State of New South Wales v Welsh (Final)

Cases Cited: Bugmy v the Queen (2013) 249 CLR 571; [2013] HCA 37
State of New South Wales v Kaiser (2022) 108 NSWLR 476; [2022] NSWCA 86
State of New South Wales v Welsh (Preliminary) [2025] NSWSC 987

Category: Principal judgment

Parties: State of New South Wales (Plaintiff)
Dwayne Eric Welsh (Defendant)

Representation: Counsel:
A Mykkeltvedt (Plaintiff)
C Akthar (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s): 2025/133925

Publication restriction: Nil.

JUDGMENT

1. By amended summons filed in Court on 12 November 2025, by way of final relief, the plaintiff, the State of New South Wales, seeks an extended supervision order (ESO) under s 9 Crimes (High Risk) Offenders Act 2006 (NSW) (the Act) against the defendant, Mr Welsh, for a period of three years subject to a detailed suite of conditions to be imposed under s 11 of the Act. Unless otherwise specified, all references to legislation in this judgment are references to the Act.

2. Since 25 August 2025, the defendant has been subject to an interim supervision order (ISO) under s 10A which has been extended from time to time until 25 November 2025: State of New South Wales v Welsh (Preliminary) [2025] NSWSC 987 per Rigg J. On 25 November 2025, I pronounced the following orders:

3. Under s 9 of the Crimes (High Risk) Offenders Act 2006 (NSW), the defendant is subject to an extended supervision order for a period of three years from the expiration of his interim supervision order on 25 November 2025.

4. Under s 11 of the Act, the defendant is to comply with the conditions appearing in the Schedule of Conditions of Supervision to these orders for the duration of the extended supervision order.

5. 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.

What follows in this judgment are my reasons for making those orders. The Schedule of Conditions is republished at the foot of these reasons for completeness.

Issues

3. Mr Mykkeltvedt of counsel appeared for the plaintiff and Ms Akthar of counsel appeared for the defendant. From their conduct of the case, including the oral and written submissions of each of them, there are three issues for determination which I set out as follows:

4. Whether I am satisfied to the statutory high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO (s 5B(d));

5. Whether I am persuaded on the balance of probabilities that the State’s application should be determined by making the ESO as sought; and (s 9(1)(a)); and

6. If issues 1 and 2 are determined in favour of the plaintiff, what conditions should I direct the defendant to comply with in conformity with the terms of s 11.

7. Although Ms Akthar submitted in written submissions that I was required to be satisfied to the special statutory standard of proof, that is, “to a high degree of probability” in respect of each matter in issue, I am of the view that the special standard of proof imposed by s 5B(d) is applicable only to the first issue. This is because proceedings brought under the Act are civil in nature and, “to the extent to which [the] Act does not provide for their conduct, [they] are to be conducted in accordance with the law (including the rules of evidence) relating to civil proceedings”: s 21. A relevant evidentiary provision includes s 140(1) of the Evidence Act 1995 (NSW) which provides, “in a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities”. Sections 5B(d) and 5C(d) of the Act provide otherwise only in relation to the determination of the unacceptable risk issue.

8. For the sake of clarity, I point out that there is no issue that the preconditions established by s 5B(a)-(c) are satisfied, that is to say that there is no issue that, when the application was made: the defendant was an offender who had served a sentence of imprisonment for a serious offence as defined (s 5B(a)); he was a supervised offender within the meaning of s 5I(2); and the procedural requirements of s 6 were complied with: State of New South Wales v Kaiser (2022) 108 NSWLR 476; [2022] NSWCA 86 at [1] per Bell CJ; [2] per Beech-Jones JA; and [124]-[125] per Simpson AJA.

Social background and history of offending

6. The defendant was born in 1981 in country New South Wales. He and his twin brother are the only children of their parent’s union. There are other half siblings from other relationships formed by each of his parents. The defendant was mostly raised by his maternal great aunt, whom he referred to as “mum”. (Sadly, she died in June of this year.) She raised him and his twin from about the age of two months. As a child, the defendant had little contact with either of his parents and understandably harboured resentment in relation to their abandonment of him and his twin brother. His great aunt raised them with her own five children as a single parent.

7. During his early life, the only older male he looked up to was his mum’s eldest biological son. However, he took his own life whilst in custody in 1994 at the age of 27, when the defendant was only 13 years of age at the time. His second cousin’s death was another great loss to him, and it appears to have driven him into the company of antisocial peers where he partook in antisocial behaviours.

8. The defendant and his twin were colleagues in this anti-social behaviour with other boys. They were removed from their mum’s care at about the age of 12 or 13 and placed in an institution which the defendant described as a “hostel”. During his time there, he was separated from his twin brother after they attempted to run away from the institution.

9. After he returned home, he continued his juvenile offending and had further stints in youth detention including a 12-month stint serving a control order. He provided one of the court-appointed experts, Dr Carollyne Youssef, Clinical and Forensic Psychologist, with a history of physical, but not sexual, abuse he experienced in detention.

10. The defendant gave a history of four intimate relationships commencing at the ages of 17, 23, 31 and in his late 30s, each of which were relatively short lived. He is the father of four sons and one daughter from these relationships. He developed what appears to be an on-again/off-again relationship with another woman after his release from remand custody in December 2024.

11. He had disrupted schooling but appears to have completed Year 8 at Coonamble High School. His longest period of employment was of 6-months at the age of 27. He frankly acknowledged to Dr Youssef that, for most of his adult life, he relied upon his criminal activities as his primary means of financial support, and his record includes a number of property offences.

12. The defendant’s juvenile offending commenced when he was nearly 13 years of age for stealing. His criminal record as a juvenile is extensive and, as I have said, he has been sentenced to a number of control orders over the years. The 12-month order to which he made reference seems to have been imposed in May 1998 when he was nearly 17, for a robbery offence.

13. As an adult, the defendant continued to offend in a similar pattern, including crimes of violence, car stealing, crimes against property, including robbery and robbery in company, firearms offences and break and enter to commit serious indictable offences. His last serious conviction related to offending in April 2018 including serious firearms offences and aggravated break and enter offending for which an aggregate sentence of 6 years and 6 months was passed with a non-parole period (NPP) of 4 years in the Newcastle District Court on 21 June 2019. The head sentence expired on 26 August 2025, and the defendant was serving the balance of that sentence in the community when the ISO was made in August 2025.

14. Later firearms charges laid in 2023 resulted in the revocation of the defendant’s parole. That revocation was not rescinded until the charges were withdrawn in or about 28 December 2024. Over the years in custody, he has been charged with a significant number of infringements of prison discipline.

15. The defendant has a long history of poly-substance abuse, including alcohol, cannabis, amphetamine, methamphetamine, heroin, ketamine, inhalants and hallucinogens. He has experienced drug induced psychotic symptoms when withdrawing from heavy crystal methamphetamine use. These include auditory hallucinations, paranoia, delusional ideation and visual hallucinations. The defendant has also attempted drug rehabilitation in the past, albeit unsuccessfully.

16. His substance abuse commenced with cannabis at the age of 13 and alcohol consumption when he was 15 years of age. He then moved to taking “harder” stimulant-style drugs thereafter including crystal methamphetamine from the age of 24, which progressed to intravenous self-administration. From incidents of needle sharing, the defendant contracted hepatitis C.

17. It is evident that the defendant has continued to use prohibited substances while on parole and under his ISO. The use of prohibited drugs seems to be his coping mechanism and a recurrent characteristic for each of his offences. He had particular resort to these drugs when his mum died in June 2025. The defendant was also reported to have made two suicide attempts while in custody at the age of 31.

18. Regrettably, since his release on parole on 28 December 2024, the defendant has also developed a gambling habit involving the use of online “pokies” on his mobile phone. He has been spending, on average, about $250 per week funding his gambling, presumably from social security payments. Of concern, he reported in consultation with Dr Youssef that he did not perceive this to be problematic.

The index offending

19. The index offending occurred on 25 June 2014 and resulted in the defendant being charged with four offences including wound with intent to cause grievous bodily harm contrary to s 33(1) C**rimes A**ct 1900 (NSW) (Crimes Act). This is a serious violence offence as defined by s 5A(1)(a), as extended by 5A(2A)(c). Other offences committed at or about the same time were: assault occasioning actual bodily harm contrary to s 59 of the Crimes Act; aggravated break enter and steal contrary to s 112 of the Crimes Act; and taking and driving a conveyance without consent of the owner contrary to s 154A of the Crimes Act. Upon sentencing, on his plea of guilty to each offence, a further offence of contravene an apprehended domestic violence order was taken into account on a Form 1 for the assault occasioning actual bodily harm offence, and upon sentencing for the aggravated break, enter and steal offence, the offence of dishonestly obtaining a financial advantage by deception was taken into account in the same way.

20. In company, the defendant attended the home of his former partner who was the victim of the assault occasioning actual bodily harm and the aggravated break and enter offending. It may be taken that, given his history, the defendant was under the intoxicating effects of illicit substances when, despite being refused entry, he entered the premises through the back door and came upon the male victim of the wounding offence in his former partner's bedroom. He obtained a long-bladed knife from the kitchen and attempted to return to the bedroom. His former partner attempted to prevent his re-entry to the bedroom and a physical struggle ensued whereby the defendant pushing his former partner away. She jumped on his back, forcing him to the ground but he freed himself from her by biting her right leg. He was then able to re-enter the bedroom where he assaulted the male by tackling him to the ground, punching him and stabbing him with the knife. The defendant's companion and another person entered the room and were able to restrain the defendant from further attacks on the male victim. While this was happening, the defendant punched this other person.

21. At the John Hunter Hospital after the attack, the male victim was found to have sustained a two-centimetre wound below the chest, a three to four-centimetre wound on the left forearm, a small haemothorax and a small liver laceration.

22. Later that same day, the defendant, in the company of another person, forced entry to another home by threatening the occupier, whom the defendant knew, with a knife. He made demands for money, stole a lighter and a packet of cigarettes and left with the victim's car keys. He also took two pillowcases and a laundry basket filled with the victim's possessions. Further, he threatened the victim with a spear gun before stealing more property and leaving in the victim's car. After this, the defendant obtained petrol from a service station in Heatherbrae before driving off without payment.

The sentencing judgment

23. The defendant pleaded guilty to each offence in the Local Court and received a 25% discount for his early guilty plea when he stood for sentence on 22 April 2015. An effective sentence of imprisonment of 5 years and 6 months commencing on 25 June 2014 and expiring on 24 December 2019, with an effective NPP of 3 years expiring on 24 June 2017, was passed on the defendant.

24. His Honour Judge Ellis, the sentencing judge, regarded the defendant’s criminal history as an aggravating factor calling for the need for personal deterrence. His Honour considered that of his criminal history reduced the defendant's prospects of rehabilitation. While taking account of the defendant’s serious alcohol and substance abuse issues, his Honour found that his introduction to polysubstance abuse at an early age before he had reached a level of maturity enabling him to make an informed decision about such matters was relevant in mitigation.

25. Tellingly, the sentencing judge remarked:

“It is clear from all the material that [the defendant] is egocentric and that appears to be the factor which governs his thinking. There is little, if any, victim empathy, he being overwhelmed by his own concerns about the consequences, more particularly about the term of any incarceration. Even the comment that “he doesn’t care about the others because he doesn’t even care about himself” is of little assistance at the end of the day”.

26. While serving the balance of his sentence for the index offence on parole, on the 18 April 2018, the defendant and an unknown co-offender committed the serious suite of offences including firearms offences to which I have already referred (at [13] above). When arrested, following a police pursuit during which the defendant discharged one of the firearms into the air, he told police during his interview that he was “fucked up on ice” at the time.

27. He came before Judge Ellis again for sentencing on 21 June 2019 and received the sentence to which I have already made reference to above. As the commencement of the sentence was backdated to partially accumulated on the unexpired previous sentence, there is no question that the defendant was a supervised offender because of the accumulation of sentences for the purpose of s 5I(2)(a): s 4.

Section 9 considerations

28. I turn then to the determination of the question of unacceptable risk. It is convenient to address this issue by reference to the mandatory considerations in ss 9(2) and (3). Where appropriate, I will take the aforegoing findings of fact into account for this purpose.

29. I have already referred to the defendant’s criminal history (s 9(3)(h)) and the views of his Honour Judge Ellis (s 9(3)(h1)), and I will also take those matters into account without repeating them. I accept the plaintiff’s submission that the defendant’s criminal history involves a significant amount of violent offending, committed whilst intoxicated by prohibited drugs and involving the use of weapons including firearms which he voluntarily discharged. Many of his offences were pregnant with the prospect of more serious consequences for the victims involved which, in my opinion, is relevant to the assessment of risk.

Reports of the court-appointed experts – s 9(3)(b)

30. I have already referred to Dr Youssef whose report of 9 October 2025 was received in evidence. The other court-appointed expert was the consultant forensic psychiatrist Dr Jeremy O'Dea, whose report of 17 October 2025 was likewise received in evidence.

The report of Dr Youssef

31. Dr Youssef examined the defendant by audio-visual link (AVL). She considered that the defendant met the diagnostic criteria for Antisocial Personality Disorder (ASPD) and Stimulant and Cannabis Use Disorder (severe). She regarded the defendant’s ASPD as a significant factor increasing his risk of violence and offending because that disorder is characterised by a lack of regard for others’ rights. In particular, where the defendant feels threatened, disrespected, entitled or desirous of asserting dominance, a risk of violence could well materialise.

32. Dr Youssef opined that ASPD is characterised by reckless behaviours, impulsivity, emotional dysregulation and a disregard for societal norms and laws. These factors can also give rise to the commission of violent acts in response to perceived slights (par [90.2.3]). And the risk factors associated with ASPD are enhanced by poly-substance abuse.

33. Dr Youssef administered the Violence Risk Appraisal Guide – Revised (VRAG-R) in conjunction with the Historical Clinical Risk Management-20, Version 3 (HCR**-20**). However, she observed that caution was required when utilising these tools in the case of Indigenous Australian men because, as I understand it, they are not well represented in the cohort of offenders from which these tools were developed (par [67]). However, she stated that, when caution was appropriately exercised, the application of these structured risk assessment tools was valid. Without them, there was a risk of over-estimation of the likelihood of recidivism.

34. The application of the VRAG-R and HCR-20 to the defendant indicated that he was in the highest risk category for violent recidivism with a high degree of outstanding dynamic risk needs (par [90.3.1]). He had no effective protective rating on the Structured Assessment of Protective Factors for Violence Risk (SAPROF) but there were some aspects of his presentation, including the consideration that he is cognitively intact, which suggested that, with support, the defendant could develop pro-socially.

35. Dr Youssef acknowledged that the risk assessment tools that she applied were relevant to the risk of violent offending generally, rather than to the risk of the commission of a serious violent offence within the meaning of the Act. However, she was of the view, taking into account both her clinical evaluation and the actuarial tools applied, that the defendant's overall risk level in relation to violent offending was high and that such violent offending had the potential to involve serious violence. In her view, the defendant could not be adequately managed in the community without an ESO.

36. In cross-examination, the expert reiterated the limitations on the actuarial tools. Dr Youssef was asked questions with respect to an opinion expressed in her report that, often with age, the symptoms of ASPD reduce or abate somewhat. The expert held that, irrespective of that opinion, she did not regard this as mitigating the risk in the defendant's case.

The report of Dr O'Dea

37. Dr O'Dea also examined the defendant by AVL. His examination was conducted over one hour and 40 minutes. He found the defendant to be generally cooperative, but in his body language, he exhibited a lack of interest with the interview process. Dr O’Dea considered that the defendant had limited remorse, contrition, empathy and/or insight into his offending behaviour.

38. Like Dr Youssef, Dr O’Dea considered that the defendant met the criteria for a Substance Use Disorder (par [99]). He described this as “a chronic and relapsing condition” (par [100]) requiring long-term and assertive commitment by the individual to abstinence – I interpolate, this is not an easy thing to achieve.

39. Dr O'Dea was also of the opinion that the offender met the criteria for ASPD with significant antisocial traits and regarded this as “an enduring condition”. He said that ASPD is a condition characterised by repeated antisocial behaviours, impulsivity, repeated failure to conform with lawful behaviours, irritability, aggression, disregard for the safety of others and problems with remorse. These conditions have limited amenability to treatment but often can be managed and the behaviour of the affected person can be modified. It was necessary to address the risk factors.

40. Dr O'Dea did not regard the defendant as otherwise suffering from a recognised psychiatric condition. Given the defendant's history of repeated violent offending, including while under supervision, his personality disorder and his substance abuse disorder, Dr O'Dea was of the view that “it would seem reasonable to assume” that the defendant has a significant risk of engaging in further violent offending in the community in the long-term, including the risk of committing a further serious violence offence. Substance abuse would increase the risk.

41. Dr O’Dea regarded that the defendant’s risk could be managed under an ESO and by attending to structured alcohol and other drug counselling and rehabilitation.

42. Dr O'Dea considered an ESO of three years’ duration to be appropriate as the risk the defendant presents would be long-term.

Registered psychologist report – s 9(3)(c) and actuarial assessment – s 9(3)(d)

43. The report of Dr Richard Parker, a senior psychologist in the Serious Offender’s Assessment Unit of Corrective Services NSW, dated 8 October 2024 was prepared in compliance with s 6(3)(b). Dr Parker's report and the reports of the court-appointed experts together satisfy the requirements of s 9(3)(d).

44. Dr Parker administered different actuarial tools from the court-appointed experts, Dr Youssef and Dr O’Dea. He also reviewed an earlier assessment made by a colleague, Mr Curnow, on 31 January 2023 by reference to the Violent Risk Scale (VRS). Dr Parker agreed with his colleague that the defendant was a Risk Level III, or average risk, which produces a five year violent recidivism rate of 36.2%. Dr Parker administered the VRAG-R and scored the defendant as being equal to or higher than at least 94% of the construction sample, placing him in the ninth of nine “bins”. 76% of violent offenders with a similar score reoffended violently within five years, and 87% within 12 years.

45. Dr Parker considered that the primary drivers of the defendant’s offending related to antisocial attitudes, substance abuse, antisocial personality disorder and antisocial associates. A likely future risk scenario would involve the defendant's return to substance abuse, criminal activity and criminal associations. These factors could combine and see the defendant return to violent crime to: fund his lifestyle, exact revenge against those he has formed a grievance against, and/or to avoid arrest. He regarded Mr Welsh’s violent conduct as “fairly habitual”.

Risk management report – s 9(3)(d1)

46. The risk management report was prepared by Mr Benjamin Markson, Community Corrections Officer, Metropolitan Extended Supervision Team for the purposes of ss 6(3)(a) and 9(3)(d1) of the Act. On the whole, in his report of 19 November 2024, Mr Markson believes that, subject to relatively strict conditions, the defendant can be effectively managed in the community.

47. As I refer to again below, initially, the plan was for the defendant to reside in his mum’s home. Following her death, however, he was evicted by the social housing provider, Housing NSW. Despite the defendant “fighting” this eviction, possession of the home was returned to Housing NSW on 17 October 2025 by order of the Civil and Administrative Tribunal (NCAT). He now resides with his adult cousin in her home. I infer that this was regarded as suitable for the purpose of the ISO, so it seems there is no reason why it should not be regarded as suitable for the purpose of an ESO.

48. The conditions that are proposed are: electronic monitoring, the provision of a schedule of movements, accommodation-related conditions, employment-related conditions, a prohibition of drugs and restrictions on alcohol, non-association conditions, a prohibition of weapons and conditions requiring the defendant to report to a Department Supervising Officer (DSO**)** and to engage in programs to which he is referred. Importantly, it is intended to refer the defendant to the community corrections aboriginal community engagement and to cultural officers for support if an ESO is imposed.

Treatment or rehabilitation programs – s 9(3)(e)

49. As referred to in the history recorded by Dr Youssef, the defendant and his twin brother engaged in the Glen group residential drug and alcohol program prior to the commission of the index offence. They were excluded from the course due to a relapse into substance abuse. Each seems to have been a bad influence on the other. But I acknowledge how difficult rehabilitation from drug addiction can be.

50. While in custody, the defendant twice engaged in the Violent Offenders Therapeutic Program (VOTP). Over the periods between 20 November 2016 to 25 September 2017, again between 30 March 2021 to 26 of May 2021 with further participation between April 2022 and January 2023. The report of 23 September 2017 recorded that while his attendance and participation were appropriate, if others were being disruptive, he would angrily vent his feelings and walk out.

51. However, during the course, the defendant received a custodial charge for concocting homebrew, but no charges relating to violence. His engagement on the whole continued to be positive, and he demonstrated a positive work ethic in his duties as a sweeper in the VOTP room, a position of some responsibility. He also produced and sold Indigenous art. Comparative VRS assessments before and after treatment demonstrated an improvement in his risk profile but he continued to present a high risk.

52. A second VOTP report of 21 February 2023 recorded that he had regressed to a B (medium) security classification due to possession of 3g of white powder, apparently an illicit drug. He was able to regain his C (minimum) security classification by April 2023. His familiarity with the program material enabled him to display good insight, but he reported difficulties with adhering to strategies and techniques.

53. His risk profile on the administration of the VRS improved further, but he still remained in the high risk range of violent reoffending. A further assessment conducted under the VRS at the conclusion of the course pleasingly saw a further reduction in his risk profile bringing him into the medium risk range. The risk factors remained the same.

Likelihood of compliance – s 9(3)(e2) and (f)

54. The defendant has not reoffended in any serious way since his most recent release to parole. It should also be reiterated that the firearms charges which led to the revocation of his parole in December 2023 were withdrawn and dismissed in May 2025. On the whole, his compliance with the conditions of his parole appears to have been reasonable.

55. There is an ongoing concern about a breach of the prohibited drug abstinence condition. This is an obvious problem. However, the defendant’s general compliance with his parole and his apparently good attitude to the VOTP in custody, including his achievement of a responsible position as a sweeper, suggests to me that he is likely to comply with the obligations of the ESO if one is imposed.

Criminal history – s 9(3)(g),(h) and (h1)

56. The defendant is not a child sex offender therefore s 9(3)(g) does not arise for consideration.

57. I have dealt in general terms with the defendant's criminal history and the views of Judge Ellis when sentencing for the index offence above (at[6]-[27]). I will not repeat those matters here.

Other relevant matters – s 9(3)(i)

58. There is no suggestion that the defendant should be kept in custody.

59. He has been directed to engage in a culturally appropriate residential rehabilitation program during the time he has been on parole and under the ISO. However, it seems to me that, on the whole, he has dragged his feet in relation to that requirement. For a significant part of that time, this may have been understandable given the caring responsibilities he assumed in relation to his mum, and I would not criticise him for that. But he has not proactively taken up the offer since his mother died in June 2025. However, unless supervised in the community, it seems to me unlikely that he will undertake necessary rehabilitation or participate in such counselling as may be available in relation to his ASPD. As I have already said, one appreciates the difficulties the defendant has faced overcoming addiction, but this is a factor which strongly suggests he requires further supervision.

60. Another consideration which the plaintiff urged that I should have regard to is the now withdrawn firearm charges. This said to be other information informing the risk of the commission of a further serious offence, or as part of his criminal history under s 9(3)(h). I admitted the evidence concerning those matters on the basis that the evidence was relevant and admissible, and I adhere to that opinion. However, I find it difficult to afford it any weight.

61. The basis of the charge seems to be that the firearms were found in the roof cavity of the defendant’s mother’s residence. As he resided there, the defendant was charged under the extended definition of possession in s 4 of the Firearms Act 1996 (NSW). While one can understand that the defendant could be a suspect, the evidence before me which includes the fact of withdrawal of the charges when the matter had been committed for trial, does not rise to a level where I could be satisfied on the balance of probabilities that he committed that offence. In the circumstances, I do not afford that evidence any weight in my assessment.

Determination of the unacceptable risk question

62. Mr Mykkeltvedt submitted that, on the whole of the evidence, I would be more than satisfied, to the high degree of probability required, that the defendant presents an unacceptable risk of committing another serious violence offence if not kept under an ESO. Ms Akthar argued to the contrary.

63. In particular, Ms Akthar pointed out that: the defendant had not been convicted of any serious indictable offence since 2018; he had attained an age where the symptoms of his ASPD were likely to diminish; he had demonstrated responsibility in custody; and statistical assessments were a poor guide given they assessed the risk of violence generally, rather than the risk of the commission of a serious violent offence within the meaning of the Act.

64. I accept that there is force in some of Ms Akthar’s arguments however, on consideration of the whole of the evidence, I am satisfied to a high degree of probability that the defendant continues to present an unacceptable risk of committing a serious violence offence if not kept under an ESO and subject to appropriate conditions of supervision.

65. The continuing relevance of the ASPD in the life of the defendant is of concern to me, bearing in mind the primacy of the consideration of the safety of the community. I accept Dr O’Dea’s evidence that such conditions are intractable and effectively incurable. While the symptoms may abate somewhat and he remains intact cognitively, I am of the view that the defendant requires assistance to achieve such an outcome which he would be unlikely to obtain if left to his own devices.

66. Dr Youssef while acknowledging the prospect of remission of symptoms, stated that ASPD is linked to the highest rates of violence among all psychiatric disorders. Notwithstanding the defendant's completion of the VOTP twice, Dr Youssef said that he continues to have significant outstanding treatment needs and is not yet considered to be in the maintenance stage (par [90.2.5]). She considers that there are treatment modalities available for the defendant.

67. Further, the defendant’s continued substance abuse remains of significant concern as it continues to be his primary coping mechanism in times of stress, trial or disappointment. The defendant himself acknowledges the close connection which substance abuse has with his history of serious offending.

68. The defendant’s history of violent offending, particularly in that it has frequently involved the use of weapons of one kind or another, including the discharge of firearms in a public place, is also of particular concern to me.

69. The defendant’s poor employment history, especially in the light of his continuing substance dependence and his newfound gambling habit, strongly suggest to my mind that there is a real risk that, despite an impression of present stability, his personal circumstances could descend into a financial crisis leading to a drug fuelled attempt to relieve impecuniosity or debt by committing a crime. In a foreseeable set of circumstances, this crime could be committed while the defendant is armed with a weapon during which serious violence could be done to the victim the subject of the offending, or perhaps an innocent bystander.

70. While the actuarial results referred to by the experts relate to violence generally, rather than the specific risk upon which the legislation focuses, they remain relevant to informing a decision with regard to unacceptable risk. Clearly, a propensity for violence can readily escalate into the commission of a serious violence offence within the meaning of the Act.

71. I am satisfied that the condition expressed at s 5B(d) has been established to the necessary statutory standard of proof.

Residual discretion

72. Even though the statutory pre-conditions to making an ESO under s 9 have been satisfied, I retain a residual discretion to refuse to make an order by dismissing the application, as the language of s 9(1) makes clear. It is equally clear, however, that there would be few cases where a judge, having found the 5B(d) risk to be unacceptable, would be justified in making an order dismissing the application.

73. However, Ms Akthar urged upon me the application of the type of considerations which underpin the principle of the law of sentencing expressed by the High Court of Australia in Bugmy v the Queen (2013) 249 CLR 571; [2013] HCA 37 (Bugmy) which she submitted recognises the significant mark left upon a person by “profound childhood deprivation” (at [44]). She argued a similar approach could engage the exercise of the residual discretion to refuse to make an ESO.

74. While these submissions were put with a degree of eloquence, I am not satisfied that this principle of the law of sentencing provide any true analogy for the purpose of the exercise of the discretion conferred on this Court by s 9(1)(b). Indeed, having regard to the primary object of the Act as expressed in s 3(1), I am of the view that a principle concerned with the assessment of punishment for serious crimes has no application to civil proceedings concerned not with punishment but, as a matter of paramountcy, with community safety. I fully appreciate that protection of the community is an object or purpose of the law of sentencing: s 3A(c) Crimes (Sentencing Procedure) Act (NSW). But the mitigatory effect of the Bugmy principle which may operate to reduce the appropriate sentence in a given case because of a reduction in moral culpability does not promote community safety. It points in the opposite direction.

75. Were my views about the applicability of the Bugmy principle wrong, a more apt consideration may be that identified at the end of [44] of the joint judgment where, having explained why an offender’s moral culpability may be substantially reduced, the Court added:

“… [an offender’s] inability to control the violent response to frustration may increase the importance of protecting the community from the offender.”

76. I am satisfied that I should dispose of the application by imposing an ESO of 3 years’ duration commencing from the expiration of the ISO on 25 November 2025.

Conditions

77. Section 11 of the Act provides that an ESO may direct an offender to comply with such conditions as the Court considers appropriate. An inclusive but not exhaustive list of directions which may be made are set out under the chapeau to subs (1). Section 11(2) requires the imposition of a mandatory condition that the offender is not to leave the State without the approval of the Commissioner of Corrective Services.

78. It is well established that the determination of what is appropriate in the given case will be guided by: the purposes of the Act; the assessment of the identified risk and the measures necessary to manage or mitigate it; the secondary object of promoting the defendant’s rehabilitation; and the general right to be at liberty which the offender would otherwise enjoy but for the making of the order. It may be said that while an ESO operates as a significant or substantial restraint while a person is at liberty, the practical content of that restraint is to be found in the conditions that the defendant is required to observe.

79. As is not uncommon, the appropriateness of many of the conditions proposed by the plaintiff were contested. Ms Akthar reminded me that breach of any imposed condition is a serious indictable offence which, by s 12, carries a maximum penalty of five years imprisonment on conviction. She submitted that I should take care “not to set the defendant up to fail”. While this is a phrase that is sometimes heard, I am of the opinion that an offender who is determined to comply and does in fact comply in all respects with the requirements of the ESO is hardly likely to fail.

80. As I have already remarked, what an ESO requires by way of supervision is to be found in the conditions, and the fact that an offender may find compliance with a condition difficult is no reason of itself not to impose it. While I embrace Ms Akthar’s submission that care should be taken to ensure that the conditions imposed are appropriate to the management of the unacceptable risk and otherwise apt to promote an offender’s rehabilitation, bearing in mind what I have said about the broad principles applicable, the test is one of appropriateness, not necessity. But given the infringement on the offender’s liberty, a degree of parsimony in imposing conditions may itself be appropriate.

Condition 2 – DSO written direction by SMS or other messaging service

81. The first condition with respect to which there is an issue is condition 2 permitting a DSO to give a written direction by SMS or other messaging service. This is opposed by the defendant.

82. From the evidence, the defendant appears to have frequently changed his phone number during the period he has been under supervision by Community Corrections. The explanation proffered has been that he is attempting to avoid contact with bad company. Frankly, it is hard to accept this explanation at face value. As this circumstance of the defendant’s frequent changes to his phone is known, I think it appropriate to place the onus on a DSO by adding to the formulation of condition 2 as follows:

“2. Where a direction may be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service. A direction may only be given by SMS or other messaging service where a DSO is confident you are in possession of a personal electronic device in good working order”

(my emphasis).

Conditions 5, 6, 8 – Electronic monitoring and schedule of movements

83. The defendant opposes the related conditions 5, 6 and 8 requiring electronic monitoring, and the provision of a schedule, of movements. On the evidence, these conditions operate in support of each other.

84. I observe that the defendant has not been subject to electronic monitoring nor been required to provide a schedule of movements under either his previous parole order or under the ISO imposed by Rigg J.

85. On the evidence before me, particularly the evidence of Dr Youssef, I accept that electronic monitoring and the related schedule of movements are valuable means of introducing structure into the defendant's life which mitigates the risk of falling into bad company and committing further offences, particularly the commission of a further serious offence.

86. I am also of the view that electronic monitoring has a valuable deterrent effect, always accepting it is neither foolproof nor failsafe. I also accept that, in most cases, it involves not insignificant inconvenience, in as much as the ankle bracelet is required to be recharged twice per day. Ms Akhtar said this was an onerous requirement and culturally inappropriate for this defendant. I do not agree with these contentions given that he has no current full-time employment, has not engaged in suggested rehabilitation programs so far and is residing with his cousin in a suburban residence. Accordingly, the defendant’s circumstances suggest he ought to have the capacity to ensure the ankle bracelet remains charged.

87. I fully appreciate that, from my experience as a judge, this requirement can engender a degree of resentment in a defendant as it imposes a significant restriction on the person's liberty and his freedom of movement. However, I am of the view that this restriction is justified, at least for a limited period during which the defendant will have an opportunity to adapt to a structured, pro-social lifestyle, as Dr Youssef has opined. I propose to limit the period during which a DSO is empowered to require the defendant to wear electronic monitoring equipment to that of 18 months only. In doing so, I am not in any way intending to interfere with the discretion of a DSO to reduce the period from the maximum period which I have permitted should the defendant demonstrate he is able to make good progress with respect to his compliance.

88. For these reasons, I have amended conditions 5, 6 and 8 into the following respective forums:

Electronic Monitoring

5. For the period of 18 months following the making of the extended supervision order, you must wear electronic monitoring equipment (the equipment) as directed by a DSO and must not tamper or remove the equipment. The period of 18 months may be extended by an order of the Court only.

Schedule of Movements 6.If directed, you must provide a schedule of movements during any period you have been directed by a DSO to wear electronic monitoring equipment in accordance with condition 5.

…

8. You must not deviate from your schedule of movements except:

a) In an emergency. In cases of emergency, you must notify a DSO of the deviation and the reason for it by telephone at the first available opportunity.

b) deleted].

Conditions 11, 13, 14 – Accommodation

89. A number of objections were taken to the various conditions relating to accommodation and, for the reasons I am about to give, I have altered what the plaintiff has proposed in relation to conditions 11, 13 and 14 (which will be set out below). These do not represent the whole of the matters to which Ms Akhtar objected.

90. By way of background, upon his release into the community, I reiterate that the defendant resided with his mum in her social housing accommodation. I accept the evidence that, while he resided with her, he made positive contributions to her household by attending to domestic chores on her behalf and looking after her during what proved to be her final illness. The defendant had heard that he may be able to continue residing in that residence after her death. This however was not permitted by the social housing provider. I make no criticism of that organisation as social housing providers have waiting lists and established procedures governing the provision of housing.

91. In any event, it was necessary for action to be taken against the defendant in the NCAT to secure his eviction which duly occurred. While there was initially some doubt about where the defendant could go, accommodation has since been provided at the home of his cousin. The evidence which his cousin provided is that the defendant is conducting himself appropriately in her home and was assisting with chores. He is welcome to stay with her for the foreseeable future. This arrangement has given rise to a number of legitimate concerns about whether the conditions in relation to accommodation proposed by the plaintiff would unduly encroach upon the defendant’s cousin’s rights to privacy and enjoyment of her property as the principal resident of the home. I have sought to fashion conditions which will, so far as may be reasonable, safeguard her interests while simultaneously providing appropriate power to the DSO.

92. Objection was taken to condition 9 to the extent to which that it requires the defendant to notify a DSO when intending to change an approved address or living arrangements. Frankly, given that there is no objection to the requirement that the defendant live at the address approved by the DSO, I had difficulty understanding the objection to the idea that, should he wish to move, he must notify a DSO to obtain approval of the new address or other living arrangements. I could see great inconvenience arising were it otherwise.

93. Were the defendant to move into his own accommodation, as he may wish to do, with social housing or otherwise, undoubtedly, he would be required to sign a lease. Great inconvenience would be occasioned if, after the defendant had entered into a lease, for good reason, a DSO refused to approve of the new address. I will allow condition 9 as opposed.

94. In order to protect the rights of his cousin as the principal resident of his current approved address, I propose to allow conditions 11, 13 and 14, however in the following terms:

“11. You must allow a DSO to visit you at your approved address at any time and to enter the premises at that address. Where your current approved address is as a guest in the home of another, this power may only be exercised with due consideration given to the right to privacy of the principal resident of the address. A DSO may only enter the premises with the permission of the principal resident. Curfew checks may be carried out by attendance at the front door only, unless the principal resident grants permission for a DSO to enter the premises.

…

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

NOTE: You do not need to notify your DSO about delivery or tradespeople carrying out work at your approved address. Where you are residing in the home of another you need not notify your DSO about the entry of persons visiting the principal resident.

14. You must not permit any person to stay overnight at your approved address (other than persons who ordinarily reside there) without the prior approval of a DSO. Where you are residing as a guest in the home of another you need not notify a DSO of persons who stay overnight at your approved address as a guest of the principal resident unless the invitation to the guest has been extended at your request.”

Condition 18 – Employment, finance and education

95. Objection has been taken to the requirement that the defendant must not start or change any job, volunteer work or educational course without the approval of a DSO as proposed by the plaintiff in condition 18. Ms Akhtar has pointed out that the defendant is not a sex offender and, accordingly, is not subject to the same management requirements in relation to employment or employment-like activities which may be appropriate in respect of managing the unacceptable risks of such offenders. It is also pointed out that he has picked up from time to time some casual lawnmowing work with a neighbour named “Jake”. Ms Akthar submitted that the requirement to obtain prior permission was an unreasonable infringement on the defendant’s liberty to accept such casual or occasional work when offered.

96. While I can see no reason why work for the defendant’s neighbour could not be considered and approved on an ongoing basis, notwithstanding its casual or occasional incidence, I am of the view that supervision by a DSO of his employment activities is appropriate in the interests of his rehabilitation. Obtaining work even on a voluntary basis or undertaking adult education are prosocial activities and should be encouraged. There may be aspects of certain activities of this kind which may enhance the risk I have assessed, and it is appropriate that a DSO have a role in reviewing proposals to undertake such activities. I have refashioned condition 18 as follows:

“18. You must not start or change any job, volunteer work or educational course without the approval of a DSO. In the case of an offer of casual or temporary work, you may seek the necessary approval by telephone.”

Condition 23 – Drug and Alcohol Restrictions.

97. There is no doubt that substance abuse, particularly abuse of prohibited drugs in the form of stimulants, has been a significant criminogenic factor in the defendant's case. It seems to be vital that he be subject to both appropriate restrictions and appropriate rehabilitation which, for various reasons he has frankly given, he has not pursued with the requisite energy. Ms Akhtar opposes these conditions. As I understand her submission, these matters fall into the “setting him up to fail” category whereby when his substance abuse comes to the attention of a DSO or the police it is likely to result in his arrest and subsequent punishment for breach of the conditions of his supervision order. Ms Akthar has pointed out to me that he has recently been charged with possession of a prohibited drug when he disclosed to his DSO the difficulties he was experiencing staying off stimulants. It is also argued that restrictions on alcohol use are not necessary in the circumstances.

98. There is no doubt that the defendant requires support with his substance abuse issues, probably in the form of a period of residential rehabilitation which his former Community Correction supervisors of his parole attempted to foster. My impression from the evidence is there always seemed to be a reason why the defendant could not attend to undertaking rehabilitation at the time he was counselled in that regard. He may have had good reason at times for delaying entry into rehabilitation including his mum's illness.

99. Dr Youssef has identified a direct link between substance misuse, the association with antisocial peers and the risk of violence. Dr O'Dea referred to the long history of polysubstance abuse, and expressed the following opinion (exhibit CB 9) at par [101]:

“…Abstinence from alcohol and illicit substance use in the community in the long-term, with more pro-social activities and associations, are likely to prove the most effective interventions in managing and minimising the risks of relapse of his history of mood disturbance and/or psychotic style symptoms in the community in the long term."

100. As his ASPD is a significant risk factor in the opinion of the experts, I regard the proposed drug and alcohol conditions as appropriate.

101. I have added to condition 23, a requirement that the defendant attend and participate in drug and alcohol rehabilitation programs the following expression:

“…you must not absent yourself on any day that you are required to attend without reasonable excuse”.

Conditions 24-26 – Association conditions

102. There was objection raised to the proposed non-association requirements contained within conditions 24, 25 and 26 on the ground that non-association conditions were not sufficiently connected to a risk of serious violence. I disagree.

103. Obviously, the experts report that associations with anti-social peers, the proverbial “bad company”, has been a significant criminogenic factor in the defendant's case. I will permit these conditions.

104. I wish to record that so far as condition 24 is concerned I would regard the phrase “any person specified by a DSO”' as being restricted to named or otherwise identified individuals rather than groups or classes of individuals. I have amended conditions 25 and 26 in the manner appearing below.

105. The restriction in condition 26 has been reduced to “disclosure of the circumstances of the index offending to any person with whom the defendant forms a domestic relationship”.

Conditions 26A & 26B – Gambling

106. Objection was originally taken to the conditions 26A and 26B in relation to gambling. However, on the basis of Dr Youssef’s evidence as I understand it, that objection was withdrawn. Were the defendant to gamble away his limited income it may provide a motivation for the commission of serious property offences to support himself by a misguided sense of necessity. Given his history, this could involve the infliction of violence even rising to the level of serious violence with the use of a weapon.

107. I will allow 26A and 26B to stand as proposed.

Conditions 27 & 28 – Weapons

108. Ms Akhtar took objection to conditions 27 and 28 prohibiting the possession of prohibited weapons and other implements or instruments capable of being used as a weapon. The basis of the objection was that the matters prohibited by the proposed conditions replicate the criminal law and exposed the defendant to a form of double jeopardy in that he may be criminally responsible not only for the primary offence but also for the breach of the condition contrary to s 12. Whether or not that is so given the defendant's previous use of weapons in the commission of violent and property offences, I consider the conditions to be appropriate for the purpose of s 11.

109. While the conduct covered by the conditions may be contrary to the criminal law, including them in writing in the conditions of the order will bring home to the defendant the need to observe them. It is unlikely that the defendant would have at the forefront of his mind the provisions of the Firearms Act 1996 (NSW) or the Weapons Prohibition Act 1998 (NSW) in the same way as his conditions of supervision.

Condition 29 – Access to Electronic Communications

110. In response to Ms Akthar’s objection, I have limited condition 29, permitting supervision by a DSO of the use of electronic devices to the promotion of monitoring compliance with conditions 26A and 26B in relation to gambling.

Condition 30 – Search and seizure

111. In response to Ms Akthar’s objections to the width of condition 30 and it’s potential to affect the rights of others. I have amended condition 30 to provide as follows:

“30. 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 in which you are travelling and 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. Where your approved residence is as a guest in the home of another, this power of search is limited to that part of the residence solely occupied by you. This power may only be exercised with respect given to the privacy and property rights of the principal resident.”

Conditions 36-43 – Medical intervention and treatment.

112. There is no doubt that the Defendant’s ASPD is a significant risk factor in this case. Likewise, his Substance Use Disorder. The expert evidence suggests that, in particular, the ASPD, is likely to be intractable and not susceptible to treatment although its symptoms may abate to some extent with age and appropriate modalities of treatment. It may be that psychological or psychiatric assessment has a part to play in the management of those conditions, and I have allowed condition 36.

113. However, it seems to me on the whole of the evidence that there is no reason why any general medical condition that the defendant may suffer from time to time should be subject to monitoring, supervision, approval or enquiry by a DSO. I accept that these matters have nothing to do with risk or rehabilitation, and are unreasonable restrictions on the defendant’s privacy and general right to be at liberty. Accordingly, I have deleted conditions 37, 38, 39, 40 and 43.

114. I have refashioned condition 41 to limit it to rehabilitation services or other services providers under, essentially, condition 36 and thereby restricted the wide scope of the proposal put forward by the plaintiff. It is now cast in the following terms:

“41. You must agree to any rehabilitation service or other service providers you are directed to consult by a DSO under a power conferred by these conditions sharing information about your progress and attendance with each other and with a DSO, where it is considered necessary by the DSO for the purpose of risk mitigation.”

115. The recasting of condition 41, in this way, reduces the scope of condition 42.

SCHEDULE OF CONDITIONS OF SUPERVISION - DWAYNE ERIC WELSH (221 KB, pdf)

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Amendments

02 December 2025

Inserted schedule of conditions