive behaviour.

81. His difficult upbringing was noted as being likely to cause him to develop a sense of general social rejection, antisocial/anti-authoritarian attitudes and perceptions of injustices. His personal sexual abuse likely “thwarted his sexual development” and contributed to a focus on sex in his life. When presented with an opportunity to have sex, he became so focussed on sexual gratification that he did not consider any potential problems or risk and ignored any lack of consent.

82. The therapists noted that the defendant’s account of the 1994 serious sex offending changed throughout treatment. At one point he suggested he pleaded guilty only because he would have liked to have engaged in the offences charged if the victim had been willing. It was noted in relation to the 1994 serious sex offending and the index offending:

“[…] [The defendant] was living an impulsive lifestyle, where he wasn’t working, he was using drugs and alcohol and associating with antisocial influences. He was sexually preoccupied, engaging in impersonal sex and in the instance where his sexual offence was against a child the content of his sexual thoughts was children.”

83. It was further noted that the defendant maintains attitudes that women are manipulative and untrustworthy. He has ingrained attitudes of mistrust towards those in authority and the criminal justice system. Given his longstanding challenges with forming meaningful connections, therapists noted he may not actively seek prosocial connections and may associate with antisocial peers or seek impersonal romantic relationships.

84. Even though it was recorded that the defendant denies any current concerns regarding sexual self-regulation, and believes that he understands enthusiastic consent, the HISOP therapists regard sexual regulation as an area of risk, stating:

“[…] There may be indicators of risk relating to sexual self-regulation if [the defendant] is experiencing feelings of loneliness and/or disconnected from society, in addition to feelings of low self-worth or unpleasant emotions. One may notice that [the defendant] is out late at night, loitering near licenced premises, or locations where has previously sought impersonal sexual encounters (e.g., Hyde Park). He may notice that he is focussing on the physical appearance of females and masturbating frequently. He will seek out and watch television content with sexual themes, engage in sexualised conversations/jokes and normalise unhelpful sexual behaviour. He may approach female strangers more frequently and perceive women’s behaviour as being indicative of sexual interest or disinterest. It is not believed that [the defendant] will be forthcoming with this information, so behavioural indicators will need to be monitored.”

85. In relation to the 2023 RUSH program in which he participated, as noted above at [52(e)], the defendant received excellent feedback.

86. When released to the community on parole in October 2023, the defendant started to participate in Forensic Psychology Services (“FPS”) maintenance sessions. It was recorded that his engagement was initially quite sporadic in that he would often attend but sit with his eyes closed and headphones on for at least part of the session. He continued to refer to the victim of the index offending as a “bitch” and a “scamming slut”. He also referred to his female parole officer as a “bitch” who, in his view, imposed unfair restrictions on him. He initially demonstrated a poor understanding of consensual sex stating that “the victim brushing his hand away was a minor detail and that she didn’t say no” and at times he tended to assign adult-like qualities to children.

87. Notably, following a one-on-one session in May 2024 to discuss his behaviour, he was observed to show a marked change in presentation and engagement. He became alert, engaged, receptive to feedback and provided pro-social advice to other group members. He was noted as appearing to be implementing self-regulation strategies which was suggestive of an early stage of change. It was noted that this positive change in attitude towards FPS appears to have persisted. However, it was also noted that the defendant continues to have difficulty in identifying prosocial contacts, references his dog and his motorbike when questioned about intimate relationships and the meeting of his sexual needs, is fixated on maintaining his innocence, and has spoken positively about drug use.

Section 9(3)(e1): options available if the offender is (relevantly) in the community that might reduce the likelihood of the offender reoffending over time

88. Ms Cieplucha identified that the goal of further management was to encourage the defendant to develop and maintain a stable and sustainable lifestyle that he can maintain even when he was not under supervision. Should an ESO be granted, Ms Cieplucha identified that the following conditions may assist in reducing the likelihood of the defendant reoffending:

(a) Direct the defendant to continue to attend FPS maintenance sessions. Whilst the defendant has often identified these as helpful, it appears he is unlikely to continue to attend if not required to do so. Continued work on his risk factors, particularly sexual preoccupation, sexual deviance, and hostility towards women/sexual consent, would be of assistance. (b) Scrutiny of the defendant’s electronic activities and other indicators of sexual preoccupation (such as utilisation of sex workers) or sexual deviance. (c) Electronic monitoring of the defendant’s movements would assist in addressing a number of issues which occurred on parole: attendance at parks and Kings Cross at night given a key risk for further serious offending is impulsivity.

89. The defendant has and will continue to be subject to the registration and reporting obligations under the CPOR Act. The plaintiff points to the observations of Rothman J in State of NSW v Richardson (Final) [2020] NSWSC 1809 at [128].

“The regime in the [CPOR Act] is not geared to an individual that has an unacceptable risk of serious reoffending […] The Police do not have the resources to supervise in the manner that occurs in relation to an ESO and annual reporting or annual […] searches are an insufficient degree of supervision to ameliorate what is otherwise and what continues to be an unacceptable risk, in the absence of an ESO.”

90. Ms Cieplucha also noted the possibility for police to seek to obtain a Child Protection Prohibition Order under the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) in relation to the defendant. If obtained, this would allow certain restrictions to be imposed such as in relation to his access to children. The plaintiff contended that such an order is not well suited to directing the defendant to do things that might mitigate or reduce his risk of reoffending over time. Further, it can be observed that the risk identified in relation to the defendant is not confined to children.

Sections 9(3)(e2), (f) and (g): likelihood of compliance with ESO or ISO, previous compliance with parole, previous compliance with other obligations

91. In 1997, the defendant’s parole was revoked for breaching a condition requiring him not to be in the company of children. He initially denied the breach, but subsequently admitted his breach. He was re-released on parole in 1998, but it was again revoked in 1999 again, in part, for being in the company of children.

92. As noted, the defendant is currently on parole in relation to the index offence. Ms Cieplucha observed:

“[The defendant] has demonstrated some resistance to supervision, has been combative with supervision expectations, disregarding directions related to entering parks and engaging in risky behaviours attending Kings Cross late at night despite being directed not to.”

93. Revocation of parole was recommended in March 2024 but was not acted upon. He had been seen near a park with children’s play equipment for 15 minutes despite receiving verbal and written directions not to enter any park. The RAR also notes that the defendant appears to have experienced interpersonal difficulties: a neighbour assaulting him (December 2023), trying to throw a brick through his window (February 2024) and threatening him with a knife (March 2024), with Police seeking an AVO in the defendant’s favour in March 2024.

94. As noted at [55–56] above, the defendant is currently facing charges for failing to comply with obligations under the CPOR Act, allegedly committed whilst on parole.

95. The plaintiff submits that the defendant’s conduct whilst on parole demonstrates enduring cause for concern in relation to a number of areas of risk, and his ability to identify and manage them in the absence of supervision.

Sections 9(3)(h) and (h1): criminal history and any pattern of behaviour; views of the sentencing court

96. The defendant’s criminal history has been set out above in some detail. As to the views of the sentencing judges, I note the following.

97. In relation to the 1994 serious sex offending, Ducker DCJ noted that the offences are “a matter for very great concern”, that the audacity of the offending was “breathtaking” and the defendant’s behaviour was not only “serious criminal behaviour” but also “bizarre”. Judge Ducker stated, “So long as this prisoner is capable of acts of this nature, it is clear that he is a danger to the public, particularly to young children”. A finding of special circumstances was made in part to allow a longer period for supervision on parole.

98. In relation to the serious violence offending in 2006, Blackmore SC DCJ noted the consequences of the defendant’s actions could have been much more serious, and there was a degree of planning given he had apparently taken the iron bar to the gathering. The Judge stated that he had read a letter prepared by the defendant which made it clear that “he is angry about the conviction and [shows] no remorse whatsoever.” Further, his Honour noted, “essentially he claims that the victim asked for it by attacking him. That was the claim rejected by the jury […]”.

99. In sentencing the defendant for the index offending in 2015, Hanley SC DCJ took into account his difficult upbringing, his criminal record, the predatory (if opportunistic) nature of the offending, and his absence of remorse (noting the defendant appeared to hold the victim responsible in some way). Judge Hanley assessed the defendant’s likelihood of reoffending as high and his prospects of rehabilitation as very poor. He noted that the defendant had very little regard for those in authority, little insight into his need to address his propensity for committing sexual offences and no evidence of “any rehabilitation at all”.

100. When sentenced for the possession of child abuse material in custody in 2019, Arnott SC DCJ observed that “each story inappropriately sexualised young girls and suggested the children were sexually active and willing participants with adult men”. His Honour found that the defendant had demonstrated no contrition and remorse, and considered his prospects of rehabilitation and not reoffending to be poor. He noted the defendant had said to a police officer “who gives a fuck about writing about fucking little girls” and that he would “just write more [child abuse material]”.

Section 9(3)(i): other information as to the likelihood of further serious offence

101. It is appropriate to take into account criminal allegations in relation to which the defendant was acquitted on the question of unacceptable risk: State of New South Wales v Sleeman (Preliminary) [2018] NSWSC 562 at [14]. On 2 December 1999, the defendant was found not guilty of a charge of sexual intercourse without consent. The facts of this allegation resonate with the facts of the 2015 serious sex offending. A young woman (20 years old) had been drinking in Hyde Park in Sydney with a friend late one evening, and she later woke up with a bleeding anus at the defendant’s address.

102. On 7 November 2005, while subject to a good behaviour bond in relation to the assault of his niece, the police had knowledge that the defendant was loitering near SCEGGS school in Darlinghurst, and was charged with being a convicted child sexual offender loitering near a school. He was later acquitted. The police facts include that the defendant’s motorbike had a number of stickers attached to it including a woman in a bikini masturbating, and another one with the words “SCEGGS girls”. It was also noted that the defendant “continually tried to antagonise police while in custody and was threatening and intimidating towards police at times, in particular female officers”.

103. The defendant was also charged with assault occasioning actual bodily harm following allegations from his cellmate that on 1 June 2018 the defendant pulled his legs out from under him and punched and hit him 20–30 times. He was acquitted.

Consideration of question of satisfaction to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not under supervision

104. In the RAR, Ms Cieplucha notes the defendant’s Well Above Average risk range for sexual offending relative to other adult male sexual offenders and he has a high density of criminogenic needs. Despite completing a high intensity treatment program to address his sexual offending, he has continued to deny and minimise his sexual violence. Given his history of offending and outstanding criminogenic needs, she is of the view that it is possible he could commit a future serious sexual offence or a serious violence offence.

105. The plaintiff submits that the defendant’s criminal history is broad, including both serious sex and violence offending. The defendant has only been in community for less than two years between 2007 and late 2023. The plaintiff contends that the nature of the index offending (which also constitutes serious sex offending), together with the consistent results of various risk assessment tools, his ongoing hostility to women and a demonstrated problematic understanding of consent, is such that the defendant appears to present a high risk of committing further serious sex offences against both women and children.

106. As to the defendant’s apparent high risk of committing further serious sex offences against children, the plaintiff contends that the defendant has a persistent deviant sexual interest in children. The plaintiff points to the historical serious sex offending against a child, together with his more convictions relating to children in 2007 and 2016. Further, he has admitted to treatment providers as recently as 2023 that he “wouldn’t rule out” sexual thoughts about pre-pubescent children; in 2022 he explained to a cellmate the sexual acts he would like to perform on children; and in 2018 he expressed fantasies about buying lost little girls “who cannot find their daddies’.

107. The defendant submits that his risk is acceptable without any supervision order because of the following factors:

(a) He has been reliable, reporting weekly on parole since 27 October 2023; (b) Despite initial reluctance, he has been completing therapeutic programs since 14 June 2022, both whilst in custody and in the community, and has, in the last couple of years shown genuine engagement with therapy and progress, including using cognitive strategies to avoid problematic behaviour; (c) He has produced consistently negative drug tests on parole; (d) He now has independent and stable housing; (e) He has protective factors, namely, he is over 60, is supported by his brother, and is living a settled life caring for his mother; and (f) The obligations under the CPOR Act are working, and, in addition, the state could apply for a Child Protection Prohibition Order.

108. The defendant emphasised that there are two considerations about risk: the Court must consider both the likelihood of the offence being committed and the relative seriousness of the offending conduct. The defendant’s submissions acknowledge there is some risk of further offending, but the degree of current risk is reduced by his steps to address the context of his serious sex offending. The defendant pointed to the HISOP report which identified that the defendant’s two contact sex offences occurred in a context of drug and alcohol abuse, homelessness and an impulsive lifestyle. This can be contrasted with his more recent stable lifestyle that is clean from drugs and includes caring for his sick mother. Further, there have been no allegations of active sexual behaviour, and his compliance with parole and weekly FPS meetings indicates he is living a different life now to when he was committing serious offences in the past.

109. Although I note the matters referred to by the defendant, in my view the factors highlighted by the plaintiff are more significant. I especially note that the history of the defendant’s criminal offending shows a consistent theme of anger towards the victims, a minimisation of his conduct and problems with acceptance of authority. Whilst it is apparent there has been clear improvement in his engagement with therapy in the most recent reports from the FPS, as well as in some other contexts, and he has some important protective factors, I note that one of those protective factors is his elderly and frail mother. Clearly this important protective factor is not permanent. More importantly, the defendant has only recently started to show more consistent signs of engagement with therapy, and his improving attitude could not, on any view, yet be seen to be well embedded, especially considered in light of his extensive criminal history and significant period of incarceration. Nor does it appear that absent supervision he would necessarily engage in therapy at all.

110. I further note that the defendant still denies there was any lack of consent in the index offending, and that since the index offending, he has committed child abuse possession offences and is also facing charges for failure to comply with his obligations under the CPOR Act. Sexual regulation, sexual pre-occupation and sexual deviance remain key risk areas. The evidence shows that he continues to demonstrate a profound lack of insight into his risk factors or how to manage them, as indicated by his attendance at parks and areas likely to sell drugs and alcohol. The most recent allegations (if proved) involve the defendant “liking” a number of Facebook pages depicting images of young girls. In all of the circumstances, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious sex offence, if not under supervision, against either or both women and girls.

111. Accordingly, it is appropriate to order that expert reports be obtained. Noting the length of time it will take for the preparation of those reports, and that the defendant’s sentence expires on 14 March 2025, I am of the view, pursuant to s 10A of the Act, that the defendant’s current sentence will expire before these proceedings are finally determined. It is thus appropriate to make an order for the interim supervision of the defendant, subject to conditions.

Appropriate conditions

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

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

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

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

Submission that the conditions should mirror the defendant’s current parole conditions

115. I note that the primary position of the defendant was that the ISO should not be imposed. His secondary position was that, if imposed, the conditions should mirror his current parole conditions, with a clarified parks place restriction. The defendant submitted that his current parole conditions have already tested the appropriate balance to be struck between risk mitigation and onerousness. In the context of his childhood disadvantage, he contended it is likely that the conditions proposed by the plaintiff will trigger distrust in the system and be counter-productive in achieving the objects of the Act. Further, the defendant contended that there are effective alternatives to managing remaining risk. He pointed to the CPOR breaches, which show that regime is effective in protecting the community and there have been no other indications of problematic sexual behaviour or preoccupation by the defendant while in the community.

116. As submitted by the plaintiff, having found that the defendant presents an unacceptable risk in the absence of an order, my task is to determine the appropriate conditions to attach to the order with the purpose of diminishing the risk to an acceptable level. My task is not to determine whether the order should be more or less restrictive than the current parole order, but rather to mitigate risk to an acceptable level. Even though the defendant has exhibited, at the age of 61, some rigid or concrete thinking, he does not apparently suffer from any mental illness or cognitive impairment or other condition, such that he would have any particular difficulty in adjusting to an altered regime (cf State of New South Wales v CD (Preliminary) [2021] NSWSC 1396). Further, in my view, not all aspects of the risk presented by the defendant are fully addressed by the parole conditions.

117. I am of the view that it is appropriate to make specifically tailored conditions which address different aspects of the risk the defendant poses, many of which essentially align with the parole conditions, and some which do not.

Uncontentious conditions

118. Noting that the primary position of the defendant was that the ISO should not be imposed, and that the conditions, if imposed, should mirror the parole conditions, the defendant does not oppose the making of many of the proposed conditions, in particular conditions 1, 2, 3, 4, 5, 9, 15, 16, 19, 20, 21, 23, 24, 29, 30, 32, 35, 36, 37, 39, 41, 45, 46, 47, 48, 49, 52 and 53.

119. I note the plaintiff agreed to delete proposed conditions 22 and 51.

120. In addition, the defendant does not oppose the making of conditions 11, 25, 26, 28, 31, 33, 43, 44 and 50 in an agreed revised form.

121. Based on the material I have considered, and in accordance with the principles set out above, I am satisfied that those uncontentious conditions are appropriate.

Contentious proposed conditions

122. Some of the remaining proposed conditions are opposed entirely, some are opposed in part, or alternative wording is suggested. I will deal with each of the contentious proposed conditions in turn.

Proposed conditions 6–8: Scheduling conditions

123. The plaintiff initially proposed standard scheduling conditions 6 to 8, but modified the proposed wording after opposition from the defendant. In relation to proposed condition 6, it is now proposed, in recognition of the defendant’s recent positive progress on parole, that a schedule of movements may only be required if the defendant is charged with a sex or violence offence, is charged with an offence of breaching an ISO or has tested positive to using drugs or alcohol.

124. Condition 7 is in terms of requiring the defendant to seek approval about changing any schedule of movements 24 hours in advance unless a DSO approves a shorter period.

125. Condition 8 was originally proposed in terms that the defendant must not deviate from any schedule except in an emergency, but the plaintiff modified the proposed condition such that it would read: “You must not deviate from your schedule of movements except in an emergency which may include caring for your mother or the urgent toileting needs of your dogs.”

126. The defendant opposed any scheduling conditions because, it is contended, they set him up to fail. In response, the plaintiff emphasised that these conditions would only be enlivened in certain conditions of heightened risk, and their aim is squarely to encourage him to engage in prosocial activities during the day in circumstances where he is otherwise identified as being at an increased risk.

127. I am of the view that the conditions in their amended form, as proposed by the plaintiff, are appropriate and measured. I note that they would only come into effect in particular circumstances where his risk would be further elevated. Given the way they have been crafted, I do not accept that the defendant would be set up to fail. Rather, the conditions would assist in the mitigation of risk by encouraging prosocial activities. Accordingly, I impose conditions 6, 7 and 8 in the revised form proposed by the plaintiff.

Proposed conditions 10, 12, 13 and 14: Accommodation

128. Condition 10, in its alternative form as proposed by the plaintiff reads:

“Unless other arrangements are approved by a DSO, between 9:00pm and 6:00am, you must be at:

a. your approved address;

b. an alternative approved address;

c. in transit between approved addresses via the most direct route; or

d. attending to the urgent toileting needs of your dogs.”

129. In my view the problems identified by the defendant prior to the amended wording (of restricting pro-social activities such as caring for his mother, socialising with neighbours and attending to his dog’s needs) have been addressed by the amended wording. I will impose condition 10 in the above form.

130. The wording of proposed condition 12 has also been amended to appropriately address the defendant’s concerns, and reads as follows:

“You must not spend the night anywhere other than your approved address or any alternative proposed addresses without the approval of a DSO.

NOTE: Your mother’s address of [REDACTED] is an alternative approved address unless otherwise advised by your DSO.”

131. In my view, condition 12 should be imposed in that form.

132. Likewise, proposed conditions 13 and 14 were amended by the plaintiff to confine restrictions to any female visitor. In my view, in their amended form, they are appropriate to impose. They read as follows:

“[13.] You must promptly notify a DSO of any female visitor entering and remaining at your approved address.

[14.] You must not permit any female person to stay overnight at your approved address (other than persons who ordinarily reside there) without the prior approval of a DSO.”

Proposed conditions 17 and 18: Place and travel restrictions

133. In relation to proposed condition 17, there was ultimately very little disagreement, and the points of disagreement were the subject of sensible discussion. In my view, the final proposal resulted in a sensible balance between the legitimate needs of the defendant and appropriate mitigation of risk, and the final amended proposal should be imposed. It reads:

“Without limiting condition 16 above, you must request and receive approval of a DSO prior to going to any of the following places:

a. day-care centres, pre-schools and schools;

b. amusement parlours, amusement parks and theme parks;

c. cinemas;

d. libraries;

e. camping grounds and caravan parks;

f. [DELETED]

g. playing fields and sporting facilities;

h. activities intended for the entertainment of children;

i. residences where you know that persons aged under 18 years ordinarily reside;

j. internet cafes or other places which provide publica access to devices connected to the internet either for payment or for no charge (other than employment agencies); and

k. parks during the hours of 3pm and 9am, parks with children’s playgrounds and Hyde Park specifically.

Notation: The dog park next to Waterloo Oval is an approved location between 6am and 9pm unless a DSO specifies otherwise.”

134. I now turn to proposed condition 18, which reads:

“You must request and receive approval prior to attending any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment.”

135. This condition was opposed by the defendant on the basis that there is no evidence he wishes to attend sexual services, and in any event, seeking to restrict his access to safe and lawful sexual outlets is not supported by the evidence and could be counterproductive.

136. The plaintiff contended that the condition permits a DSO to monitor the defendant’s level of sexual preoccupation, being a risk factor of clinical significance.

137. Whilst I agree that the evidence indicates that sexual preoccupation is a risk factor of clinical significance, I am not of the view that the risk needs to be monitored in such an invasive way. Rather, in my opinion, it could be monitored sufficiently by requiring the defendant to notify the DSO after attending any such place. Accordingly, I will impose condition 18 but in an amended form as follows:

“You must notify a DSO after you attend any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment.”

Proposed condition 27

138. The plaintiff proposed a condition that the defendant must not engage the services of sex workers without the prior approval of a DSO. The alternative proposed by the defendant is in the following terms:

“You must notify your DSO after you engage the services of a sex worker.”

139. As for condition 18, I am of the view that the plaintiff’s proposal is unnecessarily invasive. The risk factor can adequately be monitored by requiring the defendant to notify a DSO following any relevant engagement. Accordingly, I impose condition 18 in the form proposed by the defendant.

Proposed conditions 34 and 38: Access to the internet and other electronic communication

140. The plaintiff proposed condition 34 to read as follows:

“You must not use any of the following unless approved by a DSO:

a. social networking applications or services (including dating services or applications);

b. encrypted messaging applications or services;

c. online gaming applications or services;

d. instant messaging applications or services.”

141. The defendant proposed an amended version which only included “b” above, contending that condition 33 is otherwise sufficient to mitigate the risk.

142. Given the pending charges faced by the defendant, I am not of the view that condition 33 is otherwise sufficient to mitigate the risk. The pending charges allege breaches of his obligations under the CPOR Act, through the use of social networking applications to ‘like’ pages depicting images of young females. In my opinion, the ability of a DSO to closely monitor the defendant’s use of such applications and services is directly relevant to the mitigation of his risk and condition 34 should be imposed in the form sought by the plaintiff.

143. As to proposed condition 38, which provides that the defendant must not delete or alter certain itemised material from his electronic devices, in my view the amended condition proposed by the plaintiff addresses the defendant’s concern that he does not wish to get into trouble for deleting his dashcam and bodycam which he uses to protect himself (to free up storage space).

144. Accordingly, I will impose the following amended condition as proposed by the plaintiff:

“You must not delete or alter any of the following from your electronic devices without prior approval of a DSO:

a. applications;

b. emails;

c. text messages;

d. electronic messages;

e. call history;

f. files or documents;

g. photographs, images and videos; or

h. internet or application usage and search history.

Notation: This condition does not apply to your personal dashcam or bodycam.”

Proposed condition 40: Search and seizure

145. The final wording of this proposed condition was ultimately agreed, except for one minor matter which is of no moment, and ensures consistency. Accordingly, I will make condition 40 as follows:

“You must submit to the search by a DSO (or any other person as directed by the DSO) of your person or residence, or any vehicle which is under your control, or any item, computer, electronic or communication device, storage facility, garage, locker or commercial facility in your possession or under your control; and to the seizure of any object located during the search. A DSO must only give such a direction if they reasonably believe that the search is necessary:

a. To monitor your compliance with this order; or

b. Because a DSO reasonably suspects you of behaviour or conduct associated with risk of you committing a serious offence.”

Proposed condition 42: Access to pornographic, violent and classified material

146. The plaintiff proposed a condition which would require the defendant to obtain approval from a DSO prior to purchasing, possessing, obtaining, viewing, participating in or listening to certain classified material. The defendant opposed the making of this condition on the basis that there is no evidence indicating the defendant has any current desire to access such material.

147. The plaintiff contends that such a condition facilitates the monitoring of the defendant’s sexual preoccupation without prohibiting the use of adult pornography. I am of the view that monitoring of this material is appropriate, but again that it is overly invasive to require the defendant to request and obtain prior approval.

148. Whilst Condition 37 together with Condition 40 would give a DSO some means of monitoring this activity, in my view it is also appropriate to have an additional condition which requires the defendant to inform the DSO about his interaction with such material which will further assist in monitoring. Accordingly, I am of the view that it is appropriate to make the following condition as condition 42:

“You must notify a DSO after you have purchased, possessed, accessed, obtained, viewed, participated in or listened to material classified as X18+ Restricted, Category 1 Restricted and Category 2 Restricted as defined under the Classification (Publications, Films and Computer Games) Act 1995 (Cth), or any other material as directed by a DSO with respect to concerns relating to risk of committing a serious offence.”

149. Otherwise, I impose the conditions as ultimately sought and not opposed by the defendant. The conditions I impose are in the annexure to this decision.

Orders

150. Accordingly, I make the following orders:

151. Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW), the Court:

(a) Appoints two qualified psychiatrists, two 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 of New South Wales on the results of those examinations by a date to be fixed by the Court; and (b) Directs the defendant to attend those examinations.

2. Pursuant to ss 10A and 10C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is subject to an Interim Supervision Order commencing on 14 March 2025 for a period of 28 days, known as the "Interim Supervision Order".
3. Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is, for the period of the Interim Supervision Order, to comply with the conditions set out in the Schedule of Conditions of Supervision.
4. Access to the file of the Supreme Court of New South Wales in respect of any document shall not be granted to a non-party without the leave of a Judge of the Court and 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.

Annexure - Schedule of Conditions of Supervision (50159, docx)

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Endnotes

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

Kaiser at [77] (Simpson AJA).