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[2025] NSWSC 980
General information, not legal advice.
Supreme Court of NSW
2025-08-28
Walton J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: State of New South Wales v Whiley [2025] NSWSC 980
Hearing dates: 08 August 2025
Date of orders: 19 August 2025
Decision date: 28 August 2025
Jurisdiction: Common Law
Before: Walton J
Decision: (1) An order pursuant to section 17(1)(a) of the Crimes (High Risk Offenders) Act 2006 that the defendant be subject to an extended supervision order for a period of five years from the date of the order.
(2) An order pursuant to section 11 of the Crimes (High Risk Offenders) Act 2006 that the defendant comply with the conditions set out in the Schedule to this Order.
Catchwords: HIGH RISK OFFENDER – Final hearing – Application for continuing detention order – Alternative application for extended supervision order – Review of legal principles – Should an application for a CDO be considered ahead of an alternative application for an ESO – A two-stage process – Relevance of subs 17(4) factors to unacceptable risk test
HIGH RISK OFFENDER – Subsection 17(4) factors – Criminal history – Sentencing remarks – Court appointed experts – Reports of other qualified psychiatrists, psychologists and medical practitioners – Statistical assessments – Risk management report – Treatment and rehabilitation programs – Level of compliance with obligations of parole and CPR – Options to reduce the likelihood of reoffending
HIGH RISK OFFENDER – Application for continuing detention order – Determination of risk – No unacceptable risk of committing another serious offence if defendant is not kept in detention – Alternative application for extended supervision order – Unacceptable risk of committing another serious offence if defendant is not kept under supervision
Legislation Cited: Child Protection (Offenders Registration) Act 2000 (NSW)
Crime (Serious Sex Offenders) Amendment Act 2013 (NSW)
Crimes Act 1900 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (High Risk Offenders) Amendment Act 2017 (NSW)
Crimes (High Risk Offenders) Amendment Bill 2017 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Anderson v State of New South Wales (2016) 258 A Crim R 381; [2016] NSWCA 86
Davie v State of New South Wales [2016] NSWCA 96
Jones v State of New South Wales [2020] NSWCA 202
Kamm v State of New South Wales (No 4); (2017) 95 NSWLR 179; [2017] NSWCA 189
Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57
New South Wales v Russell (Final) [2020] NSWSC 396
New South Wales v Wilde [2014] NSWSC 305
R v Grant Neville Whiley (District Court (NSW), Solomon DCJ, 26 October 2012, unrep)
R v Grant Whiley (District Court (NSW), Musgrave DCJ, 22 April 2025, unrep)
Regina v Grant Neville Joseph Whiley (District Court (NSW), Ford DCJ, 7 November 1988, unrep)
Regina v Grant Neville Whiley (District Court (NSW), Bennett DCJ, 9 December 2008, unrep)
Rigby v State of New South Wales [2022] NSWCA 14
State of New South Wales v Barrie (Final) [2018] NSWSC 1005
State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280
State of New South Wales v Farzad (also known as Arthur Fairwell) (Final) [2024] NSWSC 265
State of New South Wales v Fisk [2013] NSWSC 364
State of New South Wales v Jones [2018] NSWSC 459
State of New South Wales v Kamm (Final) [2016] NSWSC 1
State of New South Wales v Ryan [2023] NSWSC 1138
State of New South Wales v SLD (Final) [2025] NSWSC 203
State of New South Wales v Sturgeon (No. 2) [2019] NSWSC 883
State of New South Wales v Thurston [2018] NSWSC 421
State of New South Wales v Whiley (Preliminary) [2025] NSWSC 509
State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813
Whiley v R [2010] NSWCCA 53
Whiley v R [2014] NSWCCA 164
Texts Cited: Explanatory Note, Crimes (High Risk Offenders) Amendment Bill 2017 (NSW)
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017
Category: Principal judgment
Parties: State of New South Wales (Plaintiff)
Grant Neville Whiley (Defendant)
Representation: Counsel:
G Wright SC & R Thampapillai (Plaintiff)
M Johnston SC & R El-Choufani (Defendant)
Solicitors:
Crown Solicitors Office (Plaintiff)
Legal Aid NSW (Defendant)
File Number(s): 2025/98503
Publication restriction: Nil
By way of a Summons filed on 13 March 2025, the State of New South Wales (“the State”) brought an application under the Crimes *(*High Risk Offenders) Act 2006 (NSW) (“the Act”) for preliminary orders, as well as interim and final relief against the defendant, Grant Neville Whiley (“the defendant”).
The preliminary hearing was heard by Davies J on 28 May 2025: State of New South Wales v Whiley *(*Preliminary) [2025] NSWSC 509 (“the preliminary judgment”). On 29 May 2025, Davies J made orders appointing two qualified psychiatrists and/or psychologists for the purpose of furnishing reports to the court. In the result, the Court received reports from Dr Gordon Elliott, a general and forensic psychiatrist, and Dr Sathish Dayalan, a forensic psychiatrist.
While the State also sought interim relief in the form of an interim detention order (“IDO”), or in the alternative, an interim supervision order (“ISO”), Davies J held that one of the pre-requisites for the making of an IDO or ISO had not been satisfied, namely, the requirement that the defendant’s current custody will expire before the proceedings are determined: s 10A(a) and 18A(a) of the Act.
The present proceedings concern the application for final relief, in which the State sought a continuing detention order (“CDO”) for a period of 18 months pursuant to ss 5C and 17(1)(b) of the Act, or in the alternative, an extended supervision order (“ESO”) for a period of five years pursuant to s 17(1)(a) of the Act.
It should be observed that, notwithstanding Practice Direction CL12 and the careful management of proceedings of this type by Yehia J, the hearing of this matter was scheduled, by consent of the parties, for 8 August 2025; 12 calendar days before the release date was scheduled for the defendant.
As a result of the parties having not addressed in writing (or orally), certain legal issues having a bearing on the disposition of these proceedings, the decision in the matter was actually reserved, later in time, after the receipt of written submissions, on 14 August 2025, 6 days before the release date of the defendant.
It must be said that the timetable for the disposition of this matter was unsatisfactory.
In the result, the Court announced orders on 19 August 2025. The orders made were as follows:
“1. An order pursuant to section 17(1)(a) of the Crimes (High Risk Offenders) Act 2006 that the defendant be subject to an extended supervision order for a period of five years from the date of the order.
2. An order pursuant to section 11 of the Crimes (High Risk Offenders) Act 2006 that the defendant comply with the conditions set out in the Schedule to this Order.”
The defendant was born in Sydney on 30 January 1970. He was the elder of two brothers. His life as a young child was affected by his father’s drinking and gambling, and his parents separating when he was six years of age, at which time the defendant reported his behavioural problems commenced.
The defendant was physically abused by his father and stepfather, before being placed into out of home care. He was sexually abused between the ages of 12 and 13 by a Dormitory Master at the defendant’s boarding school over a 6 to 12 month period. Following this abuse, the defendant reported that he also suffered abuse at the hands of someone referred to as “the Captain” at a Salvation Army Hostel.
The defendant left home to live independently at 15 years of age and reported leaving school during year 9, having been in conflicts with school authorities, fighting peers and truanting. He has since completed some studies in custody (including Certificate IV in Small Business Management).
The defendant commenced the use of alcohol at age 11, cannabis at age 13, amphetamines at age 15 (though reportedly ceased by age 21), and heroin for a short time also at age 15.
The defendant reported that he has had three significant relationships with adult females. One of the relationships involved violence by him against his long-term partner and the other involved allegations of violence against the child of that relationship. He also reported having two adult sons, one adult daughter, who may be his, and another younger daughter who would be around 19 years old at the time of the hearing. When the defendant was 21 years old, he had a relationship with a woman named Vanessa and shared a baby. The child was, however, taken into the care of the State after reports of being mistreated, suffering bruising in multiple locations and a crush fracture on the left hand. The child was also underweight. During the course of proceedings, the defendant made numerous threats to various parties involved and was then held in contempt of court.
The defendant has previously had a supportive relationship with his mother, whom he was residing with in Orange prior to his return to custody as discussed below. The defendant also maintained a close relationship with his sister, who resides in Wollongong, works full time in adult education and has a history of veterinary care. The defendant’s father is reported to have been very ill in late 2024 and has since passed away.
The defendant has an extensive criminal history, including convictions for serious violence offences and serious sex offences (within the meaning of ss 5 and 5A the Act).
The defendant has served multiple custodial sentences since he was 17 years of age, with very little time spent outside of custody. Since 1988, the defendant has spent just over 6 years outside of custody, with the longest period spent outside of custody being 23 months when the defendant was 19 years of age.
The parties agreed that the preconditions for the making of a CDO at subss 5C(a), (b) and (c) of the Act are satisfied, namely, that:
The defendant is an “offender” (as defined under s 4A of the Act) who has served a sentence of imprisonment in custody for a “serious offence”. Specifically, he is over 18 years old, and in 1995 was sentenced to a period of imprisonment to be served by full-time detention following his conviction for offences of sexual intercourse with a child under 10 years of age, being a “serious sex offence” for the purpose of subs 5(1) of the Act. The State also noted that in 1988 the defendant was sentenced to a period of imprisonment following his conviction for maliciously wounding with intent to cause grievous bodily harm, being a “serious violence offence” for the purpose of subs 5A(1) of the Act.
The defendant is a “detained offender” (as defined under s 13B(2) of the Act) because he was in custody serving a sentence of imprisonment for an “offence of a sexual nature”, namely two offences of possess child abuse material contrary to s 91H of the Crimes Act, at the time the application was made on 13 March 2025.
The application was made in accordance with s 13B of the Act.
While it is ultimately a matter for the Court, I note that the parties also agreed that the Court could be satisfied, to a high degree of probability, that the defendant would pose an unacceptable risk of committing another serious offence if not kept under supervision: subs 5B(d) of the Act.
If the Court concurred with that proposition, the defendant accepted that the Court should, in the exercise of its discretion, make an ESO. If the Court were to make an ESO, the parties agreed that the appropriate duration is for a period of 5 years.
The State submitted that if the Court was not satisfied that a CDO should be made, it would readily find that the test for an ESO is made out, and with respect to the conditions of an ESO, both court-appointed experts have opined that all conditions listed in the Summons are important for managing the defendant’s risk.
The defendant was correct to submit that the principal areas of controversy between the parties then were, on the application by the State for a CDO, whether the statutory threshold under subs 5C(d) of the Act is satisfied, and if so, whether, in the exercise of the Court’s discretion under subs 17(1) of the Act*,* the Court should decline to make a CDO rather than impose an ESO.
In answer to those disputed areas, the parties broadly made the following submissions.
The State submitted that the evidence currently available, including the defendant’s high level of psychopathy, his deviant sexual interests including paedophilia, his lack of treatment and lack of remorse, empathy or insight into (and with regard to) his offending behaviour, points to a high degree of probability that the defendant poses an unacceptable risk of committing a further serious offence if he is not kept in detention.
(collectively, “the questions”).
In response to the questions, the parties adopted opposite approaches to the answer, with the State urging the Court to adopt an affirmative answer and the defendant a negative one (although the question earlier formulated in the defendant’s written submissions was suggestive of a two-stage process). The elucidation of their submissions, in that respect, will occur under the next section of this judgment.
I note that a further consideration, arising in the context of the questions, is whether the court should have regard to the factors in s 17(4) of the Act in both determining whether there is an unacceptable risk and in the exercise of any discretion in determining the application.
The primary object of the Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community: subs 3(1) of the Act. The safety of the community must be the paramount consideration of the Court in determining whether or not to make a CDO or ESO: subs 17(2) of the Act.
Another object of the Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation: s 3(2) of the Act.
Part 1A of the Act is entitled “Supervision and detention of high risk offenders”.
Sections 5B and 5C of the Act fall under that Part and concern ESO’s and CDO’s, respectively. Both headings above those provisions make reference to “unacceptable risk”.
Section 5B of the Act provides:
“5B Making of extended supervision orders – unacceptable risk
The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if –
(a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and
(b) the person is a supervised offender (within the meaning of section 5I), and
(c) an application for the order is made in accordance with section 5I, and
(d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.”
**“**5C Making of continuing detention orders—unacceptable risk
The Supreme Court may make an order for the continued detention of a person (a continuing detention order) if—
(a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and
(b) the person is a detained offender or supervised offender (within the meaning of section 13B), and
(c) an application for the order is made in accordance with section 13B, and
(d) the Supreme Court is satisfied to a high degree of probability that the person poses an unacceptable risk of committing another serious offence if not kept in detention under the order.”
Subsections (a) to (c) of ss 5B and 5C are identical and constitute, as I will later discuss, preconditions for the exercise of the power of the Court to make either an ESO or a CDO.
The meaning of “offender” is set out in s 4A of the Act, and is a person who is of or above 18 years of age, and has at any time been sentenced to imprisonment (not including a suspended or quashed sentence) to be served by way of full-time detention or intensive correction in the community (whether or not subject to a home detention condition) following the person's conviction for a serious offence.
A “serious offence” is defined in s 4 of the Act and means a serious sex offence or a serious violence offence (as defined in subs 5(1) and 5A(1) of the Act, respectively).
A “serious sex offence” includes an offence under Division 10 of Part 3 of the Crimes Act, where, in the case of an offence against a child, the offence is punishable by imprisonment for 7 years or more: subs 5(1)(a)(i) of the Act.
A “serious violence offence” includes a serious indictable offence (within the meaning of the Crimes Act), that is constituted by a person engaging in conduct that causes the death of another person or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person: subs 5A(1)(a) of the Act. Conduct that causes grievous bodily harm to another person will include conduct that causes the wounding of another person, but only if the conduct was engaged in with the intention of causing death or grievous bodily harm: subs 5A(2A)(c) of the Act.
A “detained offender” is defined in s 13B of the Act, and includes an offender who, at the time the application was filed, was in custody while serving a sentence of imprisonment for an offence of a sexual nature.
The fourth precondition in ss 5B and 5C, found in subsection (d) in each case, differ. Both of those provisions represent the substantive risk test for consideration by the Court. The provisions require the Court to undertake an evaluative process as to the existence or otherwise of an unacceptable risk. Thus, the Court is required to be “satisfied to a high degree of probability” as to the risk referred to in subsection (d).
However, the fourth precondition differs as between subss 5B(d) and 5C(d) in that, in the first case, the Court is required to assess whether the offender poses an unacceptable risk of committing another serious offence if not kept under supervision, and in the second instance, the assessment of unacceptable risk in that way is confined to the limitation “if not kept in detention”.
Before turning specifically to the questions, it is appropriate to consider the relevant aspects of the legislative and jurisprudential history of the Act.
The Act was substantially amended in 2013 by the Crime *(*Serious Sex Offenders) Amendment Act 2013 (NSW) (“the 2013 A**mendment A**ct”). The Act was further amended in 2017 by the Crimes *(*High Risk Offenders) Amendment Act 2017 (NSW) (“the 2017 A**mendment A**ct”).
From the 2013 A**mendment A**ct until the passage of the 2017 A**mendment Act, the immediate former version of the Act (“the f**ormer A**ct”) contained Part 1A. Part 1A of the former A**ct had two divisions dealing respectively with “high risk sex offenders” (Div 1) and “high risk violent offenders” (Div 2).
“High risk sex offender” was defined in s 5B of the former A**ct, and provided that the court’s jurisdiction to make a CDO or ESO was enlivened “if and only if the offender is a high risk sex offender”: subs 5B(1) of the former A**ct. Subsection 5B(2) of the former A**ct provided as follows:
“An offender is a high risk sex offender if the offender is a sex offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision.”
Comparable provisions were contained in subs 5E(1) and (2) of the former A**ct in relation to a “high risk violent offender”.
Section 5C(1) of the former A**ct provided that the court may make an ESO if the offender was a high risk offender.
Subsection 5D(1) of the former Act, concerning CDOs, provided that:
“5D Continuing detention orders for high risk sex offenders
The Supreme Court may, on application under this Act, make an order for the detention of an offender if the offender is a high risk sex offender and the Supreme Court is satisfied that adequate supervision will not be provided by an extended supervision order.”
Section 5G of the former A**ct applied in relevantly identical terms to high risk violent offenders.
Subsection 17(1) of the former Act was in the same terms as the Act. Subsection 17(2) did not exist. Subsection 17(4) set out a list of factors from (a) to (k) which included the safety of the community (subs 9(3) contained equivalent factors save for subsubsections (j) and (k)).
I agree with the submissions of the State that the effect of these provisions of the former Act was, therefore, that a CDO could only be made if the court was satisfied that supervision under an ESO was not adequate.
Soon after the passage of the 2013 A**mendment A**ct, Justice Beech-Jones, sitting in the Common Law Division of this Court (as he then was) made the following observations about the newly minted A**ct in State of New South Wales v Fisk [2013] NSWSC 364 (“Fisk*”*) at [22] and [84] as follows:
“[22] Second, the structure of the Act in its current form appears to require that a determination that a person falls within the definition of "high risk sex offender" be undertaken prior to considering whether or not to make an ESO. It appears that, it is not until that latter stage, that the criteria in s 9(3) are required to be addressed. This is curious in that it is very hard to imagine a case in which a person could be found to satisfy the definition of being a "high risk sex offender" but that a consideration of the criteria in s 9(3) would nevertheless result in the Court dismissing the application. The position is different under s 17(1) where, on an application for an extended detention order, the Court can either make that order, make an ESO or dismiss the application. A consideration of the equivalent of the criteria of s 9(3) found in s 17(4) could certainly provide guidance as to whether to make a detention order or an ESO.
…
[84] I have already noted how a determination that a person falls within the definition of high-risk sex offender appears to be a step that must be undertaken prior to considering whether or not to make an ESO and addressing the criteria (s 9(3)). However, the criteria in s 9(3) appear to be relevant to an assessment of whether a person falls within the definition of "high-risk sex offender" and especially to whether they pose an unacceptable risk "unless kept under supervision". I address those criteria next, but my consideration of them only confirms my conclusion that Mr Fisk falls within that definition.”
That judgment was followed by Hall J in State of New South Wales v Wilde [2014] NSWSC 305 at [111] (“Wilde”).
In State of New South Wales v Kamm *(*Final) [2016] NSWSC 1 (“Kamm (No 1)”) at [26] and [42], Harrison J (as he then was) followed the approach taken by Beech-Jones J in Fisk above. Harrison J referred to the apparent tension in relation to the order in which the s 17(4) criteria were to be considered (but in the context of an ESO). At [46] and [48] Harrison J stated as follows:
“[46] Under the Act, if the State discharges its burden to establish that the offender is a high risk sex offender under s 5B, the Court still has a discretion whether or not to make an order, and must take into account the criteria in s 9(3). However, where a court is satisfied according to the relevant standard that the offender is a high risk sex offender, it would be an unusual case before the court would decide in its discretion not to make an ESO under s 9.
…
[48] As noted above, in considering whether an offender is a high risk sex offender for the purposes of s 5B, regard may be had to the relevant factors listed in s 9(3). Those factors may bear upon both the threshold state of satisfaction as to whether Mr Kamm is a high risk sex offender who may be subject to an ESO under ss 5B and 5C of the Act and the exercise of the discretion to make an ESO under s 9.”
The judgment in Kamm (No 1) was appealed, but before judgment on the appeal (Kamm v State of New South Wales (**No 4); (2017) 95 NSWLR 179; [2017] NSWCA 189 (“Kamm (No 4)”)), the Court of Appeal delivered judgment in the matter of Anderson v State of New South Wales (2016) 258 A Crim R 381; [2016] NSWCA 86 (“Anderson”).
In Anderson, the notion of a two stage process was mentioned in the following passages from that judgment (at [14]- [15]):
“[14] It suffices in order to summarise and resolve the essential submissions which arise on this appeal to observe that ss 5B and 5D mandate a two stage process. The first question is that posed by s 5B, which is whether the person is a high risk sex offender. This entails the Court being satisfied, to a high standard, that the offender would pose an “unacceptable risk of committing a serious sex offence if he or she is not kept under supervision”. Only if the answer to that question is affirmative can there be power to make either a continuing detention order or an extended supervision order.
[15] The second question only arises if the person is a high risk sex offender. It is the question posed by s 5D, which is whether the Court is satisfied that adequate supervision will not be provided by an extended supervision order. If the answer to that question is affirmative, then there is power to make a continuing detention order. (For the purposes of this appeal, we put to one side the separate discretion whether to make a continuing detention order at all, discussed in State of New South Wales v Donovan [2015] NSWCA 280 at [14]-[15].)”
In Anderson, the Court of Appeal was concerned with appeals from a first instance judgment in which an order for a CDO was made. It is apparent from the above-mentioned extract that in referring to a two stage process the Court was not referring to a distinction between a finding as to unacceptable risk and a discretion as to whether to make a CDO. Rather, the Court was concerned with two preconditions found respectively within s 5B and 5D of the former A**ct. The exercise of a discretion under s 17(1) of the former A**ct (which was in the same terms as the A**ct) was described as a “separate discretion”.
On appeal in Kamm *(*No 4) at [61], Beazley P (with whose reasons Bathurst CJ agreed) upheld Harrison J’s reasoning in Kamm *(*No 1) at [46], that s 5B required establishing that an offender was a high risk sex offender – a provision that did not import or imply a discretion; that his Honour had correctly understood that the relevant discretion arose under s 9 (in the case of an application for an ESO); and that, at [48], his Honour had observed correctly that it was in the exercise of the discretion as to whether to make an order that the Court “must” take into account the matters specified in subs 9(3). Beazley P did not separately consider or comment on his Honour’s finding at [48] that the s 9(3) factors may bear upon the threshold state of satisfaction under ss 5B and 5C of the Act.
Under the heading “Essential characteristic of a court exercising federal jurisdiction/institutional integrity”, Payne JA (with whom Bathurst CJ also agreed) formed the following view as to the relevance of subs 9(3) factors to the assessment of unacceptable risk (in the case of an application for an ESO) (at [120]):
“The High Risk Offenders Act requires, in s 5B, the attainment of a state of satisfaction that an offender poses “an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision”, having regard to a non-exhaustive list of matters relevant to reaching that state of satisfaction set out in s 9(3), including psychiatrist reports and evidence of participation in rehabilitation programs. The Court has a discretion, even if satisfied of that matter, whether or not to make an order and, if so, as to the content of that order. Subject only to a consideration of the effect of s 5B(3), addressed separately below, the provisions of the Dangerous Prisoners (Sexual Offenders) Act and the High Risk Offenders Act are relevantly identical.”
His Honour did not pass upon the application of those factors to the separate exercise of a discretion under subs 9(1) of the former A**ct, but that may well have been the case because of the mandatory nature of subs 9(3) with respect to the exercise of discretion (noting that Beazley P had found the factors to be mandatory).
It may also be noted that, at [160], Payne JA referred to State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280 (“Donovan”), relevantly as follows:
“[160]. In Donovan the Court (Beazley P, Macfarlan and Leeming JJA) held at [15] and [71]:
“[15] First, it was common ground that s 5G(1) conferred a separate discretion upon the court to decline to make a continuing detention order, even if the court were satisfied that adequate supervision will not be provided by an extended supervision order. That distinction may be important for the purpose of an appeal. Appellate review of a decision not to make an order because of a failure to be satisfied that adequate supervision will not be provided by an extended supervision order is different from review of a discretionary decision not to make an order even though the court is satisfied of that fact. One is discretionary in the ordinary sense of the word; the other well answers the description given in Norbis v Norbis (1986) 161 CLR 513 at 518 by Mason and Deane JJ of the application of “a very general standard” which calls for “an overall assessment” in the light of a range of factors. The primary judge squarely rested her decision on not being satisfied that adequate supervision will not be provided by an extended supervision order: see at [112].
…
[71] Further, the State’s submission is inconsistent with the discretionary aspect flowing from the opening words of s 5G (“The Supreme Court may, on application under this Act, make an order …”). The substance of the State’s submission was that a continuing detention order must be made unless there ceased to be an unacceptable risk, because that risk had been eliminated or substantially reduced by reason of the adequate supervision afforded by the extended supervision order. That submission cannot stand with the undoubted discretion to make an order. (The likelihood or unlikelihood of the discretion being exercised matters not for present purposes; the point is that its presence undercuts the State’s submission.)”
The conclusion reached by Payne JA as to the applicability of subs 9(3) factors to the assessment of unacceptable risk in the case of an application for an ESO must, by analogy of reasoning, be applicable to an application for a CDO under the former A**ct as s 5B(1) and (2) were applicable to both applications for an ESO and a CDO and subss 9(3) and 17(4) relevantly operated in the same way in the conferral of the discretion to make an ESO or a CDO.
Sections 5D and 5G of the former A**ct were repealed by the 2017 A**mendment A**ct.
For the purposes of these proceedings, a number of significant aspects of the amendments introduced by the 2017 A**mendment A**ct should be mentioned:
Subsection 17(2) makes the safety of the community a paramount consideration, as opposed to it being one of several factors required to be considered under subs 17(4).
Subsections 17(4)(e1) and (e2) were introduced in the following terms:
(e1) if the offender is kept in custody or is in the community (whether or not under supervision)—any options available that might reduce the likelihood of the offender re-offending over time,
(e2) whether the Court is satisfied that the offender is likely to comply with the obligations of an ESO,
“(5) In determining whether or not to make a continuing detention order, the Supreme Court is not to consider the ability to take action for a breach of the order in relation to whether there is an unacceptable risk of the offender committing further serious offences.”
“…will insert statutory amendments to change the test to be applied by “the Supreme Court in deciding whether or not to make a CDO in respect of a high risk offender. Under the existing test for making a CDO, an offender is likely to be released to supervision in the community provided adequate supervision can be provided. There are a number of issues with the current process…. … Offenders cycle between being on an ESO and being in custody-having breached that ESO-with no change to underlying behaviour, and Corrective Services NSW is required to provide detailed information on how an unmanageable offender might be supervised in the community, even when Corrective Services does not have confidence that the proposed supervision measures will be effective in keeping the community safe.
The bill will strengthen the test for deciding whether to impose a CDO. The test will be reframed so that an offender's risk to the community is the emphasis, instead of whether he or she can be adequately supervised. Under the reframed test the court must be satisfied that the risk of the offender committing another serious offence will be unacceptable unless a CDO is made. In determining whether and what type of order to impose, the court would be required to have regard to the existing considerations in sections 9 and 17 of the Act, including community safety, the offender's criminal history and the sentencing remarks of the original sentencing court. In addition to existing considerations, the reframed test will require the court to consider two additional factors; whether the offender is likely to comply with an ESO, and options in the community or in custody that would help reduce the offender's risk of reoffending over time.
This second point is framed to enable the court to consider a range of options, including proximity to family, ensuring the offender's links to the community are retained, rehabilitative programs or other options available in custody or in the community. Further, when considering whether to make a CDO the Act will state that the court must not consider a breach of an ESO condition as an effective form of intervention. These reforms strengthen the test for deciding whether to impose a CDO so that an offender's risk to the community is considered instead of whether he or she has been adequately supervised. Community safety will be the Supreme Court's paramount consideration when considering whether to make an order under the Act. This aspect of the reform is expected to mean that some offenders who had previously received an ESO will now receive a CDO. That is appropriate if the offender cannot be managed in the community on an ESO.”
(emphasis added)
“by changing the test to be applied by the Supreme Court in deciding whether or not to make a continuing detention order in respect of a high risk offender so that an order may be made if the Supreme Court is satisfied that the risk of the offender committing another serious offence would be unacceptable unless the order is imposed instead of being satisfied that adequate supervision will not be provided by an extended supervision order”
The provisions of the Act concerning applications for a CDO were considered by Adams J in a trilogy of judgments, two of which were delivered in 2018 and one in 2020.
The first of those judgments was State of New South Wales v Jones [2018] NSWSC 459 (“Jones (**2018)”), being the first final hearing considering an application for a CDO under the Act (as amended) by the 2017 Amendment Act.
It was in this judgment that her Honour accepted a submission by the State that a two stage process should be adopted in considering an application for a CDO (her Honour distinguished the two stage process referred to in Anderson). At [207], her Honour stated:
“[207]. I have had regard to the recent amendments to the Act. It was submitted on behalf of the State that the Court would take the two stage process set out in Anderson v State of New South Wales extracted above at [19]. It was submitted that the first stage was whether the court could impose a CDO under s 5C of the Act and, if so, the second question is whether such an order should be made having regard to the matters set out in s 17(4) of the Act, bearing in mind that the safety of the community must be the paramount consideration under s 17(2) of the Act…”
“[208]. Given that the State seeks a CDO as its primary application in this matter, I propose to approach the statutory task by first considering whether s 5C(d) is satisfied and then turn to consider whether, in the exercise of the discretion conferred under s 17(1) of the Act, I would dispose of the application by way of a CDO or an ESO.
[209]. The first question is whether I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence if not kept in detention under a CDO.”
I agree with the submission of the State that, in that case, her Honour appears to have considered the matters listed in subs 17(4) in arriving at her conclusion regarding unacceptable risk (i.e. when dealing with the first stage), though her Honour did not expressly refer to that subsection in the relevant paragraphs of the judgment: Jones *(*2018) at [210], [213] and [224].
I also agree with the submission by the State that her Honour did not apparently consider the factor under subs 17(4)(e2), but did include the factor under subs 17(4)(d1) of the Act.
In exercising her discretion, her Honour made the following observation (at [225]):
“[225].The next question is whether, in the exercise of the court’s discretion under s 17(1) of the Act the defendant should be placed on a CDO for a period of two years as sought by the State, placed on a CDO for some lesser period, or placed on an ESO for five years or less. As stated above, the defendant consents to being placed on an ESO for a period of two years. I have had regard to the fact that following the amendments, the “paramount consideration” in this regard is the safety of the community. I have also had regard, inter alia, to the mandatory factors in s 17(4) of the Act.”
“[231]. The risk of the offender committing a serious offence if placed on an ESO would be ameliorated to some extent by the fact that if he commenced to groom young boys this would be a breach of his ESO which might be detected before any offences were committed. But for s 17(5) of the Act, given the nature of the defendant’s particular offending, this could have been a relevant factor weighing in favour of an ESO rather than a CDO…”
In her Honour’s second judgment, State of New South Wales v Barrie *(*Final) [2018] NSWSC 1005 (“Barrie”), Adams J reconsidered the approach in Jones *(*2018) and determined that the consideration of ss 5C(d) and 17 involved “one evaluative decision rather than two.” (at [24]).
Her Honour’s reasons for reaching that view were as follows (at [31]):
“[31]. As a matter of practical reality, in most cases, the question of whether a one-stage or two-stage test is applied will not make any difference to the result so long as ss 17(2) and 17(4) are considered (as occurred in State of NSW v Jones). But the problem with a two-stage test, which was not addressed in the State’s supplementary submissions, is that it means that a decision has already been made by the Court at the end of the first step that it is satisfied to a “high degree of probability” that the relevant offender poses an unacceptable risk of committing a serious offence if not detained. I can see no textual basis to then require the Court to consider s 5C(d) again but this time having regard to the factors in ss 17(2) and 17(4) of the Act. The better reading of the provisions is that the Court addresses the question of whether s 5C(d) is established, having regard to all of the factors in ss 17(2) and 17(4) of the Act. A CDO would be appropriate if the test in s 5C(d) was satisfied and an ESO would be appropriate if the test in s 5C(d) was not satisfied (so long as the test in s 5B(d) was satisfied).”
“[33]. Having given the matter further consideration, I am satisfied that the approach I took in Jones is the correct approach. I remain of the view that it would be an unusual case where a court would be satisfied to a “high degree of probability” that an offender posed an “unacceptable risk of committing a serious offence” if not detained and then go on to release them on an ESO in the exercise of the Court’s discretion. This was the view that led me to conclude in Barrie that the amendments must have required one evaluative exercise. Despite still holding this view, I am also satisfied that the structure of the Act suggests that two separate decisions are required: s 5C of the Act provides the test for whether the Court could impose a CDO and, if made out, s 17 of the Act provides for the mandatory considerations to have regard to when considering whether a CDO should be imposed. That is the approach I propose to take in this matter.”
Her Honour reached a conclusion that the factors in subs 17(4) of the Act were “relevant” to the first evaluative step in considering an application for a CDO, namely, unacceptable risk, relying upon the judgments in Fisk, Wilde*,* the earlier judgment of Button J concerning Mr Russell, and Kamm *(*No 1). She also applied some of the subs 17(4) factors in assessing unacceptable risk (at [168]).
By reference to the legislative history, her Honour observed (Russell at [28]):
“The purpose of the amendment to the test for imposing a CDO was to place greater emphasis on an offender's risk to the community than on the question of whether he or she could be adequately supervised. It was expressly stated by Attorney-General Mark Speakman SC that it was anticipated that some offenders who had previously received an ESO would receive a CDO following the amendments (see Jones at [27]-[29]).”
In State of New South Wales v Sturgeon *(*No. 2) [2019] NSWSC 883 (“Sturgeon"), Garling J held that, in considering the making of a CDO, the Court must first be satisfied, by reference to s 5C of the Act, that the Court has power to make such an order and then, if so satisfied, the Court has a discretion. His Honour observed that “it does not follow that a CDO will necessarily be made” (at [20]).
Garling J compared the structure of the former A**ct with the A**ct and concluded (at [25]) as follows:
[25]. Today, the legislation does not involve such a comparison. The only comparison that can take place is one between the safety of the community having regard to the level of risk, where a person is in detention or not. It is unsurprising then that the Attorney-General in his Second Reading Speech delivered 11 October 2017, said:
“The Bill will strengthen the test for deciding whether to impose a CDO. The test will be reframed so that an offender’s risk to the community is the emphasis, instead of whether he or she can be adequately supervised. Under the reframed test the Court must be satisfied that the risk of the offender committing another serious offence will be unacceptable unless a CDO is made. …”
In State of New South Wales v Farzad (also known as Arthur Fairwell) *(*Final) [2024] NSWSC 265 (“Farzad”), Hamill J applied the judgment of Garling J in Sturgeon in finding that, since the 2017 A**mendment A**ct, “it is no longer appropriate to consider whether suitable or adequate supervision can be provided by a supervision order” in considering an application for a CDO (at [82]).
Lastly, in State of New South Wales v SLD *(*Final) [2025] NSWSC 203, the court considered whether to make a CDO in circumstances where the defendant was already the subject of an ESO.
Ierace J was satisfied that the defendant posed a risk of committing a serious offence if not kept in detention (at [58]). However, his Honour concluded that, if a CDO is not made, the defendant would be the subject of an ESO which had the capacity to manage the risk to the safety of the community. In the result, his Honour was not satisfied that the defendant posed an unacceptable risk of committing another serious offence if not kept in detention.
The State submitted that his Honour’s approach, in this respect, was not correct. In my view, the decision is explicable on the basis that the defendant was already successfully the subject of an ESO at the time the application for a CDO was made.
Before turning to the resolution of the questions, it is convenient to deal with a series of propositions advanced in the defendant’s written submissions. This is a convenient course because the defendant’s submissions tended to raise a series of propositions under questions 1 and 2 which plainly had some relevance to both topics.
Amongst those submissions were a number of key propositions, which should be identified at the outset as follows:
If an application is made for a CDO, the Court is required to engage in a single evaluative exercise guided by the objects of the Act and the mandatory factors under subs 17(4). That evaluative exercise will result in one of two conclusions consistent with the different tests set out in section 5B(d) or 5C(d). Alternatively, if not satisfied of either test the Court may dismiss the application.
The language of the Act makes clear that whether or not to make a CDO or ESO is part of the same evaluative exercise. Subsection 17(1) of the Act provides that the Supreme Court may determine an application made under this part for a CDO, (a) by making an extended supervision order, or (b) by making a continuing detention order, or (c) by dismissing the application.
The mandatory factors in subs 17(4) of the Act are highly relevant to the assessment under ss 5B(d) and 5C(d) of whether the risk of committing a serious offence can be managed in the community, or whether the risk is unacceptable and requires the offender to be kept under supervision or detained. These factors should be addressed as part of a single evaluative exercise.
The defendant went further and submitted that the court should consider the requirements of ss 5B and 5C “at the same time”.
A contextual approach to the interplay between ss 5B(d) and 5C(d) makes clear that there are different statutory tests. In particular, the words, ‘if not kept in detention’, limit the Court to making the order only in circumstances where satisfied that an extended supervision order is not an option. It is implicit in considering this aspect of the test that consideration must be given to whether the offender poses an unacceptable risk if not supervised.
I do not accept the defendant’s submissions, in this respect, for the following reasons:
It is evident from the foregoing discussion of this Court’s consideration of the unacceptable risk test under each ss 5B and 5C that the provisions of subclause (d) in each provision is a statutory precondition to the making of an ESO or CDO. That was the approach taken in Anderson under the former A**ct. The same approach is evident in the decision of the Court of Appeal, albeit in relation to s 5B, in [2022] NSWCA 14 (per Basten JA, with whom Bell P and Macfarlan JA agreed) at [18], and in first instance decisions such as [2018] NSWSC 421 (per Garling J) at [15] and [16]. This proposition seems to be accepted in the defendant’s written submissions at [17], and, in any event, is evident from the structure of Part 1A of the which limits the power of the Court to make an ESO or CDO to the court being satisfied as to the existence of the conditions set out in subclauses (a) to (d) in each case (with the court being required, in subparagraph (d), to reach a state of satisfaction in an evaluative exercise). This is evident from the use of the word “if” in the preamble to ss 5B and 5C and the discretion residing in the Court found elsewhere in ss 9 and 17 of the .
“[24]….The question is simply whether s 5C(d) of the Act, having regard to s 17(2) and 17(4) of the Act, is satisfied. If so, the court may impose a CDO. The consideration of whether the test in s 5C(d) is established must be undertaken by reference to s 17 of the Act. That involves one evaluative decision rather than two.”
I agree with the contention advanced by the State that her Honour made no reference to s 5B in that statement. The reference to subs 5B(d) appeared at [31] of her Honour’s judgment indicating that her Honour considered subs 5B(d) to be a separate decision (see also at [32]). I also note that her Honour had mentioned (at [30]) there existed a two step process under the former legislation, which, as I have mentioned, is not strictly correct having regard to the judgment in Anderson. Nor is it clear why in [31] her Honour considered that the Court would be required to consider subs 5C(d) “again” in a second stage of analysis.
In any event, in Russell, Justice Adams returned to her approach in Jones *(*2018) where she identified the necessity for a two stage approach consistent with an earlier decision of Button J also concerning Russell: Russell at [32]. Her Honour indicated that her decision in Barrie was predicated upon the view that it would be an unusual case where the court would be “satisfied to a ‘high degree of probability’ that an offender posed an ‘unacceptable risk of committing a serious offence’ if he was not detained and then go on to release them on an ESO in the exercise of the Court’s discretion” (Russell at [33]). Her Honour nonetheless expressed the view that, as I have earlier set out but repeat for convenience, “I am also satisfied that the structure of the Act suggests that two separate decisions are required: s 5C of the Act provides the test for whether the Court could impose a CDO and, if made out, s 17 of the Act provides for the mandatory considerations to have regard to when considering whether a CDO should be imposed” (Russell at [33]). I note further that her Honour made reference to earlier authority that the criteria in subs 17(4) of the Act are still relevant to the question of whether a person poses an unacceptable risk within the meaning of the Act (there referring to Fisk at [84]; Wild**e at [111] and Kamm (No 1) at [48]) (Russell at [25]).
The defendant correctly identified that subss 5B(d) and 5C(d) make clear that there are different statutory tests involved in considering an application for an ESO or CDO. However, the defendant went further and contended that the words “if not kept in detention” limit the court to making an order only in circumstances where the court is satisfied that an ESO is not an option. Further, it was submitted that it was implicit in considering this aspect of the test, that consideration must be given to whether the defendant poses an unacceptable risk “if not supervised”. This proposition cannot be sustained in the light of the legislative history which precedes these reasons. The Legislature’s repeal of the “adequate supervision test” makes plain the legislative intention to remove the very test that, in my view, the defendant now wishes to resurrect. In my view, the legislative history significantly influences the determination of this issue. Further, a construction of the provisions of subss 5B(d) and 5C(d) make clear the distinction contemplated by the legislature by the use of the quite distinct and separate considerations of “if not kept under supervision” in subs 5B(d) and “if not kept in detention” in subs 5C(d).
The relevance of factors in subs 17(4) of the , in my view, raise different considerations to which I will now turn as a discrete consideration below.
For the most part, the defendant’s submissions as to this question traversed the very issues that have been discussed above.
I agree with the submission of the defendant that the axis for the determination of this question cannot be the form of the application made by the State.
However, the State was correct to submit, as I have discussed above, that the Act no longer requires the Court to consider the adequacy of supervision under an ESO as a threshold jurisdictional factor in determining whether there is power to make a CDO. It is plain from the amendments made in 2017 and the extrinsic materials referable to the 2017 A**mendment A**ct that the requirements under s 5D of the former A**ct were repealed and no longer apply.
The legislative intention that an application for a CDO will be determined first (whether accompanied by an alternative application for an ESO or otherwise) is given by the provisions of s 17(1) of the Act. Under that provision, the Court is not confined to a consideration of the making of a CDO or a dismissal of the proceedings but extends to the making of an ESO. However, the power to do so arises only in the context of the provisions of s 5C of the Act*.* The discretion to make a CDO does not arise under subs 9(1) of the Act, when the court is considering an ESO. The structure of the Act*,* and the logic of the adjudicating process arising therefrom, indicates the legislature’s intention that the court will first consider the CDO. That conclusion is consistent with the judgment of Adams J in Russell as extracted in [97] of this judgment.
There is also merit in the State’s submissions as to the effect of subs 17(5) of the Act, which were as follows:
Subsection 17(5) of the Act provides that, in determining whether or not to make a CDO, the Court is not to consider the ability to take action for a breach of the order in relation to whether there is an unacceptable risk of the offender committing further serious offences. In context, the reference to “a breach of the order” refers to the breach of an ESO.
While this subsection could possibly be read as consistent with the proposition that the availability of an ESO is relevant to whether the unacceptable risk test is met, this does not mean that the adequacy of supervision under an ESO can be taken into account under subss 5C(d). Rather, subs 17(5) is consistent with the Court’s ability to take into account subs 17(4) factors or some of them, including a report prepared by Corrective Services under subs 17(4)(d1) as to the extent to which the offender can reasonably and practicably be managed in the community. This is quite different from considering whether adequate supervision will not be provided by an ESO before the power to make a CDO is enlivened.
In considering an application for a CDO, I agree with Adams J in Russell, that the application for a CDO involves a two step process.
I do not repeat my earlier analysis of the structure of the Act and jurisprudential considerations in that respect.
In my view, the structure of the Act clearly delineates between two separate determinations which must be made by the court. The exercise of the court’s discretion pursuant to subs 17(1) of the Act plainly comes as a separate step, only after the court has made a determination as to the preconditions, including the test for unacceptable risk, in s 5C of the Act.
Whether there exists a practical distinction between a one stage and two stage test, if factors under subss 17(2) and 17(4) are considered, is irrelevant to the present question. I have earlier made some observations that particular subs 17(4) factors may well be relevant in the consideration of unacceptable risk. Nor do I consider that the finding of unacceptable risk under s 5C(d) of the Act necessarily confines the discretion of the court to refuse a CDO and to make an ESO such that the making of an ESO in those circumstances should be considered “unusual”. There is no warrant under the Act in limiting the Court’s discretion in that manner.
There are examples of the court at first instance adopting a two stage test, yet making an ESO instead of a CDO in the exercise of the court’s discretion, namely, Sturgeon and Farzad*.*
The answer to question 2 is yes.
“[38]…The amendments removed the requirement that, before a continuing detention order could be made, the court had to be satisfied that adequate supervision would not be provided by an extended supervision order. The authority to make a continuing detention order is now enlivened by the satisfaction of a single condition requiring the court to make an assessment of risk of committing a serious offence if an offender is not kept in custody beyond the term of his or her sentence: s 5C. The possibility of mitigating the risk by placing the offender under supervision does not enter into that assessment…”
The amendments to the Act referred to by her Honour have already been discussed at considerable length earlier in these considerations. It is useful, however, to point out that the Amendments were introduced with the purpose of placing greater emphasis on an offender’s risk to the community than on the question of whether they could be adequately supervised: Russell at [28]. The second reading speech also noted that "the reforms will reframe the test for making an extended supervision order or continuing detention order to ensure that where an offender cannot be safely managed in the community on an ESO they are instead subject to continued detention in a correctional centre": New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017.
In my view, her Honour’s observations in the passage of her judgment in Jones *(*2020) extracted above goes no further than observing that the previous precondition for the making of a CDO in s 5D of the former A**ct had been removed and was no longer an applicable consideration in determining whether or not the unacceptable risk test had been satisfied. Her Honour also, with respect, properly in my view, drew a distinction between the requirements of subss 5B(d) and 5C(d), so as to observe that the test under subs 5C(d) does not import the test under subs 5B(d). They are distinct tests.
The answer to the third question is given in those terms, when read with my discussion of the two stage test discussed above.
The defendant’s relevant criminal history was, in my view, accurately set out in the submissions of the State, which primarily form the factual basis for the following discussion (in a chronological order). The parties made submissions as to the significance of this history which shall also be addressed.
In 1988, the defendant pleaded guilty and was convicted of maliciously wounding with intent to cause grievous bodily harm. The facts involved the defendant stabbing the victim three times in the chest after the defendant apparently lost his temper. He was aged 17 years at the time and received a sentence of imprisonment of 3 years and 6 months with a non-parole period of 1 year and 8 months. This offence was a “serious violence offence” within the meaning of s 5A of the Act.
Throughout 1991 and 1992 the defendant was convicted of numerous fraud and other dishonesty offences.
In 1993, the defendant was found to be in contempt of court for attempting to influence the outcome of Children’s Court proceedings by using threats of violence against the foster parents of his son. At the time of this offence, the defendant was on parole and subject to a recognisance to be of good behaviour. The Court of Appeal sentenced him to a minimum term of 2 years’ imprisonment commencing 17 May 1993 and concluding on 16 May 1995, with an additional term of 18 months expiring on 16 November 1996.
In 1996, the defendant was convicted of further fraud and dishonesty offences.
In 1998, the defendant pleaded guilty to four offences of sexual intercourse with a child under 10 years, namely 8 or 9 years old. The offences were committed on two separate occasions between May and December 1995. The facts were that the defendant had become acquainted with the stepfather of the victim while in gaol. After the defendant’s release from custody, he invited the victim to stay at his and his wife’s home on multiple occasions. The offending involved the defendant penetrating the child’s vagina and anus with his finger and an object. The offending was discovered when photographs were found with other property of the defendant in a caravan, which showed the victim in suggestive poses as well as the defendant’s offending behaviour. In the Pre-Sentence Report, the author noted that the defendant claimed that the victim was a “prostitute” offered to him by her father, admitted to touching her in order to obtain photographs of her genitals, and could see no problem with this activity.
The defendant was sentenced to 5 years imprisonment which commenced on 16 October 1998 and concluded on 15 October 2003, with a non-parole period of 3 years. Following these convictions, the defendant was placed on the Child Protection Register (“CPR”) and had reporting obligations. Each of these offences, which I will herein refer to as the “1995 sex offences”, is, as earlier mentioned, a “serious sex offence” within the meaning of s 5(1) of the .
The remarks on sentence reveal a number of common themes, including a lack of remorse, lack of insight, sexual deviancy and an unwillingness or apathy to access treatment or rehabilitation, notwithstanding that the defendant is fully aware of his condition, including paedophilia.
In 1988, when the defendant was sentenced to imprisonment for the malicious wounding offence, Judge Ford stated (Regina v Grant Neville Joseph Whiley (District Court (NSW), Ford DCJ, 7 November 1988, unrep) at 1-2):
“But what seems to be perfectly apparent is that you lost your temper or "flipped" and stabbed [the victim] three times in the body…
Your mother tells me that you have fits of bad temper, you are a pleasant sort of fellow and then for no apparent reason you change your mood and become nasty and begin to make threats, even to her…
I take into account your plea of guilty which indicates some contrition although there was no evidence tendered to me to indicate that you felt or expressed any remorse in respect of the harm that you caused the victim….”
“The diagrams were explicit and extensive in the representation of sexual activity. The written text was extensive and described the most appalling sexual activity involving young children, including the infliction of pain with reference to the pleasure to be had in taking a young girl by force. Some of [the defendant’s] descriptions were of what could only be described as torture, cruelty and physical abuse in a sexual context.
…
I am satisfied beyond a reasonable doubt that [the defendant] produced this material for no purpose other than his own sexual gratification.
…
It is noteworthy that [the defendant] created this child pornography from his imagination. The images were drawn; they were not photographic. The written work was prepared upon the theme of a television program and a fantasy. He used both contexts for the stories he created. There is no evidence upon which I could find that the images were created from any photographic images or that the stories were inspired by actual experiences of [the defendant] or others of which he was made aware.
…
In addition to the specific sentences to which I have referred the courts have over the years sentenced [the defendant] to imprisonment, imposed fines, allowed him recognizances to be of good behaviour, and have sentenced him to the rising of the court, and yet he has continued to misconduct himself across a spectrum of offences whenever he has been allowed into the community.
…
However, of grave concern is the content of the material. The handwritten images are graphic and the descriptions of the sexual encounters are disturbing. They include descriptions of the most brutal sexual abuse of children. [The defendant’s] imagination, exposed by this material, reveals at least the most appalling interest in such matters reflecting the need to give significant weight to personal deterrence and the protection of those in the community to whom he might have access when released.”
“It is of concern that [the defendant] has no apparent understanding of how serious this assault was and that he would attempt to explain his behaviour in the way that he has… These writings are evidence of the capacity he has for manipulation and, in my assessment, the lack of insight he has into his offending on that occasion.
These characteristics are also reflected in the comments made in the pre-sentence report. With regard to the offences of sexual intercourse with a child less than ten years of age; the report includes the following:
“In recent interviews, [the defendant] claimed that the victim of these offences was a “prostitute” offered to him by her father. He admitted to touching her in order to obtain photographs of her genitals. [The defendant] could see no problem with this activity.”
I do not see how one could justify the statement that a child of less than ten years was a prostitute, or that [the defendant] could take any comfort from the fact that her father delivered the child to him for his inappropriate purposes.”
“I find that the offender has no insight into the probable devastating effect on the children depicted in the child pornography. The offender told Dr Richard Furst, who examined the offender for the purpose of providing a report to the court (3 May 2012 Exhibit 1), he was only attracted to pornographic images if the children depicted in the images were “enjoying it”.
I find that the volume of the pornographic material, the very young age of many of the children depicted in the material and the levels of depravity displayed in many of the images in the material is such that the child pornography offences are of a very high order of criminality.
…
Insofar as the offender’s rehabilitation is concerned I find that the offender must have been aware of his unnatural sexual interest in children from the time of his first convictions for the offences of sexual intercourse with a child under the age of ten in 1998. The offender from that time up until the present with the exception of a period from June 2009 to November 2009 whilst he was in custody has not sought any treatment or counselling for his unnatural sexual interest in children. I do not accept the offender’s evidence regarding his belief that counselling was not available in the general community. The offender is an intelligent man. I am of the view that he had means to pay for rehabilitation whilst in the community after his release from custody on the last occasion, but that he chose not to seek such counselling. The offender’s record and his lack of motivation to obtain counselling leads me to the belief that the offender is unlikely to seek counselling and rehabilitation on his release from custody and I cannot, therefore, find that the offender is unlikely to re-offend, as was submitted to me by his counsel.
In sentencing the offender I note that he has not indicated remorse or contrition for the offences committed by him.
…
The offences for which I sentence the offender today in light of his criminal history cannot be classified as uncharacteristic aberrations. By committing the offences for which I sentence him today the offender has manifested a continuing attitude of disobedience…”
“From the images examined by Detectives Cooper and Davies it was estimated by them that 386 human children images and 986 non human children images were within the Copine Scale 10 rating, that is images depicting sadistic behaviour or sexual behaviour involving children and an animal. A number of the Copine Scale 10 rating images examined by Detectives Cooper and Davies portrayed young children bound or restrained whilst adults engaged in sexual intercourse with them. A number of the children depicted in those poses were three to four years of age. In one case an image depicts a girl about ten with an adult male pushing his penis into her vagina and the girl bleeding from the vagina. A number of the Copine 10 rating images viewed by Detectives Cooper and Davies portrayed animals having various forms of sexual intercourse with young girls, some as young as three years and four years of age.
From the images examined by Detectives Cooper and Davies it was estimated by them that 1,972 images of human children and 3,086 of non human children were within the Copine Scale 9 rating. Copine Scale 9 rating involves images of gross assault involving penetrative sex, masturbation or oral sex involving an adult with a child. The majority of the Copine Scale 9 images examined by Detectives Cooper and Davies depicted very young children in the four years to eight years of age range.
From the images examined by Detectives Cooper and Davies it was estimated by them that 257 images of non human children were within the Copine Scale 8 rating, that is images of children being subjected to sexual assault involving digital touching or penetration involving an adult. One of the Copine Scale 8 rating examined by Detectives Cooper and Davies was that of a small baby about six months old whose body is being touched by three penises.”
“The offender breached the reporting conditions placed upon him by using false identities, by not declaring a number of mobile telephones used by him and by not declaring the details of motor vehicles used by him. The breaches by the offender cannot be classified as merely technical. I regard the breaches as deliberate attempts by the offender to circumvent to the main purpose of the Child Protection (Offenders Registration) Act 2000, namely, the supervision in the community of child sexual offenders.
This is not the first time that the offender has been dealt with by a court in relation to failure to comply with reporting conditions under the Child Protection (Offenders Registration) Act 2000. On 11 March 2005 the offender at the Sutherland Court was sentenced to imprisonment for twelve months with a non-parole period of nine months for failure to comply with the reporting conditions under the Act.”
“The offences before the Court are not representative of extensive activity or planning in sourcing them. I have reservations, however, in accepting the accused's evidence that he just stumbled over the site from which they were downloaded. I do, however, have regard to the agreed facts before me which are that the images were downloaded over a relatively short period and from this one site. The period of possession was also relatively short. The material was in his possession until police found it, but that was only three days later, during a compliance check in accordance with his child protection registration
His possession of the images was doomed to detection given that registration. Further, no steps had been taken by him to conceal it.
…
The offender cooperated with police on arrival and gave them access to his devices.
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There is nothing about the offender’s access to the material that aggravates the offending. He is not said to have come into possession of it through associations with like-minded people and he is not said to have sought such connections.
I do have reservations about accepting the offender’s explanation for his possession of the material.
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He said he had no sexual interest in the material.
…
His evidence otherwise minimises the nature and extent of his interest in the images and I do not accept it, given the number of them and the two downloads by him.
…
In the months that [the defendant] was in the community, he is said to have been compliant with supervision.”
“[The defendant’s] insight into this offending was poor – he neither acknowledged the criminality of it or why he offended. Despite the number and length of the recordings, he continues to say he has no sexual interest in animals.
It is submitted on his behalf that despite his lack of insight, [the defendant] is open to treatment and that weight should be placed on affording him the opportunity to rehabilitate.
…
Whether such treatment – that is the treatment recommended by the psychiatrist – is available to [the defendant] financially or in this location is unknown. [The defendant’s] willingness to engage in such treatment is also unknown (as opposed to the expert’s opinion as to whether he would). What is known is that in the four months he was in the community, neither those charged with addressing his rehabilitation or [the defendant], identified or engaged with any suitable therapy, despite then knowing that the conventional available therapy was potentially detrimental to his prospects.
As it stands, therefore, [the defendant] is a man whose underlying psychopathy gives rise to a risk which continues unabated and which the Court can have no confidence will be addressed on release back into the community.”
The State submitted that the comments of Judge Soloman, in relation to the defendant’s insight into his offending, remain relevant in light of the independent expert reports in this proceeding. This submission is no doubt correct having regard to the above extract of Solomon DCJ.
However, the State’s submission that “[a]lthough a significant period of time has passed since the sentencing remarks were made, they clearly indicate that the defendant posed a continuing risk to the community, including of sexual offences against children, at the time he was sentenced”, concerning the Solomon DCJ 2012 Decision*,* is unclear.
The defendant submitted that the sentencing remarks of Judge Musgrave demonstrate that the defendant was not trying to conceal his access of bestiality material, and in fact his compliance with reporting obligations under the CPR is what allowed the authorities to detect behaviour of concern and, therefore, contain the defendant’s risk. This observation by the defendant is no doubt correct, having regard to the sentencing remarks of Musgrave DCJ.
Senior counsel for the defendant also submitted that it should be observed that the offence of possessing bestiality material is not a “serious offence” or an “offence of a sexual nature” for the purpose of the Act, although, I do note that this oral submission differed from the defendant’s written submission that the bestiality offences would fall within the definition of an “offence of a sexual nature”. Regardless, I place little weight on this submission, as the offence is, nonetheless, one which highlights the defendant’s deviant sexual interests (as was properly accepted by the defendant). I note, in this regard, that Musgrave DCJ had difficulty accepting the proposition advanced by the defendant that he had no sexual interest in the bestiality material that was found on his devices.
Furthermore, what the sentencing remarks of Soloman and Musgrave DCJ show, consistent with the later discussion by the independent experts, is that the defendant is resistant to any form of treatment for his deviant sexual interest and paedophilia in particular.
The sentencing remarks of Soloman DCJ and Musgrave DCJ also indicate that the defendant is an intelligent man that understands that he has significant psychiatric conditions, but nonetheless, refuses to act to curtail them in a way consistent with his lawful obligations.
I shall commence with a discussion of the written reports of the independent experts.
The following discussion of the reports follows the course of the summary provided by the parties in the joint statement of agreed facts (“JSAF”).
Dr Dayalan conducted a psychiatric assessment of the defendant on 26 June 2025 via Audio-Visual Link.
Whilst there will be some overlap with my earlier discussion of the defendant’s diagnosis by Dr Dayalan, it is nonetheless useful to refer to the following extracts in so far as it deals with some supplementary matters.
Dr Dayalan prefaced his consideration of the defendant’s psychiatric diagnoses with the following background:
“[The defendant] described a childhood associated with physical abuse, neglect and sexual abuse. Behavioural problems were noted from an early age and may have contributed to corporal punishment from care providers and disruptions to his living circumstances. A secure relationship with a responsible adult was not established in his childhood. These experiences are likely to have contributed to his long standing problems with regulating behaviour and emotions.”
“Diagnosis of conduct disorder was noted in documents provided. Of note there is a history of violence in childhood including assault of his step-mother, stabbing a fellow student and assaulting a teacher. As an adult [the defendant] has engaged in repeated offending behaviour indicating failure to conform to social norms. It is evident from documents reviewed there are enduring patterns of impulsive behaviour, deceitfulness, tendency for aggression and irritability, reckless disregard for safety of others, consistent irresponsibility and limited capacity for remorse. [The defendant] fulfils the criteria for antisocial personality disorder as per the Diagnostic and Statistical Manual for Mental Disorders Version 5. I note that he has been assessed to have psychopathy which is a personality construct that shares a lot of traits of antisocial personality disorder.
[The defendant] has a history of using substances for a sustained period of time despite the negative impact of substances on his functioning. He suffers from substance use disorder – cannabis, opioids and stimulants that have been in sustained remission. It is noted that he continues to seek opiate pain killers for his medical condition and he remains at risk of relapse.
The sexual offences are indicative of deviant sexual interests including sexual attraction to prepubescent children. The period over which the child sexual offences occurred is consistent with the diagnosis of paedophilia non-exclusive and sexually attracted to females. He also displayed behaviour consistent with other deviant sexual interests such as sexual sadism and bestiality.”
Dr Dayalan assessed the defendant’s risk as follows:
STATIC-99R - His overall score of 6 places him in the well above average risk level. The predicted five year recidivism rate for individuals who score 6 is 25.7%.
STABLE 2007 - The dynamic risk factors relevant in the defendant’s risk formulation are impaired capacity for relationship stability, lack of concern for others, impulsivity, poor cognitive problem solving, negative emotionality/hostility, sex drive/preoccupation, deviant sexual interests and cooperation with supervision. The factors that are partly or possibly relevant are significant social influences and hostility towards women. The defendant would be regarded to have a high level of stable dynamic risks and needs.
Historical Clinical and Risk Management - 20 Version 3 (HCR-20 V3) – the following risk factors were identified:
(a) Historical factors: The historical risk factors identified include problems with violence; problems with other anti-social behaviour; problems with relationships; substance use disorder; antisocial personality disorder; adverse childhood experiences; problems with violent attitudes and problems with treatment and supervision response. He has a high loading of historical risk factors. (b) Clinical Factors: the defendant presents with gaps in his insight into his violence risk; problems with violent intent (history of assaulting a fellow inmate), ongoing emotional, behavioural and cognitive instability and lack of responsiveness to treatment. He has a moderate to high loading of dynamic risk factors. (c) Risk management variables: Given his personality disorder and reluctance to engage in rehabilitation, the defendant will present some challenges to professional services and plans. It was noted that a recent interaction with his mother indicated that she was not able to accommodate the defendant living with her. Dr Dayalan stated that it is unclear what the defendant’s living situation would be when released into the community although the position as to accommodation became clearer during the course of the evidence at the hearing of this matter. Dr Dayalan also observed that unstable living circumstances, with exposure to antisocial peers and illicit drugs, would increase his risk of violent behaviour. The defendant has some personal support from his mother and sister. He is able to establish friendships and romantic relationships but is likely to have ongoing difficulty sustaining the relationships. The defendant is unlikely to have a positive response to treatment/interventions in the future. The defendant has been incarcerated for most of his adult life, but he has been able to function to some extent in the community prior to reoffending. Hostility and negative emotionality become evident when his circumstances are stressful. It is anticipated that he will be exposed to periodic stress following release into the community.
Violence Risk Appraisal Guide – The items in the instrument identified as relevant to the defendant’s risk of violent offending include not having lived with both biological parents to age 16, elementary school maladjustment, history of drug problems, criminal non-violent history, failure on conditional release, criminal violent history, prior admissions to correctional institutions, conduct disorder prior to age 15, sex offending history and presence of antisocial personality disorder. The defendant falls in the high risk category for future violent behaviour.
In relation to treatment, Dr Dayalan said as follows:
“Psychological interventions that have been studied in the management of antisocial personality disorder include Dialectical Behaviour Therapy (DBT) (Visdomine-Lozano 2022). A meta-analysis on the effectiveness of DBT found it to be effective in reducing anger and aggressive behaviour (Ciesinski et al 2022). Given the extreme nature of his personality disorder with psychopathy and ambivalence to engaging in treatment, psychological interventions are likely to be of limited utility in addressing some of the traits.
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Treatment options for sexual paraphilia include pharmacological and psychological treatment. Anti-libidinal medication could reduce [the defendant’s] sexual recidivism risk by reducing his sexual preoccupation (Thibaut 2020). I note referral to TRC and that [the defendant] has been deemed suitable for the service. Provided that there are no contraindications to use of anti-libidinal medication, treatment with antilibidinal medication is strongly recommended to manage [the defendant’s] risk of sexual recidivism.
There is some evidence for the effectiveness of sex offender treatment programs (Schmucker & Losel 2017) though [the defendant’s] personality traits will limit any benefits from engaging in the programs.
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Participation in drug rehabilitation could reduce the risk of relapse into substance use. Whilst in the community, [the defendant] should be subjected to tests done randomly to detect use of substances.”
“[The defendant] presents with a high loading of static and dynamic risk factors for sexual and violent recidivism as per the risk instruments utilised. He has a history of committing serious sex and violence offences. In my opinion, [the defendant] poses a risk of committing serious offence (sexual and violent) as defined in the Act.
The level of risk is dynamic in nature and will be influenced by internal and external factors/circumstances such as level of supervision, social support network, use of substances, access to potential victims, living circumstances and psychosocial stresses.
…
Interventions targeting emotional and behavioural regulation, coping skills and risk of relapse into substance use could potentially assist with moderating these risk factors. However, given limited benefit from interventions in the past, it is possible that there may not be a significant change in these factors despite psychological treatment.
Supervision and monitoring could assist with factors such as living circumstances, association with antisocial peers, access to potential victims and substance abuse.
…
Treatment with antilibidinal medication will assist with lowering sex drive and potentially reducing the risk of him committing a serious sex offence.”
“[The defendant] presents with multiple dynamic risk factors for committing a serious offence, that remain unaddressed. He requires a high level of supervision in the community given his psychopathy personality. Given his limited insight into his risk of committing a further serious offence, he is unlikely to voluntarily make efforts to address his risk factors. His risk of committing a serious offence cannot be managed in the community without any order being imposed.”
“An Extended Supervision Order would allow for a level of supervision that could manage the risk posed by [the defendant] if he were to be released into the community. The ESO will also facilitate participation in rehabilitation given that [the defendant] is more willing to engage in individual interventions offered in the community than group programs in the correctional environment.”
“A CDO will protect the community from any risk posed by [the defendant] but is unlikely to assist with reducing his dynamic risk factors prior to release into the community. An argument can be made that he can be established on an antilibidinal medication in custody prior to release. In my opinion, [the defendant] does not pose an imminent risk of committing a serious sex offence provided he is subject to the proposed conditions under an ESO. It should also be noted that there could be considerable delay with organising various investigations including bone scans whilst in a correctional facility.”
“The conditions listed in the summons filed on 13 March 2025 are quite extensive in nature and would be required in the early stages of transition into the community. It is recommended that there are not too many restrictions on [the defendant] accessing legally permitted pornography or securing employment. Inability to gratify his sexual needs in a legally acceptable manner and lack of purpose and structure to his day from unemployment could be counterproductive to managing his risk and rehabilitation. As [the defendant] adapts to living in the community, the conditions need to be scaled back in a graded manner.”
“Given the enduring nature of his personality disorder and limited anticipated response to treatment interventions [the defendant] will require long term supervision and interventions. He will require a period of observation after some of the restrictive conditions such as schedule of movements and electronic monitoring are relaxed to ensure there is no escalation in his risk factors. Prior to being released from any form of supervision, [the defendant] would need to demonstrate that he can refrain from offending behaviour whilst on minimal conditions. A duration of five years would allow for graded reduction in the level of supervision.”
Dr Elliott conducted a psychiatric assessment of the defendant on 9 July 2025 via video-link.
Dr Elliott made observations about the defendant’s approach to his examination as follows:
“As I have detailed above, [the defendant] dominated this assessment. He spoke constantly in a confident and assured manner. He required constant redirection back to my questions but rarely remained on the topic for long, instead steering the interview back towards his own claims. He was an unreliable historian with regards almost every element of his history and appeared able to seamlessly manipulate his history. As I have also indicated, he displayed a high level of confidence that his distorted and misleading claims would be accepted without question.”
“There is a broadly consistent opinion in the psychiatric and psychological reports contained in the Brief that [the defendant] has prominent features of psychopathy. I note again his extremely high score on the PCL-R; the formal assessment instrument for psychopathy. This score does appear accurate. On my assessment [the defendant] presented as superficially charming with an absence of empathy for his victims. He has a history of markedly varied offending. He appears exploitative of others, grandiose and narcissistic and he displayed an extreme confidence in his own manipulative abilities and a firm belief that his easily disputed and varied claims would be accepted verbatim. These features follow an early childhood history of behavioural problems and then juvenile offending consistent with a diagnosis of Conduct Disorder. The behaviour also follows a reported history of sexual abuse as an adolescent.
[The defendant] admits to sexual arousal from child pornography. This is consistent with a diagnosis of Paedophilia, particularly when combined with his criminal record. This is a non-exclusive subtype. It likely represents a spectrum of deviant sexual behaviour driven by pronounced novelty seeking of ever more extreme sexual images and/or behaviour in order to overcome a tendency to boredom with safe or conventional sexual behaviour.
[The defendant] also has a history of Substance Use Disorders. By all reports these appear in long-term remission, albeit with him having spent most of his life in custody since he last used substances.
…
[The defendant] presents with psychopathy. The PCL-R gives a checklist of the features of this condition and broadly separates them into two groups or [Factors.] Factor 1, the core personality traits of psychopathy including glibness and superficial charm, grandiose self-worth, pathological lying and manipulative behaviour as well as a shallow demeanour, a lack of remorse for crimes, a lack of empathy and a failure to accept responsibility for actions; and the other group of features or Factor 2 characterised by social deviance including a need for stimulation or proneness to boredom, a parasitic lifestyle, a lack of long-term goals, impulsivity and irresponsibility, poor behavioural controls, early behavioural problems combined with juvenile delinquency, criminal versatility and prior problems with supervision or revocation of conditional release. [The defendant] shows most if not all of these features. These are engrained features of his personality structure and will be lifelong. I note, as other authors of earlier reports have, that offending typically reduces with age, particularly serious violent and sexual offending, in those with antisocial personality disorder and to some degree psychopathy, but this is yet to be demonstrated in [the defendant’s] presentation.”
Dr Elliott assessed the defendant’s risk as follows:
Static-99R: the defendant has a score of 7 placing him in the well above risk range for sexual recidivism.
HCR-20: the defendant falls within the group of offenders who overall would be considered a moderate to high risk of violent recidivism. Dr Elliott considered the following factors to be relevant:
(a) Historical factors: the historical risk factors identified include history of violent offending; history of other antisocial behaviour as the wide variability of his criminal record attests to. The defendant “scores on a history of problems with intimate relationships” as his history is of relationships characterised by instability and domestic violence, or alternatively short-term sexual relationships of no stability. His employment history has been affected by his prolonged period in custody. Although he does report having worked as a chef, this does not appear to have been a sustained or stable employment pattern and he again scores for a history of employment problems. He has a definite history of substance use problems, scoring on this item also. He has a definite personality disorder. There is a reported history of traumatic experiences given his documented history of adolescent sexual abuse and the problems with his parenting through childhood. He has a pronounced history of violent attitudes and of treatment or supervision response. The only item he does not score on the historical scale is that of a major mental illness. (b) Clinical Factors: the defendant presents with a moderate loading of the clinical risk items in the HCR-20. He demonstrates a lack of insight into his problems and persisting problems with violent ideation or intent. He has a known history of treatment or supervision responses, as has been repeatedly demonstrated both during his recent release and his failure to engage with treatment programs in custody. (c) Risk management variables: the defendant displays probable future problems with professional services and plans given his history of poor engagement, or superficial engagement, at best, with community corrections. He has few personal supports and once again he has a history of poor response to treatment or supervision.
“There are key components of psychopathy that lead to an increased risk for violent offending. This includes a lack of empathy for others, a need for stimulation and proneness to boredom and poor behavioural controls generally. [The defendant’s] lack of moral compass or respect for the rights of others removes an inhibition towards violent reoffending and serious sexual reoffending. Specifically, with regards recidivist sexual offending, promiscuous sexual behaviour is a key component of psychopathy. Once again, a need for stimulation is a key cause for him to engage in recidivist sexual offending. These features, combined with his deviant sexual interests lead to an increase in his risk of committing a further serious sex offence.
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I agree with the authors of the other reports that there is a lack of effective treatments available for psychopathy. No conventional psychological approaches to the condition have been found to be successful. There is also a suggestion, much as was expressed in the cautions of his community psychologist, Mr Randall, that psychological interventions can increase the risk of violent and sexual recidivism as it provides the psychopath with greater tools for insight into others and thereby greater means of manipulating and exploiting them.
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I consider [the defendant] remains an unacceptable risk of committing both a serious violent and serious sexual offence. All of the factors present at the time of both his index serious violent and serious sex offence remain present, apart from substance use. Whilst substance use is a key risk factor and hence the absence of it can be considered to have lowered his risk, all of the other risk factors are personality related and remain unchanged.
As just one example, he repeatedly referred to children, in particular the child victim of his serious index sex offence and those in the child pornography images, as willing and active participants in their abuse. These factors have been highlighted in the formal risk assessments of the RARs…
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[The defendant’s] risk factors are entrenched and will be extremely slow to change. I again note a general trend in individuals with Antisocial Personality Disorder towards reduced offending with age but, as I have indicated above, this does not appear to be the case with [the defendant]. There has been a sustained period of time since his index sexual offence, and an even longer period since his index serious violent offence, but he has spent almost all of that time in custody and has now reoffended within months of release.”
However, Dr Elliott cautioned that it is “impossible to predict any individual’s specific risk of reoffending as, although risk factors for that individual can be identified, it is impossible to predict the future and how those risk factors may interact with any infinite number of possible future scenarios they may encounter”.
Regarding possible treatment options, Dr Elliott noted the defendant had been referred to the Justice Health Treatment and Rehabilitation Centre (“TRC”) but observed that:
“He may there be considered for an antilibidinal hormonal treatment such as Leuprorelin, a long-acting injectable testosterone lowering medication. This will be part of a multi-disciplinary approach to his presentation by the TRC. My concern however, is that his risk for sexual recidivist offending is not necessarily driven by a hyper-libidinal state but rather a proneness to boredom and a pursuit of evermore deviant sexual offending to provide him with a sense of excitement and stimulation, rather than just to pursue sexual gratification.”
“[The defendant’s] risk of committing a further serious or sexual offence would be reduced by an ESO, although I hold concerns that an ESO may not contain this risk sufficiently. Succinctly, he appears highly intelligent and extremely manipulative and able to exploit even small opportunities, particularly for sexual reoffending, that may present themselves from one day to the next. He exerts an undoubted degree of charm and appears able to win people over quickly, particularly vulnerable individuals. Even with a diligent DSO team and strict conditions, I hold concerns he will be able to evade those conditions by novel means that he has not utilised before.”
“A CDO will cause the most secure available means of managing [the defendant’s] risk of serious recidivism. It will significantly reduce his risk for sexual recidivism, although his custodial record indicates he retains the capacity to act violently within a custodial setting.”
“Succinctly, I consider all of the conditions as set out in the summons to be important in managing [the defendant’s] risk. I again note my concerns that he may evade even the tightest of conditions, but nonetheless I shall provide comment on each of those proposed.
It is essential that he be subject to intense monitoring and reporting requirements to enable his DSO to monitor who he has been associating with and ensure he is not accessing vulnerable persons.
His bracelet and schedule must be used to ensure he does not access places where he could access children or other potential vulnerable victims.
His accommodation must be vetted and strict conditions placed on those he is allowed to have visit him at those premises, and particularly those who may stay overnight.
He must surrender his passport. I note he has threatened to use his boat to escape New South Wales. His monitoring bracelet must also be used to guard against any such possibility.
With regards [to] employment, I had concerns about many of the comments he made regarding his time in the Aldi supermarket and the potential access he had there to vulnerable persons. His DSO must be allowed to monitor and vet any employment he accesses, as well as any courses.
His financial affairs must be monitored given his extensive history of fraud and similar offences and the potential for him to manipulate and exploit others financially.
He must of course be forbidden from accessing illicit substances and his use of alcohol should be kept to a minimum or at most two drinks in any one day.
Substance use is a key risk factor for both violent and sexual offending and this applies equally to [the defendant].
He must of course not be allowed to associate with children or antisocial peers.
He must also be forbidden from possessing weapons.
Given his history of repeated child pornography offences it is essential that his DSO be allowed to strictly monitor his access to the internet via any means. I retain particular concerns in this regard that he may still be able to acquire such means surreptitiously and conceal this from the best of searches. Nonetheless, he must be forced to submit to search and seizures by his DSO, particularly of electronic devices and any area where he may conceal such devices. He must of course not be allowed access to pornographic or similar material.
With regards [to] medical intervention and treatment, it is difficult to recommend that he be compelled to take an antilibidinal treatment. Treating clinicians are justifiably reluctant to prescribe antilibidinals under such conditions. Nonetheless, he should be required to cooperate with at least an initial assessment at the TRC.”
Dr Elliott indicated that given there is “no formal treatment” for the defendant’s psychopathy, the defendant’s risk is to be managed “by way of ensuring that he is aware he will be quickly subject to sanction should he breach his conditions”.
As to the duration of any order, Dr Elliott said the following:
“[The defendant’s] psychopathy is a lifelong condition and will continue to pose risk. This also applies to his deviant sexual interests. As such, I consider that an ESO of five years is required.
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A CDO would markedly reduce his capacity for recidivist sexual offending. Once again, I do not anticipate that his risk assessment will change in five years’ time and would recommend any order to be of at least that duration.”
“Nunyara would offer [the defendant] an opportunity to ‘prove himself’ in a supervised setting for the first six months. His DSO could liaise with Nunyara staff and gain professional feedback on his progress with ESO conditions and behaviour with other residents …
I maintain the main thrust of my opinion; that [the defendant’s] risk factors for serious violent and sexual offending are bedded in enduring personality traits and are unlikely to change while he remains fit and active.”
As earlier mentioned, there was concurrent evidence given by the independent experts. The concurrent evidence was approached by reference to a series of topics, which were as follows:
Diagnosis including psychopathy/anti-social personality disorder;
Factors relevant to diagnosis;
Prospect of psychological interventions being available or effective
Risk factors for offending if an ESO is made;
Significance of COSP accommodation;
Relevance of the treatment and rehabilitation clinic referral; and
Opinions as to the risk if not kept in detention.
Noting that there may be some intermeshing between certain topics, the following discussion of the concurrent evidence of the independent experts will largely conform with those topic areas, although I note that some topics are covered elsewhere in this judgment.
In his report, Dr Elliott referred to the checklist provided in the PCL-R. There were two sets of factors identified in that checklist, the second of which referred to psychopathy. This second factor was characterised by social deviance including a need for stimulation or proneness to boredom and “impulsivity and irresponsibility, poor behavioural controls”.
Both independent experts referred to the need for stimulation or proneness to boredom as a “key pathway” leading to sexual offending for the defendant. They referred to the compound effect of psychopathy and the defendant’s deviant sexual interest.
Dr Dayalan referred to dynamic risk factors in his report, which included impulsivity and poor cognitive problem solving as being features of psychopathy together with deviant sexual interest.
However, in the concurrent evidence Dr Elliott stated that, whilst impulsivity is a key construct of psychopathy, that factor should receive less emphasis in the case of the defendant. Dr Elliott opined that he saw the defendant “as perhaps a little bit more careful or calculated as opposed to immediately, impulsively jumping at something, as many people with anti-social personality do. I think with him it is much more a cognitive step, if you like, that he makes, being fully aware where he is going.” Dr Elliott agreed that there was “a progression along that line”.
Dr Dayalan recognised impulsivity as a “background trait” which can be exacerbated in certain situations. He emphasised, in that respect, the effect of stress which connected with his later opinion that there may be some use in psychological treatment, albeit somewhat marginal in its significance. Nonetheless, he considered that the defendant was influenced by impulsivity.
This apparent difference in opinion, to some extent, is reflected in the experts’ opinion as to efficacy of sanctions. However, before I turn to those aspects of their opinions, I propose to talk briefly about the notions of a stepwise progression to reoffending as opposed to opportunistic reoffending.
It was evident from the evidence of the experts, that a stepwise progression represents some form of graduated movement towards reoffending, along a pathway.
A key feature of the risk identified in the independent expert evidence was the progression in potential offending, described as a “step wise progression” by Dr Elliott due to the need for stimulation or avoidance of boredom. The evidence given by the independent experts in concurrent evidence would suggest that there is a relationship between the potential offending, with respect to pornographic material, and “hands-on” or “contact” offending, although Dr Elliott also indicated that “contact offences are also an opportunistic pathway depending on what presents itself”.
Dr Dayalan accepted that there might be a “step-wise progression”. He was of the view that “it certainly will be increasing his risk if he is getting increasingly pre-occupied with sexual material”.
“The online offending is its own pathway; the contact offences are also an opportunistic pathway depending on what presents itself. It is not necessarily the case that he will satisfy himself with his online activities as opposed to real world contact offending.”
This brings forth consideration of the discussion in the concurrent evidence of the effectiveness of sanctions. The related consideration is the State’s submission that the evidence supports a conclusion that the defendant is not likely to comply with an ESO.
Dr Elliott’s evidence was that “the risk of sanction is probably what looms largest in terms of controlling the person with psychopathy, it is that which they are most likely to respond to”, although, Dr Elliott queried just how easy it was to discover the offending. Likewise, Dr Elliott emphasised that the defendant’s desire to be out of custody was a significant factor because the view was genuinely expressed, but again questioned whether the defendant could hold to that view in light of the drivers of psychopathy, such as boredom and the need for stimulation.
Dr Dayalan noted that sanctions may be less effective in individuals with psychopathy because they do not always think about the consequences when acting on their urges and impulsivity. Nonetheless, in cross-examination, the experts gave the following evidence:
“JOHNSTON: Perhaps Dr Dayalan and then I'll just follow on with your answer to the last question, sanctions are not always effective with a person with psychopathy; what do you see is the main motivator in terms of compliance with supervision? I think earlier you referred in your answer to a couple of alternatives.
WITNESS DAYALAN: Sorry, "alternatives" did you say?
JOHNSTON: Yes, in terms of factors that are likely to motivate him in terms compliance. Perhaps I will put it another way. The dichotomy I was looking at, I think you used the phrase, "he was relying more on external than internal"?
WITNESS DAYALAN: That's correct, yes.
JOHNSTON: When you are referring to external factors I had originally taken it that you were actually referring to sanctions as an external factor, if you are not referring to sanctions as an external factor what were you referring to?
WITNESS DAYALAN: So I was kind of referring to monitoring and supervision where they are able to pick up things quite quickly and address that with him. Look, I'm not saying the sanctions are completely ineffective; I'm saying that they are not as effective for individuals with psychopathy, but nevertheless as Dr Elliott pointed out he is very motivated to stay in the community that might be actually one of his biggest, driving factor. We are talking about trying to intervene early and not necessarily by means of sanction but actually making it aware that all those things are picked up and addressed with him. So it could involve him speaking with a DSO about what led to it, what are the factors that might have contributed to it; and if there are other things that are increasing his risk whether there can be something put in place to reduce that. So all those things will also be relevant to managing his risk and that's what I mean by saying "external factors" as opposed to internal restrictions. Internal restrictions would be where they are reliant - okay, if I do this that is going to be in breach of loss, I am going to get into trouble with the law. This is more external measures where they are aware that they are being constantly monitored.
JOHNSTON: And perhaps just looking at the question for you, Dr Elliott, I want to take some of Dr Dayalan's response, it is not simply necessarily looking at one factor, it is a combination of factors, both external factors, the fact that he is being monitored, the fact that there is the possibility of sanction, that he is motivated to remain out of custody. There is a combination of external factors that might be applied.
WITNESS ELLIOTT: Yes, I'd agree.”
The foregoing analysis of the concurrent evidence requires, in my view, the acceptance of the defendant’s submission that the propositions advanced by the State as to the lack of effectiveness of sanctions and, in particular, the likely non-compliance by the defendant with an ESO overstates the effect of the independent expert’s concurrent evidence.
Further, in managing the defendant’s risk in the community both Dr Dayalan and Dr Elliot emphasised the intensity and rigour of an ESO.
For example, Dr Elliot observed in cross-examination that an ESO would be “a lot stronger than being on parole” and that a “diligent DSO” would pick up on any potential access to possible victims more readily than a Community Corrections Officer. Similarly, Dr Dayalan acknowledged that, while there is “no way we can say that a risk can be completely managed by restrictions”, he was of the view that the conditions of the ESO “as proposed, are quite extensive and they certainly lower the risk of him committing a serious sex offence with all of these, like, conditions that they are being strictly enforced”.
The discussion of this evidence, in my view, in part supports the submission advanced by the defendant that the independent expert’s concurrent evidence did alter the position outlined in the State’s submissions in chief. That is particularly so in the case of Dr Elliott’s evidence. However, there are other illustrations of Dr Elliott’s evidence shifting in favour of the defendant’s contentions in this matter and, in particular, away from support for a CDO (as he had expressed in his report), which I will discuss later in this judgment.
Both independent experts gave evidence that the traits of psychopathy are not amenable to treatment. This was consistent with the assessment of other psychiatrists and psychologists, including Dr Randall and Dr Roberts. However, the independent experts differed in their opinions slightly.
Dr Dayalan accepted that the traits of psychopathy are not amenable to treatment, but that psychological treatment may address problem solving skills and stresses. He stated that, whilst he would not agree that psychological treatment would make no difference, the difference was “a small one but nonetheless worthwhile” and suggested that psychological treatment "might have somewhat moderating effect”.
Dr Elliott did not consider there to be any utility in the defendant receiving psychological treatment.
The independent experts did agree that psychological treatment may have a protective benefit, serving as a further risk assessment tool, in the sense that the defendant likes to talk or "boast" in psychological treatment sessions. Hence, his treating professionals may use this as "another layer of supervision" to identify any concerns or risks.
Hence, the treatment options for the defendant are marginal, although I accept they have some therapeutic benefit. The treatment addresses some of the factors which contribute to the likelihood of reoffending by the defendant because of his psychopathy.
I also accept the submission by the defendant that the evidence reveals that psychological treatment may serve as a protective factor because the defendant may make unguarded remarks that would be detected by a skilled forensic psychologist, even though this does not constitute treatment per se.
The evidence, as a whole, tends to establish that the defendant has no desire to engage in psychological treatment, evidenced by his own views expressed to Community Corrections as well as his lack of meaningful engagement with such treatment, as a means to address his deviant sexual interests, in the past. I note, in this regard, that both independent experts held reservations that the defendant would actively engage in psychological treatment. Dr Elliott noted that the defendant does not see any benefit from psychology sessions, and Dr Dayalan noted that while he believes it is worthwhile recommending those interventions, "it is difficult to say with certainty as to whether [the defendant] is going to actively engage and benefit from it".
I accept that the defendant has agreed to undergo treatment, if he is subject to an ESO, but that concession needs to be seen in the light of the above analysis. Furthermore, the efficacy of his acceptance for treatment needs to be also judged against the evidence of Dr Randall who effectively states that the defendant will use the psychological sessions to get a better understanding of how to manipulate people.
The independent experts agreed that the defendant’s risk of committing a serious sex offence was higher than the risk of him committing a serious violence offence.
Dr Elliott considered that the risk of the defendant committing a serious violent offence could be effectively managed by an ESO.
Dr Elliot considered that the risk of the defendant committing a serious sex offence would arise via an online route or through contact with victims. He commented on the defendant’s charm and his ability to very quickly form a rapport, particularly with vulnerable people.
Dr Dayalan considered that the defendant’s risk factors, in regards to the defendant’s sexual offending, included his deviant sexual interest (being a key risk factor), his psychopathy and the traits associated with it, as well as access to victims. Dr Dayalan believed that risk “could be potentially managed, if the conditions of the ESO are strictly enforced in regards to access to potential victims”.
With regard to violent offending, Dr Dayalan considered the defendant’s ability to regulate his emotions and behaviour, as well as the psychopathy traits, were key risk factors.
Dr Elliott noted that he has “an innate reluctance to recommend a CDO for anyone” as he did not “see it as a problem solver to incarcerate someone indefinitely”. As a result, Dr Elliott noted that he had not gone as far as to explicitly recommend a CDO on that basis. Dr Elliott further noted that, given the extensive period the defendant had spent in custody, “he has had little real opportunity to demonstrate how he would manage in the community under an ESO”. However, he also noted he is conflicted because he still sees the defendant as “fit” and “driven” and is an “intelligent man” who is seeking novelty. Dr Elliott expressed concern that if an opportunity arose that the defendant would be excited by, he would potentially exploit it.
Dr Elliott noted that he would lend his support to an ESO, where there was some form of structured accommodation environment in the first instance, and then moving forward, an ongoing structured and approved accommodation which the Departmental Supervising Officer (“DSO”) had approved.
Dr Dayalan’s view was that the defendant could be suitably supervised in the community, and the availability of COSP simply fortified his view in this regard.
The State submitted that the evidence of the independent experts did not significantly alter it’s position, as outlined in their written submissions. Rather, in the State’s submission, the expert evidence strengthened the concerns around the defendant’s likely compliance with an ESO by confirming that risk of sanction would not be an effective deterrent.
I do not agree with that submission. Taken at a global level, Dr Elliott’s view, as to the management of risks associated with the defendant, which he had expressed, in many respects, strongly in his report (albeit with some minor equivocation), was moderated significantly during his concurrent evidence, with Dr Elliott making a number of concessions. Some examples of those concessions were, in broad terms:
The ability to manage the defendant’s risk, including the risk of the defendant committing a contact sex offence, within a COSP environment.
The protective benefit of psychological treatment as providing another layer of supervision.
The effectiveness of the DSO to control access to contact victims and monitor the defendant’s risks, in comparison to Community Corrections.
His support of an ESO while the defendant would be residing at COSP, and thereafter where suitable accommodation was approved by the DSO.
Dr Roberts, a consultant forensic psychiatrist, was asked to assess and report on the defendant by Karp O’Neill Lawyers in the context of a civil claim for sexual abuse compensation. Dr Roberts spoke with the defendant by teleconsultation Webex on 26 November and 10 December 2024.
Dr Roberts referred to his initial report of 17 March 2020, where he diagnosed a personality disorder of antisocial personality type, which involves the most severe form of this personality disorder, noting that the defendant would fulfil the clinical diagnosis of sociopathic/psychopathy.
Dr Roberts opined that the defendant’s “sexual interaction throughout his life has been characterised by sexual behaviours that are consistent with the presence of significant psychopathology”.
Dr Roberts also noted that, consistent with the diagnosis of psychopathy, the defendant reported that he was not emotional in regard to the recent death of his father, which occurred on the preceding Saturday.
Dr Roberts stated that when the question of treatment was posed to the defendant, the defendant commented that he spoke to a psychologist, Dr Randell, who stated there was no point in the defendant going to see him, because the defendant has no emotions and psychology deals with emotions.
In Dr Roberts opinion, the prior sexual abuse of the defendant significantly contributed to his diagnosis of psychopathy. The treatment plan, included in Dr Roberts’ report, was as follows:
“TREATMENT PLAN:
● In regard to a treatment program, and in acknowledgement of the difficulties in treating psychopathy, the prime treatment is that of repetitively emphasising the need to conform to the norms of society in his self-interest, rather than talking about “the right thing to do”.
● Emphasising self-interest is the only treatment that has been shown to be beneficial.
● Medications to the extent that it is indicated, would encompass if [the defendant] is agreeable, to medication and complies with it, to promote symptomatic relief from anxiety, by using antidepressants.
● Anti-Androgens would help control inappropriate sexual drives.
● I would consider that [the defendant] would be unlikely to cooperate within the treatment plan and from that point of view, his prognosis is guarded.
● What is interesting in terms of the documentation provided, is that no psychiatric diagnosis was shown to exist prior to [the defendant’s] exposure to the inappropriate treatment at Kendall Grange and at the Youth Hostel which would support my impression that the substantial cause of [the defendant’s] dysfunctionality, criminality and antisocial behaviours are connected to his being the victim of sexual assault and ill-treatment to the two institutions referred to.”
In preparing the RAR, the defendant declined to speak with Dr Parker and consequently the RAR was prepared based on documents alone.
Dr Parker assessed the defendant as having a psychopathic personality and being well above the average risk for further sexual and violent offending.
Dr Parker noted that the defendant has been in and out of prison for his entire adult life with a wide variety of offending. He described this as “extremely versatile and chronic offending habits” in which “[i]n addition to penetrative sexual acts against an eight or nine-year-old girl, he has committed serious violence, many offences of dishonesty and possession/creation of child abuse material”.
Dr Parker observed that, unlike most offenders who desist after about 30 years of age, the defendant has continued to offend, returning to custody rapidly, such that he has spent less than six years of his adult life outside of prison.
Dr Parker considered that the defendant’s offending is underpinned by the following factors:
his psychopathic personality means that he does not have empathy for others and does not feel guilty about his behaviour; and
his sexual offences appear to be motivated by deviant sexual interest.
Dr Parker stated that a “desire for non-consensual sexual behaviour, combined with the disinhibition of psychopathy, is a dangerous combination.”
Dr Parker considered that the defendant is likely to seek out further deviant sexual activities, and that based on his past history, the defendant is more likely to be caught with child abuse material than to be caught for “a hands-on offence”. However, Dr Parker clarified that “this does not mean that his risk of a hands-on sexual offence is anything less than the “well above average” rating derived from the actuarial instruments,” as it is possible his access to child abuse material precedes his hands-on offending. Dr Parker referred to the defendant’s continual return to child abuse material, his creation of such material, and the intensity of the material he collects, as indicating his arousal by such material. Dr Parker stated that the detection of child abuse material may interrupt the pathway to a hands-on offence.
Dr Parker also opined that the defendant’s history of violence, combined with his psychopathic personality profile, means that the possibility of serious physical violence “cannot be ignored.”
Further, Dr Parker considered that the most likely scenario for further offending is that the defendant will begin by committing offences of dishonesty to surround himself with the wealth he believes he deserves. He referred to his repeated fraud offending appearing to be motivated by a range of antisocial beliefs. Dr Parker considered that with or without a luxurious lifestyle, the defendant would desire more and more exciting material to stimulate himself and will likely again turn to illegal sexual material to ingratiate his desire, given his history.
“…the content and process of this program is unsuitable for someone with the density of psychopathic traits that [the defendant] possesses. Numerous case notes document unsuccessful attempts by facilitators to convince [the defendant] of things, instead of attempting to understand his world view and assisting him to come to his conclusions about how his world view leads to further offending. This resulted in numerous conflicts with treatment staff and, ultimately, his removal from the program.”
Dr Parker stated that the literature had failed to uncover successful treatments for psychopathy, but neither had it concluded that treatment was impossible. In Dr Parker’s opinion, the defendant requires treatment that starts with an acceptance of the reality and that then helps him to explore his thinking and how that behaviour connects to his behaviour. Dr Parker considered that the defendant is unlikely to commit to such treatment without significant consequences for non-participation and that such treatment would likely take a number of years, given his level of risk. Additionally, Dr Parker opined that changing the habits of a lifetime will take determination, assistance, and a considerable period of time and that “[h]is prospects of doing so unaided are dismal – at least in the medium term”.
Dr Parker identified the defendant’s criminogenic needs as including antisocial associates, antisocial personally/psychopathy, substance abuse, self-regulation/impulsivity, attitudes, intimacy deficits and superficial cooperation with supervision.
Forensic psychologist, Dr Graham Randall, saw the defendant in May 2024. Dr Randall is referred to in the evidence as the defendant’s “community psychologist”.
Dr Randall emailed Community Corrections on 20 May 2024 and gave the following opinion of the defendant:
“As noted in our conversation by phone, my overall impression is that [the defendant] has a very high level of psychopathy, such that I would suggest he meets the criteria for a diagnosis of severe psychopathic personality disorder. This is a relatively rare personality disorder type, marked by an inability to connect with either his own or [others’] emotions. However, he does appear to be able to [‘read’] the emotions of others, and as such, is highly skilled at manipulating people through their emotions. [The defendant] appears to have developed [‘rules to live by’] which he says prevents him from engaging in activities that are likely to result in breaking any legal sanction. He may not understand the [‘why’] of the rules, but understands that by adhering to them, he [won’t] go back to gaol.
Due to his high level of psychopathy, I do not believe that therapy would be of benefit to him. On the contrary, by engaging in therapy beyond simply establishing rules, which he has already done, he may learn skills to [‘better’] manipulate people. Effective therapy requires the ability to reflect on [ones’] own emotions and connect to those emotions. Those with a high level of psychopathy - such as [the defendant] - by definition are not capable of engaging with their own emotions. As such, I do not recommend therapy for [the defendant]. Instead, I would suggest a relatively high level of supervision.”
Dr Chew made a diagnosis of an anxiety disorder based on the defendant’s self-report, but suggested he was stable on treatment with the antidepressant medication, Luvox.
Dr Chew also noted that the defendant likely has Cluster B personality traits (referring to borderline, antisocial, histrionic and narcissistic personality disorders) on a background of child sexual abuse, and substance use disorders in remission.
Dr Chew was uncertain whether the defendant had a paraphilia but recommended further assessment. Dr Chew’s major recommendation for treatment was that the defendant have access to a sex offender treatment or program such as the Custody Based Intensive Treatment (“CUBIT”) program for sex offenders.
Dr Furst prepared this report in regard to the defendant’s charges of 16 counts of dishonestly obtaining property by deception, failing to comply with his CPR reporting obligations and 2 counts of possessing child pornography.
Dr Furst’s report details the defendant’s reported sexual abuse at the ages of 12 and 13 years while at boarding school. The defendant told Dr Furst that the abuse took place over a 6 to 12 month period, on a total of approximately 9-10 occasions and involved oral sex and fondling.
Dr Furst stated that the defendant had recently been diagnosed with obsessive compulsive disorder (“OCD”) in custody, and that his symptoms included obsessively tidying and fixing things.
The report observed an extensive history of substance use, in particular cocaine and amphetamines, and that the defendant was using large amounts of drugs at the time of his offending.
The defendant admitted to Dr Furst that he had downloaded the child pornography images and said that he was attracted to the images “only if the children depicted were ‘enjoying it’”.
Dr Furst made a diagnosis of OCD, substance use disorder and antisocial personality disorder. He suggested that any future treatment should involve engaging with a psychiatrist and psychologist as well as undertaking a program targeted at sexual offending such as CUBIT.
This report of Dr Sahm was the first time the PCL-R instrument was used, and it noted that the defendant scored 37.9 being extremely high. The cut off score to meet the criteria for psychopathy is a score of 30.
The defendant was considered as high risk, and the opinion was that the defendant required a high intensity treatment program for sex offenders.
Dr Sahm opined that the defendant has intellectual ability and skills but chooses to use them in an antisocial manner.
Dr Sahm observed that the defendant did not demonstrate a sense of responsibility for his offences and presented a lack of concern and remorse for the offences by showing disregard for the victims and their suffering.
Dr Sahm reported that:
“An interpretation of the conflicting information that [the defendant] presented regarding his sexual deviance may be that it is instrumental in satisfying his need for sexual dominance and control of females. This appeared best to be achieved by creating the child as a sexual object to be manipulated and moulded into his fantasy. The child is then humiliated and degraded through sexual means and ultimately dominated. This hypothesis would be characteristic of a psychopathic behaviour pattern in that he has demonstrated a lack of concern for others in preference for himself and his needs.
The difficulty presented in assessing the level of risk of harm regarding [the defendant], is that currently [the defendant’s] most recent offences are hands off offences. These offences contain sexually deviant self-created material that may appear less significant in comparison to repeat hands on offences and offenders. In regard to this it may be easy to suggest that this could translate into lower risk; however, this observation should not minimise or confuse the level of risk he presents and the potential for future victims. Further, this assessment suggests a strong possibility that [the defendant] imagined that he could profit from creating various forms of child pornographic material and that this was a motivating factor. Should this be actualised significant harm may continue to be perpetrated.”
Dr Tulloh noted significant problems with regard to relationship difficulties, deviant sexual attitudes, lack of sexual self-regulation, and evidence of difficulties with general self-regulation, all serving to increase the defendant’s risk of reoffending.
Dr Tulloh further observed that, in addition to the defendant producing child pornography whilst in custody, his personal correspondence indicated that he had been actively planning to reoffend when released from custody.
Dr Tulloh opined that the defendant does appear to fit the criteria as set out in the DSM-4 for antisocial personality disorder.
Dr Tulloh noted that “without some form of intervention, [the defendant] is a very high risk of reoffending and presents a significant risk to any child that he comes into contact with”.
Dr Tulloh considered that the defendant posed a high risk of reoffending, both sexually and generally, as assessed by the Static-99R and another actuarial instrument, the LSI-R.
Dr Tulloh also opined that the defendant’s non-compliance with treatment recommendations was a concern, and the defendant was unlikely to attend any form of treatment unless it was mandated by an external body such as the State Parole Authority. Dr Tulloh also considered that the fact the defendant continued to produce child pornography in custody, despite seeking treatment and being aware that doing so would prevent him from attending sex offender treatment, indicated that the defendant’s compulsion to offend was overwhelming or that the defendant offended in order to avoid treatment.
Dr Tulloh recommended participation in CUBIT to address the defendant’s sexual deviancy and allow a more thorough assessment, which would lead to more informed recommendations for supervising the defendant in the community.
The report of Dr Canaris observed that the defendant already had “a long history of criminality and violence and in retrospect clearly suffered from a conduct disorder in childhood”.
Dr Canaris diagnosed a “classic picture of anti-social personality disorder” and noted that “[t]his is not a treatable condition”. Dr Canaris further observed that the defendant had no interest in seeking care. There was no evidence of a treatable psychiatric disorder.
The report of Dr Canaris appears to have been prepared in relation to a child safety investigation regarding the defendant’s child, and Dr Canaris notes that the child would be significantly at risk if returned to the defendant’s care.
Dr Canaris opined that anti-social personality disorder is not a treatable condition and the defendant is unlikely to derive any benefit from seeing a psychiatrist at the present time.
Dr Canaris also stated that the defendant had minimal insight into his current situation and that “[t]here is no prospects of [the defendant] changing in any substantial way in the immediately foreseeable future… [t]he reality is that the only interventions likely to be of any benefit to [the defendant] are firm limits and a high degree of structure.”
Mr Champion was assessing the defendant for Sutherland Children’s Court after the defendant, then aged 13 years of age, had threatened his mother with a knife.
The report of Mr Champion stated that the defendant’s mother reported her relationship with the defendant’s father had been marred by aggression and the father’s gambling. It noted that following the separation and divorce of the defendant’s parents, the defendant lived initially with his father.
The report of Mr Champion detailed the defendant’s developmental experience, noting that the defendant lived back and forth between both his mother and father following their separation and divorce. The report opined that the defendant appears to have been exposed to a dramatic level of parental conflict, with an ongoing custody dispute and allegations by the defendant’s mother that the defendant’s father was severely abusing him.
Mr Champion completed a formal intellectual assessment that indicated that the defendant was of superior intelligence or of significantly above average intelligence.
Dr Beesley was assessing the defendant for the same charges mentioned above at Sutherland Children’s Court.
Dr Beesley suggested that the defendant had no drug or alcohol history but found that the defendant had “some degree of lowered self-esteem and slight reactive depression, with suppressed anger” on mental state examination. There was no evidence of psychotic symptoms or any other major mental illness.
Dr Beesley noted that the defendant was above average intelligence.
Dr Beesley also considered that there was no indication for any form of specific psychiatric treatment or intervention in the orthodox sense, other than continued psycho-therapy involving the family.
I agree with the submission of the State, that the assessments of the various psychiatrists and psychologists are consistent with the opinion of Dr Parker as to the level of risk the defendant poses to children as well as with the other evidence concerning his lack of remorse or sense of responsibility for his offences, his attitude to treatment, and the level of supervision required to manage his risk.
The defendant raised the following three issues in relation to the other psychiatric and psychological reports of the defendant:
Some reports have diagnosed the defendant with, inter alia, anti-social personality disorder while others have suggested a possible diagnosis of psychopathology.
Recommendations for the defendant to be prescribed anti-libidinal medication to alleviate his sexual preoccupation were made as early as 2008 and as recently as 2025.
The difficulties of psychological or psychiatric treatment, particularly in the light of the defendant’s psychopathic traits, have been repeatedly noted but the report writers have almost universally recommended some form of therapeutic intervention.
The first of those issues, regarding diagnoses, has been dealt with earlier in this judgement. I will deal with the second and third issue, in turn, below.
The State submitted that the defendant had been referred to the TRC and would be assessed on 12 August 2025. While the State accepted that anti-libidinal treatment through the TRC was a potential rehabilitative or treatment option, they also emphasised the fact that treatment can only commence if clinically indicated and with the defendant’s consent, and further noted, having regard to the expert evidence, that the defendant’s offending may not be driven by his libido and that it is doubtful the anti-libidinal treatment supports the making of an ESO.
The State further submitted that whilst the multidisciplinary services at the TRC, if available and consented to, would provide a layer of protection, the weight to be given to the role of anti-libidinal medication must be viewed as speculative.
The defendant submitted that the expert evidence supports anti-libidinal medication as a mechanism to manage the defendant’s risk. The defendant submitted that Dr Dayalan “strongly recommended anti-libidinal medication” and “observed that treatment with anti-libidinal medical will assist to lower [the defendant’s] sex drive and potentially reduce the risk of him committing a serious sex offence”. However, the defendant also accepted that Dr Elliott expressed “concern” about the efficacy of the TRC because the defendant’s risk of sexual recidivism was not “necessarily” driven by a “hyper-libidinal” state but boredom and a pursuit of stimulation.
Based on the evidence given by the independent experts in concurrent evidence, I consider that the defendant’s submissions overstate the contribution of anti-libidinal medication to the management of the defendant’s risk for the following reasons.
First, the State correctly submitted that anti-libidinal medication can only be prescribed for the defendant if clinically indicated and with the defendant’s consent. It is unknown, at the present time, whether the TRC will, in fact, prescribe anti-libidinal medication for the defendant.
Secondly, Dr Elliott opined that medical professionals are reluctant to prescribe anti-libidinal medication to people who are not accepting them. A further concern is that the defendant has not yet confirmed, on the parties submissions and the evidence, that he will take the anti-libidinal treatment.
Thirdly, while senior counsel for the defendant submitted that anti-libidinal medication has been recommended as a viable treatment option for the defendant since as early as 2008 this, in fact, raises a further concern about why such treatment has not been undertaken by the defendant prior to this point, despite those recommendations. The defendant’s track record, and his expressed views in relation to his ongoing treatment in the community, makes it difficult to have confidence that the defendant would be willing to participate in any anti-libidinal treatment that may be recommended by his treating professionals.
While the defendant was correct to submit that almost all medical professionals have recommended some form of therapeutic intervention for the defendant, with the exception of Dr Randall and Dr Elliott, it is also true that most doctors have, at the same time, questioned the efficacy of such treatment. This is especially true in more recent reports, which appear to accept that psychopathy is, to a large extent, an untreatable condition. I have earlier addressed this issue in my discussion of the concurrent evidence of the independent experts.
As early as 1992, Dr Canaris opined that anti-social personality disorder is not a treatable condition, and the defendant is unlikely to derive any benefit from seeing a psychiatrist:
“[t]here is no prospects of [the defendant] changing in any substantial way in the immediately foreseeable future… the reality is that the only interventions likely to be of any benefit to [the defendant] are firm limits and a high degree of structure.”
Dr Randall echoed this same sentiment in 2025. Dr Randall did not recommend any therapy for the defendant, noting that due to his high level of psychopathy, therapy would not be of any benefit to him.
Dr Roberts also opined that the defendant is unlikely to cooperate with a treatment plan, and the only beneficial treatment is to repetitively emphasise that the need to conform to the norms of society is in the defendant’s self-interest. Dr Parker also considered that the defendant is unlikely to commit to any treatment without significant consequences for non-participation, and that the prospects of the defendant changing his habits unaided are dismal, at least in the medium term.
Dr Chew, Dr Furst and Dr Sahm all recommended psychological and psychiatric treatment as well as that the defendant undertake a targeted sex offender treatment program, such as CUBIT. Dr Tulloh also recommended participation in CUBIT to address the defendant’s sexual deviancy and provide more informed recommendations for supervising the defendant in the community.
However, both Dr Sahm and Dr Tulloh raised concerns regarding the defendant’s motivation for treatment. Dr Sahm considered that the defendant presented as low motivation for treatment and had not demonstrated any concerted effort to attend treatment in the past. Dr Tulloh considered the defendant’s non-compliance with treatment recommendations was a concern, and that the defendant was unlikely to attend any form of treatment unless it was mandated by an external body, such as the State Parole Authority.
Hence, it is true that most (but not all) psychologists and psychiatrists have recommended some form of therapeutic intervention for the defendant, but their views regarding the efficacy of that treatment have waned, especially in recent years, as a result of the defendant’s diagnosis of psychopathy and his demonstrated unwillingness to engage with treatment. The treatment that may be afforded to address the defendant’s psychopathy is of limited scope as I have earlier discussed (and will return to in my consideration at the end of this judgment).
A Risk Management Report (“RMR”) from Corrective Services NSW (“CSNSW”) was completed on 29 November 2024. The defendant declined to be interviewed in preparation for the report, and no consent was provided to conduct the necessary third-party enquiries. Hence, the report was compiled from contact with the defendant via telephone, the RAR, “Judges Sentencing Remarks dated 26 October 2012” and CSNSW records.
The RMR detailed the defendant’s behaviour in custody, including a note that the defendant presented as argumentative and aggressive during his recent period in custody. On 23 October 2024, the defendant made threats “to belt someone” which presented as an attempt to manipulate his current placement to his advantage. The RMR also noted that the defendant has been subject to 7 breaches of discipline since 2010, including in relation to the possession of offensive weapons, assault and fight or other combat.
The RMR noted that during his current period of incarceration, the defendant had not participated, or only “engaged on a superficial level”, in offence related programs.
The report also considered that it was concerning that the defendant continued to justify and minimise his sexually based offences while presenting with a well above-average risk of sexualised re-offence. The report noted that the defendant had continued to demonstrate an inability to comply with the terms and conditions of his parole and CPR obligations and remained in the community for a relatively short period prior to reoffending.
I also note that I have had regard to the result of the statistical assessment in the RMR. The reported concluded that the defendant was at a medium risk level for general re-offending, in the well above average category for sexual offending, and that “[g]iven [the defendant] re-offended while subject to parole for matters of a similar nature his response to supervision can only be described as unsatisfactory”.
The report concluded that the effective management of the defendant would be contingent upon his willingness to engage in the supervision process in a transparent and meaningful manner, which solidifies the need for additional monitoring conditions that will independently corroborate the defendant’s accounts. The author noted that while the defendant had reported as directed and maintained an appropriate level of behaviour during periods of supervision, this had typically been accompanied by a relatively quick return to custody, which suggested that his engagement in intervention was comparatively superficial.
The RMR set out a supervision plan in the event an ESO was made, which included:
Weekly contact with a DSO.
Unannounced home visits monthly, at a minimum.
Monitoring of behaviour in the community through covert observation and face to face contact by the NSW Police Extended Supervision Order Investigation Team (“ESOIT”).
The defendant undertook three main treatment or rehabilitation programs while in custody: the HISOP, the Real Understand Self Help (“RUSH”) program and the EQUIPS (Explore, Question, Understand, Investigate, Practice, Succeed) suite of programs.
I note that the defendant participated, to some degree, in each program in 2023, being a date prior to the bestiality offences which the defendant committed whilst on parole in August 2024.
The defendant participated in the HISOP program between June 2022 and March 2023, when he was discharged from the program prior to its completion.
The HISOP discharge report notes that the defendant freely admitted and described himself as a sociopath and identified that he had a lack of emotions, lack of empathy, and that he was glib and narcissistic. However, the defendant suggested that these were positive attributes, and he was not held back by emotional decision making. The defendant described his offending as a deliberate choice rather than the result of social, environmental or psychological factors.
The defendant suggested to the HISOP team that he only needed to make a commitment to not offend in order to achieve this goal, and he had already made this commitment. He indicated that he did not require intervention as he was confident in his ability to not reoffend. I note that the defendant’s apparent confidence in his ability to not reoffend needs to be considered in light of the defendant’s return to custody for the bestiality offences just 4 months following his release.
While the defendant demonstrated an ability to understand concepts, provide insightful feedback to other group members, and assist with facilitating group discussions during HISOP, he was generally dismissive of the program, undermined the treating psychologist and dominated group sessions at the expense of other group members and was resistant to feedback. The discharge report noted that the defendant demonstrated limited change in his habitual behaviour, attitudes and insight.
The defendant was ultimately discharged from the HISOP program due to his limited investment in it and his lack of commitment to learning.
I also note that I have had regard to the statistical assessment in the HISOP discharge report, which concluded that the defendant was ‘Well Above Average Risk’.
The defendant completed the RUSH program in February 2023. While the defendant was suspended from the group format after the first 12 sessions, he was permitted to complete the remaining sessions on an individual basis. The evidence demonstrates that the defendant challenged the content and program facilitators and denied that any program skills would benefit him in his choice not to re-offend. During the final session when asked what he had learnt or taken from the program, the defendant advised that he had not learnt anything new.
The defendant has a poor record of compliance with both parole and CPR obligations. Both the 1995 sex offences and the bestiality offences were committed while the defendant was serving a period of parole, and the defendant’s criminal history includes two offences of failing to comply with his reporting obligations under the CPR.
As discussed earlier in this judgement, Soloman DCJ found that the breaches of the CPR by the defendant in 2012 were not “merely technical” but were “deliberate attempts by the offender to circumvent the main purpose of the CPOR Act, namely, the supervision in the community of child sexual offenders” (Solomon DCJ 2012 Decision at 7). The defendant breached his reporting conditions by using false identities and not declaring a number of mobile phones and motor vehicles used by him.
In my view, these comments of Soloman DCJ raise some concern, especially when considering that evidence in the light of Dr Elliott’s concern that the defendant may conceal his offending or come up with a novel way of avoiding detection.
I will make some more observations about the defendant’s performance on his last period of conditional release at the conclusion of my judgment.
The State also submitted that there is significant evidence that the defendant is contemptuous of the laws applicable to him, and that there can be no confidence that the defendant would be deterred from serious offending based on an awareness of potential sanctions for breaking the law. In the defendant’s submission, the evidence pointed to a contrary conclusion.
As I have earlier discussed, in my view, this proposition advanced by the State does not adequately reflect the independent expert’s concurrent evidence as to the effectiveness of sanctions.
As discussed above, I accept that the defendant is motivated to be out of custody, and that his desire to remain out of custody is genuine. This desire was evidenced by his comments to that effect, as well as his relatively positive engagement with Community Corrections during the period of his parole in 2024, where he also maintained employment and negative drug tests. Despite this, the defendant returned to custody within just four months, with little insight into the criminality of his offending or why he offended: Musgrave DCJ 2025 Decision.
Nonetheless, I accept that both independent experts acknowledged that there could be a combination of factors acting as a motivator for the defendant to adhere to the conditions imposed upon him and thereby moderating risk, including sanctions, the fact that he may be monitored and supervised, and the defendant’s desire to stay out of custody.
While the State submitted that there are no effective options for reducing the likelihood of reoffending, absent the making of an order under the Act, the defendant relied on the following options available to reduce the defendant’s likelihood of reoffending:
the defendant’s referral to the TRC;
the defendant having supported accommodation at Nunyara COSP for six months; and
the opportunity for the defendant to participate in individual psychological intervention in the community.
I have dealt with the issue of psychological intervention earlier in this judgment, but will consider the latter two options, in turn, below.
The evidence of the independent experts confirmed that the TRC was a multi-disciplinary clinic that includes (although is noted limited to) possible anti-libidinal (pharmacological) treatment. Both independent experts viewed the TRC as protective.
Dr Elliott indicated that any services provided to the defendant by the TRC would be about identifying and managing risk. He noted that there are psychologists who would provide psychological care and identify potential avenues by which the defendant might offend. He also noted that there are other people on the team who can work more on “general support” such as “trying to help people navigate the community, assistance with settling, et cetera, with these sorts of practical supports”. Dr Dayalan also noted that the TRC would provide “another layer of supervision”.
Both independent experts accepted that there is a very experienced team within the TRC, including, in Dr Dayalan’s opinion, practitioners who are experienced in managing sexual offenders.
I note that I have earlier dealt with the issue of anti-libidinal medication, as having little significance in managing risk in this case.
Dr Elliott stated that the treatment at TRC is “more than” just anti-libidinal treatment, and both independent experts accepted that the TRC would also provide “another level of supervision” or “another avenue by which risk could be picked up early”.
I agree with the submission of the defendant, that the expert evidence supported the proposition that the TRC provides an additional powerful protective measure if the defendant was released into the community on an ESO, with potential benefits extending beyond the provision of anti-libidinal medication.
Following the provision of the reports by the independent experts, the defendant was accepted into supported accommodation at the Nunyara COSP should he be released into the community on 20 August 2025.
On 31 July 2025, in an email to the legal representatives, Dr Elliott expressed the view that “Nunyara would offer [the defendant] an opportunity to ‘prove himself’ in a supervised setting for that first six months.” Dr Elliott also noted that his DSO could liaise with Nunyara staff and gain professional feedback on his progress with ESO conditions, and behaviour with other residents. However, Dr Elliott also held reservations based on the reports of other patients he had encountered, noting that other patients have spoken of easy access to illicit substances and a drug mindset. Dr Elliott concluded that he maintained the main thrust of his opinion, “that [the defendant’s] risk factors for serious violence and sexual offending are bedded in enduring personality traits and are unlikely to change while he remains fit and active”.
However, the effect of the concurrent evidence was that the COSP will be protective while the defendant is residing there, but that his risk of serious reoffending will be the same as it currently is at the end of that period, albeit with the benefit that the COSP allows time for the defendant to form a relationship with his ESO supervisors.
Dr Elliott also noted that “[the defendant] is not going to change in six months… we are going to be revisiting all the questions we spoke about earlier once he is discharged from the COSP” noting that “the risks would be much the same [in six months] as they are today”. Dr Dayalan shared the same view that “[t]he risk factors are probably unlikely to change significantly in the next six months.”
When asked whether he remained of the opinion that a CDO was required to manage the defendant’s risk, Dr Elliott responded: “No, I wouldn’t adhere as closely to that, no.” Dr Elliott noted that the COSP is a six-month test period, in which it is certainly going to be far more difficult for the defendant to perform a contact sex offence, while also noting that “his risk for violent offending might escalate slightly in that environment”.
Both independent experts supported the defendant going to Nunyara COSP on the basis that it would allow a greater transition into living in the community and would offer a high level of monitoring during that period.
Dr Elliott ultimately conceded that:
There is a positive benefit to the period of time the defendant would spend in a COSP because of the high levels of supervision and monitoring available.
COSP would provide an opportunity for the defendant to prove himself as well as an opportunity for a graded transition to the community, at least to see how the defendant was responding to the process.
“JOHNSTON: But if suitable accommodation could be found would that be a factor that you would seek to enable some form of continuation of the supervision order, if that was available?
WITNESS ELLIOTT: Yes, it is certainly far preferable to a caravan park, for instance, or other areas where it is so patently unsuitable, yes.”
In order to address concerns regarding the period after the supported accommodation at Nunyara COSP, the State called evidence, in response to submissions advanced by the defendant, from Ms Kelli Grabham, the High Risk Offender Applications and Operational Governance Officer at the ESO Team.
Ms Grabham gave evidence as to the approach to the question of accommodation and the objectives of placement to suitable accommodation as follows:
“Q. Ms Grabham I think you have indicated in your affidavit, paragraph 19, that the primary focus of the supervision is to ensure the protection of the community in accordance with the objects of the Act, is that correct?
A. Yes.
Q. However, part of the aim of the supervision of the defendant will be to assist him to "(a) create safe and positive support networks in the community, engage in appropriate interventions to address his risk of reoffending and maintain long term independent accommodation", is that correct?
A. Correct.
Q. I think in your earlier answers you have indicated and stressed that accommodation is seen to be a fundamentally important part of providing support to a defendant when they are released to the community, is that correct?
A. Correct.”
Ms Grabham also gave the following evidence:
Prior to placement at the COSP, many enquiries regarding accommodation had been made and there was no prospect of suitable accommodation for the defendant if he was to be released at the end of his non-parole period.
Accommodation at COSP is generally for six months but can be extended on a case-by-case basis with the approval of the Nunyara manager. While it is not uncommon for short extensions to be granted (up to 4 weeks), Ms Grabham can only remember one lengthy extension during the time that she has worked in her role.
Accommodation would be considered one of the priorities of case management at COSP. The process of finding accommodation commences very quickly, within a week or two of somebody being released from custody and entering the COSP.
During the period of time that high risk offenders spend at COSP, it is more common that the ESO team is successful in finding alternate suitable accommodation than unsuccessful. In most circumstances, but not all, the ESO team are able to find some form of suitable accommodation.
An issue arose, during the course of final submissions, as to whether the court should proceed upon the basis that suitable accommodation would be available for the defendant after he left the COSP. During the course of the defendant’s final submissions, Ms Wright of SC intervened to make the following concession:
“With respect to my learned friend, he is correct, that condition 10 which requires accommodation to be approved is the protective function here in terms of accommodation. That accommodation has to be [approved] by the supervising officer, so the fact that there is no accommodation currently known after the COSP is not a significant factor in the Court's consideration, just dealing with the accommodation point.”
Whilst the focus of that submission was directed to a proposed condition regarding accommodation, the effect of the concession was that the Court should proceed on the basis that, when considering the present application, the defendant would obtain suitable accommodation when released from the COSP, by reason of the fact that it must be approved by the DSO.
Ultimately, the independent expert evidence supported the proposition that the defendant’s risk of committing a serious offence could be managed while at the COSP, or thereafter, in suitable accommodation that is approved by the DSO.
I commence my consideration of the primary application by the State by addressing the question of whether I am satisfied to the requisite standard that the defendant poses an unacceptable risk of committing another serious offence if not kept in detention under a CDO.
The starting point for that consideration must be an assessment of the nature and gravity of the risk.
The defendant is a repeat sexual and violent offender (if reference is also made to his violent offending while in custody). The expert evidence is to the effect that the defendant lacks any insight and has no genuine remorse.
The defendant is a predominantly untreated child sex offender with deviant sexual interests and a high level of psychopathy. These are persistent and intractable conditions and his deviant sexual interest is a strong predictor of future sexual offending. The combination of psychopathy and deviant sexual interests increases the defendant’s risk of reoffending. The defendant is also diagnosed with paedophilia and a substance abuse disorder, although the later disorder is in remission.
The defendant’s psychopathy is chronic. The defendant’s risk factors are somewhat entrenched and slow to change. All risk factors (other than the defendant’s substance use disorder) remain present, despite the lapse of time since the defendant’s “hands on” sexual offence. However, Dr Elliott commented that the fact that the defendant was in remission for substance abuse, which itself is a key risk factor, can be considered to have lowered his risk to some extent.
Some key risk factors associated with psychopathy are a lack of empathy for others, a need for stimulation, a proneness to boredom and poor behavioural controls. There is a lack of moral compass or respect for the rights of others. As Dr Dayalan observed, the defendant presents with a high loading of static and dynamic factors for sexual and violent recidivism in accordance with the risk instruments which Dr Dayalan utilised (consistently with the application of the same actuarial instruments used by other psychiatrists and psychologists).
In order to quell boredom and receive stimulation, the defendant has sought out child pornography and has been convicted of offences in that respect. The defendant’s offending after his release to parole in 2024, which was of a deviant sexual nature, reflects an ongoing deviant sexual preoccupation consistent with his risk profile. The defendant’s assertion to the court-appointed experts that he did not know that access to bestiality material is illegal will receive no weight. The defendant was convicted of child pornography offences as recently as 2012, and was on parole for that offence at the time of committing the bestiality offences.
One feature of psychopathy is impulsiveness. However, Dr Elliott was of the view that this was a less significant feature of the defendant’s psychopathy. He considered the defendant’s behaviour to be more calculated and driven by cognitive processes. Dr Dayalan expressed the view that there was impulsiveness in the defendant’s make up, but that this may be moderated by psychological treatment for stress. I prefer the view of Dr Elliott as to the features of the defendant’s psychopathy. In my view, it more closely corresponds to the defendant’s offending and custodial history, even to the point where acts of violence by the defendant in custody may be considered to have served a calculated purpose.
“[55] In considering the imposition of conditions, I note the following principles from [State of NSW v Wilkinson (Preliminary) [2020] NSWSC 1813] set out by Hoeben CJ at CL (as his Honour then was) at [44]:
[44] i) Having served a sentence of imprisonment for their offences, an offender has a right to personal liberty, however this right is not absolute: State of New South Wales v Donovan [2015] NSWSC 1254 at [83].
ii) In imposing conditions, the Court needs to strike a balance between competing considerations: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [68].
iii) A relevant consideration in imposing conditions is that a breach gives rise to criminal penalty: State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36].
iv) Conditions do not have to have a demonstrated link to past offending, but they should address the risk of future offending based on the scope, purpose and objects of the Act: Wilde v State of New South Wales [2015] NSWCA 28 at [53].
v) Conditions should not be designed toward future general criminal conduct, but instead focussed on mitigating the risk of a serious offence: State of New South Wales v Green (Final) [2013] NSWSC 1003 at [36] to [38].
vi) Conditions must not be unjustifiably onerous or punitive, “[n]either may they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision”: State of New South Wales v Bugmy [2017] NSWSC 855 at [89].
vii) Conditions “must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice”: State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36].
viii) To ensure a balance between the community interests and personal liberty, the Court should impose conditions that are the least intrusive possible: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [129]-[131].
[56] Despite it being a final hearing, I adopt the approach set out in my decision in Boney at [119]-[127], in which the principles for the imposition of conditions are applicable. Those principles are as follows:
[119] The Court of Appeal in Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 (“Wilde”) held that s 11 vests the Court with a “broad” discretion but one which must be exercised having regard to the scope and purpose of the Act and its objects (at [47]). As mentioned, the purpose and statutory objects are those specified in s 3 whilst the scope is that found in ss 9(3) and 11 (being non-exhaustive matters) (at [48]).
[120] Although s 3(2) specifies the encouragement of offenders to undertake rehabilitation as an objective, it is permissible to impose conditions that are directed to “facilitating rehabilitation” even when they do not personally require an offender to “undertake” rehabilitative steps (at [49]).
[121] The Court of Appeal further held at [53]-[54]:
[53] Care always needs to be taken with use of language which is different from the statutory text. Section 11 does not require that there must be a specific demonstrated link to the past offending which is the basis of the order made under the Act. Rather, the court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order.
[54] As the cases to which we have referred correctly state, it is not appropriate for the court under s 11 to impose conditions on a person directed to general future criminal conduct. But the condition does not have to have a ‘demonstrated’ link to the past offending in the sense submitted by the appellant. Conditions C(19) and E(30)12 provide a good example of conditions that may be appropriate notwithstanding that the past sex offences did not involve conduct of the type constrained by such conditions. Here, the appellant’s serious sex offences had no connection with any association with an Outlaw Motorcycle Gang. Nonetheless, for the reasons we explain below, at [69]-[70], there was no error in his Honour imposing conditions prohibiting the appellant’s association with such groups.
[122] During the final hearing, submissions were advanced by the defendant as to State of New South Wales v Sturgeon *(*No 2) [2019] NSWSC 883 (“Sturgeon”) at [99]:
[99] The bases upon which conditions are to be regarded as appropriate have been discussed in many cases. It seems that the following matters are regarded as relevant in determining what conditions ought be imposed:
(1) an appropriate condition may be one which constrains particular conduct, or else imposes positive conduct obligations which are to be fulfilled: Attorney-General for NSW v Tillman [2007] NSWCA 119 at [10];
(2) the imposition of conditions involves striking a balance between relevant considerations so as to provide an outcome which is “fit and proper”: State of NSW v Ali [2010] NSWSC 1045 at [88]; State of NSW v Fisk [2013] NSWSC 364 at [96];
(3) as a breach of a condition has the consequence that an offence is committed, for which a term of imprisonment of up to 5 years may be imposed (s 12 of the HRO Act), there is a need for a proper basis to be demonstrated for a condition to be made in the first place: Ali at [88]; Wilde v State of NSW [2015] NSWCA 28 at [48];
(4) ordinarily, it will be necessary for any condition which is imposed to be related to the mitigation of the identified unacceptable risk which led to the Court’s conclusion that the person was a high risk offender: State of NSW v Burns [2014] NSWSC 1014 at [59]; Wilde at [53];
(5) any condition attached to an ESO must address issues relevant too identified risk factors in relation to future commission of serious offences and not criminal offending generally: State of NSW v Green (Final) [2013] NSWSC 1003 at [36]-[38]; Wilde at [45];
(6) any condition which is imposed is not to be unjustifiably onerous or simply punitive: Green at [37];
(7) a condition cannot be simply an expression of the State’s paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense, or because it might be a convenient or resource-efficient means for the Department exercising supervision under the ESO: State of NSW v Bugmy [2017] NSWSC 855 at [89].
[123] Counsel for the defendant placed particular reliance on (4), as appears within the above extract from Sturgeon, in conjunction with the principles of Wilde to contend that for each condition imposed “there must be some sort of identification of the unacceptable risk and how that condition goes to it”.
[124] In light of that submission, I turn to the decision of Button J in State of NSW v Farringdon [2018] NSWSC 874 (“Farringdon”). In Farringdon, the dispute concerned the conditions to be imposed as part of an extended supervision order for an intellectually disabled offender who was at risk of sexual offending on children. Opposition was taken to the imposition of particular conditions including electronic monitoring, curfew and a schedule of movements.
[125] In Farringdon, Button J was ultimately satisfied that the making of an extended supervision order would go some way to preventing the defendant reoffending “and thereby aiding his rehabilitation” (at [37]). In applying the “test” set out in Wilde at [53]-[54], his Honour bore in mind “that one can expect the ‘Departmental Supervising Officer’ (DSO) who is responsible for the defendant to undertake his supervision in a common sense way, informed by a practical and constructive exercise of discretion” (at [46]).
[126] His Honour imposed the disputed conditions for the reasons outlined at [47]-[58]. Button J held (at [59]):
[59] …Those of them that do not directly relate to his prior offending do nevertheless relate to preventing its recurrence indirectly, in my opinion. As I say, I am relying upon his DSO to exercise his or her discretion with regards to them in a practical and common sense way.
[Original emphasis.]
[127] With respect, I accept Button J’s statement of principles in Farringdon.”
The final position as to the disputed conditions between the parties were contained in the Schedule.
Both independent experts were asked to “consider each of the conditions set out in the Summons filed on 13 March 2025 and indicate your view on whether, and if so how, that condition may: (i) assist in management or reduction of the risk of [the defendant] committing a serious violence offence or serious sex offence or (ii) assist, or be counter-productive to, [the defendant’s] clinical treatment and rehabilitation.”
Dr Dayalan expressed the view that considering the defendant suffered from psychopathy, has limited insight into his recidivism and has a history of being deceitful, he “requires a high level of supervision in the community”. Dr Dayalan qualified that view by recommending that the conditions should allow for a graded reduction in the level of supervision over time. In this respect, Dr Dayalan stated:
“[148] The conditions listed in the summons filed on 13 March 2025 are quite extensive in nature and would be required in the early stages of transition into the community. It is recommended that there are not too many restrictions on [the defendant] accessing legally permitted pornography or securing employment. Inability to gratify his sexual needs in a legally acceptable manner and lack of purpose and structure to his day from unemployment could be counterproductive to managing his risk and rehabilitation. As [the defendant] adapts to living in the community, the conditions need to be scaled back in a graded manner.
[149] Given the enduring nature of his personality disorder and limited anticipated response to treatment interventions [the defendant] will require long term supervision and interventions. He will require a period of observation after some of the restrictive conditions such as schedule of movements and electronic monitoring are relaxed to ensure there is no escalation in his risk factors. Prior to being released from any form of supervision, [the defendant] would need to demonstrate that he can refrain from offending behaviour whilst on minimal conditions. A duration of five years would allow for graded reduction in the level of supervision.”
“It is essential that he be subject to intense monitoring and reporting requirements to enable his DSO to monitor who he has been associating with and ensure he is not accessing vulnerable persons. His bracelet and schedule must be used to ensure he does not access places where he could access children or other potential vulnerable victims. His accommodation must be vetted and strict conditions placed on those he is allowed to have visit him at those premises, and particularly those who may stay overnight. He must surrender his passport. I note he has threatened to use his boat to escape New South Wales. His monitoring bracelet must also be used to guard against any such possibility. With regards employment, I had concerns about many of the comments he made regarding his time in the Aldi supermarket and the potential access he had there to vulnerable persons. His DSO must be allowed to monitor and vet any employment he accesses, as well as any courses. His financial affairs must be monitored given his extensive history of fraud and similar offences and the potential for him to manipulate and exploit others financially. He must of course be forbidden from accessing illicit substances and his use of alcohol should be kept to a minimum or at most two drinks in any one day. Substance use is a key risk factor for both violent and sexual offending and this applies equally to [the defendant]. He must of course not be allowed to associate with children or antisocial peers. He must also be forbidden from possessing weapons. Given his history of repeated child pornography offences it is essential that his DSO be allowed to strictly monitor his access to the internet via any means. I retain particular concerns in this regard that he may still be able to acquire such means surreptitiously and conceal this from the best of searches. Nonetheless, he must be forced to submit to search and seizures by his DSO, particularly of electronic devices and any area where he may conceal such devices. He must of course not be allowed access to pornographic or similar material. With regards medical intervention and treatment, it is difficult to recommend that he be compelled to take an antilibidinal treatment. Treating clinicians are justifiably reluctant to prescribe antilibidinals under such conditions. Nonetheless, he should be required to cooperate with at least an initial assessment at the TRC.”
Dr Elliott was also of the view that one way to manage the defendant’s risk is by ensuring that the defendant is aware that he will be quickly subject to sanction should he breach his conditions.
During the concurrent evidence, the independent experts approached their opinions, as to the risk of the defendant in the community, on the apparent basis that all of the conditions listed in the Schedule to the Summons would apply, together with the accommodation arrangements in the COSP.
In the concurrent evidence, Dr Dayalan endorsed the conditions as proposed, stating that: “the conditions of the ESO, as proposed, are quite extensive and… certainly lower the risk of [the defendant] committing a serious sex offence”.
In order to manage the defendant’s risk, Dr Dayalan was of the view that “it is important to kind of have a close level of monitoring so that any breaches are identified quite early before it progresses any further.”
An equally strong position, as to the strength of the conditions required, was given in the RMR.
In relation to electronic monitoring, the RMR stated that “electronic monitoring would assist Community Corrections to monitor the defendant’s movements within a community setting in real time with the assistance of schedules, and via regular audit of available reports.” However, “[t]he ability to flexibly apply and remove electronic monitoring throughout any future term of supervision, in accordance with his presenting risks, is a crucial component of his case management.”
In relation to the schedule of movement, the RMR stated:
“… a condition requiring a weekly schedule of movements would be beneficial to allow the supervising team to accurately assess and observe [the defendant’s] movements, associations, and behaviours in the community.
This would assist in identifying and mitigating his risk of reoffence when assessing his proposed activities, in terms of victim access as well as notifying the Extended Supervision Order (ESO) team if he has deviated from his approved activities.
Furthermore, a discretionary curfew may assist should [the defendant] attempt to form an undisclosed intimate relationship or show any significantly heightened or risky behaviours in the future, given the increased density of vulnerable persons during these hours and the fact that one of [the defendant’s] risk scenarios is the potential for him to attempt to coerce an adult into non-consensual sexual contact (RAR, p 19).”
The RMR considered that conditions pertaining to accommodation, to ensure the defendant is only residing at his approved address and adhering to a curfew is “imperative given [the defendant’s] history of diverse offending habits including a contact sex offence against a prepubescent female after he had ingratiated himself with the father of the victim and had been spending nights at their residence”. Furthermore, “[a] condition relating to not allowing any person to stay overnight at his residence without prior approval (other than those who may ordinarily reside there), should be imposed to ensure there is no covert contact with any unapproved persons”.
In conjunction with electronic monitoring, the RMR considered that conditions imposing place and travel restrictions on the defendant “can assist to mitigate [the defendant’s] access to a number of high-risk locations”. These conditions were also “considered pertinent given [the defendant’s] reported intention to flee NSW via his yacht should an ESO be imposed”.
In relation to employment and finance, the RMR identified that “a suite of conditions allowing a DSO to monitor the defendant’s employment and financial situation are considered imperative should an ESO be imposed (CSNSW records, 23 October 2024)”.
The RMR considered that “conditions relating to non-association would be essential to the defendant’s case management”. The RMR explained the purpose of these conditions as follows:
“[the defendant] would be required to disclose the details of any person whom he wishes to reside with or truthfully answer questions around persons whom he has formed associations within the community. This would assist Community Corrections to monitor for the presence of children, the progression of any such relationship and identify if there is a connection between the contact or association and his risk of re-offending.
This would be monitored via contact with third parties, observations by Community Corrections and ESOIT and audit of electronic movements.”
“[the defendant] will desire more and more exciting material to stimulate himself. Given his history with illegal sexual material, it is likely he will again turn to such material to ingratiate his desires… It is possible that his access to child abuse material precedes his hands-on offending, hence detection of child abuse material may interrupt the pathway to a hands-on offence”.
In the result, the RMR concluded that “[t]he ability to restrict access to unapproved content and closely monitor his internet activity will be a key component of the defendant’s case management and allow Community Corrections to identify and address any concerns as a matter of priority.”
The RMR assessed the search and seizure conditions as “essential and necessary to ensure that he is not engaging in risk related behaviours”. These conditions would allow Community Corrections to “effectively monitor [the defendant’s] compliance with his order conditions, the nature of his communication with others, his use of the internet and the nature of the information he is accessing on the internet”.
During the hearing senior counsel for the defendant submitted that one of the conditions strongly disputed by the defendant concerned the schedule of movements. However, senior counsel conceded that “if that was a sticking point to your Honour making a decision to grant an ESO my instructions from the defendant are very clear that he would comply with the schedule rather than remaining in custody.”
Based on my assessment of risk, and the opinion of the independent experts as to necessary conditions along with the RMR, in my view, nothing short of the full suite of conditions proposed by the State (as amended) would be sufficient to ensure community safety and manage the risks associated with the defendant. Accordingly, I propose to impose the conditions found under the last column of the Schedule.
I propose to say something further about financial condition 24, being the condition that the defendant “must provide any information, relating to [his] financial affairs, including income and expenditure, if directed by a DSO”.
The defendant opposed this condition, stating that the “[c]ondition is too broad”. Senior counsel for the defendant made the following submission:
“The only other point that is very, very briefly raised is that there are certain conditions on finances in terms of 24 about providing information about your financial affairs. All that is simply submitted on that is when your Honour goes to the evidence of Dr Elliott, in particular, about the need for that condition the reasons articulated, the reason for that condition is to avoid the risk of any further fraud, that's not a proper purpose for the Act. Similarly, I think my reading of the risk assessment report is in similar terms that it is avoid to committing further fraud offences. I submit, that's not in line with the proper purpose of the Act. I think there are a number of cases that say that section 11 conditions need to be directed to committing a further serious offence, not committing a fraud offence. Again, the client's residual position is that should not be a sticking point and if it is a sticking point and your Honour is against me on that position he would certainly take the condition as opposed to custody.”
The State, in this respect, conceded that “[p]rima facie my friend's submission is correct that the risk is not the risk per se of fraud offending, but there is a link drawn in the expert evidence…”. The State referred to Dr Elliott’s report, which opined that “[the defendant’s] financial affairs must be monitored given his extensive history of fraud and similar offences and the potential for him to manipulate and exploit others financially.”
As noted earlier in the extraction of principles concerning the imposition of conditions, the Court of Appeal in Wilde held (at [53]) that:
“[53] … Section 11 does not require that there must be a specific demonstrated link to the past offending which is the basis of the order made under the Act. Rather, the court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order.”
However, conditions “must not be unjustifiably onerous or punitive”: State of NSW v Wilkinson *(*Preliminary) [2020] NSWSC 1813 at [44(vi)].
Although the RMR concluded that “a suite of conditions allowing a DSO to monitor [the defendant’s] financial situation are considered imperative should an ESO be imposed”, it appears those comments were made in the context of fraudulent offending. However, while it was not the subject of any submissions of substance by the parties, in my view, there would appear to be some connection between controlling the defendant’s financial affairs and by his access to pornography and the manipulation of vulnerable individuals. Relevantly, the RMR quoted the opinion of Dr Parker, that “[i]t is possible that [the defendant’s] access to child abuse material precedes his hands-on offending, hence detection of child abuse material may interrupt the pathway to a hands-on offence.”
I note that the defendant proposed an amended version of condition 24 concerning financial matters. I propose to adopt the amended version of condition 24 proposed by the defendant, but otherwise adopt the remaining conditions as proposed by the State in the Schedule.
**********
State of New South Wales
Whiley [2025] NSWSC 980
(2017) 95 NSWLR 179
(2016) 91 NSWLR 636
(2015) 90 NSWLR 389
(1986) 161 CLR 513
The defendant has a significant history of sex offences, including offences of sexual intercourse with a child under 10 years in 1995, disseminating/producing child abuse material in 2007, multiple separate offences of possessing child pornography in 1999, 2004, and 2010, as well as the most recent bestiality offences for which the defendant was incarcerated for until 20 August 2025.
In this regard, it may be noted that the defendant was sentenced to terms of imprisonment for two counts of possess child pornography contrary to subs 91H(2) of the Crimes Act 1900 (NSW) (“the index offences”) for a period of 6 years commencing on 18 June 2019 and concluding on 17 June 2025 with a non-parole period of 4 years, commencing on 18 June 2019 and concluding on 17 June 2023. Further, on 22 April 2025, the defendant was sentenced to a further period of imprisonment of 16 months for offences of possessing bestiality material contrary to subs 547E(2) of the Crimes Act (“the bestiality offences”), which were committed whilst the defendant was on parole for the index offences. This sentence commenced on 21 October 2024 and will conclude on 20 February 2026, with a non-parole period of 10 months concluding on 20 August 2025. Hence, the defendant’s current period of custody (being the non-parole period for the bestiality offences) expired on 20 August 2025.
However, it must be observed that the serious violence and sex offences, committed by the defendant, occurred in 1987 and 1995, respectively; the last of those offences having occurred 30 years ago.
In their reports dated 14 July 2025, Drs Elliott and Dayalan (“the independent experts”) gave diagnoses for the defendant’s psychiatric and psychological conditions.
Dr Elliott diagnosed the defendant as presenting with psychopathy. The psychiatrist opined that the defendant presented with the “prominent features of psychopathy” and further opined that those features were ingrained in his “personality structure” and would be “lifelong”. I will return to the particular features of psychopathy exhibited by the defendant as referred to in Dr Elliott’s report as having a definite personality disorder.
Dr Dayalan diagnosed the defendant as fulfilling “the criteria for anti-social personality disorder” and had been assessed to have “psychopathy which is a personality construct that shares a lot of traits of anti-social personality disorder”.
During the concurrent evidence of the independent experts on 8 August 2025 (“the concurrent evidence”), the apparent differences in these diagnoses disappeared. Dr Dayalan’s opinion that the defendant fulfilled the criteria for anti-social personality disorder was based upon his application of the Diagnostic and Statistical Manual of Mental Disorders 5th edition (“DSM-5”). He accepted that psychopathy was a valid diagnostic construct and was “quite relevant to risk” such that “it can be seen as a diagnosis”. He mentioned that many persons with psychopathy would also fall into the criteria for anti-social personality disorder.
Dr Dayalan gave evidence that the diagnosis of psychopathy is “strongly correlated with both sexual and violent offending” and “is one of the significant risk factors”.
Dr Elliott also concluded in his report that the defendant presented with “features of Paedophilia – non-exclusive sub-type” which appeared to be part of “a spectrum of deviant sexual behaviour driven by pronounced novelty seeking of ever more extreme sexual images and/or behaviour in order to overcome a tendency to boredom with safe or conventional sexual behaviour”.
Dr Dayalan also gave a diagnosis of paedophilia which he described as “paedophilia non-exclusive and sexually attracted to females”. He also stated that the defendant “displayed behaviour consistent with other deviant sexual interests such as sexual sadism and bestiality”.
During their concurrent evidence, the independent experts agreed that a deviant sexual interest is a strong indicator of future sexual offending. They also agreed that psychopathy contributed to the risk of reoffending over and above the defendant’s deviant sexual interest, such that the psychopathy increased the risk of offending further than having only a deviant sexual interest.
Both experts agreed that the Psychopathy Checklist-Revised (“PCL-R”) was a good indicator of the existence of psychopathy and the risk of reoffending. The defendant scored highly on the PCL-R instrument.
The defendant submitted that the circumstances of the offender, including his lengthy criminal history, his assessment as having a high risk of violent offending and a well above average risk of sexual offending, and his diagnosis with, inter alia, anti-social personality disorder with psychopathic traits, do illuminate the real risk that the defendant poses to the community if an ESO or CDO is not made. However, the defendant submitted that the extent of the risk should not be overstated, and that this is an appropriate case for an ESO.
The defendant also sought discrete amendments to the proposed conditions in the event an ESO was made as set out in the Schedule appearing behind Tab 6 of Exhibit 1 (“the Schedule”). However, during the course of oral argument, senior counsel for the defendant, Mr M Johnston SC, submitted that if the remaining disputed conditions (and, in particular, some conditions appearing under the headings: “Reporting and Monitoring Obligations” (per Schedule of Movements); “Accommodation” (per Curfew); and “Employment, Finance and Education” (per Financial Arrangements)) represented a barrier to the defendant’s release on an ESO, then they were not pressed.
In part driven by the parties’ written submissions, and in part by aspects of their oral submissions, it became apparent that issues of principle regarding the operation of Part 1A, 2 and 3 of the Act had been raised by the submissions of the parties. Upon raising those issues, the parties indicated an inability to deal with them at the time of the hearing and, in the result, the Court made a provision for written notes to be produced by each party within a short period of time after the hearing.
The Court crystallised the questions arising from that process in a further note to the parties. The matters of principle raised were as follows:
In considering the present application, is the Court required to first address the requirements of s 5C of the Act ahead of addressing the considerations under s 5B of the Act (“question 1”).
Whether the Court should, in addressing the requirements of s 5C of the Act (or for that matter s 5B of the Act), adopt a two-stage approach consistently with the judgment of Adams J in New South Wales v Russell *(*Final) [2020] NSWSC 396 (“Russell”) (“question 2”).
Whether the authority to make a CDO under s 5C of the Act is enlivened by the satisfaction of a single condition (apart from the pre-conditions in subss 5C(a)-(c) of the Act) requiring the Court to make an assessment of risk of committing a serious offence if a defendant is not kept in custody beyond the term of his sentence, exclusive of the possibility of mitigating the risk by placing the defendant under supervision (by an ESO): Jones v State of New South Wales [2020] NSWCA 202 ("Jones (2020)") (“question 3”).
Section 5D of the Act provides that the court “is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence”.
In broad terms, the principles applicable to the unacceptable risk test are set out in my judgment in State of New South Wales v Ryan [2023] NSWSC 1138 (“Ryan”) (at [12]-[19]). Those principles are also applicable to the consideration of unacceptable risk in subs 5C(d), save for the differences between the provisions of subss 5B(d) and 5C(d) discussed above.
Even where the four preconditions are satisfied, the Court’s power to make an ESO or a CDO is discretionary. The factors that must be taken into account in the exercise of that discretion appear in subs 9(1) of the Act in the case of an ESO, and subs 17(1) in the case of a CDO. I will deal with the implications of those factors for the assessment of unacceptable risk below.
Section 17(1) of the Act provides that the Court may dispose of a CDO application in one of three ways: by making an ESO, by making a CDO, or by dismissing the application. Subsection 9(1) confines the determination the court may make, in the case of an application for an ESO, to either the making of an ESO or dismissal of the application.
In both ss 9 and 17 of the Act, the determination of an application for an ESO or a CDO requires the Court to treat the safety of the community as a paramount consideration (see subs 9(2) and 17(2) of the Act).
The defendant’s submission that the Court is required to engage in a single evaluative exercise, guided by the objects of the Act and to the mandatory factors in subs 17(4) of the Act, does not accord with the long-standing authority that I have hitherto discussed in this section of my judgment. That authority makes abundantly clear that the making of orders under the Act, for either an ESO or CDO, involves, firstly, a question of power, governed by the requisite preconditions in ss 5B and 5C (or equivalent provisions under the former Act), and, secondly, the exercise of a discretion in ss 9 and 17 of the Act.
The State was correct to point to the judgement of the Court of Appeal in K**amm (No 4). I accept the case concerned the former A**ct, but the judgment is applicable because it not only confirms that the unacceptable risk determination and the discretion residing in the court to make an ESO or CDO are separate questions, but the essential basis upon which such a conclusion was reached which confers that distinction. In Kamm (No 4), the Court of Appeal considered that the ability to dismiss an application under subs 17(1), despite having reached the state of satisfaction regarding unacceptable risk, was an important reason why the Act does not infringe the Kable principle: per Payne JA at [116]-[120] (with whom Bathurst CJ and Beazley P agreed). It may be noted further, in this respect, that the same approach was adopted by the Court of Appeal in Anderson. As I have emphasised earlier, the two stage test in Anderson related to the particular features of the former A**ct being the requirements of ss 5B and 5D. However, the Court of Appeal, nonetheless recognised, by reference to Donovan at [14]-[15], that there remained a discretion as to whether to make a CDO, even if the conditions in ss 5B and 5D of the former A**ct were satisfied (Anderson at [15]) (see also Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [48] and Davie v State of New South Wales [2016] NSWCA 96 at [100]).
The sole authority relied upon by the defendant in support of the contentions advanced was Barrie. This was a curious approach given that the author of the judgment in Barrie eschewed reliance upon it in favour of, as her Honour Justice Adams did, the judgments in Jones *(*2018) and Russell. Before I turn to the judgment in Russell, I observe the defendant’s reliance upon Barrie is misplaced, in so far as it was proposed that the single evaluation contended for by the defendant involved a consideration of both subss 5B(d) and 5C(d) and the discretion under subs 17(1) of the Act at the same time. That proposition is not supported by Barrie. As the State correctly pointed out, Adams J stated in Barrie (at [24]):
The defendant made the following submissions as to the applicability of subs 17(4) factors to the unacceptable risk test:
The Court cannot engage in that evaluative exercise of determining whether it is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a further serious offence if not supervised, or not detained, in a vacuum. The Court must be informed by relevant considerations. The mandatory factors set out in s 17 of the Act must be taken into account when determining unacceptability of risk and whether to make an ESO or CDO. Section 17 of the Act provides structure and guidance to the relevant factors for making a determination under subss 5B(d) or 5C(d). The alternative approach would permit unstructured, arbitrary and potentially irrelevant considerations to be taken into account at subss 5B(d) and 5C(d).
In assessing unacceptability of risk, the Court is required to consider whether the defendant can reasonably be managed in the community (subss 17(4)(d1) of the Act) and whether the Court is satisfied that the offender is likely to comply with the obligations of an ESO (subs 17(4)(e2) of the Act).
If contrary to this position the Court comes to the view that it should adopt a two stage test, the defendant nonetheless observes that her Honour in Russell (at [29]) found that the s17 factors must be taken into account at the second stage. In Barrie (at [31]), her Honour observed that, as a matter of practical reality, a one stage or two stage test will not make a difference to the result as long as subss 17(2) and 17(4) are considered.
Senior Counsel for the plaintiff made this very submission in exchange with the Bench during the hearing. The Court responded that there were ‘other members of this court’ who may not agree with such a submission although those views were not binding. It was submitted that: “It is difficult to gauge the significance of that exchange in light of the specific questions posed to the parties and to identify precisely what authorities were exercising the court’s mind.”
If the Court is referring to Justice Adams’ comments in Russell at [33] that, on the two stage test, it would be an ‘unusual case’ where the discretion was exercised to make an ESO if the defendant was found to be an unacceptable risk of committing a serious offence if not kept in detention, then such comments should not be followed. It was submitted that: “[t]hey are obiter, unpersuasive, and impermissibly fetter the exercise of the Court’s discretion.”
Indeed, there are many examples of first instance courts adopting a two stage test yet making an ESO instead of a CDO in the exercise of the discretion (see, for example, Sturgeon and Farzad).
It is wrong to suggest that the two stage approach provides no guidance as to the relevant considerations to be taken into account in determining unacceptable risk. The long line of authority, which I have earlier discussed and which, in part, was referred to in Russell, makes clear that the factors in subs 17(4) may be relevant to the assessment of unacceptable risk. The judgment of McCallum JA in Jones *(*2020) is no exception. I agree with the submission of the State that her Honour’s reference to subs 17(4) as being mandatory “in the exercise of discretionary power that follows” was a comment on the exercise of a discretion only.
Nor does this approach result in an unstructured or arbitrary approach. The court will consider those factors in subs 17(4) which are relevant to the determination of the questions arising under subs 5C(d). This may vary in a particular case but it is evident from the language of the Act that some of the subs 17(4) factors will be relevant in most cases. For example, subs 17(4)(c) refers to reports as to the likelihood of the offender committing a further serious offence.
Nonetheless, I also agree with the State that the provisions of subss 17(4)(d1) and 17(4)(e2) should not be applied in a way that amounts to the Court indirectly applying a precondition in s 5C(d), involving the consideration of the adequacy of supervision under an ESO in determining the unacceptable risk test. In this respect, I repeat my observation that there are aspects of the defendant’s submissions which do seem to suggest an attempt to revive the test under s 5D of the former A**ct, and the State is well to caution against that approach. Subsection 17(2) of the Act and the Second Reading Speech for the 2017 A**mendment A**ct reflect the intention of the Legislature that the assessment of unacceptable risk be based on the risk to the community and not an alternative means of giving effect to the weighing exercise regarding adequate supervision formerly found in s 5D of the former A**ct.
However, subs 17(4)(d1) refers to a very particular factor which, in my view, may be relevant, in an applicable case such as the present one, and may be taken into account in assessing unacceptable risk.
The argument by the defendant that the court may take into account irrelevant considerations is a rather circular proposition, as the court is bound not to do so.
The submission advanced by senior counsel for the defendant at [109(4)] above is rather unfortunate. Apart from the fact that senior counsel seems to have a clear understanding of the subject matter of the Court’s observations, in arguendo, by the submission made in the following sub-para of their written submission, the very subject matter (or lack of definition thereof) complained of was the subject of actual discussion by the Court with senior counsel for the defendant who acknowledged that he understood what the court was referring to in that respect (see transcript, 8 August 2025, p 65-66)
Those considerations, in many respects, resolve the issues raised by the questions, although the first question has received the least attention in that respect.
The answer to question 1 is yes.
In December 1999, the defendant was found to have a number of hand drawn pictures of naked female children in his cell as well as handwritten stories depicting sexually explicit activities involving children. Located with these items was also magazine clippings of children and a medical journal with a number of pages tagged of children in a naked and deformed state. On February 2001, these charges were dismissed pursuant to s 10 of the Crimes *(*Sentencing Procedure) Act 1999 (NSW) at Central Local Court.
The defendant was released from custody for the 1995 sex offences on 15 October 2003.
In August 2004, approximately 10 months after his release from custody for the 1995 sex offences, the defendant was charged with possessing child pornography. The material comprised of 113 images on his desktop computer including penetration of children by adults and children, and children performing oral sex on adults. The defendant was also charged with failing to comply with his reporting obligations under s 17 of the Child Protection *(*Offenders Registration) Act 2000 (NSW) (“the CPOR Act”). This related to his failure to notify of a change of address to the Commissioner of Police. The defendant was sentenced for these offences, as well as an offence of possessing a prohibited drug, to 2 years’ imprisonment commencing on 12 July 2006 with an 18-month non-parole period. On appeal to the District Court, the non-parole period was reduced to 13 months and 15 days.
In January 2005, the defendant was charged with various dishonesty offences, including obtaining money by deception and multiple counts of making a false instrument and using a false instrument, for which he served a period of imprisonment commencing on 12 January 2005.
In July 2007, the defendant was charged with an offence of disseminate/produce child pornography. The offence related to the defendant’s production of child abuse material which consisted of graphically detailed sketch drawings depicting female children and handwritten stories with themes of paedophilia, bondage and bestiality. The defendant was found guilty at a judge-alone trial, having run a defence that the creation of the material was for the purpose of a custody-based sex offender program. The defendant was sentenced to 4 years’ imprisonment with a non-parole period of 3 years. However, on appeal, the Court of Criminal Appeal reduced the sentence to 12 months commencing on 25 May 2008, with a non-parole period of 9 months: Whiley v R [2010] NSWCCA 53.
In October 2007, the defendant was charged with common assault against his former female partner. He was convicted of this offence and sentenced to a term of imprisonment for 12 months commencing on 3 October 2007, with a non-parole period of 9 months.
In 2010, the defendant committed numerous fraud offences. During the investigation of those offences, a thumb drive was recovered from his boarding house which, on forensic examination, revealed approximately 30,000 images depicting child pornography ranging from level 3 (erotica) to level 10 (sadistic/bestiality) on the COPINE Scale. Police also located 124 video files depicting child pornography, many of which involved child sexual assault.
The defendant was charged with 16 offences of dishonestly obtaining property by deception under subs 192E(1)(a) of the Crimes Act, one offence of failing to comply with reporting obligations under subs 17(1) of the CPOR Act, and two offences of possessing child pornography under subs 91H(2) of the Crimes Act. The failure to comply with reporting obligations arose as a result of the defendant using false identities and not declaring the details of motor vehicles or a number of mobile phones used by him.
The defendant was sentenced for all offences on 26 October 2012 by Judge Solomon in the District Court and received a total sentence of imprisonment for 14 years, 7 months and 28 days, commencing on 21 October 2010 and expiring on 17 June 2025, with a non-parole period of 12 years, 7 months and 28 days expiring on 17 June 2023. As previously noted, the sentence imposed for the two offences of possessing child pornography was 6 years’ imprisonment commencing on 18 June 2019 and expiring on 17June 2025, with a non-parole period of 4 years concluding on 17 June 2023.
On appeal to the Court of Criminal Appeal, while the defendant was successful in having two of the sentences for dishonestly obtaining property by deception reduced, this did not affect the total effective sentence, and there was no alteration to the sentence imposed for the child pornography offences: Whiley v R [2014] NSWCCA 164.
As noted earlier, the two offences of possessing child pornography are the index offences.
On 2 April 2024 the defendant was released on parole, and on 8 August 2024 parole was revoked following his arrest for the bestiality offences, to which he plead guilty.
Senior counsel for the defendant accepted that the defendant had a lengthy criminal history “littered” with a range of offending, including offences of violence which had often attracted sentences of full-time imprisonment. It was also accepted that sentencing judges had found that the defendant’s antecedents emphasised the need for sentences that protected the community.
However, the defendant submitted that he has only ever committed one “serious violence offence”, which occurred almost 37 years ago when he was a child, and one “serious sex offence” about 30 years ago. Since that time there is no evidence that he has committed a “hands-on” or “contact” sexual offence, and his sexual offending has only related to the possession and production of illegal material. The defendant also submitted that his last offence of possessing or producing child abuse material occurred in 2010, being 15 years ago. The defendant submitted that the temporal gaps in serious offending (as defined by the Act), or offending relating to child abuse material are important to the assessment of the gravity and nature of the risk that the defendant poses, as it supports a finding that the defendant is not an imminent risk of committing a serious offence.
The defendant submitted that only three days after he downloaded the material on 5 August 2024, NSW Police detected it during a routine compliance check. Judge Musgrave, the sentencing judge, found that the defendant had not taken steps to conceal the material; he was co-operative with police on arrival and provided access to his devices. As her Honour observed, the “possession of the images was doomed to detection” (R v Grant Whiley (District Court (NSW), Musgrave DCJ, 22 April 2025, unrep) (“Musgrave DCJ 2025 Decision”) at 4) because of the defendant’s compliance obligations under the CPR.
Senior counsel for the defendant accepted that the defendant’s offending is relevant to the assessment of risk, as the defendant’s possession of bestiality material suggests that he has deviant sexual interests. However, the defendant submitted that Judge Musgrave found that there was no evidence that the defendant had “come into possession of it through associations with like-minded people” (Musgrave DCJ 2025 Decision at 4). There was no evidence that the adults who participated in the material were not consenting or that the animals were hurt. There is also no evidence that the defendant accessed, created, possessed, or attempted to possess child abuse material, notwithstanding the opportunities he had to access such material while he was at liberty on parole.
Lastly, the defendant submitted that the defendant has never been subjected to the intensity and intrusiveness of supervision akin to an ESO, and, significantly, the enforcement conditions of the CPR (which are substantially less onerous than what should be imposed under an ESO) were capable of detecting behaviour of concern and containing the defendant’s risk in relation to the bestiality offences.
The gravamen of the defendant’s submission was that, when properly understood, the defendant’s criminal history does not demonstrate a risk of committing a serious violence offence or serious sex offence which is of such gravity and imminence as to necessitate the making of a CDO, as opposed to an ESO.
The various factors identified in the defendant’s submissions, which I have summarised above, were intended to make good that proposition. In substance, it was contended that the defendant did not pose an imminent risk of committing a serious offence, even though it was conceded that he did represent an unacceptable risk of committing a further serious offence if not kept under supervision.
There is considerable force in the submissions advanced by the defendant in this respect. However, they need to be counterbalanced, at least to some extent, in order to draw a true reflection of the significance of the defendant’s criminal history. Those factors are as follows:
Attention needs to be given to the fact that the temporal gaps in the defendant’s offending may, in part, be associated with the time he spent in custody.
The expert opinion was that his risk factors have not moderated over time, save for his substance use disorder.
As I will discuss, the defendant remains largely untreated.
The prospects for treatment in the future is somewhat marginal (particularly if the defendant continues to resist it).
It must also be borne in mind, that whilst the offending by the defendant after the index offences does not constitute a serious sex offence or serious violence offence for the purposes of the Act, the offending associated with child pornography does have a relevant connection to risk, as the experts have indicated that there may be a step wise progression from access to child pornography to potential “hands on” offending. I will discuss this in much greater detail in the discussion of the opinions of the independent experts below.
Dr Parker also observed that the defendant’s history with illegal sexual material is such that, in order to quell boredom and receive stimulation, he would seek out child pornography, which does represent a potential pathway to a serious sexual offence.
Overall, the independent experts reached a conclusion consistent with the following evidence of Dr Elliott:
The likelihood of benefits from psychological treatment is reduced, to some extent, by the defendant’s historical lack of willingness to engage with the treatment. The evidence demonstrates that psychological intervention would best benefit the defendant when he actively and willingly engages with that treatment with the belief that it was going to assist him.
Before leaving this topic, it should be observed that the independent experts’ also gave views about the efficacy of the TRC. I will return to that evidence, separately to these conclusions, later in this judgment.
Dr Parker postulated that, when this material fails to adequately stimulate him, the defendant may try to procure a child or coerce an adult into non-consensual activity. However, given the defendant’s high intelligence, he is likely to try new methods to achieve this without getting caught, rather than repeating past scenarios. As a consequence, it is near impossible to predict the details of a future sexual offence beyond repeating the finding that the risk of this occurring is substantially higher than for other offenders.
Dr Parker completed a risk assessment of the defendant’s risk of sexual recidivism using the Static-99R. The defendant scored a 7 on this instrument, placing him within a group of offenders who would be considered well above the average risk of sexual recidivism and that he fell within a group of individuals who would be expected to be 5.25 times more likely to sexually reoffend than the “typical” offender.
Dr Parker also utilised the STABLE-2007 instrument, as a further actuarial assessment tool, to look at the defendant’s dynamic risk factors (as opposed to the static factors assessed by the Static-99) and noted the defendant would correctly fall in the high range for this instrument.
The results of the STABLE-2007 assessment were combined with that of the STATIC-99R to generate a composite assessment of risk/needs and the defendant was assessed as being “Well Above Average Risk Level”.
Dr Parker completed the Violence Risk Appraisal Guide (“VRAG-R”) to assess the defendant’s risk for violent offending and considered he fell within the most severe category of offenders, 76% of whom would reoffend violently within 5 years and 87% of whom within 12 years.
Dr Parker considered that a CDO would have a containment effect but would be unlikely to have any impact on the defendant’s future risk of reoffending beyond that custodial period.
Dr Parker stated that, whilst the defendant has participated in, but not completed, the High Intensity Sex Offender Program (“HISOP”) in custody, to the extent that he did participate in it, the program “has had no impact upon his likelihood of offending…. [a]ny further participation in this program would almost certainly be equally unsuccessful.” This view was based on the fact that the content and process of the program is unsuitable for someone with the density of psychopathic traits that the defendant possess.
Dr Parker observed that:
Fourthly, both independent experts accepted that anti-libidinal treatments are more effective for an offender who is driven by libido, rather than an offender with “psychopathic traits” or “sexual paraphilia”. I accept that the defendant’s offending is primarily driven by his deviant sexual interests and paedophilia, rather than a heightened libido. As such, I accept that anti-libidinal treatment may have limited efficacy in reducing the risk that the defendant will commit a serious sex offence.
Lastly, both independent experts accepted that the effectiveness of anti-libidinal treatments is an area of growing research, with limited “robust” or “conclusive” evidence that anti-libidinal treatment reduces the risk of sexual offending. While Dr Dayalan supported the use of anti-libidinal treatment, he also noted that “it doesn’t completely negate [the defendant’s] risk”, before going onto conclude that, “I wouldn't… completely disregard the benefits of the treatment, but I wouldn't say that would be sufficient to manage [the defendant’s] risk.”
Engagement with a community-based psychologist/psychiatrist to address ongoing complex personality traits.
The RMR also recommended the following conditions to support the defendant’s risk management plan:
Electronic monitoring and a weekly schedule of movements would allow for exclusion zones to be put in place and assist Community Corrections to identify any concerning patterns in the defendant’s behaviour that may be related to his identified risk factors.
A discretionary curfew to assist should the defendant attempt to form an undisclosed intimate relationship or show any heightened or risky behaviours in the future.
Accommodation related conditions, including that the defendant reside at an approved address and a requirement to promptly notify a DSO of any visitor entering and remaining at his residence.
A condition not allowing any person to stay overnight at the defendant’s residence without prior approval (other than those who may ordinarily reside there) should be imposed.
Place and travel restriction conditions to limit access to child related facilities, as well as to prevent substance use and the departure from the State of NSW without approval. This condition was considered pertinent given the defendant’s reported intention to flee NSW via his yacht.
Conditions allowing a DSO to monitor his employment and financial situation. The RMR noted that “a suite of conditions allowing a DSO to monitor the defendant’s employment and financial situation are considered imperative should an ESO be imposed.”
Conditions relating to non-association, requiring the defendant to disclose the details of any person whom he wishes to reside with or whom he has formed associations with in the community.
Prohibition of alcohol and drugs given the defendant’s issues with substance abuse.
Conditions allowing appropriate oversight of his use of electronic devices, given his offending history.
A search condition to enable Community Corrections to effectively monitor the defendant’s compliance with his ESO conditions, the nature of his communication with others, his use of the internet and the nature of the information he is accessing on the internet.
A condition requiring the defendant to seek approval before making any significant change to his appearance.
Conditions relating to his psychological treatment and monitoring of any medical treatment.
The report noted that this risk management plan is necessary and will allow Community Corrections to provide the defendant with an intensive level of monitoring and supervision, while encouraging the defendant to develop and apply appropriate coping strategies.
While the RMR recommended that the defendant be directed to engage in risk management sessions with CSNSW psychology or a local forensic psychologist, the State submitted that the defendant’s reoffending, whilst on parole, casts very significant doubt on the prospect that psychology interventions in the community can moderate his risk, noting that the availability of psychological intervention in the community was a central consideration in the decision (of the State Parole Authority and Serious Offenders Review Council) that it was safe to release the defendant to parole.
Lastly, the defendant submitted that the RMR, when read together with Ms Kelli Grabham’s affidavit affirmed 29 July 2025, illuminates the rigour of what is proposed with regard to the supervision of the defendant.
I agree with that submission that the conditions proposed for the supervision of the defendant, in the event that he is subject to an ESO, are rigorous.
The defendant agreed to undertake the EQUIPS programs in March 2023 after initially refusing to participate because he was not legislatively required to participate and believed that his higher level of intelligence was a reason to exclude him from the program. The defendant completed the EQUIPS Foundation program in July 2023. The program facilitator noted that during sessions the defendant made scathing remarks regarding CSNSW programs and continued to express his views that the programs were ineffective. While the defendant was noted as being an active participant and appeared to have a sound understanding of the material he was of the opinion that it did not apply to him.
In relation to the defendant’s involvement in HISOP, the State submitted that the expert opinion demonstrated that the defendant’s involvement in that program had no impact upon his likelihood or offending, and any further participation in HISOP would almost certainly be equally unsuccessful.
I agree with the State’s submission that the defendant’s criminogenic risks, in that respect, have not been addressed and this raises ongoing community safety concerns.
Senior counsel for the defendant submitted that the defendant applied to the CUBIT program as early as February 2007 but was unable to participate in the program because of his classification. He pointed to evidence which demonstrated that the defendant wrote to the therapeutic manger of the CUBIT program five times between February and April 2009 requesting to be placed on the waiting list.
While this evidence may demonstrate a degree of willingness by the defendant to participate in the CUBIT program, the weight of that submission is diminished having regard to the time that has lapsed since 2009 and the evidence regarding the defendant’s unsatisfactory participation in other custodial programs since that time.
Senior counsel for the defendant appeared to accept that the defendant’s participation in HISOP, RUSH and EQUIPS whilst in custody was less than satisfactory, however, submitted that the structure and methodology of those programs was inapposite to the defendant’s specific and complex needs.
However, in the light of the evidence previously discussed in relation to therapeutic intervention and anti-libidinal medication, it is unclear what treatment, if any, is available to address the defendant’s specific and complex needs.
The defendant’s participation (or rather lack thereof) raises a concern in relation to his willingness to rehabilitate. The defendant has not demonstrated a motivation to address the reasons for his incarceration, namely, his deviant sexual interests and paedophilia. To the extent that the defendant has participated in treatment or rehabilitation programs in custody, his participation has been only partial, and, in my view, he merely sees his participation as a necessary, but useless, step toward his release.
However, I do accept, as explained by the independent experts, the defendant is genuinely motivated to be free of custody and not to return to custody, and this is a motivator for his compliance with supervision.
There is greater capacity for monitoring the defendant’s access to illegal material within COSP.
During concurrent evidence, Dr Elliott stated that his residual concern was regarding what would happen after the period at Nunyara COSP, including as to appropriate accommodation for the defendant. Both independent experts accepted that they would support the continuation of a supervision order after the COSP if suitable accommodation could be found and was available, and Dr Elliott gave the following evidence:
A further consideration that arises in this respect is the predictions as to the likely course of sexual reoffending by the defendant. Both independent experts and Dr Parker were of the view that a component of any potential reoffending was a “step-wise progression” to “hands on” offending based upon the accessibility of pornography and the defendant drifting into a state of boredom or insufficiency of stimulation. Both independent experts were of the view that there was also the potential for opportunistic offending.
The use of actuarial instruments consistently indicated the prospect of sexual reoffending by the defendant to be “well above average”.
I have also taken into account that the consequences of any serious reoffending by the defendant will have a significant gravity, at least having regard to his history of earlier serious offending, the last of which was in 1995.
There is a significant consideration, however, which moderates the assessment of the risk of the defendant committing another serious offence. The defendant has not committed a serious violence offence since 1987 or a serious sex offence since 1995. While many of the risk factors present at the time of those offences continue to persist, the significant gap in serious offending is relevant to assessing the gravity and imminence of the risk that the defendant poses. In my view, these considerations, together with the fact that these two offences are the only serious offences committed by the defendant, are significant in the assessment of unacceptable risk, even if allowance is made for the period of time that the defendant was subject to incarceration.
Care needs to be also taken about predictions as to the probability of recidivism. As Dr Parker observed in the RAR, risk assessments including those deriving from actuarial studies, whilst no doubt useful in making the type of risk assessments required by the Act, are not scientifically validated. As Dr Parker described it, the lack of such validation renders the prediction process an unscientific one. I do not underestimate the worth of clinical judgments by experts such as Dr Elliott and Dr Dayalan, but these limitations need to be steadily borne in mind when making assessments which are ultimately, at least in this case, directed to the potential deprivation of the liberty of a person by the making of a CDO.
The State submitted that the prospect of psychological interventions being available or effective in the community is nil or very speculative, in light of the defendant’s attitudes and past response to treatments offered and his psychopathic traits.
As senior counsel for the defendant properly conceded, the defendant’s personality profile makes effective psychological and psychiatric treatment highly challenging. It was submitted by the defendant that multiple experts have nonetheless proposed forms of therapeutic intervention. However, as earlier discussed, real questions were raised in those assessments as to the efficacy of any therapeutic intervention.
Dr Elliott did not consider that therapeutic intervention had any prospect of being successful. Nonetheless, I prefer, in this respect, the views expressed by Dr Dayalan, which in my view, represent a balanced assessment of the prospect of therapeutic interventions. Dr Dayalan accepted that the prospect of psychiatric or psychological intervention with respect to the core features of psychopathy were limited in the case of the defendant (who resisted such treatment). However, Dr Dayalan considered that psychiatric or psychological treatment was nonetheless worthwhile as a means of moderating certain factors arising from the defendant’s psychopathic condition that gave rise to the potential for reoffending. Thus, Dr Dayalan focused upon psychological treatment being addressed to stress and to aid problem solving.
A related consideration is the capacity for the psychological treatment to act as a protective factor because of its capacity to monitor, identify or predict the course of the defendant’s thinking and behaviour so as to anticipate potential problems. Both independent experts agreed that this protective factor was available.
The defendant has been accepted into the TRC program which offers multi-disciplinary services for convicted sex offenders, including the possible provision of anti-libidinal medication. The defendant submitted that the expert evidence supports anti-libidinal medication as a mechanism to manage the defendant's risk. As I have previously found, that submission is not available on the evidence, which points to the limitations of such treatment in the defendant’s case, even assuming he were to accept being subject to such treatment. However, I accept that the value of the TRC extends beyond biological intervention as the defendant will receive multi-disciplinary intervention which has the real potential to moderate his risk over the medium to long term. As earlier mentioned, both independent experts accepted that there is a very experienced team within the TRC, including, in Dr Dayalan’s opinion, practitioners who are experienced in managing sexual offenders.
The State was correct to submit that the defendant has multiple breaches of parole and CPR obligations and a longstanding negative attitude to compliance with the law and supervision.
However, there are some features of the defendant’s likelihood of compliance that need to be introduced at this juncture by way of counterbalance. The first of those is a reflection upon the defendant’s actual performance in relation to his last period of parole which, as earlier noted, was ultimately revoked.
While on parole between April and August 2024, the defendant reported to Community Corrections as directed and was seen weekly by his Community Corrections officer. His engagement with Community Corrections was described as “transactional during the supervision process” and his focus “remained on compliance”. The defendant’s Community Corrections officer reported that the defendant did not present with any safety concerns, although he would often attempt to endear himself to staff.
I accept the submission for the defendant that during this period of parole, there were positive aspects to the defendant’s behaviour (albeit counterbalanced by other factors in some respects), which were as follows:
Random drug testing undertaken on 1 May 2024 and 18 June 2024 returned negative results for illicit drugs.
The defendant complied with the direction to attend upon a psychologist in the community. He made arrangements to see Mr Randall and committed to privately funding those psychological sessions.
The defendant disclosed to Community Corrections that Mr Randall had declined to treat him and the reasons for Mr Randall’s decision, although, the defendant attempted to utilise Mr Randall’s opinion on a general basis to demonstrate why he should not be subject to psychological treatment.
In June 2024, the defendant obtained full-time employment. He worked long hours and enjoyed the pro-social engagement, although, Dr Elliott expressed concerns as to aspects of his employment at Aldi, namely, his purported relationship with a down syndrome child.
The defendant attended all sessions with Community Corrections and engaged well.
There was no evidence that the defendant had contact with young persons.
The defendant indicated that he was determined to complete his parole with the assistance of Community Corrections.
I also consider that weight must be given to the joint opinion of the independent experts that the defendant is highly motivated to be released from custody and remain out of custody, and that this motivation is genuine even though he will be challenged to remain compliant, given the features of his underlying psychiatric conditions.
Additionally, I have earlier found that the State’s submission that sanctions would be ineffective does not adequately reflect the evidence of the independent experts. In my view. sanctions do offer some prospect for deterrence.
Whilst I am not dealing with the question of supervision per se at this juncture, it must also be observed that the submissions by the State as to compliance with parole and the CPR fail to recognise that there were also positive indicators associated with the defendants last period of parole, albeit the parole was ultimately revoked due to the bestiality offences.
Further, the defendant is correct to submit that a high level of supervision in the community provides DSO with the means and opportunity to facilitate appropriate levels of pro-social support for the defendant, which may moderate his risk over the medium to long term.
It is also appropriate to have regard to the opinion of the independent experts regarding the necessity for a CDO. Dr Dayalan expressed the unwavering and unequivocal opinion that a CDO was unnecessary to manage the defendant's risk having regard to the proposals for managing that risk if the defendant was placed in the community. In relation to the report of Dr Elliot, he suggested that a CDO was the "most secure available means" of managing the defendant’s risk. The defendant suggested that there was some equivocation in his opinion, in this respect, but in my view, his report showed a consistency of view that the defendant’s risk should be managed by a CDO. However, by Dr Elliott’s concurrent evidence, whilst maintaining concerns about the management of the risk posed by the defendant in the community, he ultimately faltered in his conviction as to the necessity of a CDO. I have earlier referred to various concessions made by Dr Elliott during the course of his concurrent evidence. At a broader level, the following parts of Dr Elliott’s evidence indicate a significant modification of his position:
When asked whether he remained of the opinion that a CDO was required to manage the defendant's risk, he responded: "No, I wouldn't adhere as closely to that, no."
He stated that he had an “innate reluctance to recommend a CDO” and did not believe it was a “problem solver to incarcerate someone indefinitely”.
He stated that his report was a risk assessment which was “far from perfect science”.
Having vividly set out the risk that the defendant poses based upon his diagnosis and the risk assessments conducted by the independent experts, the preponderance of the independent expert evidence was that: Dr Dayalan was firmly of the view that detention was not required, and Dr Elliott, having been robustly in favour of detention, moderated his view to the point where, at its highest, it was equivocal.
Dr Parker also spoke strongly about detention as a means of managing the defendant but expressed reservations about the efficacy of actuarial assessments of risk. Further, I note that the RMR only addressed the question of supervision (rather than detention).
Despite the attendant risks which the defendant poses as a result of the combination of his psychopathy and deviant sexual interests, he has not committed a serious sex offence or serious violence offence for over 30 years. As detestable as offences concerning child pornography and bestiality are, and noting that such offending does offer the prospect of a “step wise progression” to “hands on” offending, the independent experts, for the most part, considered that the defendant may gradually progress along a pathway to reoffending which was capable of being monitored and detected. The reference to opportunistic offending in the concurrent evidence (including, in that respect, the evidence of Dr Elliott as to his concerns about what happened during the defendant’s employment at Aldi) must be treated cautiously given the length of time since the defendant’s last serious offence (within the meaning of the Act) notwithstanding opportunities while on parole with a less stringent form of supervision than an ESO, and the fact that the evidence suggests the defendant’s offending is driven by cognitive processes and calculation rather than the typical impulsiveness found in psychopathy.
In reaching my conclusion, I have taken into account the objects of the Act in subs 3(1). In particular, I am cognisant that the primary object of the Act is to provide for the extended supervision or continuing detention of high risk sex offenders and high risk violence offenders so as to ensure the safety and protection of the community (see also subs 17(2) of the Act, which also refers to the paramount consideration in that respect).
Hence, having taken into account the entirety of those considerations and my earlier assessment of the evidence, I am not satisfied to a high degree of probability that the defendant poses an unacceptable risk if not kept in detention under a CDO.
That conclusion disposes of the State’s application for a CDO and obviates the need to entertain discretionary considerations as to the making of a CDO under subs 17(1) of the Act, as the precondition to the making of a CDO has not been met.
If the Court was called upon to consider the exercise of its discretion, it would exercise that discretion to not make a CDO. Plainly, the factors I have discussed above are relevant in that respect. However, there are some additional considerations which, in my view, bear upon the exercise of that discretion:
The defendant has secured accommodation at Nunyara COSP for the first 6 months of his release into the community on an ESO. If an ESO is made the defendant will be released from prison into a strict, highly supervised setting which will allow for his gradual transition into the community while challenging the defendant to "prove himself" to the court. Both independent experts considered that the defendant’s risk could be adequately managed in the community whilst the defendant resided in the structured accommodation environment of the COSP and was the subject of conditions for an ESO as sought by the State.
Following the defendant's period in secured accommodation at COSP, any decisions regarding the defendant's accommodation will be at the discretion of the DSO. The DSO will find suitable accommodation in accordance with the principles of the Act and with the assistance of a multidisciplinary case management team, in order to make a decision that is appropriate. Both independent experts accepted that a similar position would apply if the defendant were provided stable and suitable accommodation after the expiration of his stay at the COSP, at the discretion of the DSO.
If there was no possibility of suitable accommodation being provided in six months time, there are still other alternatives. The matter could be brought back to the Court to vary the conditions or there is a power under the Act which permits an emergency detention order to be made.
I agree with the submission advanced by senior counsel for the defendant, that the defendant's motivation to not spend any more time in custody, converging with the opportunity to be under an ESO, be accommodated at the COSP, and the opportunity to be subject to intervention by the TRC, are all factors which support the fact that "now is the time to make an ESO". The alternative, as the defendant put it, of making a CDO, "is doing no more than kicking the can down the road because the defendant is not going to get any beneficial treatment in custody."
That is not the end of the analysis required by the Court, as attention must next be directed as to whether the Court should make an order for an ESO.
I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO. Whilst that assessment is ultimately a matter for the Court, no party to the proceeding suggested that any other conclusion should be reached by the Court if the Court did come to consider the evaluative exercise under s 5B(d) of the Act.
In my view, the evidence in the proceedings, referable to factors under subs 9(3) (largely equivalent to the factors discussed above in relation to subs 17(4)), points overwhelmingly to the Court reaching that conclusion. The independent experts were of the view that the risk posed by the defendant could only be managed in the community by the making of an ESO, with the full suite of conditions proposed by the State (as amended).
I do not consider there are any discretionary factors against the making of an ESO.
Notwithstanding the position of the independent experts in favour of the conditions attaching to an ESO proposed by the State, given the submissions of the parties it is appropriate to make a separate evaluation of the conditions proposed, albeit in an amended form, by the State. All parties accepted that an ESO should be made for a 5 year duration. That approach accords with the evidence and I shall adopt it.