State of New South Wales v SLD (Preliminary)

[2024] NSWSC 1645

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

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

Hearing dates:

17 December 2024

Date of orders:

17 December 2024

Decision date:

20 December 2024

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

(1) Pursuant to s 15(4) of the Crimes (High Risk Offenders) Act 2006 (NSW),

(a)   Two qualified psychiatrists or two registered psychologists, or one qualified psychiatrist and one registered psychologist are to be appointed, to conduct separate psychiatric 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 18A of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is to be subject to an interim detention order for a period of 28 days commencing on 18 December 2024.

(3) Pursuant to s 20(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), a warrant is to be issued for the committal of the defendant to a correctional centre for the duration of the interim detention order.

(4) 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.

(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 of access.

Catchwords:

HIGH RISK OFFENDERS – Preliminary hearing – Urgent application for interim detention order – Violent index offence – Where defendant opposes the imposition of an interim detention order – Where defendant subject to interim detention order previously made pending finalisation of outstanding sentence proceedings – Where defendant subject to an extended supervision order which is suspended while the defendant is in custody – Where defendant’s current interim detention order will expire on the following day – Whether an interim detention order should be made

Legislation Cited:

Crimes Act1900 (NSW), ss 60A(1), 60B(1)

Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 4, 5A, 5C, 15(4), 13B(4), 17(1)(b), 17(2), 18A, 18C, 20(1)

Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8(1)(a)

Cases Cited:

R v SLD (No 3) [2024] NSWDC 480

R v SLD (No 4) [2024] NSWDC 594

State of New South Wales v SLD [2024] NSWSC 1595

State of New South Wales v SLD (Final) [2023] NSWSC 978

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

Category:

Procedural rulings

Parties:

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

Representation:

Counsel:
G F Mahoney SC, I Fraser (Plaintiff)
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. Preliminary orders are sought for the appointment of two psychiatrists and/or psychologists, or one psychiatrist and one psychologist, to examine the defendant, for the defendant to be directed to attend their examinations, and for their reports to be furnished to the Court pursuant to s 15(4) of the Act. The plaintiff also seeks an interim detention order (IDO) for a period of 28 days, pursuant to ss 18A, 18C and 20(1) of the Act. An order is sought, pursuant to ss 7 and 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) that the defendant shall be identified in relation to these proceedings by the pseudonym "SLD". Orders are also sought forbidding access to the court file by a non-party without prior notification to the parties, so as to allow them an opportunity to be heard.

3. The plaintiff seeks final orders that the defendant be the subject of a continuing detention order (CDO) for a period of 1 year, pursuant to ss 5C and 17(1)(b) of the Act.

4. The defendant is currently the subject of an extended supervision order (ESO) imposed under the Act, which is suspended due to the defendant being in custody. On 17 December 2024, following the hearing for the preliminary orders sought, I made orders which included an IDO. These are my reasons for making those orders.

The procedural history of this application

5. There was a degree of urgency in hearing this application for an IDO, arising from the recent procedural history of the matter. The defendant was the subject of an ESO made by Campbell J on 18 August 2023 for a period of 5 years from that date: State of New South Wales v SLD (Final) [2023] NSWSC 978. At that time, the defendant was in custody, bail refused, for outstanding offences of breaching conditions of an interim supervision order (ISO) made by me, committed in June and July 2023 (the ISO breach offences). He was released back into the community on 20 September 2023.

6. On 24 October 2023, the defendant was arrested and charged with three offences of breaching a condition of his ESO. Bail was refused. Following a judge alone trial in the District Court, on 16 October 2024, he was acquitted of two of the offences and convicted of one (the ESO breach offence): R v SLD (No 3) [2024] NSWDC 480.That matter was adjourned for a sentence hearing to 12 December 2024. On 16 December 2024, he was sentenced to imprisonment for 1 year and 6 months, backdated to commence on the date of his arrest on 24 October 2023 and thus expiring on 23 April 2025. A non-parole period of 1 year and 1 month was set, which expired on 23 November 2024: R v SLD (No 4) [2024] NSWDC 594.

7. On 3 April 2024, the defendant was charged with a count of stalking, harassing or intimidating a law enforcement officer in the execution of the officer’s duty, contrary to s 60A(1) of the Crimes Act1900 (NSW); and a count of stalking, harassing and intimidating a person with whom a law enforcement officer has a domestic relationship, contrary to s 60B(1) Crimes Act (the intimidation charges). Those matters were listed for hearing at the Wollongong Local Court on 17 October 2024. Judgment was reserved, to be delivered on 5 December 2024. On that date, the defendant was acquitted of those charges.

8. On 3 December 2024, the hearing for preliminary orders came before Garling J. His Honour was cognisant that the sentence for the ESO breach offence and the judgment concerning the intimidation charges were outstanding and that both would be resolved within a week. Accordingly, since there was a prospect of the defendant being imminently subject to a further sentence of imprisonment, his Honour made an IDO for a period of a week commencing on 12 December 2024 and expiring on 18 December 2024. A further hearing of the summons was stood over to 17 December 2024: State of New South Wales v SLD [2024] NSWSC 1595, thus occasioning some urgency to a hearing of the plaintiff’s application for an IDO.

The relevant statutory provisions and principles

9. Section 18A of the Act provides as follows:

“18A   Interim detention order

The Supreme Court may make an order for the interim detention of an offender if, in proceedings on an application for a continuing detention order, it appears to the Court—

(a)   that the offender’s current custody (if any) 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 or continuing detention order.”

10. Section 18A(b) requires consideration of the legislative requirements for a CDO or an ESO. Accordingly, although this is a preliminary hearing, it is necessary to evaluate the sufficiency of the supporting material to justify the making of a CDO, pursuant to the relevant statutory test. 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.”

11. I am satisfied that the statutory preconditions in s 5C(a)-(c) to the making of a CDO are satisfied. In relation to s 5C(a), a “serious offence” is defined to include “a serious violence offence” (s 4 of the Act) which, in turn, is defined to include an offence causing the death of a person (s 5A(1)(a) of the Act). The defendant has previously been convicted and served a sentence of imprisonment for the offence of murder. The plaintiff submits that s 5C(b) and (c) are satisfied by virtue of the defendant being a supervised offender, as defined in s 13B(4)(a)(i) or (b) of the Act. I note that the defendant does not contest the applicability of these provisions and I am satisfied that the application complies with them.

12. The issue that remains for consideration is therefore whether, the matters alleged in the supporting documentation, if proved, would satisfy the Court to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept in detention under the order. Section 5D 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.

13. 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).

14. The defendant submits that, although it would be open to the Court on the material before it to conclude that if it were proved, it would justify the making of an ESO or CDO, the Court should exercise the discretion that arises from the terms of s 18A to not make an IDO.

The defendant’s background

The index offence

15. I have previously reviewed the material concerning the index offence at [14]-[23] in my judgment concerning the preliminary hearing of a summons seeking the ESO in 2023, in which, on 5 April 2023, I ordered an ISO: State of New South Wales v SLD (Preliminary) [2023] NSWSC 330:

“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’.”

16. In the same judgment, I reviewed the material concerning the defendant’s subsequent offending and concerning behaviour while in custody until that time, at [24] to [29].

“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.”

Subsequent offending behaviour by the defendant

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 not a strict liability offence and 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.

32. Another troubling aspect of the defendant’s disclosures of his thinking is in an OIMS note dated 21 April 2023, which reports that he claimed to Dr Richard Parker, who is the acting chief psychologist of Risk Management Programs in Corrective Services NSW, that his motive for the murder was to exact revenge. I note there is no evidence of this claim having been investigated, so I allow for the possibility that it was a fanciful claim.

The risk assessment report

33. The defendant relies upon a risk assessment report dated 12 September 2024 of Samuel Ardasinski, who is a senior psychologist with the High Risk Offenders section of Corrective Services NSW. The report is counter-signed by Dr Parker, who states that he supports the recommendations in the report.

34. The report is accurately summarised in the Agreed Facts as follows.

“(a) Applying the HCR-20, Mr Ardasinski considered that the defendant would require a Moderate to High level of effort to prevent further violence, with the risk factors of most concern identified as the defendant’s diagnosed personality disorder, his violent ideation and his poor stress coping abilities.

(b) Applying the Structured Assessment of Protective Factors for violent risk (SAPROF), the defendant was found to have a low to moderate loading of protective factors that would inoculate against risk.

(c) Mr Ardasinski noted that the defendant had informed him in interview that he thought he had approached in the vicinity of 200 women during the 95 days he has been at conditional liberty under ESO supervision since April 2023 and noted that the predicted significant risk to women of sexual impropriety has not eventuated to date.

(d) Mr Ardasinski also noted that whilst the defendant had made threats against CSNSW staff in the past, these had not eventuated.

(e) Mr Ardasinski concluded that the defendant’s risk was being adequately managed under the current ESO, noting that ‘the technical breaches under interim supervision and these outstanding matters demonstrating that CSNSW has the capacity to supervise [the defendant] in conjunction with his professional supports to a satisfactory level to manage community safety concerns.’”

Consideration

35. As noted, the defendant submitted that the Court should exercise its discretion, that arises from the terms of s 18A of the Act, to not make an order for an IDO even though the statutory preconditions are established, because the defendant will be subject to his current ESO upon release, which, by its stringent suite of conditions, eliminates an unacceptable risk of the commission of a serious offence.

36. I accept 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.

37. The real concern, in my view, are the threats that the defendant has repeatedly made since then, to harm specific persons or categories of persons. It is concerning that Mr Ardasinski’s report did not canvass, or offer an opinion about, the defendant’s reported threats and ruminations on the use of violence. I am not critical of Mr Ardasinski for not doing so; at the time of his report, the District Court trial was on foot. From the perspective of these proceedings, however, the fact remains that the Court is left with only one recent forensic assessment of the defendant, which is supported by his treating psychologist, which does not canvass the single-most concerning aspect of the defendant’s recent behaviour, namely, his repeated threats against witness X, and other troubling admissions of thoughts of inflicting violence against others.

38. It would have been helpful for the Court to have the benefit of a report from the defendant’s treating psychologist for many years, Dr Parker. However, there may be good reasons for there not being a report from him.

39. On the basis of the disclosures made by the defendant which I have noted above, in the context of the defendant having previously carried out acts of extreme violence, I was satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a CDO. In so concluding, I note that the bar for making a CDO is that the Court must be 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.

40. I declined to exercise the discretion to not make an order for an IDO in the absence of forensic evidence that considers the degree of risk to the community that arises from the defendant’s disclosures about violence.

41. As noted, the defendant’s disclosures were central to my determination, and I imagine they will be of some focus in the final hearing. For that reason, I made a recommendation to the effect that the plaintiff give consideration to obtaining a report from Dr Parker.

Orders

42. On 17 December 2024, I made the following orders:

1. Pursuant to s 15(4) of the Crimes (High Risk Offenders) Act 2006 (NSW),

1. Two qualified psychiatrists or two registered psychologists, or one qualified psychiatrist and one registered psychologist are to be appointed, to conduct separate psychiatric 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 18A of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is to be subject to an interim detention order for a period of 28 days commencing on 18 December 2024.

3. Pursuant to s 20(1) of Crimes (High Risk Offenders) Act 2006 (NSW), a warrant is to be issued for the committal of the defendant to a correctional centre for the duration of the interim detention order.

4. 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:

1. To all media including, but not limited to, print, radio, television, internet and social media;

2. Throughout the Commonwealth; and

3. Until further order of the Court.

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 of access.

Recommendation

43. Further, I recommended that the plaintiff consider obtaining and serving a report from the defendant’s treating psychologist, Dr Richard Parker, for the final hearing in this matter.

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Amendments

04 February 2025 - Amendment to par [26].

Decision last updated: 04 February 2025