State of New South Wales v Welsh (Preliminary)

[2025] NSWSC 987

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Welsh (Preliminary) [2025] NSWSC 987

Hearing dates:

22 July 2025

Date of orders:

25 August 2025

Decision date:

28 August 2025

Jurisdiction:

Common Law

Before:

Rigg J

Decision:

Interim supervision order for 28 days with two qualified experts appointed to conduct examinations of the defendant

Catchwords:

HIGH RISK OFFENDER – preliminary hearing – serious violence offender – application for Interim Supervision Order (ISO) – making of order contested by defendant – contentious conditions – whether there is a high degree of probability that the defendant poses an unacceptable risk of committing a further serious offence – orders for expert assessment and ISO imposed

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW)

Crimes Act 1900 (NSW)

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Dwayne Eric Welsh (Defendant)

Representation:

Counsel:
A Mykkeltvedt (Plaintiff)
H Webb (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid New South Wales (Defendant)

File Number(s):

2025/00133925

JUDGMENT

1. The plaintiff, the State of New South Wales, seeks by summons an order that the defendant, Dwayne Eric Welsh, be subject to an extended supervision order (“ESO”) pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) for a period of three years from the date of the order.

2. In the interim the plaintiff sought orders pursuant to s 7(4) of the Act for the appointment of two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) to conduct separate examinations of the defendant and to furnish their reports to the Court, as well as an order directing the defendant to attend those examinations. The plaintiff also sought an Interim Supervision Order (“ISO”) against the defendant, pursuant to section 10A of the Act, for a period of 28 days from 26 August 2025, as well as an order pursuant to s 11 of the Act, directing the defendant to comply with certain conditions set out in the schedule to the summons during the period of the ISO. The plaintiff sought ancillary relief regarding access to the Court’s file.

3. Written submissions filed for the defendant and oral submissions at the hearing opposed the making of the orders for assessment and an ISO, and some of the conditions, if an ISO was made. There is no opposition to the restriction to access to the Court’s file sought by the plaintiff.

4. On 25 August 2025 I made interim orders of the kind sought by the plaintiff. These are my reasons for making such orders.

The evidence

5. A substantial volume of material was tendered by the plaintiff. This material included:

1. Affidavit of Yan Lun Loh affirmed on 7 April 2025, together with Exhibit YLL-1;

2. Affidavit of Jamie Paton affirmed on 18 June 2025;

3. Affidavit of Jamie Paton affirmed on 19 June 2025; and

4. Affidavit of Andrew Sandercock affirmed on 18 July 2025.

6. The defendant tendered a further supplementary body of documentary material. This included:

1. Affidavit of Lucinda Lester affirmed on 14 July 2025; and

2. Affidavit of Lucinda Lester affirmed on 16 July 2025.

Background

7. In summarising the background of this application, I am considerably assisted by the parties’ joint statement of agreed facts, and written submissions, which summarised the evidence.

8. The defendant was born in Dubbo and is presently 44 years of age. He is a First Nations man. He was raised by his maternal Great Aunt (who has died recently) and grew up with his twin brother and two sisters, alongside his Great Aunt’s five children.

9. The defendant has a significant criminal history. The “index offence,” which provides this Court with jurisdiction to make an ISO and an ESO, is an offence of wounding with intent to cause grievous bodily harm committed on 24 June 2014. By virtue of s 5A(2A)(c) of the Act, this amounts to a “serious violence offence” within the terms of s 5A and thus also meets the definition of “serious offence” in s 4 of the Act, as set out in the analysis of the statutory framework below.

10. When sentenced for this offence the defendant was also dealt with for offences of assault occasioning actual bodily harm (with a further offence of contravening an Apprehended Violence Order taken into account on a Form 1), aggravated break, enter and steal (with a further offence of dishonestly obtaining a financial advantage by deception taken into account on a Form 1), and an offence of taking and driving a conveyance without the consent of the owner.

11. In the early hours of the morning on 24 June 2014, the defendant called his former partner and invited her to come over, but she declined. He and her brother attended her house uninvited. On a seemingly wrong understanding that a male in the house, associated in fact with another woman there, was his former partner’s new boyfriend, the defendant grabbed a steak knife which was about 30 cm long from the kitchen drawers. He tackled the victim to the ground and punched him a number of times to the head and body. Others came into the room and forced him to stop. He walked into the yard and threw the knife. Emergency services were called. At the hospital the victim was found to have a 2 cm wound below his nipple which did not involve deeper tissue. He had a 3-4 cm wound on the medial aspect of his left forearm which did not involve deep tissue. There is no indication of the wounds requiring stitches. The victim also sustained a small haemothorax and a small liver laceration. The defendant made later representations indicating his intent to cause very serious harm to the male.

12. The defendant pleaded guilty to wounding with intent to cause grievous bodily harm and other offences, as referred to above, that occurred in close temporal proximity with this offence. On 22 April 2015 he was sentenced to an effective term of imprisonment of 5 years and 6 months, commencing 25 June 2014 and expiring on 24 December 2019, with a non-parole period of 3 years expiring on 24 June 2017. The District Court sentencing judge noted that the wounds were minor in the broad scheme of offences covered by the charge of wounding with intent to cause grievous bodily harm.

13. The defendant’s conduct later on 24 June 2014 gave rise to the aggravated break, enter and steal offence. At about 10:30 pm he and a co-offender attended the house of the victim, an acquaintance of the defendant. The defendant held a 30 cm knife to his chin and said “Don’t fucking move. I’ll fucking stab ya. I stabbed a bloke seven times today” before asking the victim “Where’s your money and where’s your shit”. The victim responded by saying “I haven’t got anything”. The defendant then took the victim’s car keys and filled two pillowcases and a laundry basket with his property. The defendant then took a spear gun from the victim’s back room and pointed it at his head, and said “I’m gonna put this in ya head”. Following this, another co-offender arrived at the premises and collected the pillowcases filled with the victim’s property. Before leaving the premises in the victim’s car, the defendant searched through the other rooms and filled a suitcase with more of his property.

14. All offenders drove in the victim’s car to a service station where they stole some fuel. This was taken into account on a Form 1 document in connection with the aggravated break, enter and steal offence.

15. Prior to the expiration of the sentence imposed on 22 April 2015, the defendant was convicted and sentenced on 21 June 2019 for a number of further offences, committed in April 2018, whilst on parole for the earlier set of offences. This sentence was an aggregate term of imprisonment of 6 years and 6 months commencing on 27 February 2019 and expiring on 26 August 2025, with a non-parole period concluding 26 February 2023. The defendant was released to parole on that date, but was returned to custody from 30 December 2023 on the basis of breach of parole (fresh charges relating to firearms, which were subsequently withdrawn in May 2025). He was released again to parole on 28 December 2024.

16. It was because of this extension of sentence by partial accumulation that the defendant is able to be dealt with in connection with the 2014 index offence. The defendant was at liberty at the time of the hearing of this application, and had been since December 2024. Until 28 May 2025 he was additionally subject to strict conditions of bail, in connection with criminal charges that were at that time withdrawn.

Statutory framework

17. The plaintiff’s application for an ESO is brought pursuant to ss 5B and 9(1)(a) of the Act. Those sections provide as follows:

5B Making of extended supervision orders—unacceptable risk

The Supreme Court may make an order for the supervision in the community of a person (an extended supervision 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 supervised offender (within the meaning of section 5I), and

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

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

9 Determination of application for extended supervision order

(1) The Supreme Court may determine an application for an extended supervision order—

(a) by making an extended supervision order, or

(b) by dismissing the application.

…

18. The power to make an ESO pursuant to s 5B is discretionary. In that regard, the Court is guided by the objects of the Act, and the paramount consideration and matters set out in s 9 to which the Court must have regard in determining whether or not to make an ESO. Relevant provisions of the Act in these respects include the following:

3 Objects of Act

(1) The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community.

(2) Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation.

9 Determination of application for extended supervision order

…

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

…

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

…

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

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

(d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence,

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

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

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

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

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

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

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

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

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

19. A “serious offence” is defined in s 4 and includes a “serious sex offence” and a “serious violence offence”. A “serious violence offence” is defined in s 5A(1) and includes a serious indicatable offence (relevantly, within the meaning of the Crimes Act 1900 (NSW))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 Act1900, 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).

20. Section 37 of the Crimes Act is concerned with serious choking, suffocation and strangulation offences. A deeming provision in s 5A(2A)(c) of the Act provides that conduct that has caused grievous bodily harm includes conduct that has caused wounding, if done with the intention of causing grievous bodily harm.

21. The requirement that the defendant be a “supervised offender” for the purposes of s 5B(b) (and also 5I(1)) of the Act is met in this case because the defendant is serving a sentence (on parole) for an offence which is partly concurrent and partly cumulative upon the sentence for the abovementioned serious violence offence.

22. 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.

23. Section 7(4) of the Act provides that if following the preliminary hearing I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, I must make orders appointing two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) to examine the defendant and furnish reports to the Court, and directing the defendant to attend those examinations.

24. Section 10A of the Act is in the following terms:

10A   Interim supervision order

The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, it appears to the Court—

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

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

Whether an order for expert assessments and an ISO should be made

25. It was conceded by the defendant that the statutory preconditions in s 5B(a)-(c) of the Act are met, and I am satisfied that they are. Further, the defendant’s current sentence will expire on 26 August 2025, before the proceedings for an ESO are determined. There is no issue with the requirements regarding the valid making of this application.

26. The real question for determination is whether the matters alleged in the supporting documentation would, if proved, satisfy me to a high degree of probability that the defendant poses an unacceptable risk of committing a further serious offence if he is not supervised under an ESO.

27. I will address important aspects of the evidence by reference to the pertinent factors set out in s 9(3) of the Act (abbreviated in the following pages – see [18] above for their full terms). The joint statement of facts and written submissions of both parties have been of considerable assistance in focusing attention on and summarising this evidence.

Risk Assessments – s 9(3)(c) and (d)

28. Dr Richard Parker, psychologist, prepared a risk assessment report dated 8 October 2024 in relation to the defendant (“RAR”). In evaluating the defendant’s criminal history, Dr Parker observed that his index offence is “not qualitatively different from his other violent offending, although the outcome is more serious”. In Dr Parker’s view, the defendant’s violent offending is conducted within the context of a criminal lifestyle, where violence is a necessary adjunct to his general antisocial behaviour.

29. Dr Parker made reference to the Violence Risk Scale (“VRS”) administered by another practitioner on 31 January 2023. That assessment evaluated the defendant as having a VRS score of 49.5, which placed him at Risk Level III or average risk, or at approximately the 60th percentile. Dr Parker concluded that he would have arrived at a similar score had he undertaken the exercise himself.

30. Dr Parker applied himself the Risk Assessment - Violence Risk Appraisal Guide - Revised (“VRAG-R”) to the defendant’s case. He arrived at a score that placed him in the 94th percentile and the ninth of nine “bins” of offenders. 76% of offenders with a similar score reoffended violently within five years, and 87% offended violently within 12 years.

31. In assessing the risk posed by the defendant, Dr Parker identified a number of particular criminogenic needs, which were:

1. Antisocial associates - Dr Parker noted that many of the defendant’s offences have been committed in company with other offenders, and it appears that the negative influence of such people arises firstly by encouraging the defendant to engage in crime and to use drugs, secondly by endorsing anti-social attitudes, and thirdly by failing to exert a restraining influence upon him.

2. Substance abuse - substance abuse is a significant factor in the defendant’s offending. The defendant has previously noted that he would use any sort of conflict or setback as an excuse to use drugs. He acknowledges the connection between his drug use and his offending, though has been unable or unwilling to refrain from drug use for any extended period of time.

3. Self-regulation/impulsivity - while the defendant may desire to refrain from crime and violence, at times of heightened emotion or stress, his automatic thought patterns may override his pre-existing plans.

4. Anti-social attitudes - the defendant is thought by Dr Parker to exhibit a number of antisocial attitudes including the normalisation of violence, a rejection of society’s role in the setting of laws, a “beat or be beaten” approach to the world, and a belief that his actions are sometimes out of his control.

5. Cooperation with supervision - the defendant has generally attended appointments and behaved appropriately towards Community Corrections staff. However, in the past this has often been accompanied by a quick return to offending. In Dr Parker’s view, this suggests that his interactions with Community Corrections have been “superficial rather than meaningful”.

32. In terms of overall risk evaluation, Dr Parker observed that the “primary drivers” of his offending appear to be his antisocial attitudes, substance abuse, antisocial personality pattern and antisocial associates. Within this context, it appears that most of his violence has been “instrumental” in the sense that it has been directed to obtaining what the defendant otherwise wants. Additionally, Dr Parker noted that the defendant has also engaged in expressive and “rather purposeless drug-affected violence”.

32. Dr Parker went on to observe:

“The risk of further serious violence, for Mr Welsh, is almost inextricably linked to his desistance from/return to substance abuse and other criminal activity. If he can refrain from substance abuse and criminal activity, then his risk of serious violence will be much lower. Consequently, the warning signs would be substance abuse, other forms of criminal activity and associations with antisocial associates. He would then be highly tempted to return to violence to fund his lifestyle, enact vengeance against those he has grievances against, and possibly to avoid arrest.”

34. Given his violent conduct in custody, Dr Parker also considered it is possible that the defendant may engage in violence in the absence of substance abuse.

35. Dr Parker observed at [88] – [89] of the RAR:

“He has twice completed the VOTP, with positive results, but reoffended fairly quickly after release following the first completion. After completing VOTP a second time, he was again arrested, facing charges which he is apparently denying. However, his admissions of using methamphetamine suggest that, at best, he still maintained some elements of an antisocial lifestyle.

Given the habitual nature of both his drug use and antisocial lifestyle, it is to be expected that Mr Welsh will struggle to break these habits and establish a law- abiding lifestyle. Changing the habits of a lifetime will take determination, assistance, and a considerable period of time. His prospects of doing so unaided, are low – at least in the medium term.”

36. Having regard to the actuarial tools applied, Dr Parker observed that the defendant scores high on static risk factors for violence, but at the upper end of the average range in relation to dynamic risk factors. Dr Parker noted that “[g]iven the brief durations of his stays in the community, and [the] number of times he has been convicted of violent offences, the static factors appear to be a better predictor or [sic] his actual risk of violence”.

Corrective Services reports regarding the extent to which the defendant can be managed in the community – s 9(3)(d1)

37. A Risk Management Report dated 19 November 2024 (“RMR”) was prepared in relation to the defendant by two officers of the Metropolitan ESO Team, within Corrective Services NSW. Drawing on the RAR, the RMR identified the key risk factors applicable to the defendant as antisocial associates, substance abuse, self-regulation/impulsivity, antisocial attitudes and cooperation with supervision.

38. Having done so, the RMR set out a risk management plan designed to address those risk factors. The RMR noted that the defendant has expressed willingness to participate in any community-based intervention thought appropriate.

39. The RMR proposed a series of risk-mitigation measures for the defendant including regular contact with his supervising officers; unannounced home visits at least monthly; individual or group Violent Offenders Therapeutic Program (“VOTP”) maintenance sessions via Forensic Psychology Services; drug and alcohol maintenance and other programs; referral for cultural support via Community Corrections Aboriginal Community Engagement and Culture Officers; electronic monitoring; a schedule of movements; substance-abuse related conditions; conditions relating to medical intervention and treatment; and non-association conditions.

40. The plaintiff additionally relied upon an affidavit of Andrew Sandercock, employed by Corrective Services NSW as a Governance Officer in the ESO Team, dated 18 July 2025. He was provided with documentation regarding the defendant, and commented upon the proposed conditions of supervision set out in the summons, supporting them and explaining the aspects of the defendant’s past, and profile, warranting the respective conditions.

Program participation – s 9(3)(e)

41. The defendant completed the VOTP in 2016-2017 and again between April 2022 and January 2023. He failed to complete the program in 2011 and again in 2021. During his 2022-2023 participation in the program, he is said to have demonstrated good insight into his behaviour and was able to identify his most important risk factors. He completed further programs in custody successfully in 2024.

Other options for risk reduction – s 9(3)(e1)

42. The VOTP Report prepared in 2023 includes a range of recommendations designed to improve the prospects of the defendant successfully reintegrating into the community. The implementation of those recommendations would appear to be dependent on the defendant remaining subject to the supervision of Community Corrections.

43. The defendant is not presently subject to any significant psychiatric intervention and the plaintiff submits that it does not seem likely that he would productively engage in drug or alcohol rehabilitation were he not obliged to do so in accordance with an ESO.

Likelihood of compliance with ESO obligations, and past compliance with orders – s 9(3)(e2), (f) and (g)

44. A breach of parole report dated 5 January 2024, subsequent to the defendant’s last incarceration, noted that he was generally reporting each week whilst on parole. Overall, the defendant has a very poor history of parole compliance. That history extends to his most recent sentence, during which he was returned to custody on account of alleged parole breaches after 10 months in the community. Although this was significantly based upon fresh charges that were later withdrawn, the breach report confirmed illicit drug usage during this period on parole.

Criminal history and views of sentencing court – s 9(3)(h) and (h1)

45. The defendant has a lengthy criminal history, all of which I have taken into account (and which has been available to a number of people whose reports or affidavits are before me).

46. The index offence has been outlined above at [9]-[12]. In this case there were no views expressed in sentencing the defendant in 2015 that add to my consideration of the relevant test (apart from his Honour’s confirmation of the relatively minor nature of the wounds).

47. Convictions prior to the index offence include a number of offences of violence resulting in a term of imprisonment of 4 years 3 months with an effective non-parole period of 2 years and 6 months being imposed on 25 September 2002. This included a violent robbery with threats to harm the victim with a knife. On 3 April 2009 an effective term of imprisonment of 6 years with a non-parole period of 3 years and 3 months was imposed for aggravated breaking, entering and committing a serious indictable offence (assault occasioning actual bodily harm), while armed with an offensive weapon, robbery, intimidation and stealing a motor vehicle. These offences involved use of a fishing spear and large knife, with a co-offender on one occasion holding what appeared to be a sawn-off shotgun, and a co-offender on another occasion holding a small axe. The defendant made threats to stab.

48. The defendant was released to parole on 31 January 2018 in relation to the index offence and the others dealt with at the same time, having not been released in time to attend his biological mother’s funeral. He tried to get in to drug rehabilitation, and engaged with programs offered at Rainbow Lodge, and was endeavouring to gain custody of his youngest child. However by March 2018 there was a deterioration in his mental health, use of illicit substances, and regular travel to Newcastle despite direction to not do so.

49. On 18 April 2018 the defendant broke into a unit and stole keys to a vehicle, then the car. A day or so later the defendant was a passenger in a vehicle engaged in a police pursuit, and put a firearm out of the window and discharged it into the air. He was arrested on 27 April 2018 for using an offensive weapon to prevent lawful detention. He also used a small axe to resist arrest and assault police. The VOTP Treatment Report dated 21 February 2023 refers to the defendant regularly carrying weapons.

50. The defendant’s criminal history thus discloses convictions for offences, which although not “serious violence offence”s within the meaning of the Act, involved violent attacks by the defendant, involving the use of weapons.

Other matters relevant to s 9

51. The defendant has incurred many internal correctional centre misconduct charges. From June 2024, whilst incarcerated, the defendant was employed as a general hand in the ground maintenance team. He received positive feedback regarding his work ethic and ability to follow direction.

52. The defendant has a history of open discussion with supervisors regarding drug usage. Since his last release from custody it has been very limited, and associated in one instance with the death of his sister in January 2025 (which he expressly acknowledged was not an excuse).

53. Since his last release from custody the defendant has demonstrated insight in relation to the negative influence of anti-social peers, and taken steps himself to distance himself from some such people.

The parties’ submissions

54. The Court received detailed written submissions, and further oral submissions were advanced on the hearing date. The plaintiff relies upon the totality of the evidence, but places particular importance upon the RAR of Dr Parker and the very short periods of time that the defendant has spent at liberty in the community throughout his adult life without reoffending. It was acknowledged that, in the main, the defendant’s behaviour since his release appears to have been improved; with less concerning instances, and more positive engagement than in the past. However the existence of the strict bail conditions including home detention (with some exceptions permitted) for the first five months of this was emphasised.

55. Ms Webb for the defendant relied on the length of time since the commission of the index offence, the fact that there is only one serious offence on the defendant’s record, and the fact that it is only by virtue of the deeming provision that this offence was capable of being described as one causing grievous bodily harm.

56. The defendant was shown to have demonstrated good progress in program participation in recent years, including the VOTP and EQUIPS Foundation course and EQUIPS Aggression and Addiction course. His positive progress since his most recent release from custody was also focused upon, including the continuation of this even after the charges for which bail conditions existed were withdrawn in May 2025, from which time the only conditions on the defendant’s liberty were his conditions of parole. This positive progress has existed despite significant trauma caused by the death of the defendant’s sister in January 2025, and of the relative who was effectively his mother, and whose carer he was, in June.

57. It was submitted that the Court should be slow to be satisfied to a high degree of probability that, if proved, the matters relied upon would demonstrate an unacceptable risk of the commission of a serious offence, as defined. It was also submitted, correctly, that the risk assessment tools are not discerning as to the level of seriousness of future violent conduct predicted. Further, one of these assessed only an average risk of future offending. Care was urged to avoid reasoning that more structure and supervision may be of benefit to the defendant, rather than focusing on whether the legislative test is met.

Determination

58. Given the conclusion and reasoning of the RAR of Dr Parker, I am satisfied to a high degree of probability that, if proved, the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an order.

59. As noted above, the most recent administration of the VRAG-R places the defendant in the 94th percentile (and the ninth of nine “bins”) while the VRS puts him in the average risk category. These tools are not specifically directed towards the commission of a serious offence as defined in the Act. However, in light of the reasoning of Dr Parker, and the number of occasions on which the defendant has offended impulsively with weapons in circumstances which could easily have escalated, I have reached the state of satisfaction identified.

60. I must accordingly make orders for expert assessment. Taking into account the matters I have referred to, giving the safety of the community paramount consideration, I am not of the view that there is a discretionary reason to not make an ISO. I will accordingly make the orders sought by the plaintiff in those two respects.

61. However, this is a case where the defendant has committed significantly less “serious offences” than many applications of the kind that come before this Court, and the one such offence was a long time in the past, and at the low end of seriousness. Further, despite the defendant’s institutionalisation and the nature of his risk factors, his progress has been relatively positive since his last release from custody. He has had to deal with a lot in that time, but has shown positive progress in relation to substance use, engagement, and awareness of risk factors such as antisocial peers. Because of its timing (October 2024) the RAR of Dr Parker has not taken into account this positive demonstration by the defendant after his release from custody in December 2024. However for the purposes of this preliminary hearing I am required to take Dr Parker’s report as proved (as well as positive considerations). This, in combination with the nature of the defendant’s other offending, supports the requisite conclusion. However ongoing positive progress from now to the time of the final hearing may mean that the orders sought are not ultimately justified, having regard to the terms of the legislation.

Conditions

62. Section 11(1) of the Act provides that “[a]n extended supervision order or interim supervision order may direct an offender to comply with such conditions as the Supreme Court considers appropriate” and includes a non-exhaustive list of conditions that may be imposed.

63. As I indicated earlier, the RMR of the Metropolitan ESO Team outlined suggestions on the proposed conditions that should be imposed on the defendant while he is reintegrating into the community, as did the affidavit of Mr Sandercock.

64. The plaintiff relies on a number of the proposed conditions.

65. I also take into account the evidence of risk more generally, such as Dr Parker’s identification of static and dynamic risk factors judged as relevant or potentially relevant when considering the defendant’s risk of violent reoffending.

66. In written submissions, the plaintiff contended that the proposed conditions strike an appropriate balance between managing and mitigating the risk that the defendant poses to the community while ensuring the imposition of the conditions do not impede on his personal liberty after being released to the community.

67. The defendant did not oppose many of the proposed conditions, in the event that an ISO is made. However the defendant relied upon the same submissions as were advanced in not consenting to the ISO to resist the more restrictive conditions that were sought. It was also submitted by Ms Webb for the defendant that some of the plaintiff’s proposed conditions do not strike a balance between the competing considerations; namely the defendant’s right to personal liberty and the safety of the community.

68. The defendant contended that the ISO conditions should mostly mirror his most recent parole order, which he has been subject to since 28 December 2024. The plaintiff submitted that for the first five months after this release, the defendant was also subject to very stringent bail conditions. However for a period of about two months until the hearing, the defendant was subject to his parole conditions only, which were less restrictive. The relaxing of these conditions did not result in the defendant engaging in substance abuse or reassociation with old negative associates, despite experiencing significant personal distress from the loss of his mother.

69. Considering the defendant’s compliance with his very strict bail conditions and his current parole conditions, the defendant further submitted that the imposition of unduly strict supervision conditions, if an ISO was to be made, “could detract from his reintegration or continued reintegration into the community”.

70. I will address the contentious conditions in accordance with the headings in the schedule to the summons.

Part A: Reporting and Monitoring Obligations

71. The plaintiff proposed that the defendant be electronically monitored by a Departmental Supervising Officer (“DSO”). The plaintiff contended that this would allow a DSO to monitor the defendant’s movements in the community and ensure the defendant is complying with the other supervision conditions rather than attending high-risk locations or engaging with the victims of his offending. Further, the plaintiff submitted that electronic monitoring would assist in identifying patterns of behaviour which may relate to the defendant’s risk factors.

72. During oral submissions, the plaintiff confirmed that the defendant has not previously been subject to electronic monitoring.

73. Mr Sandercock’s affidavit noted that the defendant’s pattern of offending is not tied to a specific location but does show that the defendant is impulsive. Relying on the RAR, Mr Sandercock stated that if the defendant was to re-engage with antisocial peers or substance abuse, his risk of serious violent offending is likely to increase. Mr Sandercock stated that the ESO team would be best equipped to ensure the safety of victims and mitigate any such risks, if they were to arise, through the employment of electronic monitoring. This mechanism can assist with monitoring locations frequently visited by the defendant, and accordingly, alert the ESO team of any concerns.

74. The defendant opposed electronic monitoring including because it was not a condition of his most recent parole order, nor any order he had been subject to, and given the other conditions that are to be imposed if an ISO is granted, unnecessary, particularly as his prior offending has not consistently occurred in one location or type of location.

75. The plaintiff proposed that the defendant should provide a schedule of his movements to a DSO. The plaintiff submitted that the provision of the schedule would allow a DSO to proactively conduct risk assessments of the defendant’s proposed activities and essentially limit his exposure to high-risk situations. In addition, to provide the defendant with some flexibility, the plaintiff proposed that the approved schedule of movements could be amended by the defendant if he sought approval 24 hours in advance from a DSO, or a shorter period if approved by a DSO.

76. Further, the plaintiff proposed that the defendant not be allowed to deviate from his schedule of movements unless it is an emergency. The plaintiff recognised the need for flexible enforcement of this condition, and submitted that there would be scope for the program of monitoring and scheduling of movements to be relaxed over time if the defendant shows progress.

77. In Mr Sandercock’s affidavit, he noted that the schedule of movements condition works best when implemented in conjunction with the electronic monitoring as it helps with covert observation. As mentioned in the records, the defendant has recently experienced the loss of his mother and could be facing possible eviction from his current residence. Mr Sandercock relies on the RAR to suggest that although the defendant may have desire to refrain from crime, during these difficult times he may easily fall back into bad habits. Mr Sandercock stated that the provision of the schedule of movements would encourage the defendant to plan his week ahead of time and engage in pro-social activities which would, in turn, limit his impulsive tendencies. It would allow the defendant to break the cycle of living an anti-social lifestyle and drug use; instead, it would assist him in obtaining self-management skills which he could continue to implement after the supervision period.

71. The defendant opposed the provision of a schedule of his movements, including because this condition was not in his most recent parole conditions, and because it was not necessary, and serious penal consequences could flow from breaching this.

72. I accept the submissions for the defendant regarding electronic monitoring and schedules of movement. Given the length of time that has passed since the defendant’s “serious offence”, its relatively low level of seriousness, and the progress he has made since his release from custody in December 2024, the making of an ESO is not inevitable. Accepting that the primary object of the Act is to ensure the safety and protection of the community, it is nonetheless appropriate to be discerning as to the level of intrusion upon liberty between those subject to an ISO. Another object of this Act is to encourage high-risk violent offenders to undertake rehabilitation. Upon the evidence before me, I regard it as desirable for the defendant to have a period in the community with a solid level of structure, support and supervision before determination is made about whether an ESO is required, but without the very restrictive obligations of electronic monitoring and provision of schedules of movement.

Part B: Accommodation

80. The plaintiff contended that a curfew condition was necessary to ensure the defendant does not continue to offend or engage in drug taking behaviour during the late hours of the night or early hours of the morning. The plaintiff sought a condition which would require the defendant to be at his approved address between the hours of 10 pm and 6 am every day unless otherwise approved by a DSO. The plaintiff submitted that this condition would promote structure and stability in the defendant’s life and complement the scheduling and electronic monitoring conditions.

81. The plaintiff referred to the existence of such a condition as one imposed until May 2025 by the defendant’s prior bail conditions (set out in Exhibit 2), and noted that it could be relaxed over time if the defendant remains compliant, and that the defendant will be able to seek approval to engage in an activity outside the specified scheduled hours.

82. The defendant opposed the implementation of a curfew as it does not form part of his present parole conditions, and imposes a significant restriction on his liberty.

83. The plaintiff proposed that the defendant should not be permitted to spend the night anywhere other than his approved address unless an alternative address is approved by a DSO. This was submitted to facilitate proactive risk assessment of the defendant’s movements prior to him residing at an alternative location.

84. The defendant did not oppose the condition but rather sought an exception to allow the defendant to spend the night at his son’s house, with such “blanket approval” not accepted as suitable by the plaintiff.

85. The plaintiff sought a condition requiring the defendant to notify a DSO of all visitors who enter and remain in his approved residence. It was submitted that the monitoring of the defendant’s domestic environment is necessary due to his history of associating with criminal peers, which the evidence identifies as a risk factor, and of committing violent offences in domestic settings.

86. It was further proposed that without the approval of a DSO, the defendant should not be allowed to have any person stay overnight, other than those persons who ordinarily reside at his approved residence. Mr Sandercock’s affidavit at [38]-[39] was relied upon to submit that this condition would facilitate the monitoring of the defendant’s home environment which is necessary due to the nature of his prior offending, to ensure the protection of victims and to support the defendant to cease any involvement with anti-social peers.

87. The defendant contended that these conditions would be overly broad and restrictive, and not necessary. It was further submitted that the words “enter and remain” are not sufficiently clear and this would cause difficulties with compliance (with the plaintiff suggesting an amendment to include an exception that would not require the defendant to notify a DSO about deliveries or tradespeople carrying out work). The defendant submitted that compliance with this condition could also create practical issues depending on where and with whom the defendant is ultimately approved to reside.

88. Given the risk factors identified by Dr Parker, and the defendant’s relative stability whilst on bail conditions with home detention, I am of the view that the curfew proposed by the plaintiff, and the requirement that he not spend the night away from his approved residence, are appropriate. The defendant will be able to seek approval to stay at his son’s residence, but there is no need for this as a “blanket” pre-approval. I accept however the defendant’s submission that the proposed conditions restricting people entering or remaining at his premises is overly restrictive and not necessary in the circumstances of this case. The defendant’s DSO will have wide powers to require that he provide information as to whom he has been with and what he is doing.

Part H: Access to the internet and other electronic communication

89. The plaintiff proposed that the defendant obey any reasonable direction given by a DSO that concerns communication, internet access and use of electronic devices. Without limiting the condition, the plaintiff listed some restrictions that would fall under this condition, including the defendant requiring a DSO’s approval of devices and electronic applications before use, provision of user and internet provider information, allowing remote access or searches of the defendant’s devices and applications as well as restrictions on deleting information. The plaintiff submitted that this would allow appropriate monitoring of the defendant’s digital and electronic activity to ensure he does not pose a risk to the community or contact vulnerable persons including his ex-partner and anti-social peers. Further, the plaintiff contended that this condition would allow the ESO team to easily assess whether the defendant is maintaining pro-social associations and positive communications.

90. The plaintiff relied upon paragraphs [40]-[42] of Mr Sandercock’s affidavit, which noted that it is important to monitor devices owned by the defendant, as the possession of multiple devices could result in the concealment of risky activity. Mr Sandercock also highlighted that the defendant’s past offending has involved committing offences with other associates, such that monitoring the defendant’s electronic contact with others is a necessary measure to ensure community safety.

91. The defendant opposed this condition on the basis that the defendant’s risk profile does not require the imposition of this condition.

92. I accept the submission for the defendant. The material before the Court does not indicate that this condition is necessary at this stage to address the risk posed, even though it may support supervision in the way suggested by Mr Sandercock.

ORDERS

93. Accordingly, I made the following orders:

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

1. Appointing two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and

2. Directing the defendant to attend those examinations.

2. An order:

1. Pursuant to s 10A of the Act, that the defendant be subject to an interim supervision order from 26 August 2025 (“the interim supervision order”);

2. Pursuant to s 10C(1) of the Act, that the interim supervision order be for a period of 28 days; and

3. Pursuant to s 11 of the Act, directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule of Conditions of Supervision.

3. An order that 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.

Schedule of Conditions of Supervision

In these conditions:

“Associate” includes, but is not limited to, being in company with, or communicating with by any means (including by post, facsimile, telephone, email or any other form of electronic communication).

“CSNSW” means Corrective Services NSW.

“Commissioner” means Commissioner for Corrective Services.

“Defendant” means DWAYNE ERIC WELSH, the defendant in these proceedings and the subject of the order.

“DSO” means Departmental Supervising Officer, that is, any Corrective Services Officer supervising the defendant under the order.

“NSWPF” means NSW Police Force.

“Search” includes:

(a) A garment search, being a search of any article of clothing worn by the defendant or in the defendant’s possession, where the article of clothing is touched or removed from the person’s body; and

(b) A pat-down search, meaning a search of the defendant where the defendant’s clothed body is touched.

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

1. You must accept the supervision and guidance of a DSO and obey all reasonable directions of a DSO.

2. Where a direction maybe given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service.

3. You must truthfully answer questions from a DSO, or any other person supervising you, about:

1. where you are or have been;

2. where you are going;

3. who you are with or have been with;

4. what you are doing or have been doing; and

5. the nature of your associations.

4. You must agree to any information relating to your risk, supervision or rehabilitation being shared between those persons and agencies that are involved in your supervision including, but not limited to, a DSO, NSWPF and CSNSW.

Part B: Accommodation

5. You must live at an address approved by a DSO and notify a DSO of any intention to change your approved address or living arrangements.

6. You must be at your approved address between 10pm and 6am unless other arrangements are approved by a DSO.

7. You must allow a DSO to visit you at your approved address at any time and to enter the premises at that address.

8. You must not spend the night anywhere other than your approved address or any alternative approved addresses without the approval of a DSO.

Part C: Place and travel restrictions

9. You must not leave New South Wales without the approval of the Commissioner.

10. You must not go to any place specified by a DSO.

Part D: Employment, finance and education

11. You must take all reasonable steps to participate in programs as recommended by a DSO, including the development of a case management plan which may include employment, education, training or participation in personal development activities.

12. You must not start or change any job, volunteer work or educational course without the approval of a DSO.

13. You must provide any information relating to your financial affairs, including income and expenditure, if directed by a DSO.

Part E: Drugs and alcohol

14. You must not:

1. Possess, purchase or consume alcohol without the prior approval of a DSO;

2. Possess or use prohibited drugs; or

3. Abuse prescription drugs which are not prescribed to you.

15. You must submit to drug and alcohol testing.

16. You must attend and participate in programs and courses for drug and alcohol rehabilitation as reasonably directed by a DSO and must not discharge yourself from such programs and courses without prior approval of a DSO.

Part F: Non-association

17. You must not associate with any person specified by a DSO.

18. Without limiting condition 24, you must not associate with any person:

1. Who you know is consuming or under the influence of illegal drugs; or

2. Held in custody without prior approval of DSO.

19. You must agree to a DSO disclosing your criminal history to another person. Before any disclosure is made, you will first be given the opportunity to make the disclosure yourself within a timeframe as identified by a DSO.

Part G: Weapons

20. You must not possess or use any of the following:

1. a firearm, firearm part or ammunition within the meaning of the Firearms Act 1996; or

2. a prohibited weapon within the meaning of the Weapons Prohibition Act 1998.

21. Without limiting or altering condition 20, you must not possess or use any of the following, without a DSO’s prior approval:

1. a knife, machete, sword or any other device that consists of a single-edged or multi-edged blade or spike that is designed or adapted to inflict violence, whether actual or threatened;

2. any other implement made or adapted for use for causing injury to a person; or

3. anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property.

NOTE: Condition 21 does not apply to knives for ordinary domestic use.

Part I: Search and seizure

22. You must submit to a search by a DSO (or any other person as directed by the DSO) of your person or residence, or any vehicle in which you are travelling or which is under your control, or any item, computer, electronic or communication device, storage facility, garage, locker or commercial facility in your possession or under your control; and to the seizure of any object located during the search.

23. You must not attempt to destroy or interfere with any object that is the subject of a search or seizure, carried out pursuant to this Order.

Part J: Personal details and appearance

24. You must not change your name from “DWAYNE ERIC WELSH” or “DWAYNE ERIC BYERS” or use any other name without notifying a DSO.

25. You must not significantly change your appearance without the approval of a DSO.

26. You must let a DSO photograph you, dressed, within one week of the commencement of these conditions and following any significant change to your appearance.

27. If you change the details of any current form of identification or obtain further forms of identification, you must provide a DSO with such details.

Part K: Medical intervention and treatment

28. You must engage constructively with ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by a DSO, including any therapy sessions, support or treatment programs the subject of the direction.

29. If directed, you must undergo an assessment for the purposes of a Mental Health Care Plan.

30. You must notify a DSO of the identity and address of any healthcare practitioner that you consult.

31. You must take medications that are prescribed to you by your healthcare practitioners and only in the manner prescribed.

32. You must notify a DSO immediately if you cease to take or decline to commence taking any medication as referred to in the above condition.

33. You must agree to your treatment and service providers and healthcare practitioners sharing information, including reports on your progress and attendance, and information you have told them, with each other and with a DSO where it is considered necessary having regard to the risk of the commission of an offence by the defendant.

34. You must agree to any information obtained under condition 33 being shared between those persons and agencies that are involved in your supervision including, but not limited to, a DSO, NSWPF and CSNSW.

35. You must agree to the disclosure of your criminal history to any healthcare professionals that are treating you to the extent that it is relevant to your risk of reoffending or rehabilitation.

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Decision last updated: 28 August 2025