State of New South Wales v Davison (Preliminary)

[2025] NSWSC 925

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of New South Wales v Davison (Preliminary) [2025] NSWSC 925

Hearing dates:

1 July 2025

Date of orders:

15 August 2025

Decision date:

15 August 2025

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

(1)   The summons is dismissed.

(2)   The plaintiff to pay the defendant’s costs.

Catchwords:

HIGH RISK OFFENDER – application for extended supervision order pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – preliminary hearing – whether there is an unacceptable risk of the defendant committing another serious violence offence – no subsequent serious violence offending in the 11 years since the index offending – consideration of the objects of the Act – primary object being the safety and protection of community – further object being encouraging rehabilitation

Legislation Cited:

Crimes Act 1900 (NSW), ss 33(1), 59(1)

Crimes (High Risk Offenders) Act 2006 (NSW), ss 3(1), 3(2), 5B, 5C, 7, 7(4), 7(5), 9, 10A(b)

Cases Cited:

Lynnv State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57

State of New South Wales v Davison (Final) [2019] NSWSC 1140

State of New South Wales v Holschier(No 2) [2018] NSWSC 1921

State of New South Wales v Sturgeon [2019] NSWSC 559

State of New South Wales v Wilmot (Preliminary) [2019] NSWSC 776

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Kieron Davison (Defendant)

Representation:

Counsel:
K Curry (Plaintiff)
F Graham (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid Commission of NSW (Defendant)

File Number(s):

2024/470537

Publication restriction:

Nil

JUDGMENT

1. By summons filed on 18 December 2024, the plaintiff, the State of New South Wales (“the State”) brings proceedings against the defendant, Kieron Davison, pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”).

2. The State seeks preliminary orders, interim orders and final relief in the nature of an extended supervision order (“ESO”).

3. This is the judgment in respect of the preliminary hearing.

4. The issue I am determining is whether I should make the orders for the appointment of two qualified psychiatrists and/or psychologists to conduct independent examinations of the defendant and provide reports to the Court.

5. As the defendant is in custody, the State does not seek any other orders at this preliminary stage.

6. The defendant disputes that he should be subject to any orders. He also disputes that he should be subject to the conditions which the State seeks to impose, but it is not necessary to determine that at this time.

The legislative scheme

7. The primary object of the Act is protective rather than punitive. It provides 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) of the Act.

8. Section 7 of the Act deals with pre-trial procedures. That includes the appointment of medical experts to examine an offender against whom the orders are sought. The wording in s 7(4) of the Act is identical to the wording in s 10A(b) of the Act.

9. It is in the following terms:

7   Pre-trial procedures

(1)  An application for an extended supervision order must be served on the offender concerned within 2 business days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow.

(2)  The State must disclose to the offender such documents, reports and other information as are relevant to the proceedings on the application (whether or not intended to be tendered in evidence)—

(a)  in the case of anything that is available when the application is made, as soon as practicable after the application is made, and

(b)  in the case of anything that subsequently becomes available, as soon as practicable after it becomes available.

Note—

Section 21A (6) provides that the State must not disclose a victim statement to the offender unless the person who made the statement consents to the disclosure.

(3)  A preliminary hearing into the application is to be conducted by the Supreme Court within 28 days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow.

(4)  If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders—

(a)  appointing—

(i)  2 qualified psychiatrists, or

(ii)  2 registered psychologists, or

(iii)  1 qualified psychiatrist and 1 registered psychologist, or

(iv)  2 qualified psychiatrists and 2 registered psychologists,

to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and

(b)  directing the offender to attend those examinations.

(5)  If, following the preliminary hearing, it is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must dismiss the application.

10. For the purposes of the orders sought, it is thus necessary to be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. If so satisfied, the Court must make the orders set out in ss 7(4)(a) and (b) of the Act. If not so satisfied, the Court must dismiss the application: s 7(5) of the Act.

11. It is not necessary that the Court be satisfied at the preliminary stage that the matters alleged in the supporting documentation will be proved. The Court is only required to be satisfied that, if those matters are proved, an order would be justified, bearing in mind the elevated standard of proof, namely, a high degree of probability: ss 5B and 5C of the Act; State of New South Wales v Wilmot (Preliminary) [2019] NSWSC 776 at [7] (“Wilmot”); State of New South Wales v Sturgeon [2019] NSWSC 559 at [5] (“Sturgeon”).

12. It follows that on the preliminary hearing, the Court is not involved in weighing up the documentation or resolving any conflicts, inconsistencies or uncertainties which appear in the documentation. Nor is it necessary for the Court to predict the ultimate result or to assess the likelihood of the ultimate result: see Sturgeon at [6]; Wilmot at [7].

13. An ESO may be made if the matters set out in ss 5B(a)-(c) of the Act are established and if the Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order: s 5B(d) of the Act.

14. The meaning of “an unacceptable risk” in s 5B(d) and the principles which are to be applied were summarised by Hoeben CJ at CL in State of New South Wales v Holschier(No 2) [2018] NSWSC 1921 at [23]-[24] as follows:

“[23] As to the meaning of the phrase ‘an unacceptable risk’, the case law establishes the following:

(a) What the court must find to be unacceptable is the ‘risk’ of the offender ‘committing a serious [sex] offence if he or she is not kept under supervision’ (see Lynn v State of New South Wales [2016] NSWCA 57; 91 NSWLR 636 at [51] (Beazley P)).

(b) The word ‘unacceptable’ – which means, relevantly, ‘so far from a required standard, norm, expectation etc as not to be allowed’ – is one that ‘requires context in which, or parameters against which, the unacceptable risk can be measured’ (see Lynn at [50]).

(c) While the HRO Act does not specify ‘the precise parameters or standard or norm against which that determination (i.e. the determination whether an offender poses an unacceptable risk) is to be made’, this ‘must be so’ because ‘[a] determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made’ (see Lynn at [51]).

(d) The determination whether an offender poses an unacceptable risk has to be understood in the context of the objects or purposes of the Act; in particular, its purpose in ensuring the safety and protection of the community (see Lynn at [55]).

(e) The right of an offender to his or her personal liberty at the expiry of a sentence of imprisonment is not relevant to the determination whether an offender poses an unacceptable risk (Lynn at [44], [55]-[58], [128], [148]). Nevertheless, as their Honours held, the intrusion on a subject’s liberty and privacy are undoubtedly matters which the Court may take into account in its discretion to make an ESO.

[24] The ‘unacceptable risk’ inquiry is not discretionary, but it does involve an evaluative balancing exercise. It involves consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate: New South Wales v Simcock [2016] NSWSC 1805 at [71].”

15. It is important to bear in mind that the legislation is not intended to be punitive. The defendant has served his sentence and is otherwise entitled to his liberty. The safety of the community is paramount, but the rehabilitation of the defendant is also an important consideration. Further, whether orders should be made must be determined having regard to all of the evidence. Expert evidence is intended to assist the Court but it is neither determinative nor binding in terms of the result.

The essential issue

16. The issue I am dealing with at this stage is whether I am satisfied to the requisite standard that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. That must necessarily depend on whether there is an unacceptable risk of the defendant committing another serious violence offence if not kept under supervision in the community.

17. The exercise is essentially evaluative, having regard to all of the evidence before the Court at this stage and assuming that all of the matters set out in the supporting documentation will be proved.

The evidence

18. The State relied on the following evidence:

1. The affidavits of Lucy Nichols affirmed 17 December 2024, 12 March 2025, 10 April 2025 and 11 June 2025, and the attached exhibits;

2. The affidavit of Jamie Burton sworn 12 March 2025;

3. The affidavit of Jonathan Mystakidis affirmed 12 March 2025; and

4. A statement of agreed facts.

19. The defendant relied on the following affidavits:

1. Tracy Reynolds affirmed 24 June 2025 and 26 June 2025; and

2. Melissa Tresheil Smith affirmed 9 May 2025.

20. In considering whether the matters alleged in the supporting documentation would, if proved, justify the making of an ESO I must have regard to the matters set out in s 9 of the Act and may have regard to any other factors that I consider relevant.

The index offending

21. The defendant is a 32-year-old Aboriginal man. He has an extensive criminal history, stretching back to when he was a juvenile.

22. The index offending occurred over the period of February to April 2014. The defendant had separated from the victim, having previously been in a relationship with her. The victim had moved to temporary accommodation on 8 March 2014.

23. On 11 April 2014, the defendant attended at the victim’s new accommodation. He had been drinking all day. He found her lying on her bed. They had an argument, and he abused her about who she might have been contacting on Facebook and Snapchat.

24. When she refused to answer his questions, he grabbed her by the neck, squeezed her throat and she started to choke. He then pulled the victim towards himself, punched her on the jaw and punched her about three times to the face. He then pushed her back to the bed.

25. He continued to abuse her, at one stage turning on the kettle and suggesting he would burn her with boiling water. He then pulled a knife from his pants and cut her on the thigh. When she did not answer his questions, he poured some boiling water on her chest causing the skin on her chest to peel off.

26. The defendant contacted the victim on a number of occasions thereafter again threatening to bash her.

27. In the end, the victim went to the police. When she went to the police, she also reported an earlier incident involving the offender.

28. On 18 February 2014, they were drinking in a park together when the defendant began to question the victim about her relationship with his cousin. He verbally abused her before pulling out a flick knife and cutting her right thigh, piercing her skin and causing her to bleed. He then picked up a pitchfork and stabbed her in the back of her neck, before stabbing her multiple times in the left thigh.

29. The defendant was subsequently arrested, charged and pleaded guilty. For the offending which occurred at the victim’s home in April 2014, the defendant pleaded guilty to one count of wounding with intent to cause grievous bodily harm contrary to s 33(1) of the Crimes Act 1900 (NSW). The defendant was sentenced to a term of imprisonment of 3 years and 9 months commencing on 10 April 2015 and expiring on 9 January 2019 with a non-parole period of 2 years and 6 months expiring on 9 October 2017.

30. For the offending which occurred in the park in February 2014, the defendant pleaded guilty to one count of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act. He was sentenced to a term of imprisonment of 2 years from 10 October 2014 with a non-parole period of 14 months. The sentencing judge observed that the offences were of a serious nature and that the violence in April 2014 was carried out in a cruel way. His Honour had regard to the defendant’s lifetime of disadvantage and discrimination in assessing the defendant’s subjective case.

31. Plainly, the violent conduct directed at the victim in 2014 was of a serious nature. On both occasions it involved use of a weapon and was accompanied by threats. The conduct in April 2014 involved choking, the use of a knife and the pouring of boiling water onto the victim.

32. On both occasions, that is in February and April 2014, the defendant had been consuming alcohol prior to his violent conduct. Indeed, in April 2014 he had been drinking all day. Of course, this does not justify or in any way assist the defendant, but in the context of the application now being made it is relevant to observe that the offending conduct occurred in the context of alcohol consumption by the defendant. This is a matter of significance raised by the defendant.

The defendant’s current status

33. The defendant remained in prison until 9 October 2017 when he was released on parole. He quickly found himself back in custody having breached the conditions of his parole.

34. On 12 December 2018, Fullerton J imposed an interim supervision order (“ISO”) commencing 9 January 2019.

35. Her Honour imposed an ESO for a period of two years commencing 18 June 2019 and expiring on 18 June 2021.

36. While subject to the ISO, he breached the conditions by engaging in drug use on three occasions. The ISO was suspended on several occasions whilst the defendant was in custody for these breaches.

37. After the imposition of the ESO on 18 June 2019, the ESO was suspended on a number of occasions when he returned to prison because of subsequent offending, mainly being failure to comply with the terms of the ESO in respect of drug offending. The defendant was released on parole on 5 March 2025 following his latest stay in custody for breach of the ESO.

38. The ESO then expired on 24 April 2025. However, the parole order (which is due to expire on 20 August 2025) was subsequently revoked on 30 April 2025 following the defendant absconding from his accommodation on 3 April 2025.

39. At that time, he removed his electronic monitoring bracelet and avoided police detection. A warrant was issued for his arrest. He was located on 12 May 2025 hiding at his partner’s premises.

40. On 10 June 2025, he pleaded guilty to a number of offences relating to the breaches of his ESO. He remains in custody serving an aggregate term of imprisonment of 16 months commencing 13 May 2025, which will expire on 12 September 2026.

41. He has lodged an appeal against sentence.

The existing ESO

42. The original ESO was made on 18 June 2019 and was due to expire on 18 June 2021.

43. Fullerton J was satisfied that an ESO should be imposed, having regard to her satisfaction that the defendant posed an unacceptable risk of committing another serious violence offence if not supervised, particularly acute in regard to the defendant’s partner (see State of New South Wales v Davison (Final) [2019] NSWSC 1140).

44. Her Honour considered extensive evidence put forward in support of the application, including expert medical reports from Dr Marcelo Rodriguez, a clinical psychologist, and Dr Jeremy O’Dea, a forensic psychiatrist, as well as a psychological report of Julie Dombrowski adduced on behalf of the defendant.

45. Her Honour was particularly concerned with the conduct of the defendant after being released on parole and his inability to comply with the conditions of the ISO imposed in December 2018.

46. Her Honour also referred to a risk assessment report dated 14 June 2018 prepared by Mr Ardasinski, supported by Acting Chief Psychologist, Ms Cieplucha.

47. In his report of 10 March 2019 and in oral evidence adduced on the application for the original ESO, Dr Rodriguez placed the defendant in the high risk/needs range.

48. Dr Rodriguez recommended residential and alcohol treatment suggesting that the defendant had limited insight into the seriousness of his substance dependence and has limited internal mechanisms to abstain or restrain from drug use, which Dr Rodriguez considered increased his risk of violence.

49. Dr Rodriguez also considered that the defendant required treatment by a psychiatrist for a serious mood dysregulation (complex, long standing depression and anxiety) as well as specific psychotherapy targeting intimate partner violence and ways to deal with mood dysregulation to avoid perpetrating violence in intimate relationships.

50. Dr O’Dea came to similar views. Dr O’Dea considered that the best predictors of future offending behaviours are past offending behaviours, particularly in the context of ongoing substance abuse and a specific and significant personality disorder. He considered it reasonable that the defendant’s risk of engaging in further serious offending behaviours in the community in the long term would be considered to be significantly high, particularly if he were to resume alcohol or illicit substance use in the community in the long term.

51. Her Honour imposed an ESO for the period of two years with conditions, which included conditions that the defendant not use prohibited drugs and alcohol.

52. Her Honour observed (at [93]):

“The conditions of the ESO that I have determined should be imposed have taken into account Ms Graham’s allied submission that a Court-imposed condition that the defendant not use prohibited drugs might also prove to be counter-productive to achieving the ultimate object in imposing an ESO (both his own personal advancement and the safety and protection of the community the latter of which predominate) given the real risk that the defendant will breach that condition (as he has done repeatedly since December 2018 and previously whilst subject to parole) with the associated risk that he will be re-incarcerated at a time when he should be encouraged to undertake rehabilitation (under supervision). With that in mind, I have imposed, where appropriate, conditions that provide the defendant with an opportunity to proffer a ‘reasonable excuse’ for refusing a direction or failing to comply with a direction and requiring that ‘reasonable directions’ be given.”

53. That is, back in 2019, her Honour was alive to the potential problem of the defendant becoming involved in a cycle of ongoing drug and alcohol use and returning to custody, and the detrimental effect that it may have on the potential for his rehabilitation.

54. Her Honour attempted to impose conditions which would somewhat reduce that risk, but, as is apparent from what has happened to the defendant over the past six years, the conditions imposed by her Honour have not had the desired effect of either encouraging the defendant not to consume drugs (although they had the desired effect in respect of alcohol) nor have they had the desired effect in attempting to ensure that the defendant was not regularly returned to prison as a result of his ongoing consumption of drugs.

53. Her Honour was conscious of the need not to set the defendant up to fail, but as the events over the past six years tend to establish, the defendant has failed in terms of non-compliance with the conditions of the ESO on many occasions.

Risk assessment reports

56. Mr Ardasinski (the same person who prepared the risk assessment report for the purposes of the original ESO application) completed an ‘ESO Completion Risk Assessment Report - Supplementary Risk Assessment’ on 14 March 2022. The recommendations in the report were supported by the Acting Chief Psychologist, Risk Management Programs, Richard Parker.

57. In his executive summary, Mr Ardasinski noted that at the time of the imposition of the ESO the defendant’s most likely scenario was forecast to be more domestic violence, since he had entered into a new relationship at the time of the 2018 assessment and was in custody on fresh charges relating to domestic abuse (although the charges were later withdrawn and dismissed).

58. Mr Ardasinski noted that subsequent to the imposition of the ESO, the defendant completed the 20-session EQUIPS-Domestic and Family Violence program in 2020 and engaged in two attempts of residential rehabilitation in the community.

59. He has two children to his current partner and they were residing together. He had an acceptable risk mitigation plan in place to minimise the risk of domestic conflict. He had been in the community for 12 weeks at the date of the report, which was the longest period he had lasted in the community without returning to custody for drug use.

60. Mr Ardasinski considered that the defendant had some insight into his drug use and the defendant maintained for some time that he had an undiagnosed disorder, Attention Deficit Hyperactivity Disorder (ADHD), as well as other mental health disorders which impacted on his choices to return to substance abuse.

61. Mr Ardasinski reported on the risk assessment, risk factors and progress. He considered that, based on his own assessment back in 2018, the defendant’s risk of being convicted of further violent offences was within the moderate risk range, but again only just, as it could have been considered low. He said there were only four risk factors which were assessed as being significant at the time of the initial report:

1. He noted that the defendant acknowledged the significance of substance misuse in his risk management and had been making genuine attempts to engage in residential rehabilitation programs.

2. Despite the fact that the offender has used methamphetamine on numerous occasions since the commencement of his ESO, there had been no evidence of further resultant violence. He said there were no recent indications or concerns from the defendant’s fiancée and she made several statements that she does not fear the defendant would assault her.

3. Ms Ardasinski observed that the defendant had not reconnected with criminal peers outside of those who have sold him illicit substances during the course of his ESO.

4. Ms Ardasinski observed that the defendant has the protective factor of family relationships, which he has had the entire time he has been on his ESO and now has two sons and his fiancée to care for. He was determined to maintain the positive change.

62. Mr Ardasinski considered that there was demonstrable progress in the defendant’s risk profile, even though some factors had only started to show change more recently. He considered that the defendant had a potential to succeed if he continued on his current trajectory.

63. He concluded:

“[28] As Mr Davison is now within the final year of his ESO, it would be appropriate to shift his case management approach to allow for an occasional ‘lapse’ into drug use, without necessarily progressing to arrest and reimprisonment from a risk management perspective, since none of Mr Davison’s past breaches for drug use have been accompanied by violence, domestic or otherwise. He will require ongoing intervention for his substance use, in the longer term.

[29] It may be worthwhile having specialist Domestic Violence Police personnel engage with Mr Davison’s fiancée to look at options for her and her sons’ future protection, even in the event that their relationship continues without outward concern. I anticipate that there will be some future challenges ahead for Mr Davison, but with the amount of progress he has made over the course of his ESO, it looks more promising than ever that he can face these challenges without resorting to serious violence.”

64. In the further Risk Assessment Report dated 18 August 2022, Mr Parker, the Acting Chief Psychologist who supported Mr Ardasinski’s report, continued to maintain that there was a high risk for violence against intimate partners and that the defendant’s offending is underpinned by a range of antisocial attitudes, including chronic relapsing substance abuse and access to antisocial associates.

65. He recommended that if another ESO is imposed, the defendant should continue to receive intensive supervision and case management, which would include electronic monitoring and the obligation to provide weekly schedules of movements, unannounced visits by supervising staff, assistance providing suitable accommodation, scrutiny of social contacts, employment, leisure activities and attending programs to address his criminogenic needs.

66. In a subsequent report dated 20 October 2023, Mr Parker observed that the defendant’s behaviour has continued in a similar vein to that contained in the earlier report but there was a concerning change in the relationship between the defendant and his partner.

67. The latest Risk Assessment Report is dated 30 July 2024. This report was completed by Jonathan Mystakidis, a senior psychologist, with the support of Cherice Cieplucha, Chief Psychologist, Risk Management Programs.

68. There was a considerable focus on this report during the hearing.

69. Having regard to the risk assessment tools, the defendant was placed in the above average risk range of being convicted of further violent offences. Reference was made to the Ontario Domestic Assault Risk Assessment (“ODARA”), which is a standardised, actuarial risk assessment tool used to evaluate the risk of domestic violence.

70. The defendant scored 7 on the ODARA. It seems that statistically, 74 per cent of the men in this group committed a new assault against a female partner within an average of five years. However, as noted in the report, having regard to the length of time since the index offending, the defendant already falls outside of that predictive analysis. As the authors note, over a prolonged period, individual circumstances, motivations and behaviours can undergo significant changes which potentially influence the risk of reoffending.

71. The authors viewed the defendant’s current relationship as unstable marked by periods of separation, accusations of infidelity, domestic violence, threatening language, substance abuse and the imposition of ADVOs. However, despite the unhealthy elements in the relationship, the defendant viewed the relationship as his primary source of support and believed that separation exacerbates his mental health issues, substance abuse and noncompliance with supervision. This highlights the challenge of balancing the benefit of their connection with the inherent concerns for her safety.

72. The authors assessed the defendant as being at a high risk of future violent offending, most likely within the context of an intimate relationship. They said it is possible that future violence could include a “serious violence offence” as defined in the Act.

73. The authors also stated that whilst the ESO might have mitigated his risk of serious violence to some extent, it has not prevented him from repeatedly reoffending and incarceration has become a “revolving door”. The current support systems and incarceration have not effectively reduced the frequency of his general or violent reoffending, and he still has outstanding charges.

74. Having said that, they said that should the defendant be suitable for another ESO, he would be subject to intensive supervision, strict monitoring and case management.

The State’s submissions

75. The State submits that I could be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if he is not kept under supervision, having regard to the following matters:

1. the nature and seriousness of the defendant’s past offending involving serious violence. The State points to the concerns raised by the ESO team regarding the volatile nature of the defendant’s relationship and the safety of his partner and his children;

2. the risk assessment undertaken by Mr Mystakidis to which I have already referred and in particular, Mr Mystakidis’ opinion that the defendant is at a high risk of further violent offending, most likely in the context of an intimate partner relationship;

3. the defendant has unresolved trauma and mental health issues, which impact upon the risk;

4. the defendant’s long standing substance abuse problems and Mr Mystakidis’ opinion that the risk of violence will be exacerbated by engaging in substance abuse;

5. his criminal history and pattern of offending behaviour;

6. the defendant’s failure to complete four rehabilitation programs; and

7. the existing attempts by the ESO team to reduce the likelihood of reoffending and the defendant’s lack of compliance with the existing ESO orders.

76. The State submits:

“As a general principle, a good predictor of future risk are the acts done by a person in the past and the extent to which the factors underpinning that offending persist or may re-emerge.

In this case the safety of the community is best served by the making of a further ESO for the four reasons outlined above […]. While it is acknowledged that the defendant has experienced significant challenges in complying with his current ESO, given his previous reactive violent offending, his entrenched pattern of substance abuse and ongoing concerns for the safety of his partner and children, a further period of supervision is required to continue to attempt to address his substance use issues and ongoing risk of serious violence.

Given the matters outlined above, and having regard to the paramount consideration of community safety, there is a real and unacceptable risk of the defendant committing another serious offence if not kept under supervision. The plaintiff submits the Court can be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO.”

The defendant’s submissions

77. The defendant opposes the orders sought and the imposition of any further ISO or ESO.

78. He submits that during the 11 years since the index offending he has spent more than eight years in custody and three years in the community on the highly restrictive conditions of supervision. The State now seeks further orders constraining his liberty. This is in circumstances in which the defendant will be under supervision in the community pursuant to a parole order until 20 August 2025 and under a Community Correction Order (“CCO”) until 21 November 2026.

79. The defendant says that the only aggressive behaviour towards his partner since 2018 has been threats made over the phone when in custody in 2023. Despite this, there is no evidence that the defendant has exhibited any violence or aggressive behaviour towards her although being in the community on four occasions since that time.

80. Further, the defendant says there has been a degree of maturation in his conduct, which has come with an increasing insight and substantial efforts towards addressing the criminogenic risk factors over time.

81. The defendant recognises the influence of antisocial peers and has sought to distance himself from those associates.

82. He has acknowledged the significance of substance misuse in risk management and has made a number of genuine attempts to engage in residential rehabilitation programs, including completing 11 weeks of residential rehabilitation in 2021. He has also engaged in non-residential drug and alcohol treatment programs. He has engaged in domestic violence counselling. He has maintained a willingness to engage in rehabilitative and therapeutic interventions on release despite repeated incarcerations.

83. The defendant acknowledges that the principal barrier to his ability to steer a different course has been his substance use. This has resulted in his repeated returns to custody. Yet, despite this, none of the incidents of drug use since the imposition of the ESO have been accompanied by an outbreak of violence. Indeed, the defendant submits that evidence indicates that his use of methamphetamine is to self-medicate his ADHD.

84. The defendant submits that the imposition of a further ESO would not satisfy the goals of community safety or rehabilitation of the defendant. At best, the existing ESO may have mitigated the risk of serious violence to some extent, but the operation of the ESO has also exacerbated the defendant’s risk factors, including because:

1. He has been separated from his partner and children for breach of the terms of the ESO; and

2. This has caused disruption to his community-based accommodation, service provision, as well as psychological treatment for trauma and drug rehabilitation.

85. In particular, the defendant highlights the reports and opinions of Mr Ardasinski in March 2022 when he called for a more nuanced approach to supervision of the defendant, particularly having regard to his ongoing drug use. As the defendant submits, this has not occurred and he has been repeatedly returned to custody for drug use.

86. The defendant submits that there is a real risk of entrenched institutionalisation and further, that there is an alternative supervision regime in place in any event, administered by Community Corrections by way of parole and then a CCO until November 2026.

Determination

87. The ultimate question is whether I am satisfied to a high degree of probability that the matters alleged in the supporting documentation would, if proved, justify the making of another ESO.

88. As was said in Lynnv State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [50]-[51] per Beazley P, the determination of whether something is unacceptable is an evaluative task and any determination must have regard to the context in which the assessment is to be made.

89. There are only two alternatives at this stage of the proceedings:

1. If I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, I must make orders appointing expert psychiatrists/psychologists to conduct separate examinations and provide the reports and direct the defendant to attend those examinations; but

2. If I am not satisfied that the matters alleged in supporting documentation would, if proved, justify the making of an ESO, I must dismiss the application.

90. There was no cross-examination or oral evidence on the hearing. I am reviewing the documentation and assessing whether having regard to the matters alleged in the documentation, if proved, they would justify the making of an ESO.

91. In making my assessment, the safety and protection of the community is the paramount consideration. I also have regard to another object of the Act, which is to encourage the defendant to undertake rehabilitation: s 3(2) of the Act.

92. The context in which any determination of whether the defendant poses an unacceptable risk in this matter includes many matters and in particular:

1. The nature of the index offending;

2. The length of time since the index offending;

3. The defendant’s criminal history;

4. The defendant's behaviour and conduct since being released on parole in 2017 and the imposition of an ISO and then an ESO in 2019;

5. The extent to which the conditions imposed upon the defendant through the original ESO have served to reduce the risk;

6. The extent to which the defendant’s risk factors may be alleviated or reduced through ongoing supervision by way of a new ESO; and

7. The extent to which the defendant’s ongoing progress, improvement, reduction of risk factors and general rehabilitation would be enhanced or reduced by the imposition of a new ESO.

93. Although I am not at this stage determining what conditions may accompany the imposition of an ESO, it is important to have regard to the fact that the ESO is not imposed in a vacuum. The very effect of an ESO is to impose conditions on an offender with which he must comply.

94. As is apparent from the summons and proposed conditions in this matter, the conditions can often be extensive and often onerous. It is not merely that the State is applying for the imposition of an ESO. The State is applying for a new ESO with extensive conditions. That does not mean that in due course those conditions must be imposed but I must proceed on the basis that at least some of the conditions will be imposed.

95. The conditions proposed by the State at this time include restrictions in movement, schedule of movements, limitations of association, electronic monitoring, being required to live at a specified address, a curfew, not being able to start or change jobs without the approval of the Departmental Supervising Officer (“DSO”), providing financial information as directed by the DSO, prohibition on drugs and alcohol, requiring disclosure of criminal history, being required to follow directions in respect of internet use and many other conditions.

96. As I have said earlier, the existence of the risk, that is, the likelihood of the defendant committing another serious violence offence, does have to be proved to a higher degree than the normal civil standard of proof, although not to the criminal standard of beyond reasonable doubt.

97. The State points to the absence of the commission of any further serious violence offence since the index offending as supporting the positive benefit of the defendant remaining under an ESO, that is, the State points to its success in reducing the risk through supervision.

98. On the other hand, the defendant simply points to the fact that he has not committed another serious violence offence since the index offending despite having ample opportunity to do so having regard to his ongoing relationship with his partner.

99. In this regard, it is of some importance that the conduct relied upon by the State as tending to support the imposition of a further ESO happened in custody. That is, the defendant committed an offence of violence when he was involved in a fight with other inmates. Yet he did not start that fight and becoming involved in a fight in custody is hardly indicative of a likelihood to engage in intimate partner violence. None of the expert medical reports or risk assessment reports suggest that the risk of committing further serious violence offences is in the context of fighting with another man either in custody or not in custody.

100. The risk that is said to give rise to the need for a further ESO is the risk of intimate partner violence. That is, violence against his current partner.

101. Again, the State points to his conduct towards his partner, specifically the offending which occurred between June and August 2023 whilst he was in custody. During that period, he made a number of phone calls to his partner using words, such as “don’t talk shit like that. I’ll get out and I’ll knock ya”, “you're not going nowhere dickhead. Wake up to yourself. I wouldn't let you go on without me. Snap out of it, you're not going nowhere, wake up to yourself.”

102. He was convicted of stalk/intimidate type offences and sentenced to a period of imprisonment of 12 months commencing on 20 October 2023 and expiring on 19 October 2024 with a non-parole period of 6 months expiring on 19 April 2024.

103. That conduct is obviously concerning but, as the defendant submits, it should be viewed in the context of which it occurred, being whilst the defendant was again in prison. Further, the defendant emphasises that the offending was not of a serious violence type.

93. The legislation should not be used for the purposes of reducing the risk of an offender committing “other offences”. The purpose of the Act is to reduce the risk of an offender committing another serious violence or sex offence. An ESO may only be imposed if there is an unacceptable risk of an offender committing another serious violence or sex offence, if not kept under supervision.

94. I accept the defendant’s submissions that the conduct whilst the defendant was in custody should be given little weight in terms of my assessment of whether the defendant poses an unacceptable risk of committing another serious violence offence, specifically as against this partner.

95. In my view, there are a number of factors which point to real progress in reduction of the risk despite the offender’s inability to comply with the conditions of the ESO. They include:

1. Since being incarcerated, he has undertaken a number of programs aimed at reducing the risk of domestic violence;

2. Although his completion rate might be viewed as unsatisfactory, he has attempted drug rehabilitation programs and appears to have almost completed the EQUIPS program;

3. The index offending was associated with the consumption of alcohol. On any reading of the documentation relied on for the purpose of the original ESO, the consumption of alcohol increased the risk. Despite what has plainly been rigorous and extensive supervision of the defendant over the past six years, there is no evidence that he has breached the alcohol abstinence condition;

4. Whilst he has breached the drugs abstinence condition on many occasions, there is no evidence that at any time when he was taking drugs he was violent towards his partner or anyone; and

5. The defendant presents as a person with a significant substance-related problem in the sense that despite orders prohibiting him from using drugs, he continues to do so on a regular basis. He says he self-medicates as part of his treatment for his ADHD. I am not sure that there is any real evidence to support that type of self-medication but the fact remains that other than drug use, the defendant has demonstrated a lengthy period of compliance with supervision orders.

107. Risk assessment tools and expert medical opinions are obviously important and sometimes critical to the outcome of an application such as this. I acknowledge that the assessment tools and medical opinions tend to suggest that there remains at least an above average risk of the defendant committing a further serious violence offence. Yet there are also differing views as to the level of risk. Mr Ardasinski’s views are more optimistic than those of Mr Mystakidis. Back in 2022, Mr Ardasinski supported what may be described as a more nuanced approach to the supervision of the defendant. That has not occurred.

108. Further, the views of the judge who imposed the original ESO are of some significance. Fullerton J was acutely aware of the need not to set the defendant up to fail and hoped that the supervision of the defendant during the ESO would not result in the defendant becoming part of a cycle of regular return to custody for continuing drug and alcohol use. This is precisely what has occurred.

109. Importantly, in this matter, the Court has the benefit of looking at the defendant’s behaviour over a long period since the index offending. As is often said and is said by the experts in this matter, past behaviour is often an indicator of risk factors for the future. Again, in this matter, the nature of the index offending provides some guide as to the risk for the future but, on the occasion of an application for a further ESO, it is also valid to look at the lengthy period since the index offending and the absence of any further serious violence offences in evaluating the risk.

110. The defendant has spent a number of periods in the community with his partner during the period of the ESO. There has been no instance of violence towards her during those periods. Indeed, on my review of the material, he appears to become more stressed and perhaps return to drug use when frustrated and aggravated by conditions which preclude him from spending time with her.

111. It is also of significance that once released from custody, the defendant will already be supervised as part of his parole. That supervision will necessarily include abstinence from drugs and alcohol. Whilst the period of parole will be less than the period of any proposed ESO, the fact remains that when released into the community again, he will be under some supervision.

112. Whilst I accept the State’s submission that the terms of the existing ESO may have served to reduce the risk of the defendant committing a further serious violence offence, those same conditions have also resulted in the defendant being regularly returned to prison for conduct other than violence which must be detrimental to his rehabilitation. It was highlighted that he would again not be able to comply with conditions, such as prohibition on drugs, and he would again become involved in a cycle of return to prison, release, drug use, and again return to prison.

113. In my view that cycle would assist neither in the ongoing rehabilitation of the defendant nor in ensuring community safety.

114. I agree with the defendant that much of his earlier offending as a juvenile must be now viewed as irrelevant.

115. What is important is the index offending. It was serious violence offending and it did demonstrate a potential capacity to be violent towards his partner. However, he has not returned to such violence in the 11 years thereafter despite being in a relationship with his new partner for the past seven years. The evidence tends to suggest that he has achieved a greater maturity which has been reflected in his greater willingness to attend rehabilitation programs and receive treatment. These are all matters he can attend to when released into the community.

116. In the end, I am not satisfied that, assuming that all the matters raised in the documentation are proved, the defendant would pose an unacceptable risk of committing a further serious violence offence if not kept under supervision under the terms of a further ESO.

117. Rather, I am concerned that the imposition of a further ESO would merely detract from his rehabilitation whilst not serving the primary purpose of community safety.

118. In these circumstances, I decline to make the preliminary orders sought in summons.

119. Having regard to s 7(5) of the Act, the summons must be dismissed. I thus order that:

1. The summons is dismissed.

2. The plaintiff to pay the defendant’s costs.

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Amendments

18 August 2025 - Order 2 added and consented by the parties

Decision last updated: 18 August 2025