State of New South Wales v SLD (Final)

[2025] NSWSC 203

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v SLD (Final) [2025] NSWSC 203

Hearing dates:

11 and 12 March 2025

Decision date:

14 March 2025

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

Prayer 4 of the summons filed on 4 November 2024 is refused.

Catchwords:

HIGH RISK OFFENDERS — Continuing detention orders — Application — whether Court has “a high degree of probability” that defendant poses unacceptable risk of committing serious offence — where defendant is currently subject to extended supervision order — whether existing extended supervision order sufficiently mitigates risk of defendant committing serious violence offence in community — where defendant has a known history of offending and attacks — sexual focus on young women — discretion — protection of community as paramount consideration — where defendant breached previous supervision conditions — poor therapeutic value of a continuing detention order on defendant’s prospects of rehabilitation

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 3(1), 3(2), 4, 5A, 5C, 5D, 5C(d), 15(4), 17(2), 17(4), 17(4)(b), 17(4)(c), 17(4)(d1), 17(4)(e1), 17(4)(h), 17(4)(h1), 17(4)(i), 17(4)(j)

Cases Cited:

Cornwall v Attorney General for New South Wales [2007] NSWCA 374

Lynn v NSW (2016) 91 NSWLR 636; [2016] NSWCA 57

State of New South Wales v SLD (Preliminary) [2023] NSWSC 330

State of New South Wales v SLD (Preliminary) [2024] NSWSC 1645

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
SLD (Defendant)

Representation:

Counsel:
G F Mahoney SC / I Fraser (Plaintiff)
M Johnston SC / D Bhutani (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Ryan Payton Le (Defendant)

File Number(s):

2024/412652

Publication restriction:

Pursuant to ss 7 and 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW), the defendant is to be identified in relation to these proceedings by the pseudonym “SLD”, and such order shall apply:
(a) To all media including, but not limited to, print, radio, television, internet and social media;
(b) Throughout the Commonwealth; and
(c) Until further order of the Court.

JUDGMENT

1. HIS HONOUR: By a summons filed on 4 November 2024, the State of New South Wales (the plaintiff) seeks interim and final orders against SLD (the defendant) pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act).

2. At the preliminary hearing consequent to the summons, I made orders on 17 December 2024 (State of New South Wales v SLD (Preliminary) [2024] NSWSC 1645 (the preliminary judgment)) for the furnishing of forensic reports to the Court and an interim detention order (IDO), which has been extended to, and will finally expire on, 15 March 2025; that is, in one day’s time. The hearing of the plaintiff’s prayer for final orders, in particular, a continuing detention order (CDO) for a period of 12 months, took place over two days this week; 11 and 12 March 2025. The effect of a refusal of that prayer is that an extended supervision order (ESO), made by Campbell J on 22 April 2021, is revived. The operation of the ESO was suspended during periods of incarceration of the defendant since that date, so that upon his release on 15 March 2025, he would be subject to the conditions of that ESO for the remainder of its duration, which is more than four years.

The relevant statutory provisions and principles

3. Section 5C of the Act provides:

“5C   Making of continuing detention orders—unacceptable risk

The Supreme Court may make an order for the continued detention of a person (a continuing detention order) if—

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

(b)   the person is a detained offender or supervised offender (within the meaning of section 13B), and

(c)   an application for the order is made in accordance with section 13B, and

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

4. The defendant concedes that the statutory prerequisites for the hearing of the application have been satisfied, as I so found in the preliminary judgment at [11] and, for the same reasons, find again.

5. The issue that remains for consideration is therefore whether, pursuant to s 5C(d) of the Act, 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 in detention. Section 5D of the Act provides that the Court is not required to determine that the risk of an offender committing a serious offence is more likely than not, in order to determine that there is an unacceptable risk of the person committing such an offence.

6. The term “serious offence” is defined in s 4 of the Act to mean a serious sex offence or a serious violence offence. The former is defined to mean an offence under Div 10 of Pt 3 of the Crimes Act 1900 (NSW) where the offence is punishable by imprisonment for seven years or more and, if committed against an adult, is in circumstances of aggravation, as defined in the relevant statutory provision.

7. A serious violence offence is defined in s 5A of the Act as follows.

“5A   Definition of ‘serious violence offence’

(1)   For the purposes of this Act, a serious violence offence is a serious indictable offence that is constituted by a person—

(a)   engaging in conduct that causes the death of another person or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person, or

(a1) an offence under the Crimes Act 1900, section 37(1) or (2), or

(b)   attempting to commit, or conspiring with or inciting another person to commit, an offence of a kind referred to in paragraph (a) or (a1).

(2)   An offence that includes the elements referred to in subsection (1) (a) is a serious violence offence regardless of how those elements are expressed, and whether or not the offence includes other elements.

(2A)   A reference in subsection (1) (a) to—

(a)   conduct that causes the death of another person with the intention of causing the death of another person includes a reference to murder by an act done (by a person or an accomplice) in an attempt to commit, or during or immediately after the commission of, a serious crime, and

(b)   conduct that causes the death of another person while being reckless as to causing the death of another person includes a reference to manslaughter caused by an unlawful and dangerous act, and

(c)   conduct that causes grievous bodily harm to another person includes conduct that causes the wounding of another person, but only if the conduct was engaged in with the intention of causing the death of another person or grievous bodily harm to another person.”

8. Section 17(2) provides that in determining whether to make a CDO, the safety of the community must be the paramount consideration, which is consistent with the “primary object” of the Act, outlined in s 3(1), being the “safety and protection of the community”. A secondary object of the Act is to encourage offenders who come within the Act to undertake rehabilitation: s 3(2).

9. The defendant alternatively submits that, if the Court concludes that the making of an CDO is required, the Court nevertheless would exercise the discretion that arises from the terms of s 5C to not make an CDO.

10. Section 17(4) of the Act obliges the Court to have regard to the matters that are set out as follows:

“17   Determination of application for continuing detention order

…

(4)   In determining whether or not to make a continuing detention order or 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 15 (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)   if the offender is kept in custody or is in the community (whether or not under supervision)—any options available that might reduce the likelihood of the offender re-offending over time,

(e2)   whether it is satisfied that the offender is likely to 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 interim supervision order or an 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,

(j)   in the case of an application made on the basis that the offender has been found guilty of an offence of failing to comply with the requirements of an extended supervision order or interim supervision order—the nature of the failure to comply with those requirements and the likelihood of further failures to comply,

(k)   in the case of an application made on the basis that circumstances have altered since the making of an extended supervision order or interim supervision order against the offender—whether circumstances have altered since the making of the order and whether those altered circumstances mean that the risk of the offender committing a serious offence would be unacceptable unless a continuing detention order were made.”

The defendant’s relevant background

The offender’s criminal offending: s 17(4)(h) and (h1) of the Act

The index offence

11. In earlier judgments concerning the offender, I reviewed the defendant’s criminal history. In State of New South Wales v SLD (Preliminary) [2023] NSWSC 330 (my 2023 judgment), at [14]-[23], I reviewed the material as to the index offence.

“14   On 29 January 2001, when the defendant was aged 13 years and ten months, he crept out of the home of his adoptive parents in the early hours and broke into another residence nearby. He abducted a three-year-old child from her bed after removing her nappy and left her nightdress outside her home. He carried her to a concrete driveway where he stabbed her through the heart with a steak knife, covering her mouth as he did so to stifle her screams. He disposed of her body by concealing it in long grass nearby and arrived back home at 2:45am, when he was confronted by his parents. He told them he had been out walking. Later that day, his parents learned that a child in the area had gone missing during that night and notified police that the defendant had been in the area at the time. Police interviewed the defendant, who initially gave elaborate exculpatory accounts of his movements, including that he had seen the girl while he was out but did not know what had happened to her, before finally admitting the offence.

15   The defendant pleaded guilty to the murder and was sentenced by Wood CJ at CL on 30 August 2002 to a term of imprisonment of 20 years with a non-parole period of ten years: R v SLD [2002] NSWSC 758. In the course of his judgment, his Honour noted the defendant’s attempts to mislead investigating police, his explanation for removing the victim’s clothing (to find a good place to stab her), his denial that he intended to sexually assault her and that he had given different explanations as to why he committed the offence. Wood CJ at CL noted that in the course of being interviewed by police:

‘Somewhat disturbingly [the defendant] gave one answer … which suggested that, once he had killed one person, he expected that it would become easier killing the next one and the one after that.’

16   His Honour examined evidence of the defendant’s ‘bleak’ background and upbringing, involving foster placements from the age of one, state wardship from the age of three and adoption when aged about six. He was allegedly sexually assaulted when aged ten by a person to whom he had felt an attachment. The defendant has an XYY chromosomal abnormality and a facial abnormality, which was diagnosed as Trigonocephaly, which exposed him to teasing.

17   His Honour considered reports and evidence from two forensic psychiatrists (Dr Bruce Westmore and Dr Brent Waters) and two clinical psychologists (Peter Champion and Timothy Hannan), as well as other psychologists. The defendant’s level of intellectual functioning was determined by the psychologists to be in the borderline (Champion) and low average range (Hannan). The defendant had a history of disturbing behaviours involving fire-lighting and cruelty to animals.

18   The psychiatrists were unable to come to definitive diagnoses of the defendant, because he was still in the developmental period of maturation. Wood CJ at CL noted:

’63   [Dr Waters] made it clear that there would be difficulties in coming to any definite diagnosis, as to the presence of a personality disorder, before the age of 18 years, although [the defendant’s] history of a very disruptive pattern of behaviour from early childhood, which had worsened during early adolescence, meant that the chances of him developing an antisocial or substance abuse disorder, or a borderline personality, were in excess of 50% and could be of the order of 70%. The fact that [the defendant] had killed once, he agreed, made it even more likely that such a disorder would develop.

64   His continued expression of homicidal thoughts, Dr Waters accepted could either be genuine reflections of his feelings, or a means of attention seeking. Which it was he could not determine with any certainty, although he accepted that [the defendant’s] observations about it being easier to kill again were of concern.

65   Additionally he agreed that while he appeared to respond to a very close supervisional structure, that did not mean that he would continue to behave in the same way after those controls were lifted.

66   In this regard, he accepted the desirability of the possibility of a redetermination or review of sentence for an offender such as [the defendant] when he attained the age of 21 years or thereabouts, because by then he would have been incarcerated for 6 years and his response or progress to the several programs available could be better assessed.’

19   Similarly, his Honour noted, at [73], that Dr Westmore:

‘… raised the possibility of [the defendant] suffering from a severe personality disorder, but was reticent, due to his age, to provide a definitive opinion to that effect.’

20   Later, his Honour noted:

’80   While his prognosis was poor at the present time, Dr Westmore accepted that in view of his age, immaturity, intellectual deficits, and the problems in understanding the impact of his earlier history, a positive outcome could not be excluded. In this regard he agreed that if [the defendant] was gaining some insight into the connection between anger and behaviour, and if he was able to form a close therapeutic relationship with a psychologist at the detention centre, then these could be positive indicators.

81   Dr Westmore agreed with the comments of Dr Brent Waters concerning the possibility that offenders, who comply with the ordered structures of the correctional system, can resume their dangerousness once released, that [the defendant] could fit into this category, and that those most likely to be at risk were the more vulnerable people in society. It was his opinion currently that “the balance of the information ... is against him in terms of the dangerousness issue.”

82   He agreed with Dr Waters that there was a tradition or practice not to say that a person has a personality disorder before he or she reaches young adulthood, adding:

‘... as Dr Waters said, the pattern of behaviour during early life leads us to forming the diagnosis in reference to some personality disorder and he has that history of that at an early stage so I am really saying that he has got a very troubled personality at best and in a few years time we will become aware whether or not he has a severe personality disorder.’

83   He was also of the view that there would be merit, if it were possible, to redetermine [the defendant’s] position at a later time, observing that by the time he was in his early 20’s, “the patterns of his behaviour are going to be really quite determined and evident”.’

21   His Honour concluded:

‘138   As the law presently stands, I must impose a sentence in the light of what is presently known, notwithstanding the circumstance that none of the psychiatrists or psychologists who have examined [the defendant] and who have given evidence, can be certain what the future holds, or what truly motivated him. I have given consideration to the possibility of adjourning the sentencing to a date well into the future, so that [the defendant’s] performance in the Robinson Programme can be better assessed, and so that a firmer diagnosis as to his mental state can be made. However, I am of the view that to leave the matter in a state of uncertainty for the period required, would be counter productive, and that a case such as the present does not admit of an application of the kind of principles which underlie Griffiths remands.

139   The only alternative, as I see it, is to impose a significant head sentence which would reflect my assessment that the present offence fell into the upper range of objective seriousness, and that [the defendant] poses a significant risk of recidivism and of being a serious risk to the community in terms of potentially killing again or committing sexual offences.

140   The interests of rehabilitation, and the faint signs that he may yet acquire some control of his anger, and some degree of empathy and social skills, through the intensive programmes available within the Juvenile Justice System and elsewhere within the Correctional System, should in my view, be reflected by fixing an appropriate non parole period. That should be one which will permit an extended period of release subject to supervision on parole, dependant however upon the way in which [the defendant] responds to these programs while in custody, and upon the resolution or development of the personality problems presently evident.

141   I am satisfied, by reference to his age at the time of the offence, his early childhood trauma, his intellectual impairment, the fact that he has not yet matured either intellectually or emotionally, and the special treatment which can be provided initially within the juvenile justice system, and later within the adult system, that these constitute special circumstances, so as to permit a variation of the usual ratio between the head sentence and the non parole period. Additionally they justify permitting [the defendant] to remain in a detention centre for a limited period after attaining the age of 18 years.

142   However, in view of the fact that he is physically very well developed, has limited empathy and a record of bullying and domination of younger children, as well as one of disruptive and aggressive behaviour over the past 8 months while held in custody, I consider that it would be inappropriate for him to remain in a detention centre beyond the age of 19 years. I say that having regard to the interests of the other detainees who are likely to be exposed to the kind of aggressive behaviour and poor example which he has set so far, but also having regard to his own interests since there is a risk that experience, age and superior physical strength will only entrench any tendency he has to dominate other more vulnerable persons.

143   The period between now and the age of 19 years I regard as sufficient for him to gain at least the school certificate, as well as to establish the basis for readjustment and socialisation, and to prepare him for vocational training more relevant to an adult.

144   In the meantime he can benefit from the sexual assault and violent offender programmes, and can then reinforce those gains in the programs specifically available for adults. In that regard I do not consider that a sentence and non parole period can properly be handed down which would free him from transfer to the adult correctional system. Any such sentence would fail to reflect the objective severity of the offence or the need for the protection of the community.’

22   The defendant was also charged with two offences that were alleged to have been committed the week before the index offence; namely, detain for advantage and cause injury to the victim (Crimes Act 1900 (NSW), s 90A, (since repealed), and aggravated indecent assault of a person under the age of 10 years (Crimes Act, s 61M, since repealed). It appears that those charges were dismissed in view of the proceedings for the offence of murder. The allegations were to the effect that, while staying at a holiday resort with his family, the defendant broke into a nearby holiday unit at night and woke and abducted a six-year-old girl using the ruse that her mother wanted to speak with her and was waiting outside. In a recorded interview, the girl said that the defendant pulled her away from the house. She cried and he tightly covered her mouth, saying she would die if she did not keep quiet. At one point, he ‘changed his face’. He agreed to take her home if she would ‘show my private’. She pulled down her pants and ‘he touched it’ and then took her home.

23   The defendant was asked about the incident immediately following his arrest for the index offence, while he was being conveyed to the police station in a police vehicle. In a statement that was tendered without objection in these proceedings, a detective said that when he asked the defendant about the incident, he replied: ‘it was a trial run’. He told the defendant that he understood that the girl said that during the incident he ‘changed his face’. The detective stated that the defendant lowered his head towards his lap, lifted it and turned towards the detective, who stated: ‘His eyebrows were raised and he was glaring at me. His face was strained. He had deliberately distorted his face’.”

12. In the preliminary judgment, I noted that an Offender Integrated Management System (OIMS) note dated 21 April 2023, which is evidence in this final hearing as well, reports that he claimed to Dr Richard Parker, who is a Senior Psychologist with the Serious Offenders Assessment Unit in Corrective Services NSW and the defendant’s treating psychologist, that his motive for the murder was to exact revenge for bullying by the deceased’s brother. I note there is no evidence of this claim having been investigated, so I allow for the possibility that the defendant’s claim was fanciful.

The defendant’s subsequent criminal offending until April 2023

13. In the 2023 judgment, at [24]–[29], I reviewed the material concerning the defendant’s subsequent offending and concerning behaviour while in custody until that time:

“24   In September 2003, the defendant was convicted of assault occasioning actual bodily harm, which he committed in Reiby Juvenile Justice Centre earlier that year when aged 16. The circumstances were that while he was alone with a female nurse in her office, receiving treatment, he suddenly put her in a tight headlock which caused her to hit a filing cabinet thus receiving an injury. Her screams alerted a person outside who, on entry, observed the defendant holding a metal instrument which was later found to be filed down so that it was sharper at one end. He was not charged separately in relation to that allegation. He received a control order for a period of 12 months.

25   In October 2004, when aged 17, the defendant stabbed a Juvenile Justice worker in the neck and on his ear lobe with a pen while being restrained, following a threat by him to ‘stab the first boy that comes out of his room’. In 2006, he was sentenced to imprisonment for a period of 27 months with a non-parole period of 18 months, to be served concurrently with his murder sentence.

26 In June 2011, when he was aged 24, while detained in Goulburn Correctional Centre, the defendant gave a lengthy letter to his then-treating psychologist in which he threatened to torture and kill him. He claimed to investigating police that it was written by an alter-ego named ‘Thorn’. He was charged with an offence of delivering a document with a threat, contrary to s 31(1) of the Crimes Act, to which he pleaded guilty. As a result of the incident, he was transferred into a segregation area of the prison.

27 About seven weeks after that incident, when a prison officer slid a meal through a food hole at the bottom of his cell door, the defendant grabbed the officer's wrist and slashed it, and his hand, with a razor that he had obtained by dismantling a disposable razor. The defendant threw it through the food hole and denied the offence, claiming that the officer may have cut himself on the door. The defendant was charged with recklessly wounding a law enforcement officer, other than a police officer, when in the execution of his duty, contrary to s 60A(3) of the Crimes Act. He was convicted following a trial by judge alone.

28   For both offences the defendant received an overall sentence of 4 years and 5 months with an overall non-parole period of 2 years and 11 months, to commence on 28 October 2011. The sentencing judge found that the motive for the threatening document offence was unclear, but that it likely included a concern that matters the defendant had disclosed in confidence could embarrass him and jeopardise his prospects for parole. His motive for the reckless wound offence was directed to officers in the unit generally and his intention was to slash the hand of whichever officer happened to pass him food.

29   In June 2019, the defendant was reclassified from A2 to a B classification, coinciding with his involvement in a program that provided a pathway to his participation in group programs. In October 2019, he commenced the Violent Offender Therapeutic Program (VOTP). His participation in the program was suspended in February 2020, due to intimidating behaviour by him towards a female staff member, and at his own request. In May 2020 there was another incident of intimidation of a female staff member and in June 2020 he refused a drug test. Consequently, he was reclassified back to A2.”

14. As noted, the sentencing judge for the “reckless wounding” offence against the prison officer found that it was directed to officers in the unit generally, rather than that officer specifically. At this final hearing, Dr Parker gave evidence that the defendant had told him that it was not a random attack, but rather he intended to harm a particular prison officer as an act of revenge for a perceived wrongdoing by that officer to him.

The defendant’s criminal offending and concerning behaviour between April 2023 and December 2024: s 17(4)(i) and (j) of the Act

15. In the preliminary judgment, at [17]–[31], I reviewed the material concerning the defendant’s criminal offending and other concerning behaviour until the date of that judgment:

“17   The defendant was released into the community on 17 April 2023, subject to the ISO. He resided at a Community Offender Support Program Centre (COSP) which is a type of supervised accommodation operated by Corrective Services NSW. On 30 May 2023, a routine search of his mobile phone and tablet revealed that he had breached a condition of the ISO to not use any coded or encrypted messaging application or service, by having downloaded a search engine that allowed users to search online in incognito mode. It was also noted that the Google and YouTube search history functions had been turned off and the auto delete action was turned on. The following day, he was issued with a formal warning in relation to the breaches.

18   On 2 June 2023, another search disclosed that on 31 May 2023, the defendant had accessed and used two encrypted apps and received an email from a social networking application that indicated he was registered with them. He was arrested and charged with an offence of failing to comply with the ISO. He was also charged with a further failure to comply, for entering the room of a fellow inmate without permission, but that charge was later dropped. At the time of his arrest, he had been back in the community for about 6 weeks. He was released to bail on 28 June 2023.

19   The defendant was arrested and charged with two further ISO breaches on 11 July 2023, for which he was bail refused. One was possessing a razor blade, and the other was threatening self-harm so as to impede his supervision. The allegations are described in a ‘Joint Statement of Agreed Facts’ (the Agreed Facts), that was tendered at the hearing, as follows.

‘According to the Police Facts, on 11 July 2023 (the first day of the final hearing for the 2023 ESO), the defendant was residing at the COSP when he received news regarding his court proceedings which he perceived as unfavourable, namely, that logistically and due to intensive resources required at short notice (having 2 DSOs escort him), he was unable to attend by person and could only attend by phone. Shortly afterwards, he obtained a razor blade by breaking a shaver and taking the blade from its housing. The defendant used the blade to make several superficial lacerations to his left forearm before showing the injuries to the COSP manager.

Whilst on the way to hospital for treatment and a mental health examination, the defendant stated to his supervising officer, ‘I’m doing this to make a point because I can’t go out on my own. I’ll cut myself Monday, Tuesday and the weekends. Next time I’ll do my right arm,’ and further stated, ‘I know that if I go back to the COSP and self-harm I know I’ll get kicked out and you guys will struggle to find me somewhere to live.’ These statements breached Condition 4 of the defendant’s ESO, which provides: ‘The defendant must not engage in any threatening, intimidating or abusive behaviour towards CSNSW or electronic monitoring staff involved in his supervision (including CSNW staff at any accommodation the defendant is residing at) that would cause the staff member to fear for their safety and/or interfere with or impede supervision’. The defendant’s actions amounted to impeding supervision.’

20   As noted, on 18 August 2023, while the defendant was on remand for these charges, Campbell J ordered an ESO.

21   On 20 September 2023, the defendant received concurrent 12-month CCOs in respect of the ISO breach offences, to commence on that date, and was thus released back into the community.

22   The defendant was charged with further offences, arising from alleged breaches of his ESO conditions, on 24 October 2023. He was arrested and refused bail; he has been in custody since then. On that date, he attended Bulli Beach with his disability support worker. The defendant walked along a footpath area towards a public shower area at Bulli Beach. A woman had showered her 15-month-old son at an outdoor shower and was dressing him. The woman gave evidence that the defendant approached her and asked her if she knew how to turn the foot tap on. He then engaged in a conversation with her about her child, asking if he was speaking yet and, apparently noticing spots on his skin from mosquito bites, asking if he had chicken pox, and asking whether ‘his dad [was] around?’ He then walked back toward his disability support worker and left that area.

23   An off-duty Community Corrections Officer, who I will refer to as witness X, noticed the defendant, who was wearing an ankle bracelet, speaking to the woman, and apparently approaching other women. He contacted police who attended and arrested the defendant.

24   The defendant was charged with two other offences arising from the same incident and opted for a trial by judge alone. He did not dispute the woman’s evidence but denied that he intended to ‘associate’ with the child, as he understood that word within the relevant ESO condition, which was in the following terms:

‘Part F: Non-association

Association with Children

30.   The defendant must not associate with anyone who he knows or reasonably should know is under 18, other than incidental contact in a public place in the course of the duties of the minor; or with the written permission of a DSO and in accordance with any requirements reasonably determined by a DSO, including that the contact takes place in the presence of an adult who has been approved in writing by a DSO.’

25   ‘Associate’ was defined as including, but not limited to: –

‘… being in company with or to communicate by any means (including by post, facsimile, telephone, email or any other form of electronic communication).’

26   The trial judge, Fitzsimmons SC DCJ, found that the offence was a strict liability offence, and on that basis, that the defendant was guilty. The defendant was acquitted of the other two charges.

27   As noted, the defendant was sentenced on 16 December 2024 to a backdated prison sentence, so that he is presently on parole until 23 April 2025. When sentencing the defendant, his Honour remarked at [7]-[10]:

‘7   The offence was committed during a visit to Bulli beach when [the defendant] interacted with the child’s mother whilst in the presence of the child. Although there was no direct interaction with the child, the topic of conversation was the child. The interaction was relatively brief lasting no more than several minutes.

8   I am not satisfied, as contended by the Crown, that the offending was such as to elevate, in any material way, the risk of [the defendant] committing a serious violent or sexual offence, including the possible commission of an offence of the same kind for which the extended supervision order was imposed: Monteiro v R [2022] NSWCCA 37 at [36]. The offence occurred during the day in a public area attended by numerous people. The interaction was brief, and following an inquiry of the mother to the whereabouts of the child’s father, [the defendant] promptly removed himself from their presence.

9   However, it must be acknowledged that the purpose of imposing an absolute prohibition on the association with children is an acceptance that the commission of a serious offence against a child might be initiated through an association with the child.

10   In all circumstances, I find that the offence falls towards the lower end of the range of objective seriousness.’

28   As noted, on 3 April 2024, the defendant was charged with the intimidation offences. The Agreed Facts state the following:

‘According to the police facts, on 23 February 2024, whilst in custody and speaking with his Departmental Supervising Officer about the earlier incidents at Bulli Beach, the defendant is alleged to have stated that he believed [witness X] who had witnessed the incidents at Bulli Beach on 24 October 2023 was fabricating his evidence and was lying in relation to what he saw, and that he intended on exacting revenge on the witness upon his release from custody.

…

A search of the defendant’s gaol cell was conducted on 13 March 2024, and a piece of paper with handwritten notes was located which stated words to the effect, ‘[witness X’s name] …’.’

29   Following a hearing in the Local Court, the charges were dismissed on 5 December 2024. A transcript of the Magistrate’s findings was not available, but the defendant was represented at the hearing in the Local Court by the same counsel who appeared for him at the hearing of this application. It was accepted by the parties that the defence in the Local Court hearing had not disputed that the alleged words were said and written by the defendant. The charges were dismissed on the basis that the alleged intimidatory statements had not been made directly to the alleged victims, and thus the element of intent had not been satisfied to a criminal standard.

30 For the purposes of this application, the plaintiff relies upon multiple instances of the defendant making intimidatory statements concerning the same alleged victims which were canvassed in the Agreed Facts, in excerpts reproduced from the defendant’s Offender Integrated Management System (OIMS) notes. According to these records, in the same conversation in which the threat noted at [28] above was made, the defendant maintained that he was not merely venting frustration, but rather was ‘very serious’, that he had been planning it and thinking about it daily. Prior expressions of a desire to harm witness X and/or his family were recorded in the OIMS notes on 6 December 2023 (‘veiled threats to harm [witness X]’), 29 January 2024 (‘feeling a lot of anger towards [witness X]’), 13 February 2024 (‘he wanted to ‘retaliate and ‘get revenge’ on the people that placed him in jail’) and 16 February 2024 (‘He also vowed revenge against those who have falsely charged him’). Subsequent such expressions were recorded on multiple occasions. Some of these were on 5 March 2024 (‘still holds revenge fantasies about [witness X] who got him arrested’) and 15 April 2024 (‘mentioned that he would obtain the address or the general whereabouts of [witness X’s] residence once an AVO was granted’).

31   The defendant’s obsessive focus on witness X appeared to relax from around March and April 2024. An OIMS note by his psychologist, dated 11 April 2024, states that ‘revenge focus seems to have faded somewhat/morphed into legal revenge through the court system, compared to earlier interviews.’ However, the defendant continued to express a desire to physically harm others, defined by gender, age or occupation, or simply to engage in types of personal violence. There were equally disturbing admissions of threats and troubling ruminations by the defendant, a constant theme being the perpetration of extreme violence.”

16. In the preliminary judgment, I accepted that the breach of the defendant’s ESO on 24 October 2023 at Bulli Beach was towards the lower range of objective seriousness and may well have occurred as a result of the defendant’s lack of understanding about the fact that the ESO condition that he not “associate” with children operated to prohibit him from conversing with a child’s parent about the child in the child’s presence. I maintain that finding.

17. A matter of concern, however, is that in his evidence in the final hearing, Dr Parker stated that the defendant had been forewarned by him and others that his understanding of what was meant in the ESO conditions by the term “associate” was likely incorrect, but he approached the women who were with their children anyway, preferring to trust his own belief rather than accept their advice, with the inevitable outcome that he may have been in breach of the ESO conditions:

“A. So he’s got particular thinking patterns … looking at an autism spectrum disorder framework makes the most sense here. That he will think ‘Because I believe this, therefore that’s the reality’. So with the breach about associating with a child at the beach, staff had warned him that approaching a woman who’s got a child with them could put you in breach of the order, and he would argue, ‘No, I’m not associating with’ … The issue is he substitute[d] his understanding and ignore other people’s understanding.

So there’ll be situations where he believes that a particular behaviour is allowed within the conditions of his order. Now, for the rest of us we’d know that if a Community Corrections officer tells you that's against your order, you'd be very wise to believe them given they’re the one who will institute breach action, but his mind will go to, ‘No, no, I’m right here, therefore I will do this’. I expect he will - it’s hard to predict which condition it will be, but there would be some condition where he will believe it means a particular thing, Community Corrections and maybe ultimately the Courts will believe it means something else, and he will have to find out that way.”

Whether the Court is satisfied to a high degree of probability that the person poses an unacceptable risk of committing another serious offence if not kept in detention under the order: s 5C(d) of the Act

18. Tendered on the hearing was an affidavit by Sharryn Coe, who is the Director of the Intensive Rehabilitation Directorate, Community Corrections. Her evidence was relevant to the likely conditions the defendant’s custody if a CDO is made, and the conditions of the ESO, if a CDO is not made. Ms Coe also gave evidence. Her evidence comes within s 17(4)(d1) and (e1).

19. Tendered also were the reports of four forensic experts. Dr Kerri Eagle, who is a forensic psychiatrist, provided reports dated 6 February 2025 and 7 March 2025. Patrick Sheehan, who is a forensic psychologist, provided reports dated 31 January 2025 and 12 February 2025. Both were appointed by the Court pursuant to s 15(4) of the Act, so that their reports are relevant pursuant to s 17(4)(b).

20. Two reports of Dr Richard Parker who, as noted, is the defendant’s treating psychologist, dated 28 January 2025 and 10 March 2025, come within s 17(4)(c), as do the reports and evidence of Samuel Ardasinski, who is the senior psychologist with the High Risk Offenders section of Corrective Services NSW and the author of four risk assessment reports in respect of the defendant, the most recent of which is dated 12 September 2024. All four forensic experts gave evidence at the hearing. Dr Eagle and Mr Sheehan gave evidence together.

Ms Coe’s affidavit and evidence

21. Ms Coe noted that the defendant has, until recently, been on protection at his request, in view of his concerns as to his safety in the prison system. A consequence of that classification is that he has had fewer opportunities to develop social skills. In their initial reports, Dr Parker, Dr Eagle and Mr Sheehan expressed concern that the order sought by the plaintiff of an additional 12 months in custody would, at best, achieve nothing in terms of the defendant’s rehabilitation and, at worst, set it back.

22. In response to those opinions, Ms Coe and others in Community Corrections developed a one-off plan for the defendant which sought to encourage him out of self-imposed segregation and accelerate his progress through the prison classification system, so that at the end of the 12 months he would have the benefit of more social interaction, both within and without the confines of a prison and thus be better equipped to not breach his ESO. The program has been approved by the Commissioner for Corrective Services. It was referred to in the hearing as the “Reintegration and External Leave Plan” (the RELP).

23. To that end, SLD has recently been reclassified to C1, which has allowed him to be moved to the Metropolitan Special Programs Centre (MSPC), which is a prison with inmates who are less likely to be violent towards him, thus allowing him to develop his social skills in a less-threatening environment. The Governor of his prison may determine to permit him to have escorted day leave, which is likely to be three days per week, commencing in about four weeks time. If all goes well, he would progress to being permitted to have overnight leave, and at an earlier stage than would usually be the case.

24. Ms Coe said that if, on the other hand, a CDO is not made, so that he is immediately released pursuant to the ESO, SLD would be accommodated in a facility, which I understand to be staffed by Community Corrections as a halfway house-type of accommodation. A feature of the supervision of the offender in the community prior to his arrest in July 2023 was “line of sight supervision”. This means that whenever the defendant is outside his place of residence he is under the visual supervision of two Departmental Supervising Officers (DSOs). Ms Coe’s evidence was that line of sight supervision would again be utilised, at least for the first four weeks of his recommencement of the ESO, and thereafter if required, according to the ESO team’s assessment of his level of risk.

Dr Parker’s reports and evidence

25. Dr Parker has been the defendant’s treating psychologist since June 2020. He explained that a feature of his behavioural therapeutic approach to the defendant, which is known as the Cognitive Self Change program (CSC), is to direct the defendant’s responses to situations that would otherwise be criminal into lawful avenues. In his report, he explained:

“… CSC works with the offender, where he is at, to jointly understand the thinking that led to his offending (Step 1) and how that thinking led to offending (Step 2). Once, and only once, an offender can explain that, he is challenged to come up with thinking he could use to avoid offending (Step 3), whilst simultaneously feeling good about himself. This is presented as a hypothetical. Once he has developed credible new thinking that can achieve this, Step 4 involves practicing this new thinking until he can carry it out in real-life risky situations.” (footnote omitted)

26. Dr Parker was of the view that the defendant had several indications of Asperger’s syndrome, which was an obstacle in the therapy:

“[SLD] has engaged well in the intervention, although at times he has struggled with certain concepts. He also tends to have an unusual presentation and appears to have several indicators of Asperger’s syndrome, as evidenced by strained relationships with other inmates and staff, awkward social interactions, and a general lack of friendships.

A key feature of this syndrome is the lack of a theory of mind – ‘… the ability to recognize and understand thoughts, beliefs and intentions of other people in order to make sense of their behaviour and predict what they are going to do next’. This then leads to difficulties in social interactions.” (footnote omitted)

27. Dr Parker noted that, according to a range of actuarial instruments, the defendant’s risk of committing another serious offence was in “the higher ranges of risk for violent and sexual offending”. As to the most likely scenario of future violence, he considered that it would likely be a reactive offence and the result of “automatic thinking (dominated by emotional reactions)”. It would most likely not result in serious harm, because “statistically, most violence is not serious, and unplanned violence usually does not involve weapons … but it could”. The most likely victim would be a person the defendant could not easily isolate himself from, such as a co-resident.

28. As to the most likely scenario of future sexual violence, Dr Parker considered that:

“… the most likely future victim would be a [post-pubertal female]. [SLD’s] behaviours would also suggest that he would try to strike up a relationship, rather than simply attack a total stranger - his sexually inappropriate behaviours in custody have tended to occur when he believes there is some mutual attraction between himself and the female. Consequently, the most likely scenario for a serious sexual offence would involve a female who has rebuffed his overtures of a relationship. However, I note he has been rebuffed many times already, in the community, and, so far, has taken that in his stride - even if he hasn’t yet realised that his tactics are unlikely to encourage a female to enter a relationship.

In the event he forms a relationship, then his lack of empathy and lack of relationship experience is highly likely to lead to tensions in the relationship. In this scenario, violence and/or sexual violence could result. As this would probably be a reactive offence, the most likely outcome would be below the level of seriousness to qualify as a serious offence under the Act, but it is possible.”

29. Dr Parker was firmly of the view that the defendant’s level of risk was manageable on the ESO, particularly in view of the availability of line of sight supervision, if required. He said he would meet with the defendant weekly, if he returned to the community subject to the ESO.

30. Dr Parker provided a supplementary report, dated 10 March 2025 which, amongst other matters, addressed the RELP. Dr Parker had three concerns about that proposal: the defendant may retreat to self-imposed segregation, for example, if he is attacked, or as a form of protest at a perceived injustice; escorted leave may be cancelled for disciplinary reasons or for reasons outside SLD’s control; and escorted leave would give him restricted opportunities for social interaction, so that it would be less beneficial than it would be under an ESO. He concluded:

“Consequently, I believe the rehabilitative aims of the Act would be better served by an ESO than a CDO. However, if the Court were to form the opinion that the existing ESO was no longer sufficient to contain the risk of a further serious offence to an ‘acceptable’ level, then it could impose a CDO. With the proposed scenario of day leaves, it is possible that the risk at the end of that period may be ameliorated somewhat, but day leaves would have less rehabilitative impact than an ESO. At the end of a CDO, [SLD’s] risk may be lower, higher, or no different than currently.”

Dr Eagle’s report and evidence

31. Dr Eagle referred to past diagnoses of the defendant of having an antisocial personality disorder, features of an autism spectrum disorder (ASD) and an XYY syndrome that arises from his chromosomal abnormality. She summarised her diagnoses of the defendant thus:

“He has a severe personality disorder, autism spectrum traits, an attachment disorder and XYY syndrome (Jacob’s Syndrome). His diagnoses have developed in the context of biological and psychological vulnerabilities predisposing him to mental health and emotional difficulties including his genetic syndrome, a family history of mental health difficulties and exposure to significant childhood deprivation, dysfunction and abuse.

…

The traits and symptoms of the various disorders that apply to SLD are described above. The conditions are enduring and pervasive. SLD’s severe personality traits combined with specific social, communication and emotional deficits contribute to his overall risk of committing a violence and/or sexual reoffence. Higher scores on a [Psychopathy Checklist-Revised] are associated with increased risk of violence and SLD has been found to have an elevated score on the PCLR by several experts.”

32. Dr Eagle found that the defendant has a high loading of historical factors associated with the risk of future violence. She was of the view that if the defendant did commit a serious offence, it could involve a weapon:

“Given his history of violent behaviour which has involved the use of weapons, and planning, he is at risk of engaging in violence of high lethality which could be considered a serious violence offence.”

33. Dr Eagle was of the view that the defendant poses a substantially elevated risk of committing a further serious violence offence and/or sexual offence, based on various risk assessment tools and expert clinical judgment.

34. She stated in her report:

“It appears most likely that SLD’s risk of sexual violence arises as an extension of his violence risk generally, in that he is most likely to react violently to a perceived slight or provocation or plan violence as a revenge or retribution, and that violence could include sexual violence if the antagonist is a female.”

35. Dr Eagle stated:

“Due to his severe personality pathology, SLD presents a significant risk management challenge in the community, but it is also apparent that remaining in a correctional environment is unlikely to change his risk profile, and may actually increase his risk.”

36. Dr Eagle expanded on these concerns, later in her report:

“SLD would present an ongoing potential risk to the community under an ESO. As indicated above, it is difficult to be confident that the risk can be managed by any level of supervision and monitoring. However, with intensive monitoring and subject to the ability of the ESO team to safely implement that monitoring and supervision, potential breaches should come to the attention of the team early as occurred previously. SLD does have the capacity to deceive, manipulate and intimidate staff. Staff would need to be skilled in identifying and managing individuals with complex personality traits.

As has been suggested by other experts, such as Dr Smith, continued incarceration is inherently counter therapeutic from a psychiatric perspective and would be unlikely to mitigate SLD’s risk beyond incapacitation and protection of the community. He has offended in the correctional environment. If he were to remain detained in a correctional facility, it would appear counter-productive for him to remain in segregation and SLD should transition to a less restrictive environment so that release preparation and planning can be effectively implemented. I have no informed view as to how long SLD should remain incarcerated from a psychiatric perspective, given that the purpose would be limited to incapacitation and community safety, a matter respectfully for the court. He is unlikely to benefit from further psychological interventions in custody.”

37. In a supplementary report, Dr Eagle noted that she had been provided with certain OIMS notes, which I observe could be reasonably summarised as referring to highly concerning behaviour by the defendant, as well as to the RELP material.

38. Dr Eagle stated that she had considered the material and that her opinion was unchanged. She said that if a CDO was made, she supported the plan to attempt to transition the defendant through less restrictive areas of the correctional centre with the goal of external leave.

Mr Sheehan’s reports and evidence

39. Mr Sheehan’s assessed the defendant’s level of risk and likely risk scenarios as follows:

“He is assessed as being in the high risk category for violence behaviour when measured against standard violence offending tools, in this case the VRS. In my view this remains an accurate assessment. His risk arises primarily through a processes of paranoid ideation, grievance, righteousness, violent revenge fantasy, and distorted perception that he has no other option than to proceed with violence. Through violence fantasy, threat and action he is able to offset feelings of powerlessness. He is at risk of targeting people around him through this process, opening the risk of violence to a broad potential target range. His history suggests that he may act violently against those people linked to the target of his vengeful thoughts, rather than the target person. This may be opportunism. His pattern of weapon use, lack of restraint and fantasies of extreme violence extend to a serious violence offence as defined in the Crimes (High Risk Offenders) Act 2006. His history does not support the view that [SLD] would act violently at every opportunity. Indeed, he has shown the capacity to desist from actual violence for years at a time (bolstered through segregation). The risks are chronic, and it is difficult to predict how quickly this might unfold in community settings, particularly in the absence of intensive supervision.

Whilst I have misgivings regarding the validity of expressing [SLD’s] risk of sexual offending in a categorical way (low/medium/high), in my view the evidence suggests that concerns about [SLD’s] potential for harmful sexual behaviour are genuine and should be part of his management framework. He would seem most at risk of sexually intimidating females through ‘social-sexual incompetence’ or disordered courtship attempts, but his risk also extends to sexual violence through an interest in rape fantasy. He may plan to sexually offend against a female who is connected to a person with whom he holds a vendetta. Indeed, he has recently expressed such a plan in February 2024, when he made threats to sexually offend against the family of a witness who gave evidence against him. This is perhaps the dimension of his risk that extends most obviously to a serious sex offence as defined in the Crimes (High Risk Offenders) Act 2006, with potential for severe harm to the victim, with grievance-fuelled violent sexual fantasy escalating the risk of injury. [SLD’s] age-insensitivity is a feature of his risk, showing poor capacity to estimate age or to impose any boundaries on the age of someone he is sexually interested in. This expands risk to include young people, who would be more vulnerable to him. He has shown obsessiveness in his sexual interest and is at risk of stalking behaviours in the past. He is at risk of not recognising or responding to distress or withdrawal of consent in sexual partner relationships.”

40. As to the defendant’s breach of his ESO in October 2023, Mr Sheehan said:

“In my initial report (dated 10 June 2023) I anticipated that [SLD] would breach the terms of his order causing his rearrest and imprisonment, which in my view would serve the purpose of interrupting processes of escalation, where [SLD] makes cascading poor decisions that lead towards scenarios where a ’serious offence’ would be more likely. This has appeared to play out and in my view this exemplifies the effectiveness and rigour of the ESO in practice.

Of the ESO breaches that [SLD] has been convicted of so far, I do not regard as particularly serious, or as foreshadowing imminent risk of a serious offence, but rather to reveal [SLD’s] ongoing problems managing impulses and clumsily pushing the boundaries of his ESO … I am more concerned with [SLD’s] ongoing violence ideation and his vengeful fantasies in 2024 against the witness who gave evidence in his most recent ESO breach conviction. Although [SLD] has a long history of making threatening statements to correctional staff and has not acted in physical violence towards staff since 2011, his threats of violence on this more recent occasion were sustained and repeated over a period of months, not a single impulsive vocalisation made in anger …The treatment records of Dr Parker reveal the extent to which [SLD] expressed a long term commitment to his revenge plan, to wait beyond his ESO (notes 5 March 2024). However I also note that this period of obsessive preoccupation with violence fantasies against the witness was almost year ago, and that Dr Parker has noted that [SLD’s] focus had shown signs of moving on to ideas of legal challenge instead of violence by mid 2024 (26 June 2024).

Although the recent CSNSW risk assessment report (Ardasinski, 12 September 2024) concludes that the risk is being adequately managed under the ESO, the supplementary risk management report from the ESO Team (Burton, 5 September 2024) strikes a more ambivalent tone, stating both that the suite of conditions ‘are sufficient to assist with early identification and mitigation of the risk [SLD] poses to the community’, but also stating that ‘the threats and escalation of [SLD’s] behaviour presents significant concern regarding the effectiveness of his supervision and the ability of the team to enforce the conditions of the order’.

In my view, [SLD’s] response to supervision has been poor but he has remained grudgingly compliant with the broader structure of supervision In general terms, such as residing at an approved address, participating in interviews when directed, attending his scheduled treatment and basically complying with conditions around scheduling and line of sight supervision. Were this to continue, in the absence of a wholesale rejection of supervision (such as absconding), [SLD’s] ESO should be regarded on balance as effective as a means of managing his risk of a serious offence, despite the difficult challenges encountered by the ESO team. As expressed in my initial report (10 June 2023) the main caveat to this is the possibility of absconding from supervision in the event of breach. [SLD] made reference to this on a number of occasions during his supervision (RMR, 5 September 2024) but has never actually done so. In my view, in the event that [SLD] cuts off his GPS monitor and absconds from supervision, his risk of a serious offence would be acute during the period of absconding until his re-arrest. Line of sight supervision cannot extinguish the risk of absconding but will go some way to offset the risk, and can provide a more rapid time response in the event that this occurs. If the intention is to release [SLD] to the community at any time in the future, this risk will need to be accepted. This is no different than at [SLD’s] initial release in 2023.”

41. Mr Sheehan considered that the conditions of the ESO, together with line of sight supervision being utilised when required, was sufficient to manage the defendant’s level of risk:

“In my view, despite his repeated supervision failures and his tendency to compound his poor decisions, there has been sufficient engagement with his order and interest in prosocial goals to continue supervision. In my view as long as [SLD] remains basically engaged with the intensive supervision system around him, the ESO can be considered effective in managing the risk of a serious offence (the primary object of the Act), despite the likelihood of further breaches and boundary pushing. I am also of the view that if [SLD] is to rehabilitate, this will be more likely to occur in a community setting as opposed to a gaol setting (the second object of the Act).

The possibility of absconding from supervision remains the most troubling caveat to the above opinions, with the risk of a serious offence being very much elevated in that event, particularly if coinciding with a spike in fixated grievance and violent fantasy coping. There is no way to reliably predict the possibility of absconding, but it cannot be excluded. [SLD] has threatened to abscond on several occasions, but also gave a reality-based account to me of why it would be pointless for him to do so. In my view, the viability of the ESO hinges on whether this specific risk is considered acceptable to the court. I note that these risks were already known prior to the imposition of the ESO in 2023. In the event that the risk is deemed unacceptable, a further period in detention can provide temporary protection to the community by way of containment, but will be unlikely to provide any other ameliorative effect and will likely further degrade [SLD] readiness for release.”

42. Mr Sheehan expressed concern that if a CDO is made, the RELP may not materialise as it is hoped. In his experience as a former employee of the Department who worked directly on escorted day leave arrangements, it is frequently abandoned due to staff shortages and lockdowns and is subject in any event to the determinations of the Governor who has the responsibility of the overall operation of the prison.

43. Mr Sheehan provided a supplementary report, in response to a request to comment on Dr Parker’s primary report. He found merit in Dr Parker’s therapeutic approach, agreeing that removing SLD from the pervading violence of the prison environment would be beneficial to his rehabilitation. Mr Sheehan was of the view that the extent to which the progress that SLD had made by not reoffending was due to therapy, was uncertain: “His poor appraisal, idiosyncratic thinking and proneness to violence ideation remain live risk factors”.

Mr Ardasinski’s reports and evidence

44. Four of Mr Ardasinski’s risk assessment reports were in evidence, dated 15 June and 16 November 2020, 31 October 2022 and 12 September 2024. In the earlier reports, Mr Ardasinski had said that the defendant would benefit from a staged return to the community. In evidence, he agreed that the RELP was such a plan, but was of the view that while it would have been beneficial in 2023, it was not so now. He was of the view that it had the potential to confuse the defendant and make it more difficult for him to adapt:

“If that was imposed at the current time, it’s my opinion that that would be confusing for the defendant in a future sense because he has had the experience of being at conditional liberty under an ESO and in my experience and in my opinion on how he’s adapted so far to the conditions of his extended supervision order’ … I don’t think it would be advantageous from a psychological rehabilitation perspective, but it is a graduated release plan and I acknowledge that and it’s a way for the defendant to be able to be released in a more graduated sense from a custodial setting, but, in my opinion … it’s not a panacea.”

Consideration

45. While any breach of an ESO is a matter of concern, the nature of the defendant’s breach in October 2023 is not one that, in my view, raises an issue of future dangerousness that stands in the way of him being returned to the ESO. As noted by Dr Parker and Mr Ardasinski, technical breaches of the ESO by the defendant (that is, not breaches that pose a danger to the community) are to be expected. Indeed, they have a necessary (albeit painful for the defendant) role in his rehabilitation by boundary-marking where he fails to exercise self-discipline or obey directions because he has a different opinion.

46. However, while the breach itself is not unduly concerning, the same cannot be said for the defendant’s reaction to the contents of the statement of the off-duty Corrective Services officer who contacted police, which led to his arrest. Although the defendant’s desire for violent revenge against that officer has been redirected to a non-violent and lawful avenue in the form of attempted court proceedings, the fact of the reaction in itself is, in my view, a matter that is relevant to the issue of the risk of him committing a serious offence if not subject to a CDO. I note the evidence to the effect that the defendant’s level of anger arising from that incident has significantly abated, although it is not resolved.

47. The defendant’s more recent claims that the murder offence that he committed in 2001 and the reckless wounding offence that he committed in 2011 were both motivated by a desire for violent revenge against particular individuals, whether true or not, suggests a predisposition to such thinking, at least currently, if not at the time of those offences.

48. Contrary to Dr Parker’s opinion, I am of the view that there is a risk of the defendant engaging in planning of a revenge attack and deploying an everyday object as a weapon, as indeed he did in the murder with a steak knife and in the reckless wounding with a razor blade. In that sense, I am more inclined to the opinion of Dr Eagle as to the nature of future risk scenarios. I note, however, Dr Eagle’s opinion that the defendant’s risk would be contained if he was subject to the ESO, subject to an appropriate level of ongoing scrutiny of the defendant’s behaviour.

49. It is troubling that the defendant, who turned 38 during the hearing, has a sexual focus on young women – so young that he is able to mistake their age as being 18 or over, when they are not. While it is not unlawful to approach and engage an 18 year old in a public place in an attempt to obtain contact details so as to asking them out on a date, in the context of the defendant’s risk level for a sexual offence and demonstrated capacity for developing an obsessive fixation on hurting a person who he believes has wronged him, it is a matter of relevance and concern. The vulnerability of a young adult in that position is heightened by an absence of maturity and life experience; that is, the ability to realise that the defendant is stung by something he believes they have said or done, and to deal with that situation. Again though, I note that the conditions of the ESO provide for a high level of monitoring of the defendant’s behaviour.

50. From the perspective of the defendant’s rehabilitation, there is no doubt that the ESO is the preferred course. I accept the evidence that a CDO, even though it would involve the RELP, may in fact be counterproductive to the defendant’s rehabilitation. However, as stipulated in s 3 of the Act, the primary object of the legislative scheme is the safety and protection of the community.

51. The uniform opinions of the four forensic experts, two of whom have had a working relationship with him for over four years, is to the effect that the degree of supervision that would be involved in the ESO is sufficient to detect an emerging threat that the defendant may pose to an individual. I accept their opinions are soundly based on their expertise and that their opinions warrant significant weight.

52. The question for the Court is somewhat different. It is whether the Court is satisfied to “a high degree of probability” that the defendant poses an unacceptable risk of committing another serious offence, as defined in the Act.

53. Having regard to the definition of a “serious offence”, the defendant has not previously committed a serious sex offence, although he is regarded by forensic experts as having a high level of risk of doing so. His prior convictions include a serious violence offence.

54. The meaning of the term “a high degree of probability”, as it appeared in an earlier version of the Act, was considered in Cornwall v Attorney General for New South Wales [2007] NSWCA 374. The statutory context was as follows.

“17   Determination of application for continuing detention order

…

(3)   A continuing detention order may be made if and only if the Supreme Court is satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence if he or she is not kept under supervision and that adequate supervision will not be provided by an extended supervision order.”

55. It is to be noted that the provision did not refer to “a high degree of probability that the offender poses an unacceptable risk of committing another serious offence”.

56. The Court said, at [21]:

“The expression ‘a high degree of probability’ indicates something ‘beyond more probably than not’; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt. On the other hand, the risk or likelihood itself does not have to be a probability to the civil standard of proof, but rather a sufficiently substantial probability to satisfy the criterion ‘likely’ as explained in TSL.” ^[1]

1. TSL v Secretary to the Department of Justice (2006) 14 VR 109.

57. The words “unacceptable risk” should be understood according to their everyday meaning: Lynn v NSW (2016) 91 NSWLR 636; [2016] NSWCA 57 per Beazley P (as her Excellency then was) at [58].

58. Having regard to the evidence concerning the defendant’s level of risk, including his prior offending and history of concerning behaviour, I am satisfied that the defendant poses a risk to the community of committing another serious offence, if not kept in detention. However, taking into account that if a CDO is not made, the defendant would be subject to the ESO, the defendant’s prior record whilst in the community subject to the ESO conditions and the opinions of the forensic experts, in particular as to the capacity of the ESO to manage the defendant’s risk to the safety of the community, I am not satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept in detention.

59. Accordingly, the prayer for a CDO is dismissed.

Orders

60. I make the following order:

1. Prayer 4 of the summons filed on 4 November 2024 is refused.

**********

Endnote

Decision last updated: 14 March 2025