State of New South Wales v Patten (Preliminary)

[2025] NSWSC 1067

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Patten (Preliminary) [2025] NSWSC 1067

Hearing dates:

5 September 2025

Date of orders:

18 September 2025

Decision date:

18 September 2025

Jurisdiction:

Common Law

Before:

N Adams J

Decision:

(1) Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”):

(a) Two qualified psychiatrists, two registered psychologists or a combination of both are appointed to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and

(b) The defendant is directed to attend those examinations.

(2) Pursuant to s 10A of the Act, the defendant is to be subject to an interim supervision order (“ISO”).

(3) Pursuant to s 10C(1) of the Act, the ISO is to be for a period of 28 days commencing from 20 September 2025.

(4) Pursuant to s 11 of the Act, the defendant is to comply with the conditions set out in the Schedule to these orders for the period of the ISO.

(5) Access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

Catchwords:

HIGH RISK OFFENDERS — Interim Supervision Order — serious violence offence — unacceptable risk of committing a serious offence — risk factor of alcohol consumption — relevance of conditions to risk — application granted

Legislation Cited:

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 4, 5, 5A, 5B, 5D, 5I, 6, 7, 9, 10A, 10C, 11

Crimes Act 1900 (NSW), s 33

Cases Cited:

Attorney General (NSW) v Hayter [2007] NSWSC 983

State of New South Wales v Archer (Preliminary) [2024] NSWSC 1149

State of New South Wales v Burns [2014] NSWSC 1014

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Shane Patten (Defendant)

Representation:

Counsel:
Mr I Fraser (Plaintiff)
Ms B Kennedy (Defendant)

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

File Number(s):

2025/00226124

Publication restriction:

Nil.

JUDGMENT

1. By summons filed on 11 June 2025, the State of New South Wales (“the State”) seeks orders in respect of the defendant, Shane Patten, pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) that he be subject to an extended supervision order (“ESO”) for a period of three years.

2. The defendant is a 50-year-old Indigenous man with an extensive criminal history for violent offences commencing in 1989 when he was 14 years old. When he was 11 years old, he was involved in a motor vehicle accident and sustained a traumatic brain injury which apparently impacted his personality and behaviour. On 20 September 2013, the defendant assaulted his then partner during an argument by striking her in the face with a hammer. The assault left the victim blind in one eye with significant permanent facial injuries. The defendant pleaded guilty to intentionally inflicting grievous bodily harm on her contrary to s 33 of the Crimes Act 1900 (NSW). On 7 November 2014, Garling DCJ sentenced him to a term of imprisonment of 12 years with a non-parole period of 9 years commencing on 21 September 2013. That sentence expires on 20 September 2025.

3. The defendant was released on parole on 18 April 2023, but his parole was revoked after he was charged with further offences on 20 January 2025. He is currently serving his balance of parole and is bail refused in respect of these charges.

4. A preliminary hearing was conducted before me on 5 September 2025. At the hearing, the State sought the following interim relief:

1. An order pursuant to s 7(4) of the Act appointing two qualified psychiatrists, two registered psychologists or a combination of both to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court, and that the defendant be directed to attend those examinations; and

2. An interim order pursuant to ss 10A, 10C(1) and 11 of the Act that the defendant be subject to an interim supervision order (“ISO”) for a period of 28 days commencing from 20 September 2025, and that the defendant comply with the conditions set out in the schedule to the Summons during the duration of the order.

5. The defendant opposed the making of any orders on the basis that the statutory test could not be met, even at this preliminary stage. His alternate position was that if I was satisfied that the statutory test was met, I would not impose conditions which were any more onerous than the parole conditions he was on prior to his recent arrest.

6. For the reasons that follow, I am satisfied that the interim orders sought by the State should be made but I would not impose all of the conditions sought by the State in relation to the ISO.

The legislative scheme

7. I have extracted the following summary of the relevant legislative scheme from my decision in State of New South Wales v Archer (Preliminary) [2024] NSWSC 1149 (“NSW v Archer”).

8. The primary object of the Act, as set out in s 3, is to provide for the extended supervision and continuing detention of high risk offenders to ensure the safety and protection of the community. Another object of the Act is to encourage such offenders to undertake rehabilitation.

9. Section 5B of the Act provides that this Court may make an ESO if:

(a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and

(b) the person is a supervised offender (within the meaning of section 5I), and

(c) an application for the order is made in accordance with section 5I, and

(d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.

10. A “serious offence” is defined in s 4 of the Act as either a “serious sex offence” or “a serious violence offence”. A “serious violence offence” is defined in s 5A(1) of the Act and includes, relevantly, conduct that causes grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, actual bodily harm to another person.

11. Section 5I(1) of the Act provides that an application for an ESO may be made only in respect of a supervised offender, which is defined in s 5I(2)(a)(i) as an offender who, when the application for the order is made, is in custody or under supervision while serving a sentence of imprisonment for a serious offence.

12. Thus, the statutory requirements for making an ESO are, relevantly, that the offender is a serious violent offender as required by ss 5 and 5B of the Act; is a supervised offender (within the meaning of s 5I of the Act); and is still in custody or under supervision at the time the application is made. In addition, the court must 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: s 5B(d).

13. Section 6(1) of the Act provides that the application for an ESO may be made within nine months of the expiry of the defendant’s current custody or supervision.

14. Section 7(3)-(5) of the Act provides for a preliminary hearing of an ESO application and is in these terms:

(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.

15. Section 10A of the Act provides that this Court may make an order for an ISO if it appears to the court:

(a) that the offender’s current custody or supervision will expire before the proceedings are determined, and

(b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order. (Emphasis added.)

16. Thus, the statutory test to be applied at the preliminary hearing in order to make the ISO and order the appointment of court experts is that it must appear to the Court that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. It has been held that the task of the Court at a preliminary hearing such as this is similar to the task in committal proceedings: Attorney General (NSW) v Hayter [2007] NSWSC 983 at [6].

17. The Court’s power to make an ESO is discretionary. Section 9(1) of the Act provides that this Court may determine an application for an ESO by either making an ESO or dismissing the application. Subsections 9(2) and (3) of the Act provide a number of mandatory considerations to which the Court must have regard in determining whether or not to make an ESO as follows:

(2) In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court.

(2A) (Repealed)

(3) In determining whether or not to make an extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant:

(a) (Repealed)

(b) the reports received from the persons appointed under section 7 (4) to conduct examinations of the offender, and the level of the offender’s participation in any such examination,

(c) 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,

(d) 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,

(d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community,

(e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender’s participation in any such programs,

(e1) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time,

(e2) the likelihood that the offender will comply with the obligations of an extended supervision order,

(f) without limiting paragraph (e2), the level of the offender’s compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order,

(g) 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,

(h) 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,

(h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender,

(i) any other information that is available as to the likelihood that the offender will commit a further serious offence.

The supporting documentation

18. At this preliminary stage, the Court is required to take into account all of the supporting documentation and assume it would be proved at a final hearing. The supporting documentation was tendered in accordance with s 6(3) of the Act, which provides that an application such as this must be supported by specified documentation that addresses the matters to which s 9(3) of the Act refers and must include a “report (prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner) that assesses the likelihood of the offender committing a further serious sex offence”.

19. The supporting documentation comprised two affidavits of Catherine Moore, the solicitor with carriage of the matter at the Crown Solicitor’s Office, sworn on 11 June 2025 (with Exhibit “CM-1”), 30 July 2025 and 1 September 2025 (with annexures), a Risk Assessment Report (“RAR”) prepared by Samuel Ardasinski dated 6 March 2025, a Risk Management Report (“RMR”) prepared by Danny Velebit, a Community Corrections Officer, dated 20 March 2025, and a Joint Statement of Agreed Facts dated 1 September 2025. The State also relied on a Statement of Case dated 11 June 2025, a Schedule of Conditions and a Chronology, in addition to its submissions.

20. Exhibit CM-1 to the affidavit of Ms Moore of 11 June 2025 included the defendant’s criminal and custodial history and copies of the RAR and the RMR. With respect to the index offences, it included a letter from the defendant to “Julie”, the transcript of an ERISP with the defendant, the agreed facts on sentence, and the Remarks on Sentence by Garling DCJ on 7 November 2014. With respect to other offences, it included court attendance notices, facts sheets, and sentencing remarks. The exhibit also included documents from Corrective Services NSW, parole material, and Offender Integrated Management System (“OIMS”) case notes.

21. Annexures to Ms Moore’s affidavits of 30 July 2025 and 1 September 2025 included further OIMS case notes, the defendant’s Criminal History Bail Report dated 18 July 2025, and the court attendance notices and facts sheet in relation to the defendant’s further charges in January 2025.

22. Included in the two folders of supporting documentation was a Joint Statement of Agreed Facts and Issues signed by the solicitor for both the State and the defendant dated 1 September 2025, filed pursuant to Practice Note SC CL 12. I have placed particular weight on the agreed facts and the RAR, the contents of which I will address under headings corresponding with the s 9 mandatory considerations. Before addressing those factors, I will briefly set out some background material.

The defendant’s background

23. The defendant was born in Moruya NSW on 1 August 1974. Following his motor vehicle accident in 1986, he left school in Year 9. He has a limited work history. When he is not in custody he is supported by government benefits including the Disability Support Pension. The defendant has had a number of relationships, including three significant ones. He has eight children to five different women, only some of whom he has contact with.

24. The defendant has a lengthy history of substance abuse. On his most recent entry into custody, he admitted that he is a binge drinker and regularly uses cannabis. He commenced habitual alcohol abuse in his early teens and commenced regular cannabis use from around the age of 13. The defendant’s past offending has been related to his use of alcohol, including the index offending.

25. Prior to his recent arrest the defendant was residing in the South Coast area of NSW, predominantly around Narooma. He has family in that area, some of whom have been described in the supporting material as “anti-social”. On the positive side, he is in a relationship with a woman, known as “Mary”, who appears to be a stabilising influence on him. I will return to his current domestic arrangements when I turn to consider the conditions to be attached to the ISO.

The index offence

26. On 20 September 2013, the defendant committed the index offence; namely, one count of causing grievous bodily harm with intent contrary to s 33 of the Crimes Act. That offence carries a maximum penalty of 25 years’ imprisonment.

27. The defendant had been drinking at his home with the victim. At that time the victim had been his domestic partner of approximately two years. From approximately 10:00pm, they were joined by the victim’s cousin who later fell sleep. During the evening, the defendant and the victim began to argue. The victim suggested that the defendant reside elsewhere for a few days to give them both a break. The victim’s cousin woke to the defendant telling him to call an ambulance. The victim’s cousin went outside and found the victim lying face down. The defendant was standing next to the victim, holding a hammer in one hand and a metal bar in the other. The victim had blood pouring from her face, and her eye had been ripped out and was hanging out.

28. In the morning of 21 September 2013, the defendant handed himself into police. In an interview with police, he stated that after the victim had told him to leave, he saw the hammer, grabbed it, and hit her with it once. The defendant stated he had hit her with the “hammer bit” not the “claw bit”. It was accepted by Garling DCJ on sentence that there were at least two blows involved, which was the opinion of an expert.

29. The victim sustained extremely serious and life-threatening injuries. These included the loss of her eye (requiring replacement with a prosthetic eye), facial paralysis and multiple facial fractures. Other long-term injuries included scarring, facial nerve paralysis, cosmetic deformity, drooping muscles and loss of multiple teeth. At the time of sentence, it was considered possible that she would lose vision in her other eye due to “sympathetic ophthalmitis”.

30. On 7 November 2014, following a plea of guilty, Garling DCJ sentenced the defendant to a term of imprisonment of 12 years with a non-parole period of 9 years commencing on 21 September 2013.

31. It is noted that there is an active Apprehended Domestic Violence Order (“ADVO”) naming Mr Patten for the protection of the victim with no end date made pursuant to the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

Section 9(3) factors

The offender’s criminal history and any pattern of offending behaviour disclosed by that history: s 9(3)(h)

32. The defendant had an extensive criminal history prior to the commission of his index offence. He has convictions for serious violence offences, serious sexual offences, dishonesty matters and numerous traffic offences.

33. The summary of the defendant’s criminal history (not including his index offending) is set out below in chronological order as it is recorded in the Agreed Facts:

1. Assault (juvenile): On 18 August 1989, the defendant and an associate approached the victim, who was walking to his car with his nine-year-old brother. The defendant and his associate challenged the victim to a fight. When the victim refused, the defendant punched him in the face. The victim suffered bruising. On 12 October 1989, the defendant was sentenced to 12 months’ probation with good behaviour.

1. Assault (juvenile): On 21 January 1990, the defendant and two associates approached the victim and attempted to start a fight by spitting on him, shoving him and pulling his hair. The defendant then kicked the victim in the face, hit him in the face five times with an open hand, and then kicked him in the face a second time. On 15 November 1990, the defendant was fined.

2. Aggravated sexual assault: On 21 June 1992, the defendant, then aged 17, broke into the house of the victim (an 80-year-old woman) at night. He forced her arms behind her back, dragged her to her bed and engaged in sexual intercourse with her. The defendant was convicted following a trial and maintained his innocence at sentence. On 1 March 1993, the defendant was sentenced to a term of imprisonment of 5 years and 6 months, with a non-parole period of 3 years and 6 months. This offence is a serious sex offence under s 5(1)(a) of the Act.

3. Malicious wounding and assault: On 24 February 1996, the defendant was involved in an argument with the four victims in a car park. The defendant was holding a bottle which he broke and told the victims to “back off”. As the defendant swung the bottle, it connected with three of the four victims. He was charged with three counts of malicious wounding and one count of assault. On 11 June 1999, the defendant was sentenced to 3 years’ imprisonment, with a non-parole period of 18 months.

4. Assault occasioning actual bodily harm: On 17 January 1999, the defendant and the victim (the defendant’s then-partner) were at home and began to argue. The defendant punched the victim four times in the face and threw a highchair at her which hit her in the stomach. On 30 April 1999, the defendant was sentenced to 3 months’ imprisonment.

5. Aggravated indecent assault on victim under the age of 16 years: On 14 January 1999, the defendant and an associate entered a caravan park where the victim, an 8-year-old girl, was staying alone in a small tent next to her parents’ tent. The defendant and associate entered her tent and began to touch her legs and breasts but left when the victim began kicking them. On 30 April 1999, the defendant was sentenced to 12 months’ imprisonment. This is a serious sex offence within the definition in s 5(1)(a) of the Act.

6. Assault occasioning actual bodily harm: On 24 February 1999, the defendant was involved in an altercation with other players at a sports oval after being asked to stop swearing in the presence of children. The defendant left the oval and returned with a length of timber around 1.5 to 2 metres long. The defendant swung the timber “like an axe” and hit the victim on the head. The victim suffered a deep laceration to his forehead which exposed the skull. On 30 April 1999, the defendant was sentenced to 18 months’ imprisonment.

7. Maliciously wound person with intent to inflict grievous bodily harm: On 7 October 2001, the defendant approached the victim who was sitting with a friend at a hotel. As the victim and his friend left the hotel, the defendant approached them offering to fight, but was interrupted by security staff. The victim and his friend went to the fisherman’s wharf, where they were again approached by the defendant asking to fight, but the defendant was once again interrupted. The victim then went to his fishing boat. Later, the defendant appeared at the fishing boat and slashed the victim’s arm and face with a 30-centimetre knife in a “frenzied attack”. The victim sustained permanent damage to his arm. On 12 March 2002, the defendant was sentenced to 4 years and 6 months’ imprisonment, with a non-parole period of 3 years. This offence is a serious violence offence as defined in ss 5A(1)(a) and (2A)(c) of the Act.

8. Assault occasioning actual bodily harm: On 13 September 2002, the defendant was speaking with the victim in the yard at Goulburn Correctional Centre. The victim revealed that he was in gaol for sexually assaulting his daughter. The defendant became enraged and assaulted the victim by punching, kneeing and kicking him. The victim suffered a fractured arm. On 5 March 2003, the defendant was sentenced to 6 months’ imprisonment.

9. Stalk/intimidate with intent to cause fear of physical/mental harm: On 28 December 2006, the victim was at her partner’s house and was woken by a loud bang on the side of the unit. The victim had recently provided a witness statement to police in relation to a matter in which police charged the defendant and a co-accused. The defendant and co-accused hit the front door, causing a hole. They shouted insults at the victim and her partner and told her to watch out. On 11 October 2007, the defendant was fined $500 and sentenced to an 18 months’ bond with supervision.

10. Assault occasioning actual bodily harm, stalk/intimidate intend fear of physical/mental harm: On 25 February 2009, the victim was standing outside Bega Courthouse and noticed a car which he believed belonged to the defendant and his partner. The victim had previously asked the defendant and his partner to be alibi witnesses in his pending criminal trial. The victim tried to shield his face but heard the defendant shout at him from the car. The defendant got out of the car and ran across the road towards the victim, who attempted to re-enter Bega Courthouse. The defendant blocked his path and told the victim he felt like killing him and the only reason he didn’t “smash” him right now was because he didn’t want to go back to gaol. The defendant’s partner was shouting encouragement to “smash” the victim and said he should have killed the victim in gaol. The defendant pushed the victim, causing him to fall onto the concrete and hit his head, losing consciousness. On 27 February 2009, the defendant was sentenced to 8 months’ imprisonment with a non-parole period of 6 months.

11. Driving offences: On 16 September 2024, the defendant was charged with “learner not accompanied by driver/police officer/tester” and “drive with low range PCA – 1^st off”. On 17 October 2024, he was fined $500 for each offence and was disqualified from driving for a period of three months.

12. Apprehended Domestic Violence Order: On 15 August 2024, a final ADVO was made for the protection of the defendant’s partner’s children for a period of two years (expiring in 2026) for sending threatening messages to the person in need of protection.

Pending charges

34. The defendant is charged with several offences arising from an incident on 20 January 2025. These offences include: hinder or resist police officer in the execution of duty; assault police officer in execution of duty cause actual bodily harm; police pursuit (not stop drive recklessly); drive motor vehicle during disqualification period; and special category driver drive with special range PCA.

35. The Police Facts allege that the defendant was driving a vehicle with two passengers, said to be his son and his seven-year-old granddaughter. The police pulled the defendant over for a random breath test. The defendant drove off as police approached the driver’s side door. After a period of pursuit, the defendant pulled over and police removed the defendant from the car. The defendant was allegedly resisting arrest and fell to the ground.

36. It is alleged that the defendant was behaving in an erratic manner and headbutted a police officer on the bridge of his nose. Once the defendant was detained, the officer identified a further injury to his hand. The Police Facts state that the officer suffered a fractured hand and fractured nose and was conveyed to Moruya Hospital for treatment.

37. At Batemans Bay Police Station, the defendant participated in a breath analysis which produced a result of 0.032 grams of alcohol in 210 litres of breath.

38. The pending charges are listed for a committal mention at Batemans Bay Local Court next Monday, 22 September 2022.

39. In an OIMS intake screening note dated 23 January 2025, the defendant claimed he drove the car to take his granddaughter to get snacks because she had been “nagging” him. He stated that he was going to pull over for police but then decided to drive away. He claimed he submitted to arrest by police, putting his arms around his back to be cuffed, but they kept hitting him in the body and head, so he headbutted them.

40. These charges remained unproven at this stage, but it was common ground that the fact of these recent charges is relevant to the State’s application.

Views of the sentencing court at the time the sentence of imprisonment was imposed: s 9(3)(h1)

41. When sentencing the defendant, Garling DCJ found that the offence fell above the midrange of objective seriousness for the type of offence. His Honour did not believe that the defendant could be rehabilitated.

42. His Honour also declined to find that the defendant had exhibited any remorse. This was likely due to letters written by the defendant to “Julie”, his ex-partner, which were before the court. In the letters the defendant refers to the victim of the index offence as the “Cyclops” (she lost an eye due to his assault on her). He also states:

“I’m not crazy, I’m just very violence [sic]. It is something I’ve never wanted to live with but I wasn’t the driver that fell asleep when we had the car accident I just suffer from head injuries cause I was a passenger.

I wish I had of hurt her more I should of chopped her up with the chainsaw or smashed all her teeth out, I mean all of her teeth.

So Marlene is the only one suffering, not you, not me, no Zoe, but Marlene. Her face is fucked up cause I smashed it in. I know, I said to you all the time that I can’t hurt people I love, so that’s why I never hurt you ‘Julie’. Marlene don’t know how to love anyone but her grog and drugs, she treat me like a dog and look what she got. She the one that has to look in the mirror and hate me for it. Sucked in. Mission breed cunt, they wouldn’t know how to respect anyone respect anyone let alone themselves.

Like I said, ‘I don’t hate ya, I don’t hate anyone if I choose to be violence [sic] then that’s no-one elses business but mine. I’m the one that makes my choice. I can live with it. That’s why I choose violence if someone chooses too [sic] shit on me. I’d rather be violence then [sic] have someone bend me over and fuck me up the ass.” (Emphasis added.)

The expert evidence: ss 9(3)(c)

43. On 6 March 2025, Samuel Ardasinski, a Senior Psychologist for High Risk Offenders at Corrective Services NSW, prepared a RAR pursuant to s 6(3)(b) of the Act.

44. Mr Ardasinski identified the defendant’s dynamic risk factors of most concern as follows:

1. Recent problems with insight, instability and the geographical isolation of the area in which the defendant has returned (Narooma), including proximity to antisocial family; and

2. Future problems with professional services and plans, living situation, personal support, treatment and stress or coping.

45. Mr Ardasinski’s opinion is that the “most likely” scenario for future violent offending would involve the defendant either being intoxicated and reacting to a perceived slight or challenge, or stepping in to defend someone. On the positive side, Mr Ardasinski noted the opinion of the defendant’s treating psychologist that the defendant’s situation and functioning is markedly different from the time when he committed the index violent offence, and he has demonstrated the ability to manage tension and conflict with his partner’s adult children. Nevertheless, Mr Ardasinski stated that the defendant has demonstrated since his release that he can default to anger and aggression when he is frustrated by people or situations.

46. Overall, Mr Ardasinski assessed the defendant’s risk of violent reoffending as being in the “moderate” risk category. He considered “that it is possible that future violence, including domestic violence, could approach the threshold of a ‘serious violence offence’” as defined in the Act. However, he opined that a number of factors would need to “coalesce” in order for the defendant to “enter into a high-enough risk situation for such serious violence to ensue”.

47. Mr Ardasinski considered that while the defendant had made evident progress and had reduced his assessed risk, concern remained about his potential to destabilise and pose a risk of serious violence, given his breaches of parole in the past and the intractable nature of a traumatic brain injury which had been implicated in the defendant’s persistent violent tendencies since he acquired the injury at age 11.

48. During the hearing, I asked counsel for the plaintiff, Mr Fraser, whether Mr Ardasinski had access to the police facts relating to the defendant’s pending charges before him when he prepared the report. I raised this because the only reference to these charges, which involved a violent assault on a police officer resulting in a fractured hand and nose, in the report described them as simply “involving driving under the influence of alcohol” (at [19]). Mr Fraser confirmed that Mr Ardasinski only considered the court attendance notices for those recent matters and not the police facts.

49. In addition to the RAR, a number of earlier psychiatric and psychological reports dating from 1986 to 2014 were included in the supporting documentation. I have found this material to be of less assistance given the effluxion of time since those reports were prepared.

Previous level of compliance with supervision orders: ss 9(3)(e2), 9(3)(f), 9(3)(g)

50. The defendant was released on parole on 25 December 1995 for the aggravated sexual assault committed in 1992. Within three months, he committed the malicious wounding and assault offences in February 1996.

51. The defendant was released on parole on 23 August 2000 for the assault occasioning actual bodily harm offence committed in 1999. His parole period was six months and he did not breach his parole.

52. The defendant was released on parole on 25 August 2005 for the malicious wounding with intent offence committed in October 2001. He was subject to a number of additional parole conditions. The defendant appears to have completed this short period of parole with positive reports indicating that there was no indication of any alcohol use, a positive relationship, scheduled psychological counselling and an apparent desire to change “for the better”.

53. The defendant was released on a two-month period of parole on 25 August 2009 in relation to the assault occasioning actual bodily harm offence committed in February 2009. At the conclusion of the parole period, he was noted to have been compliant with reporting, attended counselling and returned negative urine tests.

54. The defendant is alleged to have committed the January 2025 offences when he was on parole in relation to the index offence.

Statistical testing: s 9(3)(d)

55. Mr Ardasinski assessed the defendant’s risk of future offending using the following tools:

1. Violence Risk Appraisal Guide – Revised (VRAG-R): the defendant’s score is equal to, or higher than, 92% of the construction sample, and places him in the ninth of nine “bins”. This would classify him as “high risk” compared to other violent offenders. 76% of offenders in this risk ‘bin’ reoffended violently within 5 years, and 87% reoffended violently within twelve years.

2. Ontario Domestic Assault Risk Assessment (ODARA) and Domestic Violence Risk Appraisal Guide (DVRAG): the defendant’s scores placed him in the highest risk category for reoffending. For the ODARA, 74% of offenders in this category committed another assault against their intimate partner, which came to the attention of police, within about five years at risk. For the DVRAG, 100% of men in this highest risk category reoffended with a new intimate partner assault within five years at risk.

3. Violence Risk Scale (VRS): the defendant’s score placed him in the “Average” or “Level III” risk category for reoffending, with a mean recidivism rate of 24.6% over five years.

4. HCR-20: The defendant’s assessment on the HCR-20 suggested that he will require a moderate level of effort to prevent future violence.

5. Spousal Assault Risk Assessment (SARA): the defendant has a low-moderate loading of risk factors for the commission of intimate partner violence. The factors which need to be monitored or addressed under supervision include: intimate and non-intimate relationship problems, past general antisocial conduct, a history of trauma/victimisation and substance use.

6. Structured Assessment of Protective Factors for Violence Risk (SAPROF): the defendant has a moderate loading of protective factors that would inoculate against risk.

Treatment and rehabilitation programs/available courses: ss 9(3)(e), 9(3)(e1)

56. The defendant has participated in and completed the following programs in custody:

1. Violent Offenders Therapeutic Program (VOTP) between 7 April 2022 and 24 March 2023. Upon completion of the program, the defendant was noted to have engaged consistently and meaningfully with the program. He was said to have demonstrated improved insight into a number of his risk factors and the ability to engage in retrospection and introspection. In the early to middle stages of treatment, the defendant had “somewhat of a pre-occupation with violence”, however it was observed that this decreased as treatment progressed. Despite the significant improvements made by the defendant during the course of the VOTP, it was noted that he was prone to relapses in behaviour, and that the defendant had a number of ongoing criminogenic needs that were likely to affect his risk of reoffending, which the defendant would need to continue addressing and monitoring. The defendant’s criminogenic needs were identified as including substance use, assertiveness and boundary-setting (especially in relationships), emotional regulation, and anxiety in response to stress.

2. Real Understanding and Self-Help Program (RUSH) in 2021.

3. Aboriginal Cultural Strengthening Program in 2020.

4. Explore, Question, Understand, Investigate, Practice, Succeed (EQUIPS) Foundation Program in 2019. The defendant was described as consistently demonstrating a high understanding of the topics explored.

5. EQUIPS Domestic Violence program in 2019.

57. Following his release on parole in April 2023, the defendant engaged with a local psychologist until that psychologist left the area. The defendant then received regular aftercare, “maintenance” or “risk management intervention” sessions from the nearest Corrective Services NSW Senior Psychologist to consolidate his improvements from the VOTP.

Any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community: s 9(3)(d1)

58. Danny Velebit, a Community Corrections Officer, prepared a Risk Management Report (“RMR”) dated 20 March 2025. The RMR sets out the risk management plan for the defendant in the event that an ESO is imposed.

59. The supervision plan proposed is as follows:

1. Weekly contact with his Departmental Supervising Officer (DSO) by way of unannounced home visits;

2. Monitoring by the NSW Police ESO Investigation Team of the defendant’s behaviour in the community through covert observation and face-to-face contact to assess his level of compliance with his order conditions;

3. Engagement with support services such as alcohol and other drug (“AOD”) counselling, GP and re-engagement with EQUIPS program or VOTP maintenance, with ongoing support by a psychologist;

4. Behavioural change exercises to address his criminogenic risk/needs; and

5. Case plan review by the defendant’s DSO every two months to ensure its relevance to his risks and that it is reflective of his progress.

60. The RMR sets out the recommended conditions in the event that an ESO is made, which correspond with those proposed by the State in these proceedings.

Other information available: s 9(3)(i)

61. The Agreed Facts included a summary of relevant OIMS notes from the defendant’s time in custody and on parole. These notes largely show that the defendant initially behaved positively and demonstrated an awareness of his risk factors for offending during his period in the community on parole. He engaged with supervision, attended appointments with Community Corrections as required and engaged in intervention during those sessions. He also attended AOD counselling in the community. However, from May 2024, reports were made from members of the community which suggested that the defendant was using alcohol, cannabis and cocaine and that he was intimidating his partner and others. There were also some issues with his electronic monitoring equipment not being charged from November 2024.

61. During the hearing, counsel for the defendant submitted that while he has acknowledged being a regular user of cannabis, the defendant denies having used cocaine or other illicit substances. Ms Kennedy noted that the OIMS notes show that the defendant was subject to random drug and alcohol testing at various times and no positive test results were ever returned.

62. The Agreed Facts included a summary of the relevant OIMS notes from 2005 to the present in chronological order. I propose to set them out in full as they provide a helpful summary of the defendant’s response to supervision, particularly since his most recent release on parole:

1. In an entry on 27 July 2005, it was noted that the defendant had been disciplined in April 2005 for failing to supply a urine sample. Otherwise, there had been no adverse reports. The defendant was the activities sweeper and “performs his duties well”, is “willing to help”, and “works well with limited supervision”. A STATIC-99 assessment was conducted on 9 May 2005 with the result of “Medium to High”.

2. In an entry on 11 August 2017, it was reported that the defendant refused to participate or complete a referral to Sex Offender Programs. The defendant stated that the incident was 25 years ago and that he “too [sic] the rap” for someone else. The defendant stated that he was not a rapist and that he is violent.

3. In an entry on 6 July 2022, the defendant discussed the index serious violence offence. The defendant stated that he did not know how to deal with his emotions and that he had initially blamed the victim for what had happened. The entry noted that the defendant did push some responsibility onto the victim and he stated that all of this could have been avoided if she had not been abusive towards him. The defendant acknowledged that he should not have hit her and ultimately said that “her abuse does not justify what I did to her”. The defendant also expressed a willingness to engage in AOD services (although he stated that he thought he could remain abstinent), VOTP maintenance and engagement with the Aboriginal Community Engagement and Culture Office. The defendant stated that, post-release, he would likely return to the Disability Support Pension and would like to re-engage in volunteer work.

4. In an entry on 7 July 2022, the defendant’s Risk Management Plan was approved. It was noted that this plan adequately manages risk and that the defendant’s transition back into the community would be supported in a structured way and would provide the additional supports required after spending a considerable period of time in custody. However, in a note from the same day, it states that release was not recommended. Instead, the completion of the VOTP was deemed to be the most appropriate pathway for the defendant due to his significant history of violent offending and demonstrated limited insight into the index offences.

5. In an entry on 28 April 2023, it was noted that the defendant had been breath and drug tested with no positive results recorded. During a meeting with a Community Corrections Officer (“CCO”), the defendant discussed his support network and advised that he had an appointment with a psychologist booked. The defendant appeared overwhelmed but stated he was compliant with his anxiety medication. When discussing his previous sex offending behaviour, the defendant stated that he did not commit either sex offence and that he took the blame for two separate people. The defendant stated that he is a “very violent offender” but did not see himself as a sex offender. The defendant reportedly stated that he was proud of himself for his behaviour during a recent incident in which his old friend had gone to shoot him one night with a spear gun over an argument about his wife and the defendant did not run after him or assault him, as he would have done before.

6. In an entry on 19 June 2023, it was recorded that the defendant met with a CCO and discussed a female friend that he had met. When the CCO stated that he would like to talk with the friend, the defendant appeared defensive until the CCO explained that he was trying to keep everyone safe. When discussing the defendant’s index offending, the defendant stated that “over time he was being put down [by] his partner” and that “it only happened when they ran out of alcohol”. He stated that the same thing would not happen now and that he had stopped all drug and alcohol use and through the VOTP had “gained the skills and control to better his reacts [sic] to his environment”.

7. In an entry on 30 June 2023, it was noted that the defendant was referred to a psychologist for review of historical sex offences. As he had not had a conviction for a sexual offence for 20 years or more, he did not require management as a sexual offender. He also did not appear to have any deviant sexual behaviours, with his management of mood, anger and impulsivity posing greater concern.

8. In an entry on 7 August 2023, it was noted that the defendant was in a new relationship with a woman named “Mary”. He stated that “things were going really well”, “he is not going to mess anything up” and he was “focused, AOD free and violence free”.

9. In an entry on 8 August 2023, a previous victim of the defendant reported having concerns about the defendant making contact with her family member over social media. The defendant had reportedly enquired about her 34-year-old daughter’s “OnlyFans” page.

10. In an entry on 24 August 2023, it was noted that the defendant attended a meeting with a CCO and the Southcare team. They discussed that two of his children did not want contact with him. It was reported that the defendant started to speak “a little aggressively” when his criminal history was brought up. When the children’s mother was discussed, the defendant’s hostility towards her was “alarming”. It was agreed that the defendant would step back on having contact with the children.

11. In an entry on 28 August 2023, it was noted that the defendant attended an appointment with a CCO. When discussing his new relationship, the defendant stated that “a large part of his VOTP was to learn that communication in a relationship is key for its success” and that he and his partner had discussions about potential risks concerning alcohol and what they both can do to support each other.

12. In an entry on 11 September 2023, the defendant discussed how grateful he was for his employment in another appointment with a CCO. The defendant stated that he had recently had an argument with his cousin and the defendant sent him outside when he turned up to the defendant’s apartment drunk. The defendant said that he prevented stress by going to the gym, bike riding, cleaning the house, challenging himself, gardening and employment.

13. In an entry on 18 September 2023, during another appointment with a CCO, the defendant stated that he had been verbally abused by an ex-partner when he rode past her house. The defendant stated that he shouted back at her but that he had been “kicking himself since as he acted on impulse”. The defendant’s breath and drug testing also produced negative results.

14. In an entry on 26 October 2023, the defendant stated to a CCO that he did not attend two of his last psychologist appointments. After he was told that this was part of his parole conditions, the defendant stated that he did not think it was necessary and that he did not want to relive his gaol fights with the psychologist.

15. In an entry on 13 November 2023, the defendant stated that he and his partner Mary had recently split up for a day due to the behaviour of her children. He stated that “old him would have taken the kids and bashed them” but that he had learnt that “things do not get fixed this way”. He discussed his feelings with his partner.

16. In an entry on 19 December 2023, it was noted that the defendant called to advise that he had a falling out with his uncle and was thinking about moving in with his partner.

17. In an entry on 10 May 2024, an Aboriginal Elder community member reported the defendant’s alcohol, cannabis and cocaine use. It was also reported that the defendant was stealing and driving without a licence. His partner’s family were reportedly frightened of the defendant and his partner had been encouraging him to “fight her battles”.

18. In an entry on 24 June 2024, the defendant’s uncle reported concerns about the defendant’s behaviour, noting that he had been smoking cannabis and drinking alcohol. The defendant’s uncle reported that there had been an altercation between the defendant and his mother and that the defendant began repeatedly punching himself. The uncle advised that the defendant’s mother was scared to ask him to leave as she feared he will lose his temper.

19. In an entry on 8 August 2024, Community Corrections received a phone call from a member of the public who reported that the defendant had been drinking high amounts of alcohol, smoking “pot”, demonstrating intimidating behaviour towards his partner and that several people were scared of him and would not report him due to a fear of retaliation. There were also reports that the defendant often drove under the influence of alcohol.

20. In an entry on 18 November 2024, it was noted that the defendant called advising that he had gained employment at The Ecotel and would be doing yard and general maintenance including the cleaning of hotel rooms.

21. In an entry on 20 November 2024, the defendant returned negative results on breath and drug tests. He was reported to be continuing with AOD counselling and stated that he will be attending a men’s group. The defendant discussed his recent driving offences and said that he made the decision to drink alcohol and then drive, and that he is most likely to act without thinking if he is consuming alcohol.

22. In entries on 28-29 November 2024, there were various communications between the defendant, CCO and Electronic Monitoring staff regarding the defendant not charging his monitoring device properly.

23. In an entry on 4 December 2024, during an appointment with a CCO, the defendant identified that being in the company of anti-social people could cause him to act impulsively as he could be easily influenced. Another scenario was when he felt like he had nothing left to lose, however he believed that he was safe from this as he had “achieved so much and has so much to lose”.

24. In an entry on 6 December 2024, the defendant’s AOD counsellor reported that the defendant had continued to engage and was doing well. He appeared to have remained abstinent.

25. In an entry on 11 December 2024, the defendant completed an interview as part of the Violent Offender Risk Management Intervention. The defendant reported that he was enjoying his employment at Ecotel, his relationship was going well, and he continued to take his anxiety medication. The defendant overall “impressed as managing his risk factors”.

26. In an entry on 30 December 2024, Electronic Monitoring reported that the defendant entered the exclusion zone on three separate occasions on 21, 27 and 29 December 2024. The defendant explained that he was waiting in his partner’s car while she was dropping her grandkids at her house.

27. In an entry on 8 January 2025, the defendant expressed to a CCO that he wanted his curfew to be removed. He also requested to see a psychologist because he was having some issues with frustration.

28. In entries on 11-18 January 2025, there were various communications between the defendant, CCO and the Electronic Monitoring Team regarding issues with the monitoring device. The defendant once again expressed frustration with being subject to electronic monitoring.

(The defendant was arrested and returned to custody on 20 January 2025.)

29. In an entry on 21 January 2025, after the defendant was arrested for the pending charges, it was noted that the defendant had entered exclusion zones on a number of occasions in December and January. Community Corrections expressed serious concerns that the defendant’s behaviour had escalated beyond a level or risk that could be mitigated by Community Corrections.

30. In an entry on 23 January 2025, when discussing the pending offences, the defendant reported that he last self-harmed two months ago by punching himself. He also reported weekly binge drinking and daily cannabis use and identified both as factors in his offending.

31. In an entry on 29 January 2025, the defendant reported that he was frustrated being in custody. He also expressed his interest in speaking to a local psychologist for assistance with mental health symptoms.

32. In an entry on 7 February 2025, it was noted that the defendant refused to attend his scheduled meeting.

33. In an entry on 11 February 2025, the defendant spoke about not attending his meeting and stated that he was feeling anxious and didn’t know what the call was so he refused it.

34. In an entry on 14 February 2025, it was noted that the defendant attended a phone interview for his RMR. He expressed willingness to reside with his partner and reported to have lived there for approximately 6 months before his previous supervision and stated he was not allowed to reside at her address as two of her children were on parole. The defendant identified his risks and noted alcohol and cannabis were the main contributors to his recent reoffending. The defendant stated he had relapsed after two years and but stated that he could stay sober again.

35. In an entry on 28 February 2025, it was noted that investigation on JusticeLink identified a number of active Apprehended Violence Orders (“AVOs”) against the defendant.

36. In an entry on 10 March 2025, the defendant attended a psychologist appointment and spoke about his anger and anxiety. It was noted that he displayed great insight into his behaviours and the driving forces for it. The defendant stated that his previous impulsivity with anger, although not entirely gone, was something he focussed on. The defendant reported some difficulty with mental health symptoms and noted some positive management skills.

37. In an entry on 11 March 2025, it was noted that a phone call was made to the defendant’s partner, Mary. It was reported that Mary seemed to have downplayed the dynamics in her home whilst the defendant was living with her and reported that the defendant had a disagreement with her older daughter.

38. In an entry on 7 May 2025, the defendant had a consultation with CSNSW Psychology Services at South Coast Correctional Centre. He was able to recognise patterns such as impulsivity and emotional dysregulation and stated that he was trying to move forward. The defendant acknowledged risk factors that needed to be managed and noted he often relied on exercise to regulate his emotions. His partner was noted to be a significant support.

39. In an entry on 16 July 2025, it was recorded that the defendant was involved in a fight at the South Coast Correctional Centre. He was moved to a different area as it was not safe for him to remain where he was. The defendant pleaded guilty to the misconduct of assault. He was given a penalty of three days’ cellular confinement.

Consideration

64. For the purposes of this preliminary hearing, the Court would only make the ISO and order the appointment of court experts if it appeared to the Court that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. That involves consideration of four statutory requirements.

65. The first statutory requirement for the making of an ESO is that the offender is a serious offender. It was common ground that the index offence is one which falls within s 5A(1) of the Act.

66. The second statutory requirement for the making of an ESO is that the defendant is a supervised offender (within the meaning of s 5I of the Act). Given that he is currently serving the balance of his parole, I am satisfied of this requirement as well.

67. The third statutory requirement for the making of an ESO is that the defendant was under supervision at the time the application was made. The application was commenced within the last nine months of the defendant’s current sentence as required by s 6 of the Act.

68. The fourth and final statutory requirement is that the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order: s 5B(d). This is the only statutory requirement disputed by the defendant at the preliminary hearing.

69. I considered the relevant principles when applying this test in NSW v Archer at [71]-[73] as follows:

“[71] The test of being satisfied to a ‘high degree of probability’ in this context is a standard of proof higher than the civil standard but lower that the criminal standard: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]. Although the test is a high one, it is important to note that the court needs to be satisfied to a high degree of probability not that the offender will necessarily commit a serious sex offence, but, rather, that he or she poses an ‘unacceptable risk’ of committing a serious sex offence: State of New South Wales v Sharpe [2017] NSWSC 469 at [52].

[72] The phrase ‘unacceptable risk’ is not defined in the Act but has received judicial consideration. In Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57, Beazley P (with whom Gleeson JA agreed) held at [51] that the determination of the existence of an “unacceptable risk” is an evaluative task and evaluative tasks require a context in which to be made. Her Honour also held at [58] that the phrase ‘unacceptable risk’ is to be given its everyday meaning within its context and having regard to the objects of the Act. The evaluation is ‘directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection’ (at [61]).

[73] The following meaning of ‘unacceptable risk’ has been adopted in numerous cases: In State of New South Wales v Pacey (Final) [2015] NSWSC 1983 at [43], Harrison J observed the following:

‘It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable.’”

70. One of the factors relied upon by the defendant in submitting that this fourth statutory requirement is not met in this matter is that Mr Ardasinski only assessed the defendant’s risk of violent reoffending as being in the “moderate” risk category in the RAR. Mr Ardasinski considered that it was “possible” that the defendant’s future violence, including domestic violence, “could” approach the threshold of a “serious violence offence” as defined in the Act if a number of factors “coalesce[d]”. Further, the defendant placed reliance on the fact that the defendant had been doing well on parole until his recent arrest and had also spent some periods of time in the community offence-free prior to the commission of the index offence.

71. I accept that the defendant was responding well to supervision prior to his arrest last January, but the OIMS notes extracted above record that he had been breaching the conditions of his parole by drinking and smoking cannabis as well as attracting negative attention from others in his community from around May 2024. The consumption of alcohol is particularly problematic as it is a significant risk factor for this defendant.

72. As for the RAR, it is unfortunate that the police facts were not made available to Mr Ardasinski prior to his preparation of that report. Without entering into the sphere of speculation, it is an available inference that had Mr Ardasinski been made aware that the defendant’s recent charges included an alleged assault on a police officer in which his nose and hand were fractured, that would have been a relevant factor in his conclusion as to risk. I accept the defendant’s submissions that the recent offences are not “serious” offences within the meaning of the Act, but the fact that the defendant is alleged to have recently acted in this way, after drinking alcohol, remains relevant to the statutory test.

70. It is often said that the path to rehabilitation is not linear. Although the defendant demonstrated that he could respond positively to supervision for a period, he relapsed following his resumption of alcohol and cannabis use. I have considered Mr Ardasinski’s reference in the RAR to the opinion of the defendant’s then treating psychologist (“Baldacchino” dated 3 April 2023) that the defendant’s situation and functioning is markedly different from the time when he committed the index violent offence. But even allowing for the fact that the defendant is now older and the index offence was committed in 2013, his brain injury is not something that is amenable to treatment and will always be an additional risk factor. Further, even allowing for the fact that the defendant may pose less of a risk of committing a serious offence than when he committed the index offence in 2013 does not mean that the statutory test cannot still be made out such that I would not even make these preliminary orders.

71. Having considered the material before me, I am satisfied that this fourth statutory requirement is satisfied as well. It follows that I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. In arriving at this conclusion, I have had regard to the paramount consideration of the safety of the community as required by s 9(2) and to the s 9(3) factors summarised above.

Conditions of the ISO

75. The defendant’s position was that, in the event that I placed him on an ISO, I would only impose conditions that were similar to those he was subject to when he was most recently released on parole. The State, on the other hand, sought conditions additional to his parole conditions.

76. In imposing supervision conditions, the court must be mindful that it is an offence to breach a condition of an ISO. Accordingly, the State must demonstrate that there is a proper basis for the making of the conditions in the first place. It is also important that the conditions are in clear terms so that the defendant knows what he must do and what he must refrain from doing. As Beech-Jones J (as his Honour then was) observed in State of New South Wales v Burns [2014] NSWSC 1014 at [59]:

“In determining whether it is appropriate to include a particular condition, it is necessary to have regard to the fact that the effect of their inclusion is to expose the relevant offender … to criminal sanctions if they are breached. It follows that a proper basis needs to be demonstrated for including the conditions in the first place (see State of New South Wales v Ali [2010] NSWSC 1045 at [88] per Johnson J). Usually it will be necessary for such a condition to be related to the mitigation of the unacceptable risk that led to the formation of the conclusion of the relevant offender as a high risk sex offender.”

The disputed conditions

77. As is the usual practice, I was provided with a schedule which listed the numerous proposed conditions and identified which ones were disputed. I will confine my reasons to the disputed conditions.

78. By way of overview, the State submitted that the conditions of the parole order were insufficient to prevent a return to the consumption of alcohol and the commission of violent offences in January 2025, and thereby insufficient to address the defendant’s risk on release.

79. Before me, counsel for the State identified the differences between the conditions of the ISO which were pressed and the conditions of the defendant’s parole order.

Electronic monitoring (proposed condition 5)

80. Mr Fraser clarified that there was no electronic monitoring condition included as part of the defendant’s parole conditions, but it was implemented as a direction.

81. On behalf of the defendant, it was submitted that this proposed condition is of little utility given that the defendant’s risk factors are substance use rather than offending in any particular location.

82. I have considered these submissions. Electronic monitoring was implemented as a condition of parole. Imposing it as a condition of an ISO does not, as a matter of practical reality, make the conditions of the ISO any more onerous than his parole conditions. I am satisfied that imposing this condition is proportionate to the risk faced and would act to mitigate the identified unacceptable risk. Further, I note that the OIMS notes reflect that the defendant went into his exclusion zone (where the victim resided) on a number of occasions whilst he was on parole, and this was able to be detected.

Schedule of movements (proposed conditions 6 to 8)

83. Mr Fraser submitted that these proposed conditions comprised one of the most significant differences between the parole conditions and those sought under the ISO. He submitted that a less onerous form of scheduling was proposed as it allowed the defendant to deviate from it if prior notification was provided (“dry scheduling”).

84. On behalf of the defendant it was submitted that these conditions are not necessary to address any of the risk factors identified in the material. The defendant has shown that he is capable of engaging with services and attending appointments of his own volition.

85. I have considered these submissions. I am not satisfied that these conditions are necessary given the defendant’s risk factors and the fact that I have already imposed electronic monitoring. It was accepted by the State that there is still utility in imposing an electronic monitoring condition without also imposing a scheduling condition.

Additional accommodation conditions (proposed conditions 11 and 12)

86. Mr Fraser clarified that a prohibition on the defendant staying overnight with his partner Mary and her children at their home was subsequently included as a direction in the defendant’s parole order. Mr Fraser also accepted that Mary may be exempted under proposed condition 12 and permitted to stay overnight at the defendant’s address.

87. On behalf of the defendant, it was submitted that these conditions would be unduly restrictive. For example, Ms Kennedy identified that it may prevent the defendant from camping, which is a positive outlet for him.

88. I propose to exempt Mary from the proposed condition 12 but otherwise impose these conditions.

89. The defendant’s risk factors include assaulting persons known to him whilst intoxicated. I do not consider these conditions to be unduly onerous, and they address the identified unacceptable risk.

Additional non-association conditions (proposed conditions 24A and 25)

90. Mr Fraser accepted that proposed condition 24A (notification of commencement of an intimate or sexual relationship) is theoretical or hypothetical. He pressed proposed condition 25 (notification of membership or affiliation with club or organisation) given the defendant’s significant history.

91. On behalf of the defendant, in relation to condition 24A, Ms Kennedy submitted that the defendant’s relationship with Mary has been a prosocial factor, and it is therefore not a necessary or appropriate condition to address the defendant’s risk factors. In relation to condition 25, a restriction on the defendant’s ability to join a club or organisation was submitted to be irrelevant to the defendant’s offending behaviour.

92. Having considered these submissions, I do not propose to impose them. These conditions pertain to an interim order for 28 days. The defendant’s relationship with Mary seems highly unlikely to end before this application is finalised. I do not consider that these conditions are necessary to meet this defendant’s identified risk factors.

Weapons (proposed conditions 26 and 27)

93. As for proposed condition 26, Mr Fraser ultimately accepted that it was essentially a condition requiring the defendant not to commit an offence. I do not propose to impose that condition as I do not consider it necessary.

94. As for proposed condition 27, Ms Kennedy identified that this condition may not be practically workable given it would permit

95. the defendant to possess a kitchen knife. It was also submitted that it was otherwise also essentially a condition requiring the defendant not to commit an offence. I do not propose to impose that condition either on that basis.

Access to the internet and other electronic communication (proposed condition 28)

96. Mr Fraser submitted that this condition is appropriate in circumstances where there had been recent incidents of threats of violence conveyed by telephone.

97. Ms Kennedy did not specifically address this proposed condition.

98. I do not propose to impose this condition either. The defendant’s unacceptable risk is of committing an offence of serious violence whilst intoxicated. There are already a number of AVOs in place which would prevent him from threatening people over the telephone.

Conclusion

99. As should be evident, I propose to impose ISO conditions that are broadly similar to the defendant’s parole conditions. To the extent that some of them are additional, I do not consider them to be unduly onerous, and I am satisfied there is a proper basis to include them in the Schedule.

100. As for the commencement of the ISO, the defendant remains in custody bail refused and serving his balance of parole. In the event that he is granted bail on his recent charges, this ISO will commence from the date of his release: see s 10C(1A) of the Act.

Orders

101. Accordingly, I make the following orders:

1. Pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”):

1. Two qualified psychiatrists, two registered psychologists or a combination of both are appointed to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and

2. The defendant is directed to attend those examinations.

2. Pursuant to s 10A of the Act, the defendant is to be subject to an interim supervision order (“ISO”).

3. Pursuant to s 10C(1) of the Act, the ISO is to be for a period of 28 days commencing from 20 September 2025.

4. Pursuant to s 11 of the Act, the defendant is to comply with the conditions set out in the Schedule to these orders for the period of the ISO.

5. Access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

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State of NSW v Patten (Preliminary) - Schedule of Conditions of Supervision (114 KB, pdf)

Decision last updated: 18 September 2025