State of NSW v Cohen

Extended supervision orders

1. In State of New South Wales v BG (Preliminary) [2022] NSWSC 1065 at [8]-[16], I set out the legislative scheme, and organising principles, relating to continuing detention, and extended supervision, orders.
2. What follows draws largely upon what I have there set out.
3. The Act has two express objects. The primary object "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" (s 3(1)). Another object "is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation" (s 3(2)). These objects are protective, not punitive: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [5] (Mason P, Santow and Tobias JJA) ('Tillman'); Kamm v State of New South Wales (No 4) (2017) 95 NSWLR 179; [2017] NSWCA 189 at [147] (Beazley P).
4. The Act seeks to fulfil these objects by conferring jurisdiction on the Supreme Court to make orders, extending beyond the terms of imprisonment imposed by sentencing courts, for the extended supervision (s 9(1)), or for the continuing detention (s 17(1)), of convicted offenders: State of New South Wales v Kaiser [2022] NSWCA 86 at [6] (Simpson AJA, Bell CJ and Beech-Jones JA agreeing) ('Kaiser').
5. Section 5H of the Act permits the State to apply for an ESO "against an offender". However, s 5I(1) qualifies this by providing that an order can only be made against a "supervised offender".
6. The defendant conceded that he is a supervised offender for the purposes of s 5I, and I find that he is. That is because, as the plaintiff submitted and as the defendant accepted, the defendant was under supervision while serving his sentence for the index offence: a serious sexual offence. Relevantly here, in the language of s 5I, the defendant is a "supervised offender" because, when the application was made, the defendant was "in custody or under supervision" for an offence of a sexual nature: ss 5I(2)(a)(ii) and 5(3).
7. Section 6 of the Act sets out a number of requirements with respect to an application for an ESO. One is that the application "may not be made until the last 9 months of the offender's current custody or supervision" (s 6(1)). It is accepted by the defendant that this element is satisfied, and I find that it is. The State's application, commenced by the filing of a summons on 6 December 2022, is made within the last 9 months of the defendant's supervision.
8. Another requirement is that the material that must accompany the application for an ESO addresses the matters in s 9(3) of the Act (s 6(3)(a)) and includes a report from a qualified psychiatrist, registered psychologist or registered medical practitioner that "assesses the likelihood of the offender committing a serious offence" (s 6(3)(b)). I am satisfied that the material in the affidavit of James Palmer affirmed 6 December 2022 and exhibit JP-1 to that affidavit addresses these matters (some of which are dealt with, later in these reasons, when addressing the matters in s 9(3) of the Act), and the defendant did not contend otherwise.
9. The application may also indicate the kinds of conditions that are considered appropriate for inclusion under s 11 - in the event that an ESO is made: s 6(4). This has occurred; in fact, this remains an area of (significant) dispute on this application.
10. Section 7 of the Act prescribes a number of pre-trial procedures relating to the making of, and dealing with, an application for an ESO: the application must be served on the offender (the defendant) within 2 business days of the application being filed, or such further time as the Court may allow (s 7(1)); the State must disclose to the offender material relevant to the application (s 7(2)); and the Court must hold a preliminary hearing within 28 days of the filing of the application, or within such further time as the Court may allow (s 7(3)). I am satisfied that these pre-trial procedures have been complied with and, like the position the defendant took in relation to the matters referred to in s 6, the defendant did not submit to the contrary.

Sections 5B and 5C of the Act

1. I will start by addressing the statutory provisions that relate to the making of an ESO.
2. In relation to an application for an ESO, ss 7(4) and 10A(b), by their reference to the requirement that the Court be satisfied that the matters alleged in the supporting documentation justify the "making of an extended supervision order", direct attention to s 5B of the Act. Section 5B contains four cumulative criteria that must be satisfied in order for an ESO to be made. They have been described as "identifying the conditions of engagement of statutory powers to make continuing detention orders or extended supervision orders": Tannous v State of New South Wales (2020) 103 NSWLR 183; [2020] NSWCA 261 at [14] (Basten JA, McCallum JA and Simpson AJA agreeing) ('Tannous').
3. By s 5B, the Court may make an ESO upon satisfaction of the matters in ss 5B(a)-(c) and, by s 5B(d), of satisfaction 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".
4. The defendant has accepted that the statutory preconditions in s 5B(a)-(c) of the Act have been met (see [2], above). I find that they are, for the following reasons.
5. Section 5B(a) requires the defendant to be "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".
6. In order to consider whether the requirements of this section are met, it is necessary to make reference to some other sections which define concepts within s 5B(a).
7. Section 4A of the Act defines "an offender" to be a "person who - (a) is of or above 18 years of age and, (b) has at any time been sentenced to imprisonment … to be served by way of full-time detention … following the person's conviction for a serious offence". It is clear that the defendant is above 18 years of age: s 4A(4). And it is also clear, and I find, that the defendant satisfies s 4A(b), for the following reasons.
8. Section 4(1) of the Act defines, relevantly, "serious offence" as meaning "(a) a serious sex offence". The term "serious sex offence" is defined by s 5(1).
9. The defendant has been sentenced to full-time imprisonment following his conviction for a serious offence (s 4A(b)) - the "serious offence" is a "serious sex offence", being, as the State submitted, an offence under Division 10 of Part 3 of the Crimes Act 1900 (NSW) where, in the case of an offence against an adult, the offence is punishable by imprisonment for 7 years or more and is committed in circumstances of aggravation: ss 5(1)(a)(i) and (ii). In this case this requirement is met: the defendant was charged with an offence under s 61J of the Crimes Act 1900 (aggravated sexual assault) - an offence that is within Division 10 of Part 3 of the Crimes Act, and punishable by imprisonment for 20 years.
10. Section 5B(b) requires the defendant to be "a supervised offender (within the meaning of s 5I)". I have earlier made a finding about this: see [13], above. He is, therefore, a "supervised offender".
11. Section 5B(c) requires the application for the order to be made in accordance with s 5I. However, the reference in s 5B(c) to s 5I is "a drafting or cross-referencing error and should have been a reference to s 6": Kaiser at [124] (Simpson AJA, Bell CJ and Beech-Jones JA agreeing). I have previously made findings that the requirements stipulated by s 6 have been met: see [14]-[16].
12. Having established the matters in ss 5B(a)-(c), s 5B(d) of the Act remains to be considered. That section requires the Court to be "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". In determining whether (or not) to make an ESO, the "safety of the community must be the paramount consideration" (s 9(2)) and, the Court must also have regard, in addition to any other matter it considers relevant, to the matters set out in s 9(3), but is not to consider any intention of the offender to leave NSW (s 9(4)).
13. Before addressing the terms of s 5B(d) of the Act, some of the concepts within the section will first be addressed.

High degree of probability

1. The high degree of probability "qualifies the state of the judge's satisfaction, not the degree of the risk": Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [122] (Basten JA) ('Lynn').
2. The Court must be satisfied that the likelihood of the defendant committing a further serious offence is higher than the civil standard of proof, in other words it is "beyond more probable than not", but it is not a requirement that the finding be made to the criminal standard of beyond reasonable doubt: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21] (Mason P, Giles and Hodgson JJA); State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041 at [14] (R A Hulme J) ('Golding'); State of New South Wales v Shields (Preliminary) [2022] NSWSC 469 at [12] (Wright J).

Unacceptable risk

1. The concept of "unacceptable risk" is expanded upon by s 5D, which is in the following terms: For the purposes of this part, the Supreme Court is not required to determine 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 a person committing such an offence.
2. The concept of an "unacceptable risk" has, unsurprisingly, been the subject of considerable judicial consideration, which establishes the following: 1. The phrase is to be given its everyday meaning within its context having regard to the objects of the Act: Lynn at [55]-[58] (Beazley P). 2. What the Court must find to be unacceptable is the risk that the offender poses of committing another serious offence if not kept under supervision; that is, an assessment of the likelihood in the absence of any supervision: Lynn at [51] and [55] (Beazley P); State of New South Wales v Donovan [2015] NSWCA 280 at [24] (Beazley P, Macfarlan and Leeming JJA). That finding provides the basis for imposing control on the offender: Lynn at [127] (Basten JA). 3. The interests of the offender to liberty and privacy are not relevant to the assessment of whether there is an "unacceptable risk", but can be taken into account when considering whether to make, under s 9 of the Act, an ESO or to dismiss the application: Lynn at [44] (Beazley P), [143] (Basten JA), and [148]-[149] (Gleeson JA). 4. Unacceptability of risk "involves considerations of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate": State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71] (Wilson J) ('Simcock'); State of New South Wales v Chaplin [2019] NSWSC 471 at [15] (Rothman J). The nature of the risk "posed had to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition": Lynn at [126] (Basten JA). 5. An offender may pose an unacceptable risk, even where the likelihood of committing another serious offence is low, if the likely consequences of such an offence are very grave: State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41] and [43] (Harrison J); Golding at [16] (R A Hulme J); State of New South Wales v Devaney (Final) [2019] NSWSC 1551 at [73] (Dhanji J).

General

1. The defendant was born on 23 July 1987, and is currently 35 years of age. He has a lengthy criminal history culminating in the index offending that occurred on 10 August 2014 - discussed below.
2. The defendant's childhood was one punctuated by deprivation, and members of his family had problems with alcohol and violence. The defendant did not know his biological mother well, and had intermittent contact only with his father. He was brought up by his grandparents. As to this upbringing, according to the case formulation from Dr Smith, consultant forensic psychiatrist, who assessed the plaintiff following orders made by Rothman J (report p 51): Whilst this was generally positive, he witnessed significant domestic abuse by his grandfather towards his grandmother. The wider context within which he grew up was one where violence and substance abuse were problematic, and he is part of a wider group that has experienced intergenerational trauma.
3. The defendant commenced using illicit drugs at around age 17, and he has been a heavy user of illicit drugs since (although, as I later discuss, his recent situation is different: see [136], below).
4. The defendant has been convicted of a number of domestic violence offences against his former partner, and mother of his three children: in 2009, 2010, 2012 and 2013. Shortly stated, and by way of summary only, those offences involved the following conduct on the part of the defendant.
5. In 2009, the defendant returned home at around 3am, and (amongst other erratic conduct) threatened to stab the defendant's former partner. In 2010 there was a domestic disturbance involving the defendant and his former partner, involving the defendant following his former partner to her mother's house, and subjecting her to abuse before smashing a window. In 2011, the defendant was sentenced to a two-year good behaviour bond, and 100 hours community service, in respect of this offending. In 2012, in breach of the good behaviour bond and AVO made in favour of the defendant's former partner, the defendant was convicted of common assault - an offence involving the defendant's former partner. The defendant was granted bail, but failed to appear. On 19 February 2013 the defendant, in breach of the good behaviour bond and AVO, committed a further assault offence upon his former partner.
6. On 10 April 2013, the defendant was convicted and sentenced at the Taree Local Court for the 2012 and 2013 offences: in connection with the 2012 offences, the defendant was sentenced to 11 months imprisonment (with a five-month non-parole period) for the common assault, 4 months imprisonment for the breach of the AVO, and 2 months imprisonment for the failure to appear. In connection with the 2013 offending, the defendant was sentenced to 3 months imprisonment.
7. On 10 April 2013, a final two-year AVO was made for the protection of the defendant's former partner - restricting the defendant from any contact with her, and from coming within 100m of her.
8. The defendant was released on parole on 18 July 2013. Notwithstanding that in October 2013 the defendant committed a drink-driving offence, his parole was not revoked. The defendant's parole expired in January 2014.
9. After his parole expired, in February 2014, the defendant was charged with an offence of wound with intent to cause grievous bodily harm and, in the alternative, a reckless wounding offence - which occurred on 6 November 2013 (that is, whilst the defendant was on parole). The defendant entered a plea of guilty to the alternative charge of reckless wounding. On 24 April 2015, the defendant was sentenced to a term of imprisonment of 2 years and 4 months, with a non-parole period of 1 year and 4 months.
10. On 10 August 2014, the defendant committed the index offences - next described.
11. More recently, on 20 April 2023, the defendant was charged in connection with three "firearms" offences. They relate to the police discovering an air rifle at the premises - described in the police facts sheet as being "occupied by the COHEN family for at least 45 years" - when they attended upon that home for the purposes of serving a firearms prohibition order and weapons prohibition order on the defendant. It was in the course of the police searching the premises that they discovered the air rifle, and pellets for the air rifle. The three offences were under the Firearms Act 1996 (NSW). Given the defendant was subjected to an ISO at that time - which contained a condition (condition 32) that prohibited the defendant from possessing a firearm - the defendant was charged with failing to comply with that order, contrary to s 12 of the Act.
12. The defendant was refused bail, and he remained in custody until he was sentenced on 22 May 2023. When sentenced, the defendant was convicted in relation to each offence - albeit that, in connection with the possess ammunition charge, no penalty was imposed. In relation to the remaining offences, the defendant was subject to a Community Corrections Order (CCO) for a period of 18 months to commence on 22 May 2023 and expiring on 21 November 2024. One condition of the CCO was a supervision order - that is, that the defendant "is subject to supervision by a Community Corrections Officer at Kempsey Community Corrections District Office" for the period of the CCO (order 1). In addition, in connection with the failure to comply with the ISO, the defendant was ordered to perform 105 hours of community service work.

The index offence

1. The offences, that the defendant pleaded guilty to, were: 1. Offence 1: aggravated sexual intercourse - inflict actual bodily harm on victim contrary to s 61J(1) of the Crimes Act (with a further offence taken into account on a Form 1). 2. Offence 2: assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act (dealt with on a certificate under s 166 of the Criminal Procedure Act 1986 (NSW)). 3. Offence 3: contravene prohibition/restriction in an apprehended domestic violence order, contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (also dealt with on a certificate under s 166 of the Criminal Procedure Act).
2. These events were summarised by Rothman J in his Honour's reasons in the preliminary hearing of the plaintiff's application (State of New South Wales v Cohen (Preliminary) [2023] NSWSC 132 at [7]-[11]) - a summary that I respectfully adopt: [7] The victim of the Index Offences was the defendant's former partner and mother of his children. This person was also the victim of earlier domestic violence related charges in 2009, 2010, 2012 and 2013. [8] The circumstances of the Index Offences involved the defendant attacking the victim whilst she was in the bathroom, forcefully inserting his fingers into her anus, telling her that she was a "fucking slut" and that he would "torture" her, before beating her and inserting his fingers into her vagina. The defendant then dragged the victim by her hair into the bedroom and pinned her down before beating her with his fists. He then picked her up and threw her down repeatedly. [9] The victim attempted to hit the defendant with a piece of timber, which the defendant then used to hit the victim multiple times. The defendant then dragged the victim back into the bathroom, and during the altercation the victim's faeces was caused to be spread around the room. [10] As the victim attempted to flee, the defendant told her: "You're dead slut". He then assaulted her in the lounge room in front of two of the children. During the subsequent sustained assault, which covered most of the rooms of the house, the victim became covered in blood and faeces. The victim attempted to escape when the defendant put her in the shower, but the defendant followed her to the backyard and dragged her back inside. He again threatened her with death. [11] The assault ended when a third person knocked on the door, at which point the defendant attempted to hide. The victim took the opportunity to run to a neighbour who contacted the authorities. The victim required hospitalisation for three days.
3. As I have already noted, the defendant pleaded guilty to the charges.
4. On 16 March 2016 the defendant was sentenced to 8 years imprisonment, to expire on 23 February 2023 - with a non-parole period of 4 years and 3 months. The defendant was eligible for parole on 23 May 2019, but given the defendant had failed to complete any offence specific rehabilitation (despite offers), the defendant was not released on parole until 11 September 2020 - and was then subject to strict conditions.
5. On 24 December 2021, whilst on parole, the defendant was charged with two domestic violence related charges relating to an incident on that day. The defendant's parole was revoked on 19 January 2022, and he returned to custody. As it happens, one charge was withdrawn, and at a hearing on 25 November 2022, the second charge was dismissed (see [103]-[104], below where they are discussed further). The defendant was re-released on parole on 28 November 2022.
6. As I have earlier noted, shortly after this, on 6 December 2022, the plaintiff filed a summons seeking an ESO against the defendant.

The interim supervision order

1. On 22 February 2023, Rothman J made an interim supervision order (ISO), and a range of ancillary orders including that the defendant be assessed by two qualified psychiatrists or psychologists to conduct separate examinations of the defendant, and to furnish reports to the Court on the results of such examination.
2. Dr Calum Smith, consultant forensic psychiatrist, and Dr Chelsey Dewson, consultant forensic psychologist, were duly appointed to assess the defendant, and each has prepared a report: Dr Smith's report is dated 11 April 2023, and Dr Dewson's report is dated 12 April 2023.
3. The ISO has been extended on a number of occasions since the order was made by Rothman J on 22 February 2023. Most recently, on 13 April 2023, Yehia J made an order extending the ISO, with such order to commence on 20 April 2023 and was to operate for a period of 28 days. As it happens, at the time of the hearing on 3 May 2023, the current ISO was suspended because the defendant has been returned to custody in consequence of the above described firearms offences: s 10(1A).
4. The defendant was released from custody on 22 May 2023. The parties agreed that, if it were necessary to do so, once the defendant was released from custody and the current order expired, a further extension for 28 days of the ISO was available: s 10(3). The current ISO was agreed by the parties to expire on 19 June 2023.

The determination of the application: assessment of the risk

1. Section 9(1) empowers the Court, when determining an application for an ESO, to make such an order (s 9(1)(a)) or to dismiss the application (s 9(1)(b)).
2. As I have earlier noted, in determining whether or not to make an ESO, the "safety of the community" is the paramount consideration of the Court: s 9(2). Further, the Court must take into account - in addition to any other matter the Court considers relevant - the matters in ss 9(3)(a)-(i), but is not to consider "any intention of the offender to leave New South Wales (whether permanently or temporarily)": s 9(4).
3. The 12 matters that must be considered, under s 9(3), "fall into two broad categories: first, there are reports and sources of information which may be provided in evidence, including, for example, the criminal history of the offender. The other category identifies evaluative judgments which must be made": Tannous at [18] (Basten JA, McCallum JA and Simpson AJA agreeing).

Reports under s 7(4) of the Act, and the level of the offender's participation in such examinations: s 9(3)(b)

1. Following the orders made by Rothman J, the defendant was assessed by Dr Smith and Dr Dewson. Those reports are thorough, and substantial. Each side relied upon the opinions expressed to support their respective positions. Given the - relatively - confined nature of the issues that arise on the current application, it is necessary to only emphasise particular parts of the reports, and the opinions expressed by each expert.
2. In relation to the report from Dr Smith, the key points made were as follows: 1. Dr Smith undertook a risk assessment of the defendant using actuarial risk assessment tools - STATIC 99R (where the defendant was scored as '4': report pp 42-43), and had noted, earlier in his report, risk assessments performed by others, including the Risk Assessment Report by Catherine Sapula dated 30 August 2022, and the Risk of Sexual Violence Protocol - Version 2 (report pp 7-11). In connection with this score, this placed the defendant in the "Above Average Risk" category (report pp 9 and 58), with a "generally quoted recidivism rate … between 6.1% to 12.2% after 5 years … Other studies have shown a similar rate of reoffending. I note there is a high concern for any type of offending, given his historical violence, domestic violence, and substance misuse, amongst other things" (report p 58). Importantly, later in his report, Dr Smith noted that there was nothing "on the structured professional judgment tool to suggest that this underestimates the risk - if anything the reverse …" (report p 63). 2. In connection with these actuarial risk assessment tools, Dr Smith noted that in general "all the risk assessment tools predict (at group level) any violent/sexual offending. Serious sexual offending is statistically rare, so it is not possible to accurately predict at group level. The statistics outlined in risk assessments (sic) tools such as the STATIC 99R are for any type of offending, not just serious offending, as per the Act" (report p 58). 3. Putting to one side the index offence, Dr Smith gave specific consideration to other factors that might indicate the likelihood of the defendant engaging in conduct - essentially a "serious offence" - and said, by way of introduction: "… the picture is somewhat mixed". He then expressed the following (report p 58): [The defendant] committed a serious sexual violence offence when both on bail and under an AVO. This is in the context of long-standing domestically violent conduct. He had been prosecuted for this multiple times. There are additional risk factors that cannot be undone - such as witnessing domestic violence and his committing of other violent offences. There is evidence that he loses control when fighting. His associations have been mixed, and many of his problems have been attributed to peer pressure. Some of the dynamic issues are of ongoing concern. The primary one being that is clear is his problematic insight into offending. I note that he has done many courses, but I still found his lack of insight and self-reflective capacity concerning. So those are some of the risk factors that do apply. 1. Dr Smith also argued that some "contextual factors" did not apply, relevantly stating (report p 59): There is no evidence that he frequently carries weapons. There is no evidence that his sexual targets were paraphilia in nature. There is no evidence of ingrained antisocial or violent attitudes. There is not violence related to symptoms of major mental illness such as delusions. Whilst I note that his violence escalated in the relationship, the sexual violence is a single, albeit extremely serious, offence. There is no evidence that the State would be concerned in terms of the offending types that others being managed under an ESO for sexual violence risk … have occurred, or are going to occur. 1. In connection with the defendant's substance use, Dr Smith considered that this was a "real concern and appears to have played a significant role" in the defendant's offending/problematic behaviour in the past, and had been "undertreated" (report p 59). Nevertheless, Dr Smith observes that "although he has had lapses, he has largely, it seems, been clear of substance use. His conduct (and mental state) appears to be improved due to this. [His] work history has been spotty, but he was working since release (report p 59). 2. Dr Smith also noted that the defendant had been in the community for some time, approximately 9 months, during which time the defendant was arrested for charges (that were ultimately dismissed), the defendant was working and had also attempted to reach out to his children, to spend time with them (report p 59). On the other hand, Dr Smith also noted that the attempted contact might have involved a breach of the defendant's parole/ESO conditions and that "the only problem in that period has been the arrest for speeding and the ultimate positive testing for crystal methamphetamine. He has generally been compliant and spending time appropriately with family on country" (report p 59). 3. Dr Smith formulated the case, and the defendant's risk, as follows (report pp 59-60): Given all this, I will say that I do think there is a risk of serious offending. There is a concerning brittleness to [the defendant's] presentation. The concerns I have are, I hope, clear by this stage - there is a lack of insight/ reflective capacity/ self-awareness, and the issues with substances. I think it is reasonable to say that there is a risk these factors could combine towards the commission of a serious offence either violent or sexual. However I should be honest with the court and say that this is something of a "line ball" call … 1. Dr Smith also expressed the following opinions where he elaborated upon this issue: 1. "My opinion is that [the defendant] does pose a risk of committing a further serious sex offence or serious violence offence …" (report p 60). 2. "I am only just getting to the stage where I think making [the defendant] the subject of an ESO can be justified, and believe that the risk is based on dynamic factors that can either be worked on (reflective capacity with insight orientated psychotherapy) treated at least to some extent (improved mental state and volatility with medications) or allayed by specific conduct (e.g. continued abstinence from substances, attendance at drug and alcohol services), I am logically unlikely to be of the opinion that a 5 year ESO is warranted" (report p 62). 1. In terms of any length of any ESO that might, ultimately, be ordered, Dr Smith noted that there was a "significant risk of institutionalisation" in a lengthy ESO and considered that, overall, "a one year, or at maximum two-year, ESO application is warranted" (report p 63). 2. Dr Smith found the defendant's willingness, and level of participation, in the examination, to be "good. There were issues, as outlined in the body of the report, about his reflective capacity, but there was no conscious reluctance to engage" (report p 54).
3. In relation to the report from Dr Dewson, the key points made were as follows: 1. Dr Dewson used a number of actuarial risk assessment tools to assist in predicting behaviour and the risk of reoffending but, recognising that there are some limitations in the use, identified that "decisions about risk are best made with multiple sources of data available, in which a formal risk assessment is only one such datum": report, par 72. 2. Dr Dewson measured the defendant's risk using the following risk assessment tools: 1. The Level of Services/Case Management Inventory (LS/CMI) - the defendant was "assessed as posing a high risk of general reoffending": pars 75-77 (emphasis in original). 2. The Spousal Assault Risk Assessment (SARA) - on the basis of the defendant's "profile, according to the SARA, [the defendant] is at high risk of committing a spousal assault in the future": pars 78-81 (emphasis in original). 3. The Static-99R - the defendant received a "total score of 3, which places him in Risk Level III (average risk) for being charged or convicted of another sexual offence": pars 81-85 (emphasis in original). (In relation to this risk assessment, and the Static-2002R, Dr Dewson noted that they "have some limitations and should be used with caution. The recidivism estimates … are based on groups of individuals, and therefore these estimates will not necessarily directly reflect the recidivism risk for [the defendant]": par 93). 4. The Risk for Sexual Violence Protocol (RSVP) - aside from identifying that there were present "several dynamic risk factors that have been empirically linked to sexual recidivism", no clear assessment was identified in the report - albeit that Dr Dewson gave consideration to hypothetical risk scenarios. 5. The Static-2002R - the defendant also received "a total score of 3, which places him in Risk Level III (average risk) for being charged or convicted of another sexual offence": pars 89-91 (emphasis in original). 6. The Violence Risk Scale (VRS) - the defendant was assessed as having "a moderate risk of reoffending violently": pars 98-101 (emphasis in original). 1. Drawing together those assessments, Dr Dewson expressed the opinion that, overall, the defendant "presents a high risk of general offending, high risk of partner violence, moderate risk of general violence and average risk of sexual violence": par 102. In connection with the defendant's risk factors, Dr Dewson considered that they included "poor emotional control, entitlement, unhelpful attitudes relating to violence, cognitive distortions, substance abuse, unhealthy relationships and impulsivity": par 102. (Given the defendant's submissions in connection with s 5B(d), it will be necessary to return to this evidence). 2. In terms of formulating risk scenarios, Dr Dewson considered that the defendant's "most likely risk scenario" would … involve the use of non-sexual violence, in the context of intoxication, towards an intimate partner or acquaintance in the community. Should this escalate to involve sexual violence, this is likely to occur in the context of a romantic relationship and is likely to be seen by [the defendant] as an extension of non-sexual violence… (par 102). 1. Although, ultimately, a question for the Court, Dr Dewson addressed the risk with reference to the Act (par 102): Although it is hopeful that [the defendant] remains offence free, given his offending history, any sexual violence or non-sexual violence in the future may meet the threshold of a 'serious' offence as defined by the [Act]. 1. In terms of whether an ESO should be made, Dr Dewson expressed the opinion that to "assist in the management of [the defendant's] risk, an ESO is recommended, to provide him with community-based support, whilst also providing a level of community protection through external restrictions and management": par 103. In terms of duration of any ESO, Dr Dewson "recommended that at least 3 years be imposed", essentially to enable the defendant sufficient time to demonstrate "his capacity to live a normal life and manage his risk in a variety of contexts", as well as engage in further treatment. 2. In terms of the defendant's level of participation in the examination process, Ms Dewson noted that the defendant was "polite, cooperative and engaged easily. He was forthcoming with information, although elements of minimisation and denial were noted within his accounts of offending" (report pp 2-3).

The results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment: s 9(3)(c)

1. The plaintiff drew attention to the Risk Assessment Report prepared by Catherine Sapula dated 30 August 2022 - a report that was prepared pursuant to s 6(3)(b) of the Act. Ms Sapula is a senior forensic psychologist with the Department of Communities & Justice, Serious Offenders Assessment Unit. Her report is, unsurprisingly, detailed and extensive. I have made reference to some parts of the report elsewhere in these reasons. The particular focus, in line with the statutory directive, are the assessments of the defendant committing a further serious offence, and the defendant's willingness, and level, of participation in this assessment.
2. In relation to the report from Ms Sapula, the key points made on the issues identified above, were as follows: 1. Ms Sapula reviewed, and summarised, the results of the actuarial risk assessments of the defendant, as follows: 1. The Level of Service Inventory-Revised ('LSI-R'): an assessment on 27 July 2021 assessed the defendant as "falling within the Medium risk category (score 28) for general and violent offending" (emphasis in original). On 3 February 2021, the defendant's LSI-R score was 37, "placing him in the Medium to High category": par 78. 2. STATIC-99R: in an assessment completed on 15 November 2016 the defendant had a score of 4. A further assessment was undertaken by Ms Sapula on 2 August 2022, and that score was confirmed. According to Ms Sapula, a score on this instrument of 4 identifies the defendant as "Above Average risk": par 80 (emphasis in original). In connection with this assessment, Ms Sapula indicated that STATIC-99R was "not sensitive to the changes in an offender's circumstances that may increase or decrease his actual risk of reoffending": par 82. 3. STABLE 2007: the defendant was assessed by Ms Sapula, and the defendant's total score was 12 - a score that "suggests a high density of criminogenic needs relative to other male sexual offenders": par 83 (emphasis in original). 4. Composite assessment - STATIC-99R and STABLE 2007: the defendant's "composite risk/needs level, when combining static and dynamic risk factors, was in the Above Average risk category": par 84 (emphasis in original). 5. The Violence Risk Appraisal Guide - Revised (VRAG-R): the defendant's score on the VRAG-R was 30, which placed him in the ninth risk bin - the ninth being the highest. Ms Sapula suggested that the defendant's "risk is in the high category relative to other violent offenders. In the norms for this instrument 76% of violent offenders in this risk 'bin' re-offended violently within five years at risk, and 87% re-offended violently within twelve years at risk": par 85 (emphasis in original). 6. The Violence Risk Scale (VRS): the defendant was assessed by Ms Sapula, and he scored 52, which falls (par 86) … in the high risk range. When the defendant's score was compared "to a group of 918 federally sentenced Canadian inmates who had also been rated on the VRS, of the group who obtained a similar score to [the defendant], 39.5% were criminally convicted for a new violent offence within five years after release to the community, while 62% were criminally convicted for a new non-violent offence within five years after release. 1. The Ontario Domestic Assault Risk Assessment ('ODARA'): this actuarial risk assessment uses static risk factors to estimate the risk of assault against a female partner within an average of 5 years. The defendant was assessed by Ms Sapula using this risk assessment tool, and the defendant's score on this instrument was 10. According to Ms Sapula, this score is in the highest category: par 87. Of those who attain a score in the same range … 74% were found to perpetrate a new assault against a female partner that came to the attention of police within an average of about [a] five year period … This high risk range suggests that [the defendant] has particular issues which raise substantial concern about is risk of violence against female intimate partners, including the potential of the serious violence within such relationships. (Par 88) (emphasis in original). 1. Ms Sapula considered that overall risk level should be determined by averaging the results of the risk assessments - something that, when done, suggested that the defendant's "risk of recidivism falls in the high risk category of committing any violent offence, including a sexual offence": par 89. 2. Ms Sapula formulated two risk scenarios. The first was that the defendant was "most likely to offend in the context of an intimate relationship. [The defendant] has an established and escalating history of domestic violence. He is most likely to reoffend if he returns to substance misuse and experiences emotional distress": par 108. The second risk scenario involved the defendant "perpetrating violence against a person he is not romantically involved with": par 108. Ms Sapula expressed the opinion that the risk of the defendant "committing a sexual offence against a stranger appears to be the least likely scenario, although it cannot be excluded, particularly if other factors are present (e.g. significant emotional dysregulation, intoxication)": par 108. 3. Ms Sapula's conclusion in connection with the risk presented by the defendant was expressed in the following terms (par 109): … it is possible that [the defendant] could commit another offence and that its nature could approach the threshold of a 'serious sexual offence' as defined in the [Act] … however this would most likely occur within an intimate relationship. [The defendant's] risk of committing a serious violent offence is significant. Although this would most likely also occur against an intimate partner, [the defendant] had committed a serious violent offence against a non-romantic partner. [The defendant's] propensity to use or threaten the use of weapons raises serious concerns about the potential level of harm.
3. The plaintiff submitted, and I accept, that, in connection with the risk assessments referred to above, that the results were "not direct assessments of the likelihood specifically of the commission of a further serious offence but may be considered relevant to the assessment" (plaintiff submissions at [103]). However, as I later explain, in the present case they are of extremely limited use: see [112]ff, below.
4. Ms Sapula prepared a further report - described as 'Supplementary Risk Assessment Report' - dated 13 February 2023.
5. In that report, Ms Sapula noted that her use of the phrase "serious violence offence", in her earlier report dated 30 August 2022, was "used in its ordinary use of the word" (sic): report, par 3. Furthermore, Ms Sapula expressed the following further opinion in connection with the defendant's risk: … the selection of the risk assessments was guided by the totality of [the defendant's] offence history. It is possible that [the defendant] could commit another "serious sexual offence" as defined in the [Act] … Whether this would be considered "unacceptable" in the context of the [Act] … is a matter to be determined by the Court.

Statistical and other assessments on the likelihood of the offender committing a further offence: s 9(3)(d)

1. Section 9(3)(d) refers to the "results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence".
2. I have, in my assessment of the psychiatric and psychological reports under ss 9(3)(b) and (c), considered statistical and other assessments of the kind referred to, and these were the ones that the State drew attention to in their written submissions.
3. As I explain later (see [112]-[114], below), I do not accept that the results of these actuarial tools permit a case specific conclusion that the defendant is likely to commit a serious offence as defined by the Act.

Corrective services reports: s 9(3)(d1)

1. Section 9(3)(d1) requires the Court to consider any "report from Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community".
2. The plaintiff drew attention to the Risk Management Report dated 23 September 2022, merely noting (submissions at [104]) that the report recommended programs, and risk-related interventions including fortnightly sessions with a psychologist with knowledge and experience in the assessment and treatment of violent and sex offenders … and one on one AOD counselling. As I later discuss (see [79]-[81] and [139]-[148], below), this is broadly the nature of the treatment that the defendant has been undertaking in 2023.
3. The report also provided a risk management plan that was geared towards identifying risk factors, risk scenarios and formulating proposed conditions to support the risk management plan.

Treatment or rehabilitation programs etc: s 9(3)(e)

1. Section 9(3)(e) requires the Court to have regard to any treatment or rehabilitation program "in which the offender has had an opportunity to participate", as well as the willingness of the offender to participate in any such programs and the level of any such participation.
2. The plaintiff's submissions addressed this consideration, pointing out that, in short, despite being offered an opportunity to engage in treatment programs in connection with his offending and drug and alcohol use, the defendant substantially declined what was offered.
3. The "offence specific programs", and those relating to his drug and alcohol use, were set out in the Risk Assessment Report, pars 63-70. From that review, it is apparent that the defendant declined, on at least two occasions, referral to a custody-based sex offender program (in 2016 and 2018: report par 64), and to be referred to the Violent Offenders Therapeutic Program (in 2018: report pars 65-66). The defendant also declined referrals to the Intensive Drug and Alcohol Treatment Program (IDAPT) (in 2018, 2019 and 2020: report pars 67- 68).
4. The defendant completed the EQUIPS Addictions program (in August 2018: a program targeting substance use issues), the EQUIPS Foundations program (in March 2019: the core program, for all offence types), and the EQUIPS Domestic Abuse program (in July 2020: targeting domestic violence).
5. In relation to this last program, the defendant reported that he was developing skills to effectively manage his emotions, and recognised that skill building will be vital to his successful reintegration (Risk Assessment Report, par 70). Furthermore, the defendant's participation was described favourably: "he was able to identify potential warning signs in relation to his abusive behaviour and develop a self management plan to assist in transitioning to normal community life" (Risk Assessment Report, par 70).
6. Dr Dewson also noted, in terms of psychological intervention, that the defendant has commenced treatment within the community under a Mental Health Care Plan (MHCP) prepared by his GP (report par 67): He has reportedly attended roughly 10 sessions under the plan and whilst he expressed motivation for enduring treatment, he wasn't sure who would fund this financially once the MHCP sessions are exhausted. [The defendant] reflected positively on his treatment to date, in the context of which general coping and psychological support appeared to be the focus (rather than criminogenic intervention).
7. This community-based treatment has extended to 13 sessions (most of which have occurred this year) with a forensic psychologist, Allan Anderson. During the consultations, Mr Anderson covered topics such as drug and alcohol counselling; self-esteem and general confidence; as well as counselling "on attitudinal change to authority". I address some further details about the defendant's current treatment later (see [139]-[148], below).
8. Thus, I find, although whilst in custody the defendant had opportunities to participate in rehabilitation programs, his willingness to engage in them was somewhat mixed; but, when he did, his participation was generally favourable. More recently, I also find, the defendant has engaged in a mental health plan, including in person and by telephone treatment with the forensic psychologist, Allan Anderson. Mr Anderson, in his report dated 26 April 2023, reported that the defendant's engagement with the treatment had been positive, and Mr Anderson expressed a favourable prognostic outcome.

Options (if any) available if the offender is kept in custody or is in the community that might reduce the likelihood of the offender re-offending over time: s 9(3)(e1)

1. Section 9(3)(e1) requires the Court to consider "options (if any) available if the offender is kept in custody or is in the community that might reduce the likelihood of the offender re-offending over time".
2. The plaintiff's submissions addressed this consideration by reference to the treatment options available, whether the subject of an ESO or otherwise (plaintiff's submissions [110]-[112]). Based upon the Risk Assessment Report and the Risk Management Report, the plaintiff submitted that the defendant would be offered "individual risk management intervention" sessions with a CSNSW psychologist "related to his sexual and violent offending" if he was kept under supervision, but not offered those sessions if he were not. In that situation, the plaintiff submitted that it appeared "there will be no options available that might reduce the likelihood of [the defendant]'s reoffending over time".
3. It appears that "individual risk management intervention" sessions with a psychologist can only occur if an individual resides in the Sydney Metro/ Greater Sydney Area (Risk Assessment Report, par 71). The report also suggests that if the defendant "is released, he can be referred to CSNSW Psychology and his intervention needs will be reviewed" (Risk Assessment Report, par 71). I also note that Ms Sapula indicated that, if no ESO is ordered, the defendant "will have no support from, or any monitoring by CSNSW": par 110.
4. Given the Community Corrections Order that was imposed on 22 May 2023 (see [45]-[46], above), the defendant is the subject of a supervision by CSNSW through a community corrections officer - an order that expires on 21 November 2024. Thus, contrary to what Ms Sapula reported, there will be monitoring by CSNSW.
5. As was argued by the defendant during submissions, a consequence of the CCO containing a supervision condition is that the terms of cl 188 of the Crimes (Administration of Sentences) Regulation 2014 (NSW) applied. Relevantly, that clause provides: 188 Obligations under supervision condition (CCO or CRO) (1) For the purposes of sections 107B and 108B of the Act, an offender who is subject to a supervision condition of a community correction order or conditional release order has the following obligations - (a) to report to a community corrections officer as soon as practicable after (but not later than 7 days after) the supervision condition is imposed, Note - A supervision condition may be imposed at the time the order is made or at a later time. (b) to report to a community corrections officer at the times and places directed by the officer, (c) to comply with all reasonable directions of a community corrections officer relating to any of the following - (i) the place in which the offender is to reside, (ii) participating in programs, treatment, interventions or other related activities, (iii) without limiting subparagraph (ii), participating in employment, education, training or other related activities, (iv) not undertaking specified employment, education, training, volunteer, leisure or other activities, (v) not associating with a specified person, (vi) not frequenting or visiting a specified place or area, (vii) ceasing drug use, (viii) ceasing or reducing alcohol use, (ix) drug and alcohol testing, (x) requirements for the purposes of monitoring compliance with the order, (xi) giving consent to third parties providing information to a community corrections officer about the offender's compliance with the order, (d) to comply with any other reasonable directions of a community corrections officer, (e) to permit a community corrections officer to visit the offender at the offender's place of residence at any time and, for that purpose, to enter the premises, (f) to notify a community corrections officer of any change to the offender's place of residence, contact details or employment - (i) if practicable, before the change occurs, or (ii) if that is not practicable, within 7 days of the change occurring. (2) A community corrections officer may vary or waive the obligation to report to a community corrections officer under subclause (1)(a). (3) Supervision of an offender who is subject to a supervision condition is to be carried out by a community corrections officer.
6. The plaintiff argued that a community corrections officer may have the discretion to suspend compliance with a CCO, and that was relevant to a consideration of whether, and if so to what degree, the terms of the CCO ordered would minimise any risk (this submission is addressed at [149]ff, below). It is convenient therefore to note the terms of s 107E of the Crimes (Administration of Sentences) Act 1999 (NSW) which permits the suspension of certain conditions of a CCO: 107E Suspension of certain conditions of community correction order (1) This section applies to the following conditions of a community correction order - (a) a condition referred to in section 89 (2) (g) of the Crimes (Sentencing Procedure) Act 1999 (a supervision condition), (b) a curfew condition, non-association condition or place restriction condition referred to in section 89 (2) of that Act. (2) A community corrections officer may, by order in writing and subject to the regulations, suspend the application of a supervision condition to an offender for a period or periods or indefinitely. (3) A community corrections officer may, by order given orally or in writing and subject to the regulations, suspend the application of any other condition to which this section applies to an offender for a period or periods. (4) The suspension may be unconditional or subject to conditions. (5) For the purposes of this Act, a failure to comply with a condition of the suspension is taken to be a failure to comply with the obligations of the community correction order. This subsection does not limit the power of the community corrections officer to revoke the suspension order. (6) The regulations may make provision for or with respect to the following - (a) the periods for which a condition may be suspended, (b) notice to an offender of the making or revocation of a suspension order, (c) requiring the power to make, amend or revoke a suspension order to be exercised subject to and in accordance with any specified requirements. (7) A reference in this section to a community corrections officer is, in relation to an offender who is subject to supervision or management by a juvenile justice officer, taken to be a reference to a juvenile justice officer. (8) If a supervision condition is suspended by a juvenile justice officer and the offender has reached the age of 18 years, a community corrections officer may revoke the suspension order.
7. The essential submission that was put by the defendant, which I accept, was that, given the defendant is subject to the condition relating to supervision, there were a range of subject matters that could - and in all probability would - be the subject of directions by the community corrections officer that went to minimise any risk within the terms of s 5B(d) of the Act. I address this broad submission later (see [149]-[155], below), but given the defendant will be subject to supervision, as the plaintiff ultimately accepted, there is no reason to conclude that the defendant would not be referred to CSNSW Psychology (or directed to undergo comparable treatment) by the defendant's community corrections officer, as Ms Sapula suggested, and the inference that I draw, in line with what the plaintiff accepted, is that he would be so referred.

The likelihood that the offender will comply with the obligations of an ESO (s 9(3)(e2))

1. Section 9(3)(e2) requires the Court to consider "the likelihood that the offender will comply with the obligations of an ESO".
2. The plaintiff submitted that, within the defendant's history of offending, there was a demonstrated pattern of reoffending whilst subject to conditional release for existing offences, with the ultimate submission being that it was likely that the defendant would comply with the obligations "of an ESO for an initial period, but also that he will not comply with at least some obligations when faced with emotional distress or when he does not wish to disclose certain information" (plaintiff submissions at [113]-[117]). The plaintiff did not make any further submission about what - ultimate - finding it sought in connection with this issue, or following on from the intermediate findings sought.

The level of the offender's compliance with any obligation to which they have been subject while on parole or an earlier ESO: s 9(3)(f)

1. Section 9(3)(f) requires the Court to have regard to the level of the offender's compliance with any obligation to which they have been subject while on parole or an earlier ESO.
2. As the defendant has not been subject to an earlier ESO, this consideration only concerns when the defendant was paroled.
3. In relation to this consideration, the plaintiff's submissions noted that the defendant had been the subject of parole on three occasions: in 2013; in September 2020-December 2021; and since November 2022.

The level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004: s 9(3)(g)

1. This legislation was not raised as being relevant to the present application.

The offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history: s 9(3)(h)

1. I have addressed the defendant's offending history earlier in these reasons: see [38]-[51], above.
2. The plaintiff submitted (plaintiff submissions at [124]), and I accept, that the defendant's criminal history has been broadly summarised by Ms Sapula, in her report dated 30 August 2022, in the following terms (report p 3): [The defendant] has a long history of violence perpetrated against a previous intimate partner, and an incident of serious harm to a male victim. [The defendant] has a history of threatening to cause serious harm to others in the use of knives to do so. The most recent convictions appear to be an escalation in the seriousness of his offending, where he had actually used a knife to stab a male victim and, while on bail for that offence, he perpetrated sexual and physical violence against his then partner. [The defendant] has a significant history of substance misuse that is closely linked to his offending.

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

1. I have earlier set out the circumstances of the index offence. The defendant was sentenced by Flannery DCJ for the index offence on 16 March 2016. The defendant had, on 8 March 2016, pleaded guilty to that offence - which Flannery DCJ described as "a late one and only entitles the [defendant] to a discount of 10% on the sentence I would otherwise impose" (sentencing judgment pp 1-2).
2. The following further matters, from the sentencing judgment, should be noted: 1. Although the "actual sexual assault component of the count … of this appalling episode was relatively short lived, it was accompanied by the actual bodily harm set out in … the agreed facts, which is [a] relevant circumstance of aggravation and I have no doubt caused the victim significant humiliation": sentencing judgment p 6. 2. The "objective seriousness of the offence … falls below the midrange for s 61J offences, but not appreciably so": sentencing judgment p 6. 3. The "offences are aggravated as the offender was on bail when he committed them and as they were committed in the victim's own home": sentencing judgment p 6. 4. The "assault occasioning actual bodily offence (sic) is also aggravated because it was committed in the presence of children": sentencing judgment p 6. 5. Flannery DCJ accepted that the defendant was "remorseful as he handed himself in and expressed remorse at that time and before me": sentencing judgment p 11. 6. Flannery DCJ found that the defendant's difficulty controlling his anger "does give rise to a concern about his future dangerousness. However, I accept that his remorse and insight into his behaviour and what I trust will be intensive and structured assistance … will go some way to alleviating that concern": sentencing judgment p 12.

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

1. Section 9(3)(i) requires the Court to have regard to "any other information that is available as to the likelihood that the offender will commit a further serious offence".
2. The plaintiff drew attention to three matters.
3. The first was that the defendant disclosed "ongoing use of BUPE" in custody in September 2019, and had tested positive to unprescribed buprenorphine in February 2020. In light of my finding about the defendant's current position in respect of drug taking, I regard this as being historically, rather than presently, significant.
4. The second was the defendant's involvement, in September 2022, in a one-on-one fight with another inmate whilst he was in custody. The plaintiff submitted that these matters were "conduct of concern", but did not go on to make a submission about what particular finding should be made in connection with this material.
5. The third was the fact that the defendant, on 24 December 2021, was arrested for domestic violence charges. It appears, from the police facts sheet, that the defendant was charged with 2 offences: intentionally choke etc a person without consent, contrary to s 37(1)(a) of the Crimes Act (sequence 1); and stalk/intimidate with intent to cause fear of physical or mental harm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act (sequence 2). The defendant, and the complainant, had been "in an on/off relationship for approximately the last 12 months". It appears, from the Magistrate's reasons for judgment dated 25 November 2022, that the first sequence was withdrawn, and the second sequence was dismissed following a hearing. A final apprehended domestic violence order was made at the conclusion of the hearing for a period of 2 years.
6. The plaintiff submitted that acts of an offender which have been charged, but have not resulted in a conviction "might be relevant when the Court considers the matters in s 9(3)(a) … and s 9(3)(i)", citing the decision in Attorney General for the State of New South Wales v Steadman [2016] NSWSC 174 at [24] and [127] (Adamson J) in support. I do not accept that submission, for the following reasons. First, whilst I do not doubt that, in a given case, this is so, it does not follow that, in this case the Court can simply brush aside that the charge against the defendant was dismissed. Secondly, the plaintiff's submission did not go on to identify the specific finding that was sought. The plaintiff drew attention to the fact that the Magistrate's reasons noted that there was a "heated argument", however that does not, in my view, advance the matter at all - particularly in light of the specific findings made by the Magistrate. Nor does the fact that there was an unsigned witness statement from the alleged victim, and a transcript of the body worn video, in evidence - again, particularly in light of the specific findings made by the Magistrate (discussed next). Thirdly, no attempt was made to identify the key factual findings, in the Magistrate's reasons, that led to the dismissal of the proceedings. Two impress as directly relevant, and stand against acceptance of the plaintiff's submission, in my view (Magistrate's reasons at pp 7-8): So I do not consider in the circumstances where we do not know what is happening, we cannot draw an inference that the behaviour by the accused person would itself cause a reasonable apprehension of injury to the complainant, violence to her or damage to any property, given the absence of that information and footage of what in fact was occurring. Secondly, in relation to the question of harassment, I do not consider the harassment rises to the criminal sense of the use of that word … So I do not consider that it is harassment and I do not consider, in the absence of any further insufficient evidence, that the conduct would cause a reasonable apprehension of injury, violence or damage … SO ON THAT BASIS, THE CHARGES DISMISSED.
7. There is "other information" that is relevant to an assessment of risk: the "protective factor" of having family and culture. There was reference in the evidence to concerns about the defendant's relationship with his family, and a possible falling out with some members of his family. The evidence on these events was in fairly general terms, and I am not prepared to make a finding based upon it for that reason.
8. There was, however, other evidence that I consider more relevant. It was from the defendant's aunt, Pauline Ferkula. She swore an affidavit dated 2 May 2023, and that affidavit was read without objection.
9. Ms Ferkula is a Senior Manager, Aboriginal Education and Engagement, with TAFE NSW. Her evidence was that she has a close connection with the defendant, and that she will support the defendant "and help him in the community to find his feet again". I accept this evidence. The fact that the defendant has a close family member who is prepared to assist and guide the defendant (and is capable of doing so), I consider to be of some importance.

No ESO should be made

1. I have already found that the matters in ss 5B(a)-(c) of the Act are satisfied: see [20]-[28], above.
2. Having regard to the matters under s 9(3) referred to above (including the specific findings that I have made), as well as the safety of the community (s 9(2)), I am not satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision. My reasons for that conclusion are as follows.

Past offending

1. The plaintiff relied upon the defendant's past offending (as to which see [38]-[51], above) - submitting that it demonstrated the existence, and unacceptability of, the relevant risk. I am not prepared to infer, and find, this to be so. Although the past offending is obviously both relevant and material to the ultimate issue - insofar as it provides a degree of illumination upon possible future offending (including its likelihood) - there are limits to such analysis in this case, including the following.
2. First, putting to one side the index offence, none of the defendant's previous offending constituted a "serious offence" for the purposes of s 4(1) of the Act. Thus, whilst in a given case repeated significant offending may well provide strong evidence that such conduct was likely to continue into the future, the offending in this case is not, in and of itself, of a kind that satisfies me that an inference to that effect should be drawn. Secondly, it is, in my view, important to note, in connection with all offending, that Dr Dewson expressed the opinion, which I accept, that "there is no evidence of chronic or diverse sexual violence, nor is there any indication of escalating sexual violence" (report, par 96). Dr Smith expressed a broadly similar opinion (which I also accept) - that is, that there was no subsequent escalation of sexual violence (report, p 44). Further, neither expert suggested that the applicant had any difficulties with attitudes in connection with sexual violence which, if present, would be relevant to the defendant's risk profile and the risk of sexual offending. Thus, no pattern emerges from any historical offending that is an objective indicator of escalating sexual violence, and its likelihood of repetition, nor are there underlying reasons that might point that way. Thirdly, in connection with offending of a non-sexual kind, as I have earlier noted, aside from the index offence, none of the prior offending was a "serious violence offence" and, thus, not a "serious offence". Further, neither expert suggested that the applicant had any difficulties with attitudes in connection with violence (see also [133]-[134], below). Again, based upon this fact alone, there is no reason to infer that any risk of future offending would be of a qualitatively different kind.

Actuarial risk assessments

1. The defendant has been assessed with reference to a range of actuarial and risk assessment tools in order to determine the likelihood of the defendant committing a further serious offence (ss 9(3)(c) and (d)). The results from those assessments varied, and in my view they provide no reliable predictive accuracy of the defendant's risk profile. In short, they are of extremely limited assistance in determining the existence of whether there exists an unacceptable risk in the sense required by s 5B(d).
2. The limitation in those actuarial and risk assessment tools can be illustrated by reference to those utilised by Dr Dewson in her assessment of the defendant. Dr Dewson assessed the defendant using a range of actuarial and risk assessment tools (see [62(2)], above) and, drawing those assessment results together, Dr Dewson expressed the opinion that overall, the defendant "presents a high risk of general offending, high risk of partner violence, moderate risk of general violence and average risk of sexual violence" (par 102).
3. In relation to this opinion, a number of matters should be noted. First, both Dr Dewson and Dr Smith emphasised in their reports (and oral evidence) the limitations in statistical and actuarial assessments designed to predict the risk of "reoffending". Put simply, whilst those assessments were of some assistance in evaluating the risk posed, they provide no indication as to whether the defendant will reoffend or not, much less do they point to the nature of any reoffending. Secondly, it may be accepted that, in a given case, if all risk assessments were to point uniformly one way and adopt similar or identical risk profiles, they may assist in the ultimate determination of whether there exists an unacceptable risk (or, separately, the level of that risk). However, that is not this case: the assessments varied. Thirdly, none of the material that underpinned the assessments was in evidence, nor were the key concepts the subject of evidence or explanation. For example, to the extent that the defendant's profile according to SARA was assessed as being a "high risk of committing a spousal assault in the future", how that actuarial tool defines the terms "high risk" and "assault" is unknown. Fourthly, some of the actuarial assessments involve the assessment of a risk profile based simply upon statistics of persons being "charged" with an offence, which is the case for STATIC-99R and STATIC 2002-R (pars 85 and 91). Fifthly, those actuarial tools do not consider whether the risks of reoffending constitute a serious offence, as defined under the Act, nor can they justify a case specific conclusion that the defendant is likely to commit an offence of that kind.

The expert evidence

1. The plaintiff submitted that the Court appointed experts, and Ms Sapula, in effect support the making of the order because each of them, it was argued, "assess the defendant as posing a risk of committing a further serious offence as defined by the Act" (plaintiff's submissions at 133). In order to evaluate this submission - and whether this finding should be made - it is necessary to carefully consider the opinions expressed by the Court appointed experts, and Ms Sapula, directed to the defendant's risk profile. There are two particular issues where close analysis of their evidence is necessary: (a) in relation to their assessment of the level of risk; and (b) in relation to their assessment of whether any risk is of committing "another serious offence".
2. The plaintiff's overarching submission was that there was an unacceptable risk of the defendant committing a "serious offence" (plaintiff's submissions at [137]). Earlier, the plaintiff had submitted, in connection with the "serious offence", that "both the Court appointed experts and the RAR author have recently assessed the defendant as posing a risk of committing a further serious offence as defined by the Act", with the likely risk scenarios identified as extending to "the potential for both serious sexual offences (within an intimate partner relationship) and serious violent offences (including but not limited to intimate partner relationships)" (plaintiff's submissions at [133(ii)]).
3. Each of the Court appointed experts employed, as part of their case formulation, structured professional judgment tools in order to assist in the formulation of patterns of behaviour, and development of hypothetical risk scenarios.
4. The plaintiff accepted that the risk formulation by Dr Dewson was contained in pars 97 and 102 of her report. There Dr Dewson developed hypothetical risk scenarios "to highlight the nature, severity, imminence and likelihood of future offending". At par 97 of her report, Dr Dewson expressed the opinion that "the most likely scenario involving [the defendant] using sexual violence (should this occur) would occur in the context of a domestic relationship" and that "it is likely to be accompanied by non-sexual violence, which could be associated with serious harm to the victim". Later, in par 102, Dr Dewson expressed the matter this way: "It is assessed that his most likely risk scenario would involve the use of non-sexual violence, in the context of intoxication, towards an intimate partner or acquaintance in the community. Should this escalate to involve sexual violence, this is likely to occur in the context of a romantic relationship…".
5. Dr Dewson's ultimate opinion was framed in these terms: although it was hopeful that the defendant remained offence free, "given his offending history, any sexual violence or non-sexual violence in the future may meet the threshold of a 'serious' offence" as defined by the Act (par 102).
6. The essential issues sought to be addressed by Dr Dewson are the existence - and magnitude - of the risk of the defendant committing an offence, as well as the type of conduct that would occur if the risk materialised. As to the former - what Dr Dewson described as the "imminence and likelihood of future offending" - Dr Dewson's opinion was expressed in terms of "most likely scenario", "should this occur" and "likely to be accompanied by non-sexual violence".
7. Although it is undoubtedly useful to formulate a likely risk scenario, the report does not, in terms, seek to quantify, or explain, the level of the risk underpinning the hypothetical risk scenario. During submissions, the plaintiff was unable to point to any evidence that identified the nature of the risk (just described) nor any evidence that explained the terms used in the hypothetical risk scenario. In this respect, it should be noted that although called to give evidence, no questions were asked of Dr Dewson about any of these issues.
8. The plaintiff sought to rely upon the fact that the opinion given by Dr Dewson was in the context of a letter of instruction that specifically asked the Court appointed experts to address issues, including specific questions directed to the level of risk, such that - in effect - it should be inferred that Dr Dewson was expressing her opinions in conformity with the Act. I do not accept that submission. Although it may be accepted that the letter of instruction appropriately directed the Court appointed experts to the critical requirements stipulated by s 5B(d) of the Act - including, by question 12, specifically asking the experts whether the defendant posed a risk of committing a further serious offence (as defined in the Act), as well as a specific request to "identify and explain the level of risk" - the manner in which the expert addresses the issues is a matter for their judgment. The letter, however, is not, in connection with the present issue, a substitute for a statement of reasoning identifying the basis for the opinion: s 79(1) of the Evidence Act 1995 (NSW); Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [128]-[130].
9. Dr Smith's ultimate opinion was cautious. Dr Smith formulated the case, and the defendant's risk, as follows (report pp 59-60): Given all this, I will say that I do think there is a risk of serious offending. There is a concerning brittleness to [the defendant's] presentation. The concerns I have are, I hope, clear by this stage - there is a lack of insight/ reflective capacity/ self-awareness, and the issues with substances. I think it is reasonable to say that there is a risk these factors could combine towards the commission of a serious offence either violent or sexual. However I should be honest with the court and say that this is something of a "line ball" call …
10. As with Dr Dewson, there was no express identification of the level of risk identified. Dr Smith also was not asked any questions about this issue when he gave evidence. The plaintiff also called in aid the letter of instruction to Dr Smith as giving context to the level of risk. For the reasons expressed in [122], above (where a similar submission was put in relation to Dr Dewson's evidence), I do not accept this submission.
11. Thus, the expert evidence acknowledged there was a risk (which I accept there is), but the evidence did not identify - at least not in a form that I am prepared to accept and act upon - the level of that risk. A number of matters should be noted about the absence of this evidence. First, although evidence of this kind would be directed to an ultimate issue, it is not inadmissible by reason of that fact (s 80 of the Evidence Act). Secondly, irrespective of whether there is (or is not) expert (opinion) evidence directed to this issue, ultimately it remains a matter for the Court whether or not the statutory criteria is satisfied. Thirdly, in making that assessment, 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 there is an unacceptable risk …": s 5D.
12. In my view there are similar limitations in the way in which the evidence sought to establish that the materialisation of any risk would be the commission of a further serious offence. In relation to Dr Dewson's evidence (as I recently noted), she expressed her ultimate opinion as: although it was hopeful that the defendant remained offence free, "given his offending history, any sexual violence or non-sexual violence in the future may meet the threshold of a 'serious' offence" as defined by the Act (underlining added) In addition to the limitation expressed by the use of the word "may", there is a measure of ambiguity in the conduct described: it is either "non-sexual violence" or "sexual violence" without identifying or defining what this conduct encompasses. When read with the limitation "may", the opinion seems to rise no higher than if the risk of offending materialises, then it might or might not be a serious offence.
13. Dr Smith's opinion (see [123], above) was to the effect that the risk factors "could combine towards the commission of a serious offence either violent or sexual". The plaintiff's ultimate submission was that Dr Smith expressed the opinion that the future offending that would arise out of the risk scenario and would meet the threshold of a serious offence for the purposes of the Act. In furtherance of this submission, the plaintiff emphasised that it was evident from the report from Dr Smith that he was cognisant of the distinction between offending generally, and a "serious offence" under the Act; that he directed his attention to the question of whether the defendant was likely to engage in a specific act that qualify as a "serious offence"; and then he ultimately expressed the conclusion that I have set out.
14. It seems, from earlier parts of Dr Smith's report, that he has identified the essential risk to being one "of a similar vein to what has occurred before". He expressed this risk scenario in these terms (report pp 53-54): He is in a relationship, the historical experiences of witnessing domestic violence and issues around attachment would be activated at times of stress. He would use drugs and/ or alcohol, and his inhibition to not enact violence would be eroded. He would not be working, he would be detached from family, he would be stressed about money. These factors would interact such that he would assault a person he was in a relationship with.
15. However, as I have earlier set out, Dr Smith ultimately considered it a "'line ball' call".
16. The plaintiff also relied upon the opinions expressed by Ms Sapula, submitting that those opinions also support a finding that the defendant posed "a risk of committing a further serious offence as defined by the Act". I have previously referred to, and set out, Ms Sapula's evidence: see [63]-[67], above.
17. As there noted, Ms Sapula expressed the opinion in her first report that it was "possible that [the defendant] could commit another offence and that its nature could approach the threshold of a 'serious sexual offence' … [the defendant's] risk of committing a serious violent offence is significant", particularly given the use or threaten the use of weapons. However, importantly, in her supplementary risk assessment report dated 13 February 2023, Ms Sapula, qualified the opinions that she had expressed in two important respects: first, she confirmed that her use of "the term serious in reference to violent offences is used in its ordinary use and not as defined by the" Act (emphasis in original); secondly, she expressed the opinion that it was "possible that [the defendant] could commit another 'serious sexual offence'", as the term is used under the Act. Thus, although I accept at a very broad and general level, the opinion of Ms Sapula supports the finding sought by the plaintiff, when closely examined I consider the support is limited to the "possible" commission of an offence that "could" approach a serious offence.
18. I am, of course, mindful that something with a low risk of occurring may well be an unacceptable one when regard is had to the consequence of the risk materialising. But it also needs to be remembered that the risk is not of generalised offending: the evaluative task involves the Court being satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious offence if not kept under supervision: s 5B(d). Ultimately, however, I do not accept or consider that the expert evidence supports the factual findings in the express terms that the plaintiff has sought in the two key areas that I have addressed. Rather, in my view, they provide appropriately measured assessments of the defendant's risk profile, and the type of offending that might occur if the risk materialised.

The absence of mental health or attitudinal issues that might increase the risk

1. When considering the defendant's risk profile, it is also important, in my view, to note that the defendant has not been diagnosed as suffering from any significant psychological or psychiatric condition that may render the defendant susceptible to poor decision-making (or to "violence" - of either kind) related to symptoms of such condition, and thus to an increase in the likelihood of further offending.
2. Further, neither expert suggested that the defendant had any particularly antisocial attitudes, or, importantly, concerning attitudes in relation to sexual violence. Nor, I add, as Dr Smith noted, were there ingrained antisocial or violent attitudes.

The relevance of the defendant's historical drug use

1. The plaintiff submitted that the defendant had a "significant history of substance abuse", and that that was an ongoing and present concern expressed by Dr Smith and Dr Dewson and, thus, was relevant to the defendant's risk profile. In this respect the plaintiff drew attention to the fact that there was a reference in the defendant's case notes dated 28 March 2023 that he had conceded to having recently used cannabis, and that the defendant considered that his use of that drug did not require any intervention.
2. Although I think it is clear that, historically, the defendant has been a drug user, the evidence about his use of drugs more recently is that he has not been using them.
3. Dr Smith diagnosed the defendant as suffering from substance dependence but, importantly, expressed the opinion that that condition was "currently in remission" (report, p 54). In connection with the defendant's substance use more generally, Dr Smith noted that the applicant had used substances "problematically in the past, to the point of addiction" and that this would be a "long-term issue" (report, p 55). Dr Smith reported that, recently, the defendant had "largely, it seems, been clear of substance use. His conduct (and mental state) appears to be improved due to this" (report, p 59). Dr Dewson also noted the defendant's historical substance and alcohol use and, having done so, also noted that the defendant was "motivated to maintain abstinence, and whilst his recent period of sobriety is a positive prognostic indicator, he may require external support to assist him with this goal" (par 66).
4. I accept, therefore, and find, that although the defendant has historically had problems with drugs, and abused them - and when he has done so that had tended to predispose him towards antisocial behaviour - I am not prepared to find, given the evidence, that he is currently using drugs. The case note to which the plaintiff drew attention does not dictate a different finding: that is because, as ultimately was accepted by both parties, there is no clear evidence about precisely when the defendant used cannabis - other than that it was whilst he was living in Crescent Head and before he moved to Kempsey.
5. In my view what is significant in the present context is the fact that the defendant has sought out, and received treatment from, Mr Allan Anderson - a forensic psychologist who has practised for more than 40 years. His experience has extended to him being a senior psychologist working for Queensland Health and NSW Health specialising in drug/alcohol services and mental health services (report, p 22).
6. Mr Anderson prepared a report, dated 26 April 2023, that, amongst other matters, detailed the treatment that Mr Anderson had provided the defendant since he became a patient of his in April 2021.
7. The defendant has consulted Mr Anderson on 13 occasions, most of which have been in 2023. There has been regular weekly/fortnightly sessions and, in between appointments, Mr Anderson noted that he had spoken with the defendant "a number of times by phone" (report, p 2). The treatment that the defendant has received has been "counselling in the area of alcohol/drug dependence" sessions revolving around self-esteem and general confidence, as well as counselling the defendant "on attitudinal change to authority".
8. Mr Anderson noted that the defendant had engaged positively with the counselling/therapy process, and considered that the defendant had a favourable prognostic outcome: [The defendant] has made excellent progress in the counselling process. He has developed insight to a substantial degree. [The defendant] has demonstrated to me that he is more than ready to change the course of his life and to rehabilitate and become a productive and emotionally more settled individual.
9. The plaintiff submitted that in connection with the treatment being undertaken by Mr Anderson, it was confined to "general coping and psychological support rather than criminogenic intervention" and, further, relied upon the evidence of Dr Smith, to the effect that there needed to be a "suite of interventions and intensive treatment", that included "anger management and alcohol and drug intervention".
10. I do not accept either submission. It is clear from the report from Mr Anderson that the treatment was more extensive than merely "general coping and psychological support" and it clearly has extended to drug and alcohol counselling, as well as dealing with issues such as attitudinal change to authority. The evidence in connection with the treatment provided by Mr Anderson to the defendant was not challenged, by cross-examination or otherwise, and I accept it. To the extent that it was submitted that, in some generalised way, it fell short of what Dr Smith advocated then I do not accept that this is so. It is clear, based upon Mr Anderson's CV, that he is a highly experienced psychologist who has specifically worked in the area of drug and alcohol services and mental health services for both Queensland and NSW Health. Furthermore, it should be noted that Dr Smith was not briefed with the report from Mr Anderson (nor asked to assume facts consistent with it), nor was he asked any questions about the content of the report, or the treatment more generally, when he gave evidence.
11. To the extent that the submission drew upon what was said by Dr Dewson in her report (par 67), it should simply be noted that the description of the treatment by Dr Dewson was provided by the defendant and not based upon her assessment of the treatment as explained by Mr Anderson in his report dated 26 April 2023: like Dr Smith, Dr Dewson was not briefed with this report (nor asked to assume facts consistent with it), nor was she asked any questions about the content of the report, or the treatment more generally, when she gave evidence.
12. The plaintiff also submitted that, given the link between the defendant's offending history and his substance misuse, it was unlikely that, absent supervision, the defendant would engage in drug and alcohol counselling (plaintiff submissions at 133). I do not accept this submission particularly once it is recognised that the defendant has taken steps to engage in this treatment with Mr Anderson absent supervision.

Treatment

1. The plaintiff argued that the defendant had "outstanding treatment needs" relying upon what Dr Smith had said. To the extent that the submission was directed to "substance abuse", it has been dealt with above; to the extent that it deals with what the plaintiff argued was the defendant's "insight", then it is addressed in what follows.
2. I accept, as the plaintiff submitted, that the defendant's denials of some of his past actions is relevant to the risk. They are clearly a cause for concern. They are referred to in the reports from Dr Smith and Dr Dewson. I accept they remain. Each expert considered that the defendant required ongoing psychotherapy to work upon his insight and self-awareness. To a degree, however, that appears to form part of the treatment that has been provided by Mr Anderson. And, as I have earlier noted, and as I next discuss, it is likely that further treatment in this respect will be needed, and the subject of direction to the defendant by his community corrections officer.

The terms of the Community Corrections Order

1. I have previously referred to the terms of the CCO that was ordered on 22 May 2023 and, in particular, the supervision condition that was imposed as part of that order. The supervision condition is undoubtedly relevant to whether there is an unacceptable risk, and the plaintiff did not submit otherwise. The plaintiff argued, however, that the imposition of this supervision condition was essentially limited because the terms of it were discretionary, and it was simply not known whether, and if so to what degree, reasonable directions might be given by a community corrections officer in terms of cll 188(1)(c)-(f) inclusive.
2. The plaintiff also argued that because a community corrections officer could waive or vary the reporting obligation under cl 188(1)(a) and, by reason of s 107E of the Crimes (Administration of Sentences) Act 1999, it was permissible for a community corrections officer to suspend the terms of a supervision condition, such that the existence of the supervision condition itself should be discounted when considering whether it served to minimise any risk.
3. I do not accept either submission. In relation to dispensing with the reporting obligation (cl 188(2)), that is only directed to the initial contact made with the community corrections officer by an offender following the supervision condition being imposed; it provides no basis for a community corrections officer to dispense more broadly with the supervision order - that is the concern of s 107E. In relation to the prospect that a community corrections officer might exercise the power in s 107E to dispense "for a period or periods or indefinitely" with the application of a supervision condition, I am not prepared to draw an inference that a community corrections officer would be prepared to suspend the supervision condition, without proper and just cause. That is all the more so when regard is had to cl 189I(1) - and the mandatory considerations prescribed by that clause - and cl 189I(2) (which provides that a community corrections officer "must not make a suspension order unless the suspension is approved by an officer more senior than the community corrections officer").
4. Nor do I accept the submission that because the directions that are to be given by a community corrections officer under cll 188(1)(c)-(f) are unknown, at this point, and, separately, are within the discretion of the community corrections officer, the Court should discount entirely the supervision order when considering and assessing the risk within s 5B(d).
5. The plaintiff accepted that CSNSW was the entity that had the responsibility for supervision - whether it be under a CCO or under an ESO - albeit that they were "administered" separately. In those circumstances, I am unable to accept, as the defendant essentially argued, that the defendant would not be managed responsibly and appropriately under the CCO and that "reasonable directions" would be given by a community corrections officer to the defendant relating to a range of matters which would serve enhance the rehabilitation of the defendant and minimise the risk of him reoffending. Thus I consider the terms of the CCO and the likelihood that reasonable directions would be given by a community corrections officer across matters including treatment and interventions (cl 188(1)(c)(ii)); participating in employment or similar activity (cl 188(1)(c)(iii)); ceasing drug use or ceasing or reducing alcohol use as well as drug and alcohol testing (cll 188(1)(c)(vii)-(ix)); not associating with specified persons or frequenting or visiting specified areas (cll 188(1)(c)(v)-(vi)); and to direct where the defendant is to reside and to permit visits by a community corrections officer (cll 188(1)(c)(i) and (e)) would all be well within the likely range of directions that a community corrections officer would give the defendant. Directions of that kind clearly mitigate, and minimise, the defendant's "risk".
6. The defendant submitted that it would be "absurd" to suggest that CSNSW - being the entity that manages an individual who is subject to either form of order - would not appropriately manage the defendant under the CCO. That is a submission that, as I have indicated, I accept. That is particularly so, given the plaintiff accepted - appropriately in my view - that it would not be appropriate to draw an inference that a community corrections officer would not give directions to the defendant across a range of matters including treatment and interventions (cl 188(1)(c)(ii)) and ceasing drug use or ceasing or reducing alcohol use as well as drug and alcohol testing (cll 188(1)(c)(vii)-(ix)). I infer, and find, that directions of those kind will be given to the defendant.
7. In my view not only are the terms of the CCO important on the question of the risk posed by the defendant, for the reasons that I have given, but so too is its length - 18 months. Put simply, given the finding that I have made about the likely directions that are to be given by a community corrections officer, the defendant is likely to be the subject of ongoing management across those matters the subject of the directions for a period of time that in fact exceeds the minimum period that Dr Smith suggested was reasonable if an ESO was ordered.

Orders

1. Accordingly, I make the following orders: 1. Order the amended summons filed 4 May 2023 be dismissed. 2. Order the plaintiff to pay the defendant's costs of the proceedings in this Court. 3. Pursuant to s. 13(1) of the Crimes (High Risk Offenders) Act 2006, the interim supervision order made by Justice Rothman on 22 February 2023 and renewed by Justice Yehia on 17 March 2023 and 13 April 2023 is revoked.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 May 2023