State of New South Wales v Sturgeon

The Index Offence

1. The defendant has been convicted of two "serious offences" for the purposes of the Act, namely: 1. one count of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW) ("Crimes Act"); and 2. one count of aggravated sexual intercourse with a child aged between 14-16 years, contrary to s 61J(1) of the Crimes Act ("the index offence").
2. The offence of sexual intercourse without consent contrary to s 61I of the Crimes Act was committed on 21 January 2007 ("the 2007 offence"). The defendant was 17 years old, and the victim was aged 18. The defendant entered the victim's home, walked into the bedroom, put her on the bed and pulled her skirt off. The victim told the defendant, "I don't want it". The defendant told the victim to spread her legs, took off her underwear, prised her legs open with his elbow and got on top of her, placing his left hand over her mouth. He then pulled down her top to expose her breasts and penetrated her vagina with his penis. He then turned her over and rubbed his penis around the victim's anus before turning her over again, penetrating her again with his penis and having intercourse. The victim suffered chafing to her thighs. The defendant threatened to kill the victim if she told anyone about the assault.
3. The defendant pleaded guilty and was sentenced by Coolahan DCJ on 16 June 2009. His Honour described the offence as "very serious" and commented that "it would be difficult to imagine that the victim in this matter did not suffer some form of lasting trauma as a result of the conduct of the offender". The material before the sentencing judge indicated that the defendant had been diagnosed with bipolar disorder, had been abusing drugs and alcohol for some years prior to the offence and had attempted suicide on two occasions. His Honour was satisfied that the defendant suffered from "significant psychiatric and intellectual impairments". Those conditions had been exacerbated by drugs and alcohol.
4. The defendant was sentenced as a juvenile. He was released on probation to be of good behaviour for two years. On 18 July 2014, that bond was called up when the defendant was convicted of the second serious sex offence.
5. The index offence of aggravated sexual intercourse with a child, contrary to s 61J of the Crimes Act, was committed on 24 to 25 October 2012. The defendant was aged 22. The victim was 15 years old and was in the care of the State. The defendant drove the victim to a reserve and parked his car near a public gate. He tried to kiss her. The victim told him she was not interested and asked him to take her home. The defendant then placed his hand down the victim's tracksuit pants and touched her vagina. He then pulled down his pants and tore a hole near the crotch of the victim's pants. He put on a condom and proceeded to have penile vaginal intercourse through the hole in the victim's pants. He told the victim not to tell anyone.
6. The defendant was sentenced by Wilson SC DCJ (as her Honour then was), to a term of imprisonment of four years commencing on 6 November 2013 and expiring on 5 November 2017, with a non-parole period expiring on 5 November 2016.
7. Her Honour remarked that, like the 2007 offence, this offence was a "serious example of offending of its type". Her Honour noted the victim's vulnerability and commented that "it is impossible to draw any positive conclusions about … [the defendant's] prospects for rehabilitation".

Background and Criminal History

1. The defendant's background and criminal history is taken from the Joint Statement of Agreed Facts, marked Exhibit A.
2. The defendant is a 33 year old man, born in November 1990. He grew up in the Newcastle area and is the youngest of four children.
3. The defendant experienced difficulties throughout his schooling, including having trouble concentrating and behavioural problems such as aggression and violence. He completed years 9-10 at a non-Government school for young people with mental health problems, challenging behaviours or other disadvantages. Upon leaving school, the defendant held casual employment with his father and was also employed as a labourer.
4. The defendant reports being sexually abused by a Youth Officer at a Youth Justice Centre when he was aged around 15.
5. The defendant's family relationships have been described as "complicated" and "marked by persistent and significant conflict". One of his brothers died when the defendant was a child. As a child, he also witnessed his father commit acts of domestic violence against his mother and brother and has described "an upbringing consisting of ongoing exposure to extensive DV perpetrated by his father against the family". He has recounted that his father set fire to the family home on one occasion in an apparently expressed attempt to "kill the family".
6. The defendant's father has been the victim of some of the defendant's offending. On 14 July 2023, an ADVO was taken out against the defendant for the protection of his father. The defendant has previously had an ADVO taken out against him for the protection of his mother. Generally, though, the defendant's mother is reported to have been supportive of him and his children.
7. The defendant does not appear to have close interpersonal relationships outside of his family.
8. The defendant has had a number of short-term relationships. He fathered a son (now aged 12) in 2012. He has not seen his son for six years but remains hopeful they will establish a relationship in the future. The defendant fathered two daughters (to a different partner) in 2018. Several of the defendant's partner relationships have been characterised by violence. An ADVO is in place for the protection of his former partner and their children. A parenting agreement with that partner is presently in force.
9. The defendant converted to Islam in around 2017 (when he was in custody). He reports that his faith is a source of support to him. He continues to practice his faith though he did not attend a mosque when last supervised in the community as he did not believe it was appropriate to do so because he was wearing an ankle monitor.
10. The defendant has suffered from a number of mental health issues. As a child, he was diagnosed with Attention Deficit and Hyperactivity Disorder, Oppositional Defiant Disorder and Bipolar Affective Disorder. The defendant also experienced psychotic episodes during his adolescence, the first occurring shortly before his 13th birthday. He has also been diagnosed with Generalised Anxiety Disorder, Post Traumatic Stress Disorder, Aspergers, Inflexible Explosive Disorder, Autism Spectrum Disorder and Antisocial Personality Disorder.
11. The defendant also has a considerable substance abuse history. He started using opiates at around age 14-15 which developed into a habit of daily heroin use as a teenager. The defendant meets the psychiatric diagnostic category for a substance use disorder.
12. The most recent assessment of the defendant's cognitive functioning placed him in the borderline range.
13. The defendant has a history of suicidal ideation and self-harm. These include an attempt to hang himself in 2012, an overdose in 2013, an attempt to strangle himself in 2024, lacerating his wrists in 2024 and attempting to hang himself in the week prior to his most recent arrest.

Criminal history prior to the ESO

1. The defendant's criminal history commenced in 2006. It includes violence and sexual offences. Amongst other things, he has been convicted of resisting an officer in the execution of their duty, assaulting or intimidating an officer in the execution of their duty, domestic violence offences and property offences.

Sexual intercourse without consent (H30642841) - 21 January 2007

1. On 21 January 2007, the defendant committed the offence of sexual intercourse without consent. The facts relating to the 2007 offence are set out above at [9]. The defendant pleaded guilty and was sentenced by Coolahan DCJ on 16 June 2009 (who determined to sentence the defendant as a juvenile). The defendant was released on probation to be on good behaviour for a 2-year period.
2. On 11 April 2011, the defendant was called up for breach of his probation following convictions for assault officer in execution of duty, use offensive language, and resist-hinder police in execution of duty. He was re-sentenced to a control order which was suspended pursuant to s 33(1)(1B) of the Children (Criminal Proceedings) Act 1987 (NSW).

Aggravated sexual assault - victim under the age of 16 years (H5090124) - 24 to 25 October 2012

1. On 24 to 25 October 2012, the defendant (aged 22) committed the index offence of aggravated sexual assault - victim under the age of 16 years. The facts relating to the index offence are set out above at [12]. On 18 July 2014, the defendant was sentenced by Wilson SC DCJ (as her Honour then was) to a term of imprisonment of 4 years, commencing on 6 November 2013 and expiring on 5 November 2017, with a non-parole period expiring on 5 November 2016.
2. Wilson SC DCJ (as her Honour then was) also re-sentenced the defendant with respect to the 2007 offence. Her Honour imposed a term of imprisonment of 18 months commencing on 6 March 2013, with a non-parole period of 13 months. In contrast to Coolahan DCJ, her Honour was not satisfied that there was a causal link between the defendant's mental health conditions and the 2007 offending.

Fail to comply with reporting obligations (H 67489962)

1. As a result of the index offence, the defendant was placed on the Child Protection Register ("CPR") under the Child Protection (Offenders Registration) Act 2000 (NSW) ("the CPO Act").
2. On 13 August 2018, the defendant was convicted of two counts of failing to comply with his reporting obligations under the CPO Act, namely: 1. failing to report the name, address and date of birth of his then partner's three children in circumstances where he was supervising or caring for the children. 2. failing to report his then partner's address as a place where he generally resided.
3. He was sentenced before the Newcastle Local Court to an aggregate term of imprisonment of 14 months, commencing on 5 April 2018 and expiring on 4 June 2019, with a non-parole period of 6 months.

The first ESO

1. On 21 February 2019, the State of New South Wales filed a summons seeking a Continuing Detention Order ("CDO") for a period of one year, followed by an ESO for a period of five years, or alternatively, an ESO for a period of five years.
2. On 17 May 2019, following the preliminary hearing, Garling J imposed an Interim Detention Order ("IDO") for a period of 28 days (from 4 June 2019 to 2 July 2019) and orders appointing two experts to examine the defendant and furnish reports to the Court.
3. On 1 July 2019, Garling J made an ISO for 28 days, which commenced on 2 July 2019, when the defendant was released to the community.
4. On 12 July 2019, following a final hearing, Garling J imposed an ESO on the defendant for a period of three years.

Criminal History after the ESO

1. Since the ESO was imposed on 12 July 2019, the defendant has been convicted of the following offences: 1. H 72836023: Resisting or hindering police officer in execution of duty, assaulting police officer in execution of duty and three counts of intimidating police officer in execution of duty. According to the police facts, on 11 December 2019 (at which time the defendant was in custody bail refused), he reported to those supervising him that he could not walk (when he could) and was taken to hospital. He then attempted to unwind a screw from a hospital bed and spat at and verbally threatened officers. On 30 July 2020, the defendant was sentenced to a Community Correction Order ("CCO") for 2 years (concluding on 10 December 2021). 2. H 294283397: Assault occasioning actual bodily harm (DV), stalk/intimidate with intention to cause fear of physical and mental harm (domestic). According to the police facts, on 7 January 2023, the defendant had attended his father's house when an argument broke out, with the defendant punching and kicking his father "not with much force". On 14 July 2023, the defendant was sentenced to an Intensive Correction Order ("ICO") for a period of 2 years (expiring on 13 July 2025). 3. H 77908569: Assault occasioning actual bodily harm (DV), common assault (DV) and stalk/intimidate with intention to cause fear of physical and mental harm (domestic). According to the police facts, on 31 March 2023, the defendant was driving with his ex-partner and her four children (of whom, the defendant was the biological father of two). He attempted to punch his ex-partner twice, stopped the car and pulled her from the vehicle, threatened to stab her and then attempted to unbuckle her daughter. As his ex-partner removed the children, the defendant threatened to put a hit out to kill her and the children if she called the police. The defendant was sentenced on 14 July 2023 to an ICO for 2 years (concluding on 13 July 2025). On 15 November 2023, that ICO was varied (following an appeal) to a 2-year CCO. 4. H 79334965: Stalk/intimidate with intention to cause fear of physical and mental harm (domestic). According to the police facts, on 20 September 2023, the defendant had an argument with his grandmother (with whom he was living) during which he verbally abused her and banged a table. On 6 November 2023, the defendant received a sentence of 16 months commencing on 20 September 2023 and concluding on 19 January 2025 with a non-parole period of 8 months. On appeal, this was varied to a CCO for 2 years commencing on 15 November 2023 and concluding on 14 November 2025. 5. H 95293542: Assault law enforcement officer (not police), inflict actual bodily harm, and hinder/resist law enforcement officer in execution of duty. According to the police facts, on 21 September 2023, as the defendant was on the way to a holding cell, he attempted to self-harm. In the holding cell, he refused to surrender his clothing, spat at a corrections officer and punched the officer's cheek. On 6 November 2023, the defendant received a sentence of 16 months commencing on 20 September 2023 and concluding on 19 January 2025 with a non-parole period of 8 months. On appeal, this was varied to an aggregate term of imprisonment for 10 months, concluding on 19 July 2024 with a 5-month non-parole period, concluding on 19 February 2024. 6. H 83235281: Common assault (DV) and contravene prohibition/restriction in AVO (domestic). According to the police facts, on 29 April 2024, during an argument with his ex-partner about custody arrangements of their children, the defendant slammed the screen door shut, causing the door to jam his ex-partner's fingers. He then cut his wrist with a razor blade. He was sentenced on 9 August 2024 to an aggregate term of imprisonment for 11 months, concluding on 27 March 2025, with a 6-month non-parole period, concluding on 27 October 2024.
2. The defendant has also either been convicted of breaching, or is alleged to have breached, the ESO on the following occasions: 1. H 74148668: According to the police facts, on 10 December 2019, the defendant submitted to a preliminary drug swipe test which indicated the presence of methylamphetamine and amphetamine. He claimed that someone had spiked his drink with methylamphetamine. The defendant was then subjected to a confirmatory oral fluid drug saliva test, in respect of which he provided insufficient saliva. He then refused to provide an adequate saliva swab. The defendant was initially referred under the Mental Health Act 2007 (NSW) and the charge was eventually dismissed on 30 July 2020 under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). 2. H 150393602: According to the police facts, the defendant used an unapproved email address and accessed an unapproved social network account between 12 July 2019 to 28 January 2021. On 2 July 2021, he was sentenced for two counts of breach ESO to an aggregate sentence of 12 months imprisonment, concluding on 27 January 2022, with a non-parole period of 9 months, concluding on 27 October 2021. 3. H 80261305: According to the police facts, the defendant tested positive for amphetamine and methylamphetamine on 24 April 2024. On 9 August 2024, he was sentenced along with the charges of common assault (DV) and contravene prohibition/restriction in AVO (domestic) to an aggregate sentence of 11 months imprisonment, concluding 27 March 2025, with a non-parole period of 6 months, concluding 27 October 2024.
3. On 1 November 2024, days after the defendant was released from custody, he was arrested and charged with further offences including stalk/intimidate intend fear of physical etc harm (domestic and personal), contravene prohibition/restriction in AVO (domestic) and hinder or resist police officer in the execution of their duty. The matters are next listed for sentence or mention before the Local Court on 27 February 2025.

Behaviour in custody

1. The defendant's behaviour in custody has been described as "mixed" with periods of compliance contrasted with periods of aggressive, threatening and intimidatory behaviour.
2. The defendant has been managed in either a Protection Limited Association Area or Special Management Area Placement due to the nature of his offending and his fears for his safety. He has threatened to self-harm several times and actively engaged in self-harm while in custody.
3. The defendant has had a number of institutional misconduct charges in custody, including three for intimidation between 2017 and 2020 and six charges relating to substance use/drug testing between 2015 and 2018. There have been no institutional charges during the current period of incarceration. He has returned eight positive tests for non-prescribed drugs whilst in custody during the term of the ESO.

Program participation

1. The defendant was offered the opportunity to participate in the EQUIPS Addiction program in custody in 2015, however, he declined to participate.
2. The defendant completed the custody-based High Intensity Sex Offender Program ("HISOP/CUBIT") on 17 March 2017.
3. Upon his release in 2017, the defendant was allocated to the community-based maintenance program at Newcastle Community Corrections on 1 June 2017. The case note indicates that he failed to recognise factors that place him at risk of reoffending and refused to behave in ways that would reduce his risk.
4. The defendant also completed the Magistrates Early Referral into Treatment ("MERIT") program.
5. The defendant received a treatment offer to participate in the Violent Offenders Therapeutic Program ("VOTP") on 28 February 2019; however, he refused to sign the treatment offer. As a result, he has not participated in the program.

Response to ESO supervision

1. As described above, the defendant has been convicted of numerous offences while subject to ESO supervision.
2. The defendant obtained Department of Housing accommodation in July 2022 (and resided there with his ex-partner until charged with the 2023 offending).
3. Between 10 December 2019 and 24 April 2023, the defendant tested negative to illicit substances on all but one occasion. On 24 April, the defendant admitted to the use of non-prescribed Valium and of sleeping medications at higher than prescribed doses and taking a high dose of fentanyl in a suicide attempt. He tested positive for amphetamine and methylamphetamine that day.
4. Whilst on the ESO, the defendant has needed treatment for his mental health. He was referred to the Lake Macquarie Mental Health Team at the start of his ESO and was prescribed antidepressant and antipsychotic medication at that time. He was admitted to the Calvary Mater Mental Health Unit on 31 March 2024 as a voluntary patient for management of post-traumatic stress disorder ("PTSD") and Antisocial Personality Disorder. He was commenced on desvenlafaxine, prazosin and paliperidone.
5. The defendant was receiving suboxone in the community, which led to some stabilisation in his behaviour. However, against advice, he decided to discontinue it "cold turkey", reporting that it made him drowsy, which precipitated chronic symptom withdrawals and resulted in his hospitalisation. He was not prescribed suboxone on his return to custody in 2023 and has not received this treatment since then.
6. The defendant has engaged in routine counselling (involving cognitive behavioural therapy) with Mr Brad Child (from Charlestown Activated Concepts). Mr Child reported on 16 March 2023 that the defendant attended those sessions on time and was genuine in his attitude and engagement. Mr Child opines that the defendant had made progress and benefited from the intervention and, in particular, that he was responding well to grounding strategies and was open to addressing his traumatic background, albeit slowly.
7. The defendant has also used community-based support services such as Co-Existing Disorders, Initial Transitional Service, Matthew Talbot and Drug and Alcohol Clinical Services. He has not pursued substance abuse intervention (though he briefly accessed alcohol and other drug support between December 2020 and January 2021).
8. The defendant was employed as a truck detailer between August and November 2022, however, his employment ceased when he was unable to provide fitness to work documentation to his employer within the stipulated timeframe (it is understood that this related to the defendant's decision to cease his suboxone treatment).
9. The defendant also worked in tyre fitting and cleaning buses during the currency of his order.
10. Senior Constable Keiselis, the police officer responsible for supervising the defendant on the CPR, at least as of 21 December 2022, reported that there were no concerns for the defendant.

Risk Assessment Report

1. A Risk Assessment Report ("RAR"), dated 18 June 2024, has been prepared by Ms Holly Cieplucha, who interviewed the defendant on 13 June 2024. He was cooperative and responsive and reported being in a stable mood.
2. Ms Cieplucha administered the STATIC-99R instrument to the defendant on 24 May 2024. The defendant scored 7 which placed him in the Level IVb "well above average" category of risk of committing further sexual offences relative to other adult male sexual offenders. The risk of an offender with a score of 7 committing further sex offences "is estimated to be about 5.25 times higher than that of the 'typical' sex offender."
3. Ms Cieplucha also administered the Violent Risk Appraisal Guide ("VRAG-R") which is an actuarial risk assessment tool designed to assess the risk of future violence in offenders. The result placed the defendant at a high risk of violent recidivism.
4. Ms Cieplucha also administered the Risk of Sexual Violence Protocol ("RSVP") to the defendant. Using this instrument, Ms Cieplucha assessed the defendant as reflecting a high density of criminogenic needs which were identified as: problems with stress or coping; problems with intimate and non-intimate relationships; problems with substance abuse; major mental disorder; problems with supervision and antisocial attitudes/personality disorder; problems with living situation; problems resulting from child abuse; and problems with denial or minimisation of sexual violence, self-awareness and treatment.
5. Ms Cieplucha considers that it remains "plausible" that the defendant would engage in further offending involving sexual violence, notwithstanding that the defendant has not been charged with or convicted of an act of sexual violence since 2014. Such offending would involve non-consensual sex with a younger and vulnerable female and would be precipitated by a deterioration in his own mental health. Ms Cieplucha does not specifically address the risk of the defendant committing a serious violence offence.
6. Ms Cieplucha concluded that the defendant falls in the well above average risk range for sexual offending relative to other adult male sexual offenders. His involvement in the high intensity program to address his sexual offending was considered superficial. The defendant has continued to deny and minimise his sexual violence and has been difficult to engage in sex offence specific risk management intervention.
7. Ms Cieplucha observed that an ESO would allow for individual risk management intervention from a community-based psychologist and provide greater scrutiny of the defendant's social contacts by way of unannounced home visits and the potential for electronic monitoring and scheduling.

ESO Psychology Completion Report

1. Mr Jonathon Mystakidis, Clinical Psychologist, prepared a psychological report dated 19 July 2023. He recommended against a further application being brought in relation to the defendant. Mr Mystakidis concluded that the defendant remained at a well above average risk of sexual offending. He concluded, however, that the ESO appears to have largely contained the risks of the defendant accessing another victim and committing another serious sex offence, and that there have been no concerns of a sexual nature during the ESO period that would warrant consideration of a further order. He also noted that the CPR would provide some mechanism for oversight.
2. Mr Mystakidis noted that the risk factors 'sex drive', 'sex preoccupation' and 'sex as coping' were not identified as being areas of current clinical concern, suggesting that the defendant does not display any significant sexual dysfunction or problematic sexual behaviour that could increase the risk of reoffending.
3. I note that Mr Mystakidis prepared his report prior to the defendant's convictions for the January and March 2023 offending and prior to the defendant being charged with the outstanding offences. With respect to the latter, I have been informed by the defendant's Counsel that while no pleas of guilty have actually been entered, it is envisaged that the defendant will enter pleas of guilty to three offences, namely stalk and intimidate with an intention to cause fear of physical or mental harm, contravene ADVO, and resisting a police officer in the execution of their duty.

Risk Management Report

1. A Risk Management Report ("RMR") was prepared by Ms Louise Robinson of the Extended Supervision Order Team, dated 4 July 2024.
2. Ms Robinson noted that prior to his arrest, the defendant was residing in the Housing NSW property that was available to him. As indicated above, the defendant is now in custody.
3. Ms Robinson noted that the defendant had been employed as a bus cleaner prior to his most recent arrest. The defendant had also engaged in counselling with a Victims Services Counsellor to address unresolved issues relating to sexual abuse.
4. Ms Robinson noted that the defendant continued to present with significant mental health instability which included ongoing threats of self-harm and actual self-harm.
5. The defendant retains the support of his mother although his familial relationships are complex and characterised by persistent and significant conflict.
6. Like Ms Cieplucha, Ms Robinson is of the view that the defendant has made little progress after his participation in HISOP/CUBIT. The defendant's response to supervision was "mixed". His initial response was problematic, but he demonstrated significant improvement prior to his most recent incarceration.
7. The defendant has refused to engage with Corrective Services New South Wales ("CSNSW") psychologists, but he has indicated a willingness to re-engage with a community-based psychologist. He has also expressed a willingness to undertake Narcotics Anonymous and domestic violence intervention programs.
8. Ms Robinson proposes a supervision plan which would include weekly contact with his Departmental Supervising Officer ("DSO"); unannounced home visits; engagement with CSNSW psychologists for ongoing risk management sessions; engagement with community-based psychologists; and interventions focused on developing interpersonal relationships, self-awareness, managing cravings and identifying strategies to develop self-esteem and promote self-worth.

ESO Team Completion Report

1. Mr Paul Corliss of Lake Macquarie Community Corrections completed a report on 28 July 2023 for the purpose of informing consideration of whether an application for a further ESO should be made in relation to the defendant. He did not recommend that such an application be brought. He assessed the defendant's response to supervision as "satisfactory" with the defendant reporting as directed, engaging appropriately, and following directions.
2. Mr Corliss noted that whilst the defendant's risk of generalised offending remains high, Community Corrections have not identified any sexual deviance. It was also noted that the defendant had made progress and significant shifts in attitude, behaviour, decision-making and insight. In light of that shift and the fact that the defendant was sentenced to an ICO for a period of two years, Mr Corliss indicated that Community Corrections did not see the benefit in a further period of ESO supervision.
3. I note that Mr Corliss prepared his report prior to the defendant's convictions for the January and March 2023 offending and prior to being charged with the subsequent matters which remain outstanding.

Participation in HISOP

1. The defendant participated in the Custody-Based Intensive Treatment ("CUBIT") program between 1 July 2016 and 17 March 2017. A report of his participation in that program was prepared by Ms Tamara Sweller. The defendant's level of engagement "oscillated" throughout the treatment process. Overall, Ms Sweller opined that the defendant demonstrated poor perspective and his self-focus and sense of entitlement appeared to decrease his motivation to consider the impact of his behaviour on others. Ms Sweller concluded that during the treatment, the defendant was unmotivated to target his relevant risk areas and sought to complete work as rapidly as possible in order to reach the end of treatment.

Participation in MERIT

1. The defendant has previously participated in the MERIT program whilst in the community. He complied with all facets of his treatment plan to the best of his ability and attended scheduled appointments to engage in the therapeutic process. He was cooperative and despite initial difficulties, the defendant worked diligently to achieve an enhanced degree of social and psychological functioning. It was reported that he made "remarkable progress" with his mood and levels of hostility and irritability improving significantly.

Response to supervision and likelihood that the offender will comply with the obligations of an extended supervision order

1. The defendant's response to supervision in the community has been variable. Generally speaking, there have been periods of compliance and what appears to be a genuine effort to engage with services. There have been periods where the defendant has disengaged leading him to commit further offending, including breaching the conditions of the ESO. I note that he has also been charged with fresh offences arising relatively recently in October 2024.

Plaintiff's submissions

1. The plaintiff submitted that the Court would be satisfied that the defendant poses an unacceptable risk of committing a serious sex offence as well as a serious violence offence. In support of the contention that the defendant poses an unacceptable risk of commission of a serious violence offence, the plaintiff relies upon the defendant's history of violent conduct; the outstanding charges that include offences of stalk and intimidate and contravening an ADVO, the Offender Integrated Management System ("OIMS") notes which document the defendant's threats; the defendant's significant mental health issues; his previous breaches of the conditions of the ESO; and test results which indicate that the defendant presents a high risk of violent recidivism.
2. The plaintiff submitted that the Court would be satisfied that the defendant poses an unacceptable risk of committing a serious sex offence based on his previous convictions for serious sex offences; his lack of insight into his offending conduct; his previous convictions for violence; the defendant's poor relationship with his supervising team; the defendant's mental health issues; and his present instability.
3. The plaintiff also submits that the defendant's level of risk cannot be mitigated by supervision under the CPO Act or the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW), which have a different purpose and focus. In that regard the plaintiff relies upon the observations of Wilson J in the State of New South Wales v Ayoub (Final) [2023] NSWSC 963 at [88]: "… The intention of monitoring a recidivist child sex offender such as the defendant under an ESO is to prevent offences from being committed and rehabilitate the offender to prevent continued criminality. The reporting obligations under the CPOR Act are a useful tool for police in monitoring child sex offenders, but the Act does not provide for the same intensive personal scrutiny and support that an order under the CHRO Act does".

Defendant's submissions

1. Mr Wilcox, on behalf of the defendant, submitted that the defendant has never committed a serious violence offence. The defendant's previous convictions for violent offences and his threats of violence would not be sufficient to meet the threshold of "serious violence offence" as contemplated by the definition in s 5A of the Act.
2. It is further submitted that the plaintiff lacks any detailed expert assessment about the offender's serious violence risk in its supporting documentation and insofar as any opinion is expressed in that regard, it falls far short from satisfying the Court that the defendant poses an unacceptable risk of committing a serious violence offence.
3. The defendant also submits that the Court would not be satisfied that the defendant poses an unacceptable risk of committing a serious sex offence. His last conviction for a sex offence was in 2014. There is no suggestion that he has committed further sexual misconduct offences.
4. The defendant relies upon the ESO Psychology Completion Report in which Mr Mystakidis concludes that although the defendant's risk remains largely unchanged, there have been no concerns of a sexual nature during his ESO, including issues related to sexual self-regulation or identified problematic sexual behaviours that would warrant consideration of a further order.
5. Mr Wilcox also relies upon the ESO Team Completion Report which concludes that whilst the defendant remains "well above average" risk of reoffending sexually, no sexual dysfunction or problematic sexual behaviour were present, and no noted concerns of a sexual nature were observed during the ESO period.

Determination

1. I am satisfied that the defendant is an "offender" who is serving or has served a sentence of imprisonment for a serious offence within the meaning of s 5(1)(a) of the Act, namely one count of aggravated sexual intercourse with a child aged 14-16 years, contrary to s 61J of the Crimes Act.
2. The defendant is a "supervised offender" within the meaning of s 5I(2)(a)(iii) of the Act. The application is made within the last nine months of the defendant's current supervision.
3. In determining the threshold question of whether the defendant poses an unacceptable risk of committing a serious offence, namely a serious sex offence or a serious violence offence or both, I have had regard to the fact that this is a preliminary hearing. At the preliminary hearing, the Court is obliged to reach a state of satisfaction that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order: s 7(4) of the Act.
4. A preliminary hearing does not require the Court to be satisfied that the matters in the supporting documentation will be proved. At this stage of the proceedings, the Court does not engage in weighing up the opinions expressed in the documentation or resolving any conflicts, uncertainties or inconsistencies which appear in the documentation. Furthermore, the issue must be determined without considering what evidence might be called by the defendant in the final hearing: Attorney-General for New South Wales v Tillman [2007] NSWCA 119 at [98]; State of New South Wales v Sturgeon [2019] NSWSC 559 at [6].
5. The plaintiff lacks any detailed expert assessment about the offender's risk of committing a serious violence offence in its supporting documentation. Ms Cieplucha did not specifically address the issue. The ESO Psychology Completion Report authored by Mr Mystakidis, includes the following at [67]: "As indicated by the assessments conducted, Mr Sturgeon's risk of nonsexual violence remains high. However, it is uncertain whether this would mean that he would commit a serious violent offence as defined under the HRO Act 2006. On one hand, the presence of violence risk factors, such as unmanaged mental health concerns, substance-use problems, antisocial attitudes, and relationship problems, and limited personal protective factors could conceivably result in a serious violent offence. However, Mr Sturgeon has not previously committed a serious violent offence under these conditions and his offences do not appear to have escalated in severity, although this could be the result of the intense supervision he receives."
6. I am not satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious violence offence. The defendant has never been convicted of a serious violence offence. Although he has a criminal record for violent offences and the material establishes that the defendant has made threats of violence, these incidents neither singularly nor in combination satisfy the threshold that the defendant poses an unacceptable risk of committing a serious violence offence.
7. I observe that Garling J came to the same conclusion when his Honour considered a previous application made by the plaintiff against this defendant (albeit that the proceedings were in 2019 and there has been subsequent offending, including breaches of the ESO). His Honour noted: "[31] The defendant has not, to date, been shown to have committed a serious violence offence. The material provided by the Crown, if accepted, is capable of satisfying a Court that the defendant falls within a medium to high risk range of general and violent recidivism. The only actuarial assessment tool specifically directed towards violence by which the defendant was assessed, namely VRAG-R, classified him as high risk compared to other violent offenders. [32] The VRAG-R tool is subject to the limitation that, having regard to its methodology, it does not necessarily reflect the recidivism risk of an individual offender, nor does it specifically address offences which would fall within the definition of a serious violence offence. A serious violence offence is a sub‑set of offences included in the VRAG-R predictions. [33] In circumstances where the defendant has never committed any serious violence offence, and has not engaged in any conduct which approaches the level of serious violence required by the statutory definition, I am unable to conclude that the material relied upon by the State would justify the making of either a CDO or else an ESO relating to the risk of the defendant committing an offence of serious violence. This is so, particularly as the level of satisfaction required by the Court is one of a high degree of probability. [34] If this was the only basis upon which the State put its case, then I would be obliged to dismiss it."
8. I am however satisfied that the matters alleged in the supporting documentation would if proved, justify the making of an ESO because the material, at this preliminary stage, satisfies me that the defendant poses an unacceptable risk of commission of a serious sex offence.
9. I make this determination for the following reasons: 1. The index offence is a serious sex offence committed by the defendant against a 15-year-old child. 2. The defendant also has a further conviction for a serious sex offence, committed in 2007. 3. The documentation reveals that the defendant has obtained only superficial gains from his participation in programs and continues to lack insight into his previous sexual offending. The defendant has engaged in a degree of minimisation of his offending. 4. The defendant has a poor record of complying with his supervision both in the community pursuant to parole and whilst on an ESO. 5. Relatedly, the defendant's long-standing mental health conditions contribute to a risk of committing a serious sex offence until those issues can be properly addressed. 6. Ms Cieplucha assesses the defendant as falling in the Level IVb, "well above average", category of risk of committing further sexual offences.
10. The Court accepts that the defendant has demonstrated periods of compliance and progress. I also note that there are competing views expressed by relevant professionals about the defendant's risk of committing a serious sex offence.
11. However, given the nature of the proceedings which are by way of preliminary hearing, I do not engage in weighing up the different opinions before me. I am satisfied, at this preliminary stage, that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.
12. Accordingly, I make the following orders: 1. Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW): 1. I appoint two qualified psychiatrists or psychologists (or a combination of the two) to conduct separate psychiatric and/or psychological examinations of the defendant and furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and 2. I direct the defendant to attend those examinations. 1. I order that access to the Supreme Court's file 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. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 February 2025