State of New South Wales v Single (Final)

Catchwords: HIGH RISK OFFENDER — final hearing — serious sex offender — application for Extended Supervision Order — whether there is 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 — application dismissed

Legislation Cited: Child Protection (Offenders Registration) Act 2000 (NSW), ss 16C, 16D and 17
Crimes Act 1914 (Cth)
Crimes Act 1900 (NSW), Division 10 of Part 3 and s 91H
Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 4, 5, 5B, 5D 7, 9, 10A and 12
Criminal Code Act 1995 (Cth), ss 474.22, 474.22A, 474.25B and 474.26

Cases Cited: Attorney General for New South Wales v Tillman [2007] NSWCA 119
Cornwall v Attorney General for New South Wales [2007] NSWCA 374
Kamm v State of New South Wales (No 4) (2017) 95 NSWLR 179; [2017] NSWCA 189
State of New South Wales v Barrie (Second Final) [2019] NSWSC 1161
State of New South Wales v O’Hara (Final) [2024] NSWSC 225
State of New South Wales v Richardson (Final) [2020] NSWSC 1809
State of New South Wales v Single (Preliminary) (Supreme Court (NSW), Fagan J, 13 November 2025, unrep)
State of New South Wales v Single [2019] NSWSC 176

Category: Principal judgment

Parties: State of New South Wales (Plaintiff)
Steven Single (Defendant)

Representation: Counsel:
A Burkitt (Plaintiff)
S McGee (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Manio Solicitors (Defendant)

File Number(s): 2025/307652

Publication restriction: Nil

JUDGMENT

1. By summons filed on 11 August 2025 the plaintiff seeks an order that the defendant, Steven Single, be subject to an extended supervision order (“ESO”) for a period of three years pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”).

2. On 13 November 2025 a preliminary hearing took place before Fagan J. [1] Orders were made facilitating the proceedings towards a final hearing, notwithstanding that his Honour expressed considerable reservations as to whether the plaintiff would succeed in its application. Ultimately, his Honour made such orders in light of the risk that, at a final hearing, it would be open to the Judge to be satisfied of the unacceptable risk test, to the necessary standard, once the issues have been fully explored.

3. Since 25 November 2025 the defendant has been subject to an interim supervision order (“ISO”) under s 10A of the Act which has been extended from time to time until 17 February 2026.

4. The defendant opposes the making of an ESO. For the purpose of this final hearing, the critical issue for determination is whether 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 contemplated ESO. Should an ESO be made in favour of the plaintiff, the only proposed condition opposed by the defendant relates to the use of electronic monitoring.

5. In any event, I am not satisfied that an ESO should be made. For the reasons outlined throughout this judgment, I have found that although there may be an elevated risk of the defendant committing certain offences of a sexual nature if not kept under supervision, I am not satisfied to the requisite standard that he poses an unacceptable risk of committing another serious offence, as defined in the Act, if not kept under supervision.

The defendant’s background and criminal history

6. The defendant’s background and criminal history are set out in the parties’ joint statement of agreed facts (“Agreed Facts”). The following paragraphs within this section are not intended to be as comprehensive as that document.

7. The defendant is a 55-year-old male. He is single, has no dependents and is unemployed. For a significant period of time now, the defendant’s physical health has been compromised by complex medical needs. These needs, which include major kidney disease, chronic heart disease and mobility issues, require the ongoing attention of his general practitioner and various specialists. He takes a long list of prescribed medications. He receives the disability support pension, and while he retains the support of his parents, he resides in private boarding house accommodation in Sydney.

8. Relevantly for these proceedings, the defendant has a history of sexual offending, including being convicted of a “serious sex offence” as defined in s 5 of the Act. His criminal history shows that he has committed various sex offences – both of a contact and non-contact nature – against children.

9. In 1999 he was convicted of numerous sex offences against two young, male victims including offences of having homosexual intercourse with a male aged between 10 and 18. This offending occurred in 1990, 1994 and 1995. Relevantly, the defendant initially came to the attention of police after he disclosed details of his offending to an undercover police officer on-line. He was sentenced to a term of imprisonment and, as observed by Hamill J in prior proceedings concerning this same defendant, the offences “constituted criminality of a very high order”. [2]

The index offence and related offences

10. In 2013 the defendant was again convicted of sex offences committed against children, including for the index offence, being an offence of using a carriage service to procure a child under 16 years of age to engage in sexual activity contrary to s 474.26(1) of the Criminal Code Act 1995 (Cth). For this, being a “serious sex offence” within the meaning of the Act by reference to s 5(1)(b5), the defendant was sentenced to a total of six years imprisonment with a total non-parole period of three years and six months.

11. At the same time, the defendant was convicted of and sentenced for possessing child abuse material contrary to s 91H(2) of the Crimes Act 1900 (NSW). An additional charge of failing to comply with reporting obligations contrary to s 17(1) of the Child Protection (Offenders Registration) Act 2000 (NSW) (“the CPOR Act”) was taken into account in sentencing.

Circumstances of the index offence

12. In considering the circumstances giving rise to the index offence, it is clear that the defendant was again the subject of a covert police operation. Specifically, Bennett SC DCJ found that investigators attached to NSW Police received information from Queensland Police that the defendant was utilising the internet for accessing child abuse material. Consequently, investigators assumed the on-line identity of a fictitious 14-year-old boy who engaged with the defendant via Facebook, on-line chat Windows Live Messenger and email. The defendant, who was 42 years of age at the time, engaged in sexual communications with the assumed identity over the course of nearly a month which ultimately led to his arrest when he attempted to meet the assumed identity at a pre-arranged location.

13. While the circumstances surrounding the index offence are similar to the 1999 offences, they did not involve physical contact with a child.

The previous ESO and subsequent offending

14. In 2018 the State of New South Wales successfully sought an order that the defendant be subject to an ESO which was made by Hamill J on 1 March 2019 for a period of three years commencing from 5 March 2019. The defendant failed to comply with that ESO and, in 2021, he was sentenced in the Local Court to an aggregate term of imprisonment of 12 months with a non-parole period of 9 months. The breaches arose in circumstances where the defendant had accessed on-line websites hosting pornography and had also used his mother’s alias to access Facebook.

15. The defendant committed further offences in 2022 and was sentenced in the District Court on 24 May 2024 for possessing child abuse material contrary to s 474.22A(1) of the Criminal Code Act and for a breach of his ESO contrary to s 12 of the Act. In relation to the Commonwealth offence, the defendant was found to have downloaded films onto his laptop depicting nude, pre-pubescent boys. He was sentenced to a term of imprisonment of three years, partially suspended upon his entry into a recognizance release order (RRO) under the Crimes Act 1914 (Cth).

16. A further offence, of using a carriage service to access child abuse material contrary to s 474.22(1) of the Criminal Code Act, was taken into account in sentencing. To put those facts succinctly, police identified that the defendant had accessed on-line websites containing encrypted films with scenes of pubescent boys. Based on Pickering DCJ’s assessment during sentencing, this was “lower end material”. [3]

The relevant background to these proceedings

17. Since the defendant’s release from custody on 25 May 2024, he has not committed any further offences. The previous ESO made by Hamill J expired on 24 September 2024 and the RRO expired on 25 November 2025.

18. As previously noted, the preliminary hearing occurred on 13 November 2025. Based on Fagan J’s consideration of the evidence that was available at that time, his Honour observed that: [4]

“… the only type of sexual offending that has an elevate likelihood of taking place would be possessing of child abuse material obtained over the internet, which is not serious sexual offending within the meaning of the Act. There may remain some low level of risk of the further commission of a procuring offence, such as that of which he was convicted in 2012, and that, of course, would constitute serious sexual offending. From the terms of the provisions of the Act that I have already quoted, it is evident that the risk with which the Court is concerned is the risk of the further commission of serious sex offending as defined.”

19. Despite reservations, his Honour made orders for the appointment of experts pursuant to s 7(4) of the Act and for an ISO to commence from 25 November 2025. [5]

20. On 16 December 2025, Yehia J made an order renewing the ISO from 23 December 2025 for a period of 28 days. On 16 January 2026, Lonergan J made an order renewing the ISO from 20 January 2026 for a period of 28 days. Those orders have ultimately carried the ISO through to, and beyond, the final hearing.

21. But for that ISO, the plaintiff has been free of any order since 25 November 2025 when the RRO expired.

22. As a result of Fagan J’s orders, I have had the benefit of expert reports from Dr Jeremy O’Dea dated 26 January 2026 and 3 February 2026 (“the O’Dea Reports”) and Dr Michael Davis dated 19 January 2026 (“the Davis Report”). That expert evidence has been an important – though not exclusive – focus of the determinative issue in these proceedings.

The determinative issue

23. Ms Burkitt of counsel appeared for the plaintiff and Ms McGee of counsel appeared for the defendant. From their helpful oral and written submissions, it is clear that the principal determinative issue arises under s 5B(d), namely, whether on the facts:

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.

24. Should that issue be resolved in the plaintiff’s favour, there would be a need to impose appropriate conditions as part of the order. However, no such need arises. For the reasons that follow, I am not 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 proposed order.

Statutory framework

25. The Act’s primary object, as set out in s 3(1), 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. The secondary object, as set out in s 3(2), is to encourage high risk-sex offenders and high-risk violent offenders to undertake rehabilitation. These proceedings are concerned only with the Act’s application to high risk sex offenders, not high risk violent offenders.

26. These objects are protective, not punitive. [6]

27. Section 5B of the Act provides when the Court may make an ESO. The whole of that provision is as follows:

The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if—

(a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and (b) the person is a supervised offender (within the meaning of section 5I), and (c) an application for the order is made in accordance with section 5I, and (d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.

28. Other than the issue of unacceptable risk within s 5B(d), I find that the preconditions to the making of an ESO are met. Both parties agree.

29. In s 4 of the Act, a “serious offence” is defined to mean a serious sex offence. A “serious sex offence” is defined by s 5 of the Act, which identifies various offences. This includes, for example, offences punishable by imprisonment for seven years or more under Division 10 of Part 3 of the Crimes Act (s 5(1)(a)(i)) and procurement offences contrary to ss 474.25B and 474.26 of the Criminal Code Act (s 5(1)(b5)).

30. Certain sex offences, such as possessing child abuse material, are not within the meaning of a “serious sex offence”, as it is defined in s 5(1) of the Act, and by extension, nor are they within the meaning of a “serious offence”.

31. Section 5B(d) provides that I must 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 under an order. In Cornwall v Attorney General for New South Wales, the Court of Appeal observed: [7]

“… The expression ‘a high degree of probability’ indicates something ‘beyond more probably than not’; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt…”

32. The meaning of “unacceptable risk” is not defined in the Act, but it has been widely discussed. Firstly though, s 5D expands upon the concept of “unacceptable risk” by providing that:

… 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.

33. In State of New South Wales v O*’**Hara (Final)*, Chen J summarised the concept of “unacceptable risk” in the following terms: [8]

“Unacceptable risk

…

34 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 v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA (‘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]; [State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041] at [16]; State of New South Wales v Devaney (Final) [2022] NSWSC 60 at [73].”

34. Section 9(1) of the Act empowers the Court to either make an ESO or dismiss an application for one. When making that determination, the “safety of the community” is the paramount consideration, as set out in s 9(2). Further, the Court must also take into account the matters in s 9(3), but it is not to consider any intention of the defendant to leave New South Wales (s 9(4)). I have turned to those matters in s 9(3) in the immediately following section.

Section 9(3) matters

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

35. Following the orders made by Fagan J in Single No 1, the defendant was assessed by Dr Jeremy O’Dea and Dr Michael Davis. Both the O’Dea Reports and the Davis Report have been helpfully summarised by the parties in the Agreed Facts.

The O’Dea Reports

36. Dr O’Dea is a forensic psychiatrist who prepared two reports pursuant to s 7(4) of the Act. The second report, dated 3 February 2026, was provided by way of supplementation to the first report, dated 26 January 2026. Dr O’Dea noted, relevantly, that the defendant participated in his examination calmly and cooperatively.

37. While Dr O’Dea did not diagnose the defendant as suffering from a major psychiatric illness independent of his sexual orientation, associated sexuality and sex offending behaviours, he opined that the defendant would satisfy the psychiatric diagnostic criteria for a paraphilic disorder as well as homosexual hebephilia. Beyond this point, the two experts’ opinions show little alignment.

38. Dr O’Dea proceeded to opine that the defendant has a significant risk of engaging in further sex offending behaviours including committing a further serious sex offence within the meaning of the Act. That conclusion was very substantially premised upon two factors, namely, the defendant’s history of repeated sex offending against male children and his significant sexual deviance. These factors, according to Dr O’Dea, are the best predictors of future sex offending.

39. To manage the defendant’s risks of reoffending, Dr O’Dea recommended a psychiatric treatment and risk management program of at least three years in duration. While this was described relatively broadly, Dr O’Dea noted that a central component of such a program would be the long-term prescription of anti-libidinal medication.

40. While Dr O’Dea acknowledged that the defendant’s chronic and significant general medical conditions would likely have an increasingly negative impact on his overall wellbeing, sexual drive and sexual functioning, the assessment of risk did not change. Indeed, Dr O’Dea concluded that the defendant’s risk is at this stage unable to be managed without supervision under an ESO.

41. Finally, Dr O’Dea did not utilise or rely on actuarial risk assessment tools for the purpose of examining the defendant. He detailed the basis for this in his first report dated 26 January 2026.

The Davis Report

42. Dr Davis is a consultant forensic clinical psychologist who prepared a report pursuant to s 7(4) of the Act on 19 January 2026. Dr Davis observed that the defendant was cheerful and cooperative.

43. Dr Davis opined that the defendant does not meet the criteria for a major mental illness. However, he did consider that the defendant meets the criteria for diagnoses of hebephilia and mixed personality disorder (with schizoid and narcissistic features). As noted earlier, there is little alignment between the two experts beyond this point. Dr Davis stated that these diagnoses are chronic and pervasive, meaning it is unlikely that the defendant’s sexual preferences for pubescent boys will ameliorate to any appreciable degree.

44. Dr Davis concluded that the defendant’s risk falls into the following categories: first, a low risk of committing further contact sexual offences; second, a low to moderate risk of committing further on-line solicitation or procurement offences; and third, a high risk of committing further child abuse material offences.

45. It is appropriate at this point to observe that the Court is concerned with the risk of the commission of a further “serious offence”, by reference to its definition in ss 4 and 5(1) of the Act.

46. Dr Davis based his opinions as to risk on a number of factors. These included a “comprehensive consideration of relevant risk factors”, his age, the passage of time since he has committed either a contact or an on-line solicitation or procurement type offence, his deteriorating physical health, the de-escalation of his offending and the time he has spent in the community without further offending.

47. In respect of treatment, Dr Davis was not convinced that it would have an appreciable effect on the defendant’s underlying risk factors. He considered that treatment is not necessary due to the defendant’s low risk for further contact offending and low to moderate risk for on-line procurement or solicitation offending.

48. In contrast to Dr O’Dea’s approach, Dr Davis utilised a variety of risk assessment tools to inform his findings.

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)

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

49. It is convenient to deal with both ss 9(3)(c) and 9(3)(d) together, as the plaintiff has done in its written submissions.

50. The most recent dedicated risk assessment report was prepared by Holly Cieplucha and Dr Richard Parker dated 8 June 2022 and a supplementary report dated 25 October 2024. The plaintiff summarised these reports within its written submissions for the preliminary hearing, and for the purpose of this final hearing, the plaintiff has placed reliance on those submissions.

51. I find it difficult to accept that the risk assessments in those reports adequately account for the defendant’s dynamic risk factors. In this respect, I share the same concerns that were expressed by Fagan J in the preliminary hearing, as below: [9]

“… In my view, those risk assessments, so far as it is sought to apply them to the present situation, do not sufficiently take account of developments. They do not adequately recognise that the defendant’s only contact sexual offences were committed more than 30 years ago. They do not take into account that the only attempted procurement-type sexual offence occurred approximately 14 years ago. The summations do not, in my view, adequately recognise that the prospect of actual sexual contact offending or of successfully procuring any face-to-face encounter has significantly reduced in consequence of the defendant’s markedly declining health, his isolation, his lack of mobility, his lack of employment and his advancing age…”.

52. Further, the plaintiff made reference in its written submissions to the O’Dea Reports and the Davis Report within the context of these ss 9(3)(c) and 9(3)(d) matters. Those expert reports have already been addressed elsewhere throughout these reasons, such as under the consideration of s 9(3)(b) immediately above.

53. Whilst the plaintiff has not directed attention in its written submissions to additional material under ss 9(3)(c) and 9(3)(d), I have nonetheless had regard to other reports identified by the parties in the Agreed Facts. These reports are addressed as follows.

54. First, an ESO completion report was produced on 24 January 2022. This concluded that the defendant was a “well above average” risk of sexual reoffending. Whilst it was recognised that there was little evidence to suggest meaningful change occurred over the duration of the ESO, it was also observed that the defendant did not engage in further sexual offending and his behaviour did not approach the definition of serious offending under the Act.

55. Second, experts were appointed in proceedings relating to the defendant’s previous ESO from 2019: Dr Richard Furst (psychiatrist) and Dr Miriam Wyzeenbek (psychologist). I will not set out the contents of those reports in great detail here, especially because the parties helpfully summarised them in the Agreed Facts already. Neither expert raised an issue with respect to the defendant’s conduct throughout their assessments. Indeed, the defendant appeared to have engaged positively. But both experts did opine the defendant was well above average in terms of his risk of sexual reoffending.

56. Additionally, two experts, including Dr O’Dea, prepared reports in 1998. Dr Bruce Westmore (psychiatrist) produced a report dated 8 October 1998 and Dr O’Dea produced a report dated 15 December 1998. Because such a significant amount of time has passed since those reports were prepared, I have placed limited weight on these experts’ findings.

Any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community: s 9(3)(d1)

57. A risk management report was prepared by Community Corrections Officer, Ms Slattery-McDonald, dated 5 August 2022. The defendant was assessed as being a medium risk of reoffending generally and a “well above average” risk of sexual reoffending. Ms Slattery-McDonald identified a number of risk factors, such as the defendant’s deviant sexual interest, which ultimately formed the basis of her recommended conditions in support of a risk management plan.

58. The Agreed Facts, and the plaintiff’s written submissions, make reference to a supplementary risk management plan provided by the team leader of the Metropolitan ESO Team of Correctives NSW, which is dated 15 November 2024. It was considered at the time necessary and appropriate for the defendant to be managed in the community by a supervision plan, which is expanded upon within the contents of that document.

Any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender’s participation in any such programs: s 9(3)(e)

59. The defendant has not demonstrated a considerable willingness to participate in treatment or rehabilitation programs. For example, the defendant’s engagement in a Custody-Based Intensive Treatment Program between 2016 and 2017 was problematic, and since then, he has not appeared to participate in other programs constructively.

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: s 9(3)(e1)

60. I have considered the CPOR Act elsewhere throughout these reasons.

61. Briefly, I note that pursuant to s 14A(1)(c)(i) of the CPOR Act, the defendant must continue to comply with reporting obligations for the remainder of his life. While those obligations are for present purposes suspended due to the operative ISO, the defendant would need to again comply with those obligations should the plaintiff’s application be dismissed.

62. The CPOR Act is relevant to these proceedings because, in determining whether I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence, I must consider the circumstances that apply to the defendant or that would apply to the defendant if an ESO were not made. [10] It follows, for this final hearing, the CPOR Act is relevant to the assessment of unacceptability of risk. [11]

The likelihood that the offender will comply with the obligations of an extended supervision order: s 9(3)(e2)

Without limiting paragraph (e2), the level of the offender’s compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order: s 9(3)(f)

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)

63. It is convenient to deal with all of ss 9(3)(e2), 9(3)(f) and 9(3)(g) together, as the plaintiff has done in its written submissions.

64. As noted already, the defendant failed to comply with his previous ESO in 2021 and 2022. Specifically, there were three breaches in 2021 and there was one breach in 2022. The defendant has also previously been convicted of failing to comply with his obligations under the CPOR Act.

65. The plaintiff submitted that the defendant’s history of non-compliance with his ESO and reporting obligations weigh in favour of the making of an ESO. On the other hand, the plaintiff conceded that there is no evidence of the defendant failing to comply with parole obligations, which weighs in the defendant’s favour.

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)

66. I have addressed the defendant’s offending history earlier in these reasons: see “The defendant’s background and criminal history” above.

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

67. For the 1999 offences, the defendant was sentenced by Keleman DCJ. I have not been provided a copy of his Honour’s sentencing remarks.

68. For the 2013 offences, the defendant was sentenced by Bennett SC DCJ. The plaintiff’s written submissions focus on specific remarks of his Honour. [12] In terms of objective seriousness, the index offence (being the procurement offence) was determined to fall above the middle range and the related possession offence was determined to be around the middle range. [13]

69. For the most recent offending, the defendant was sentenced by Pickering SC DCJ. The plaintiff’s written submissions again focus on specific remarks made by his Honour. [14] From these sentencing remarks, it is evident that both offences, being the breach of his ESO contrary to the Act, and the possession of child abuse material contrary to s 474.22A(1) of the Criminal Code Act, were not overly serious. Specifically, the Commonwealth offences were described as “truly at the lowest end of offending”. [15]

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

70. Neither party drew attention to any other matter under this section.

The risk is not unacceptable

71. I must determine, based on the evidence, whether I am satisfied to a high degree of probability that the risk of the defendant committing another serious offence, if not kept under an ESO, is unacceptable.

72. Having regard to the factors in s 9(3) and keeping the safety of the community firmly in mind as my paramount consideration as required by s 9(2), I am not satisfied to the requisite standard that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO (s 5B(d)).

73. I am particularly mindful of the following matters.

74. First, I find that the seriousness of the defendant’s offending has followed a pattern of de-escalation, and accordingly, his risk trajectory has favourably altered overtime. To this end I accept Dr Davis’ following opinion: [16]

“… It is my opinion that [the defendant’s] history of sexual offending behaviour reflects the aforementioned de-escalation pattern. Indeed, without minimising his offending in any way, the trajectory of offence behaviour is becoming less serious over time…”

75. This pattern of de-escalation is a significant factual foundation of my finding that the defendant’s risk trajectory has reduced overtime. This de-escalation has occurred in the context and presence of other dynamic factors which have reduced the likelihood of serious offending.

76. The fact of the defendant’s pattern of de-escalation was not challenged in the course of oral evidence at the final hearing. In fact, Dr O’Dea said: [17]

“… certainly in [the defendant’s case] it could be argued that there’s been a de-escalation in the severity of his offending against male children…”.

77. However, Dr O’Dea expressed reservation about the degree to which that pattern of de-escalation ameliorates the defendant’s risk of reoffending. In this regard, he went on to give the following oral evidence: [18]

“… The problem is, I think, in terms of relying on that de-escalation as a risk amelioration, is the fact that the second set of offences when he was in his early [40s] was something in which he was essentially, as I understand it from the agreed facts, where he was progressing on to, in his mind, a contact offence, by going and meeting somebody, as I understand, whom he thought would be a 14-year-old boy. And the other issue is that, of course, subsequent to that, and with the re-offending in… [2021 to 2022], of course he was on, as I understand it, at that stage an ESO so he was under significant supervision. And, you know, availability is something that needs to be consideration in that situation. And he’s still, I guess, expressing his primary risk factor, which is his sexual orientation towards male children, through the Internet…”.

78. In other words, Dr O’Dea has premised his opinions as to the amelioration of risk on the fact that, despite a pattern of de-escalation, the defendant still attempted to contact offend (in respect of the index offence), he was under strict supervision at the time of his subsequent offending (between 2021 and 2022) and his sexual preference remains directed towards male children including over the Internet.

79. I have difficulty in accepting that those facts require the making of the order sought. First, in my assessment, Dr O’Dea gave insufficient weight to the significant passage of time since the commission of the index and related offences. Second, it is significant that there is no evidence of offending since 2022 (for which the defendant was sentenced in 2024). Third, while I accept that the defendant’s continued sexual preference for pubescent males establishes a risk of offending, the combination of other dynamic factors very substantially ameliorates that risk. Factors such as the defendant’s age, his deteriorating physical health, his significantly reduced libido, his limited access to technology and his restricted social circle, which is essentially confined to his aged parents, all operate together to make it unlikely that he would commit a further “contact offence” – including an on-line grooming or solicitation offence.

80. These dynamic factors informed Dr Davis’ assessment and ultimate conclusion as to risk. That is, in Dr Davis’ “cautious and conservative” [19] opinion, the defendant poses: a low risk of committing further contact offending; a low to moderate risk of committing further procurement or solicitation type offending; and a high risk of committing further child abuse material offending. Meanwhile Dr O’Dea very substantially premised his conclusion upon two factors: the defendant’s history of sex offending and his significant sexual deviance. That was said to give rise to a significant risk of the defendant engaging in further sex offending behaviours in the community long-term, including of committing a further serious sex offence as defined in the Act.

81. While Dr O’Dea accepted that, compared to other offences, the defendant carries a greater risk of further child abuse material offending due to environmental factors such as the Internet, he was unable to convincingly distinguish between the extent of those risks, either quantitatively or quantitatively.

82. As previously noted, Dr O’Dea’s assessments were almost entirely based on the defendant’s history of sexual offending and his significant sexual deviance. In my view, Dr O’Dea did not appropriately factor the defendant’s dynamic circumstances into his assessment, even where he conceded that those factors, including the defendant’s pattern of offending and his deteriorating health, may be relevant. Dr O’Dea was not able to adequately distinguish between the defendant’s risk of committing further sex offences and further serious sex offences. On the other hand, I found Dr Davis’ opinions to be persuasive. In my view he gave appropriate weight to the significance of the defendant’s dynamic risk factors including his age, de-escalation of offending, deteriorating physical health and the time he has spent in the community without further offending. I accept that these factors, not in isolation but together, significantly ameliorate the defendant’s risk profile.

83. Second, the defendant has consistently claimed that he has long lost interest in sex. He claims to have both erectile and ejaculatory dysfunction. I accept these claims. They are consistent with the serious physical health conditions he suffers and, although at 55 years of age, he is not yet at the usual chronological point of being well past interest in sexual activity, his kidney disease, his heart condition and his reduced mobility all suggest that his level of libido is very much reduced. I also accept Dr Davis’ analysis that his answers to the various questionnaires suggest no dissembling. Rather, his frank acknowledgement of his hebephiliac orientation and his descriptions of his previous sexual encounters suggest that his claims of low to non-existent sexual interest should be regarded as reliable. I accept that it is likely that the defendant has a very diminished interest in sexual activity and is currently not physically engaging in sexual activity with anyone – or attempting to do so.

84. Third, for some years now the defendant has not owned a computer or kept one at his residence. He has one mobile telephone. His only enduring social connections are with his aged parents, both of whom have significant age-related health issues. He has very limited opportunities to mix with children or young people.

85. Fourth, the defendant has shown some increased level of insight into the consequences of his actions in contacting and attempting to contact victims for sexual activity. This insight has probably been arrived at in part because he has learnt of the risks of discovery – particularly through police entrapment techniques.

86. In considering the likelihood of him engaging with someone he believes to be a juvenile on-line with the intention of actually meeting them for sexual activity, he is now likely to be more wary about engaging in that type of conduct because of the risks of discovery. I accept Dr O’Dea’s evidence about the power of sexual desire to overcome such considerations, but his current sexual desire is not intense.

87. Fifth, whilst there is an elevated risk of the defendant accessing child abuse material, the evidence does not allow a conclusion that such conduct would – or would even be likely to – escalate into actual contact or even attempts to make contact with a person in the pubescent band youth category for the purposes of sexual activity.

88. In considering an alternative intervention(s), whilst the CPOR Act obligations are probably not as strict as the proposed ESO intervention, they do allow police considerable powers to search the defendant’s premises and to interrogate his devices. The defendant’s submissions on this point were persuasive.

89. Under s 16D of the CPOR Act, there can be twice yearly searches, and further searches are open where approval is given by a police officer who—

(a) holds the rank of superintended or above, and

(b) has a reasonable suspicion the registrable person has committed an offence under this Act.

90. Given the extent of the powers to search under s 16C of the CPOR Act, which include the power to enter and inspect residential premises and vehicles to verify relevant personal information reported to the police by the defendant and to determine if the defendant is complying with the requirements of the Act, any search under s 16C is highly likely to detect evidence of any access the defendant has to chat rooms, internet sites and other social media-based platforms not disclosed previously.

91. The defendant has a duty to tell the truth about whether he has had contact with children and about his use of internet accounts. If police suspect he has not told the truth, a search would be open and such a search would be likely to identify any illegal use of the devices in his possession. The pattern of any such searches and even the defendant’s awareness of their potential are likely to act as significant disincentive to the defendant if he was to consider engaging in any illegal on-line sexual activity.

92. In fact the pattern of his exposure to searches between his release from custody on 25 May 2024 and the expiration of the previous ESO on 24 September 2024 is likely to continue even if the sought ESO is not made. After his release from custody in May 2024 there was a search on 27 August 2024 and another search on 3 September 2024. Irrespective of whether an ESO is made, sections 16C and 16D of the CPOR Act enable police to conduct searches at a comparable frequency.

93. In my view, the risk of any serious sex offence is capable of being mitigated by the existing CPOR Act scheme of supervision.

94. There is very little risk of a serious contact style offence being committed in the future and it is certainly not an unacceptable risk that would justify an order.

95. There is some risk that I would regard as low to moderate that, without any supervised regime, the defendant would become involved in on-line activity constituting an offence under ss 474.25B or 474.26 of the Criminal Code Act. Given the defendant’s history of offending, there will always realistically be some risk of further similar offending. In Barrie, [20] it was recognised that some degree of risk from individuals who have seriously offended in the past is inescapable and the public accepts this. The question to be answered here is not whether all risks can be eliminated. But such risk that continues here can, in my opinion, be adequately guarded against because of the CPOR Act scheme.

96. There is a higher risk that the defendant would commit offences involving the use or possession of child abuse material, but that does not constitute serious sex offending as it defined by the Act.

97. For these reasons I am not satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious sexual offence if he is not kept under supervision under the order sought.

Orders

98. The following orders will be entered:

99. The summons is dismissed.

100. Order 2 made by Fagan J on 13 November 2025 that the defendant be subject to an interim supervision order from 25 November 2025, as extended from 23 December 2025 and 20 January 2026, is discharged forthwith.

101. Access to the Supreme Court’s file in respect of any document is not to be granted to a non-party without 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 whether access should be granted.

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Endnotes

State of New South Wales v Single (Preliminary) (Supreme Court (NSW), Fagan J, 13 November 2025, unrep) (“Single No 1”).

State of New South Wales v Single [2019] NSWSC 176 at [13].

Exhibit JC-1, Tab 18, ROS of Pickering DCJ at p 6.

Single No 1 at [31].

Single No 1 at [33].

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].

Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21].

State of New South Wales v O’Hara (Final) [2024] NSWSC 225 at [34].

Single No 1 at [30].

State of New South Wales v Richardson (Final) [2020] NSWSC 1809 (“Richardson”) at [77].

Richardson at [78].

Plaintiff’s submissions at paragraph [68]; exhibit JC-1, Tab 18, ROS of Bennett SC DCJ at p 5.

Exhibit JC-1, Tab 18, ROS of Bennett SC DCJ at p 17.

Plaintiff’s submissions at paragraph [69]; exhibit JC-1, Tab 18, ROS of Pickering DCJ at p 6.

Plaintiff’s submissions at paragraph [69]; exhibit JC-1, Tab 18, ROS of Pickering DCJ at p 7.

Davis Report at paragraph [202].

Tcpt, 10 February 2026, p 7.

Tcpt, 10 February 2026, p 7.

Davis Report at paragraph [202].

State of New South Wales v Barrie (Second Final) [2019] NSWSC 1161 at [32].