State of New South Wales v Whiley

[2025] NSWSC 980

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Whiley [2025] NSWSC 980

Hearing dates:

08 August 2025

Date of orders:

19 August 2025

Decision date:

28 August 2025

Jurisdiction:

Common Law

Before:

Walton J

Decision:

(1) An order pursuant to section 17(1)(a) of the Crimes (High Risk Offenders) Act 2006 that the defendant be subject to an extended supervision order for a period of five years from the date of the order.

(2) An order pursuant to section 11 of the Crimes (High Risk Offenders) Act 2006 that the defendant comply with the conditions set out in the Schedule to this Order.

Catchwords:

HIGH RISK OFFENDER – Final hearing – Application for continuing detention order – Alternative application for extended supervision order – Review of legal principles – Should an application for a CDO be considered ahead of an alternative application for an ESO – A two-stage process – Relevance of subs 17(4) factors to unacceptable risk test

HIGH RISK OFFENDER – Subsection 17(4) factors – Criminal history – Sentencing remarks – Court appointed experts – Reports of other qualified psychiatrists, psychologists and medical practitioners – Statistical assessments – Risk management report – Treatment and rehabilitation programs – Level of compliance with obligations of parole and CPR – Options to reduce the likelihood of reoffending

HIGH RISK OFFENDER – Application for continuing detention order – Determination of risk – No unacceptable risk of committing another serious offence if defendant is not kept in detention – Alternative application for extended supervision order – Unacceptable risk of committing another serious offence if defendant is not kept under supervision

Legislation Cited:

Child Protection (Offenders Registration) Act 2000 (NSW)

Crime (Serious Sex Offenders) Amendment Act 2013 (NSW)

Crimes Act 1900 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW)

Crimes (High Risk Offenders) Amendment Act 2017 (NSW)

Crimes (High Risk Offenders) Amendment Bill 2017 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Anderson v State of New South Wales (2016) 258 A Crim R 381; [2016] NSWCA 86

Davie v State of New South Wales [2016] NSWCA 96

Jones v State of New South Wales [2020] NSWCA 202

Kamm v State of New South Wales (No 4); (2017) 95 NSWLR 179; [2017] NSWCA 189

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

New South Wales v Russell (Final) [2020] NSWSC 396

New South Wales v Wilde [2014] NSWSC 305

R v Grant Neville Whiley (District Court (NSW), Solomon DCJ, 26 October 2012, unrep)

R v Grant Whiley (District Court (NSW), Musgrave DCJ, 22 April 2025, unrep)

Regina v Grant Neville Joseph Whiley (District Court (NSW), Ford DCJ, 7 November 1988, unrep)

Regina v Grant Neville Whiley (District Court (NSW), Bennett DCJ, 9 December 2008, unrep)

Rigby v State of New South Wales [2022] NSWCA 14

State of New South Wales v Barrie (Final) [2018] NSWSC 1005

State of New South Walesv Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280

State of New South Wales v Farzad (also known as Arthur Fairwell)(Final) [2024] NSWSC 265

State of New South Wales v Fisk [2013] NSWSC 364

State of New South Wales v Jones [2018] NSWSC 459

State of New South Wales v Kamm(Final) [2016] NSWSC 1

State ofNew South Wales v Ryan [2023] NSWSC 1138

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

State of New South Wales v Sturgeon (No. 2) [2019] NSWSC 883

State of New South Wales v Thurston [2018] NSWSC 421

State of New South Wales v Whiley (Preliminary) [2025] NSWSC 509

State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813

Whiley v R [2010] NSWCCA 53

Whiley v R [2014] NSWCCA 164

Texts Cited:

Explanatory Note, Crimes (High Risk Offenders) Amendment Bill 2017 (NSW)

New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Grant Neville Whiley (Defendant)

Representation:

Counsel:
G Wright SC & R Thampapillai (Plaintiff)
M Johnston SC & R El-Choufani (Defendant)

Solicitors:
Crown Solicitors Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2025/98503

Publication restriction:

Nil

REASONS FOR DECISION

1. By way of a Summons filed on 13 March 2025, the State of New South Wales (“the State”) brought an application under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) for preliminary orders, as well as interim and final relief against the defendant, Grant Neville Whiley (“the defendant”).

2. The preliminary hearing was heard by Davies J on 28 May 2025: State of New South Wales v Whiley (Preliminary) [2025] NSWSC 509 (“the preliminary judgment”). On 29 May 2025, Davies J made orders appointing two qualified psychiatrists and/or psychologists for the purpose of furnishing reports to the court. In the result, the Court received reports from Dr Gordon Elliott, a general and forensic psychiatrist, and Dr Sathish Dayalan, a forensic psychiatrist.

3. While the State also sought interim relief in the form of an interim detention order (“IDO”), or in the alternative, an interim supervision order (“ISO”), Davies J held that one of the pre-requisites for the making of an IDO or ISO had not been satisfied, namely, the requirement that the defendant’s current custody will expire before the proceedings are determined: s 10A(a) and 18A(a) of the Act.

4. The present proceedings concern the application for final relief, in which the State sought a continuing detention order (“CDO”) for a period of 18 months pursuant to ss 5C and 17(1)(b) of the Act, or in the alternative, an extended supervision order (“ESO”) for a period of five years pursuant to s 17(1)(a) of the Act.

5. It should be observed that, notwithstanding Practice Direction CL12 and the careful management of proceedings of this type by Yehia J, the hearing of this matter was scheduled, by consent of the parties, for 8 August 2025; 12 calendar days before the release date was scheduled for the defendant.

6. As a result of the parties having not addressed in writing (or orally), certain legal issues having a bearing on the disposition of these proceedings, the decision in the matter was actually reserved, later in time, after the receipt of written submissions, on 14 August 2025, 6 days before the release date of the defendant.

7. It must be said that the timetable for the disposition of this matter was unsatisfactory.

8. In the result, the Court announced orders on 19 August 2025. The orders made were as follows:

“1. An order pursuant to section 17(1)(a) of the Crimes (High Risk Offenders) Act 2006 that the defendant be subject to an extended supervision order for a period of five years from the date of the order.

2. An order pursuant to section 11 of the Crimes (High Risk Offenders) Act 2006 that the defendant comply with the conditions set out in the Schedule to this Order.”

9. The Court announced that the reasons for decision would be given at the earliest opportunity. These are those reasons.

THE DEFENDANT

10. The defendant was born in Sydney on 30 January 1970. He was the elder of two brothers. His life as a young child was affected by his father’s drinking and gambling, and his parents separating when he was six years of age, at which time the defendant reported his behavioural problems commenced.

11. The defendant was physically abused by his father and stepfather, before being placed into out of home care. He was sexually abused between the ages of 12 and 13 by a Dormitory Master at the defendant’s boarding school over a 6 to 12 month period. Following this abuse, the defendant reported that he also suffered abuse at the hands of someone referred to as “the Captain” at a Salvation Army Hostel.

12. The defendant left home to live independently at 15 years of age and reported leaving school during year 9, having been in conflicts with school authorities, fighting peers and truanting. He has since completed some studies in custody (including Certificate IV in Small Business Management).

13. The defendant commenced the use of alcohol at age 11, cannabis at age 13, amphetamines at age 15 (though reportedly ceased by age 21), and heroin for a short time also at age 15.

14. The defendant reported that he has had three significant relationships with adult females. One of the relationships involved violence by him against his long-term partner and the other involved allegations of violence against the child of that relationship. He also reported having two adult sons, one adult daughter, who may be his, and another younger daughter who would be around 19 years old at the time of the hearing. When the defendant was 21 years old, he had a relationship with a woman named Vanessa and shared a baby. The child was, however, taken into the care of the State after reports of being mistreated, suffering bruising in multiple locations and a crush fracture on the left hand. The child was also underweight. During the course of proceedings, the defendant made numerous threats to various parties involved and was then held in contempt of court.

15. The defendant has previously had a supportive relationship with his mother, whom he was residing with in Orange prior to his return to custody as discussed below. The defendant also maintained a close relationship with his sister, who resides in Wollongong, works full time in adult education and has a history of veterinary care. The defendant’s father is reported to have been very ill in late 2024 and has since passed away.

16. The defendant has an extensive criminal history, including convictions for serious violence offences and serious sex offences (within the meaning of ss 5 and 5A the Act).

17. The defendant has served multiple custodial sentences since he was 17 years of age, with very little time spent outside of custody. Since 1988, the defendant has spent just over 6 years outside of custody, with the longest period spent outside of custody being 23 months when the defendant was 19 years of age.

18. The defendant has a significant history of sex offences, including offences of sexual intercourse with a child under 10 years in 1995, disseminating/producing child abuse material in 2007, multiple separate offences of possessing child pornography in 1999, 2004, and 2010, as well as the most recent bestiality offences for which the defendant was incarcerated for until 20 August 2025.

19. In this regard, it may be noted that the defendant was sentenced to terms of imprisonment for two counts of possess child pornography contrary to subs 91H(2) of the Crimes Act 1900 (NSW) (“the index offences”) for a period of 6 years commencing on 18 June 2019 and concluding on 17 June 2025 with a non-parole period of 4 years, commencing on 18 June 2019 and concluding on 17 June 2023. Further, on 22 April 2025, the defendant was sentenced to a further period of imprisonment of 16 months for offences of possessing bestiality material contrary to subs 547E(2) of the Crimes Act (“the bestiality offences”), which were committed whilst the defendant was on parole for the index offences. This sentence commenced on 21 October 2024 and will conclude on 20 February 2026, with a non-parole period of 10 months concluding on 20 August 2025. Hence, the defendant’s current period of custody (being the non-parole period for the bestiality offences) expired on 20 August 2025.

20. However, it must be observed that the serious violence and sex offences, committed by the defendant, occurred in 1987 and 1995, respectively; the last of those offences having occurred 30 years ago.

21. In their reports dated 14 July 2025, Drs Elliott and Dayalan (“the independent experts”) gave diagnoses for the defendant’s psychiatric and psychological conditions.

22. Dr Elliott diagnosed the defendant as presenting with psychopathy. The psychiatrist opined that the defendant presented with the “prominent features of psychopathy” and further opined that those features were ingrained in his “personality structure” and would be “lifelong”. I will return to the particular features of psychopathy exhibited by the defendant as referred to in Dr Elliott’s report as having a definite personality disorder.

23. Dr Dayalan diagnosed the defendant as fulfilling “the criteria for anti-social personality disorder” and had been assessed to have “psychopathy which is a personality construct that shares a lot of traits of anti-social personality disorder”.

24. During the concurrent evidence of the independent experts on 8 August 2025 (“the concurrent evidence”), the apparent differences in these diagnoses disappeared. Dr Dayalan’s opinion that the defendant fulfilled the criteria for anti-social personality disorder was based upon his application of the Diagnostic and Statistical Manual of Mental Disorders 5^th edition (“DSM-5”). He accepted that psychopathy was a valid diagnostic construct and was “quite relevant to risk” such that “it can be seen as a diagnosis”. He mentioned that many persons with psychopathy would also fall into the criteria for anti-social personality disorder.

25. Dr Dayalan gave evidence that the diagnosis of psychopathy is “strongly correlated with both sexual and violent offending” and “is one of the significant risk factors”.

26. Dr Elliott also concluded in his report that the defendant presented with “features of Paedophilia – non-exclusive sub-type” which appeared to be part of “a spectrum of deviant sexual behaviour driven by pronounced novelty seeking of ever more extreme sexual images and/or behaviour in order to overcome a tendency to boredom with safe or conventional sexual behaviour”.

27. Dr Dayalan also gave a diagnosis of paedophilia which he described as “paedophilia non-exclusive and sexually attracted to females”. He also stated that the defendant “displayed behaviour consistent with other deviant sexual interests such as sexual sadism and bestiality”.

28. During their concurrent evidence, the independent experts agreed that a deviant sexual interest is a strong indicator of future sexual offending. They also agreed that psychopathy contributed to the risk of reoffending over and above the defendant’s deviant sexual interest, such that the psychopathy increased the risk of offending further than having only a deviant sexual interest.

29. Both experts agreed that the Psychopathy Checklist-Revised (“PCL-R”) was a good indicator of the existence of psychopathy and the risk of reoffending. The defendant scored highly on the PCL-R instrument.

POSITION OF THE PARTIES

30. The parties agreed that the preconditions for the making of a CDO at subss 5C(a), (b) and (c) of the Act are satisfied, namely, that:

1. The defendant is an “offender” (as defined under s 4A of the Act) who has served a sentence of imprisonment in custody for a “serious offence”. Specifically, he is over 18 years old, and in 1995 was sentenced to a period of imprisonment to be served by full-time detention following his conviction for offences of sexual intercourse with a child under 10 years of age, being a “serious sex offence” for the purpose of subs 5(1) of the Act. The State also noted that in 1988 the defendant was sentenced to a period of imprisonment following his conviction for maliciously wounding with intent to cause grievous bodily harm, being a “serious violence offence” for the purpose of subs 5A(1) of the Act.

2. The defendant is a “detained offender” (as defined under s 13B(2) of the Act) because he was in custody serving a sentence of imprisonment for an “offence of a sexual nature”, namely two offences of possess child abuse material contrary to s 91H of the Crimes Act, at the time the application was made on 13 March 2025.

3. The application was made in accordance with s 13B of the Act.

31. While it is ultimately a matter for the Court, I note that the parties also agreed that the Court could be satisfied, to a high degree of probability, that the defendant would pose an unacceptable risk of committing another serious offence if not kept under supervision: subs 5B(d) of the Act.

32. If the Court concurred with that proposition, the defendant accepted that the Court should, in the exercise of its discretion, make an ESO. If the Court were to make an ESO, the parties agreed that the appropriate duration is for a period of 5 years.

33. The State submitted that if the Court was not satisfied that a CDO should be made, it would readily find that the test for an ESO is made out, and with respect to the conditions of an ESO, both court-appointed experts have opined that all conditions listed in the Summons are important for managing the defendant’s risk.

34. The defendant was correct to submit that the principal areas of controversy between the parties then were, on the application by the State for a CDO, whether the statutory threshold under subs 5C(d) of the Act is satisfied, and if so, whether, in the exercise of the Court’s discretion under subs 17(1) of the Act, the Court should decline to make a CDO rather than impose an ESO.

35. In answer to those disputed areas, the parties broadly made the following submissions.

36. The State submitted that the evidence currently available, including the defendant’s high level of psychopathy, his deviant sexual interests including paedophilia, his lack of treatment and lack of remorse, empathy or insight into (and with regard to) his offending behaviour, points to a high degree of probability that the defendant poses an unacceptable risk of committing a further serious offence if he is not kept in detention.

37. The defendant submitted that the circumstances of the offender, including his lengthy criminal history, his assessment as having a high risk of violent offending and a well above average risk of sexual offending, and his diagnosis with, inter alia, anti-social personality disorder with psychopathic traits, do illuminate the real risk that the defendant poses to the community if an ESO or CDO is not made. However, the defendant submitted that the extent of the risk should not be overstated, and that this is an appropriate case for an ESO.

38. The defendant also sought discrete amendments to the proposed conditions in the event an ESO was made as set out in the Schedule appearing behind Tab 6 of Exhibit 1 (“the Schedule”). However, during the course of oral argument, senior counsel for the defendant, Mr M Johnston SC, submitted that if the remaining disputed conditions (and, in particular, some conditions appearing under the headings: “Reporting and Monitoring Obligations” (per Schedule of Movements); “Accommodation” (per Curfew); and “Employment, Finance and Education” (per Financial Arrangements)) represented a barrier to the defendant’s release on an ESO, then they were not pressed.

39. In part driven by the parties’ written submissions, and in part by aspects of their oral submissions, it became apparent that issues of principle regarding the operation of Part 1A, 2 and 3 of the Act had been raised by the submissions of the parties. Upon raising those issues, the parties indicated an inability to deal with them at the time of the hearing and, in the result, the Court made a provision for written notes to be produced by each party within a short period of time after the hearing.

40. The Court crystallised the questions arising from that process in a further note to the parties. The matters of principle raised were as follows:

1. In considering the present application, is the Court required to first address the requirements of s 5C of the Act ahead of addressing the considerations under s 5B of the Act (“question 1”).

2. Whether the Court should, in addressing the requirements of s 5C of the Act (or for that matter s 5B of the Act), adopt a two-stage approach consistently with the judgment of Adams J in New South Wales v Russell (Final) [2020] NSWSC 396 (“Russell”) (“question 2”).

3. Whether the authority to make a CDO under s 5C of the Act is enlivened by the satisfaction of a single condition (apart from the pre-conditions in subss 5C(a)-(c) of the Act) requiring the Court to make an assessment of risk of committing a serious offence if a defendant is not kept in custody beyond the term of his sentence, exclusive of the possibility of mitigating the risk by placing the defendant under supervision (by an ESO): Jones v State of New South Wales [2020] NSWCA 202 ("Jones (2020)") (“question 3”).

(collectively, “the questions”).

41. In response to the questions, the parties adopted opposite approaches to the answer, with the State urging the Court to adopt an affirmative answer and the defendant a negative one (although the question earlier formulated in the defendant’s written submissions was suggestive of a two-stage process). The elucidation of their submissions, in that respect, will occur under the next section of this judgment.

42. I note that a further consideration, arising in the context of the questions, is whether the court should have regard to the factors in s 17(4) of the Act in both determining whether there is an unacceptable risk and in the exercise of any discretion in determining the application.

THE STATUTORY SCHEME AND RELEVANT PRINCIPLES

Introduction

43. The primary object of the 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: subs 3(1) of the Act. The safety of the community must be the paramount consideration of the Court in determining whether or not to make a CDO or ESO: subs 17(2) of the Act.

44. Another object of the Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation: s 3(2) of the Act.

45. Part 1A of the Act is entitled “Supervision and detention of high risk offenders”.

46. Sections 5B and 5C of the Act fall under that Part and concern ESO’s and CDO’s, respectively. Both headings above those provisions make reference to “unacceptable risk”.

47. Section 5B of the Act provides:

“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.”

48. 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.”

49. Subsections (a) to (c) of ss 5B and 5C are identical and constitute, as I will later discuss, preconditions for the exercise of the power of the Court to make either an ESO or a CDO.

50. The meaning of “offender” is set out in s 4A of the Act, and is a person who is of or above 18 years of age, and has at any time been sentenced to imprisonment (not including a suspended or quashed sentence) to be served by way of full-time detention or intensive correction in the community (whether or not subject to a home detention condition) following the person's conviction for a serious offence.

51. A “serious offence” is defined in s 4 of the Act and means a serious sex offence or a serious violence offence (as defined in subs 5(1) and 5A(1) of the Act, respectively).

52. A “serious sex offence” includes an offence under Division 10 of Part 3 of the Crimes Act, where, in the case of an offence against a child, the offence is punishable by imprisonment for 7 years or more: subs 5(1)(a)(i) of the Act.

53. A “serious violence offence” includes a serious indictable offence (within the meaning of the Crimes Act), that is constituted by a person 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: subs 5A(1)(a) of the Act. Conduct that causes grievous bodily harm to another person will include conduct that causes the wounding of another person, but only if the conduct was engaged in with the intention of causing death or grievous bodily harm: subs 5A(2A)(c) of the Act.

54. A “detained offender” is defined in s 13B of the Act, and includes an offender who, at the time the application was filed, was in custody while serving a sentence of imprisonment for an offence of a sexual nature.

55. The fourth precondition in ss 5B and 5C, found in subsection (d) in each case, differ. Both of those provisions represent the substantive risk test for consideration by the Court. The provisions require the Court to undertake an evaluative process as to the existence or otherwise of an unacceptable risk. Thus, the Court is required to be “satisfied to a high degree of probability” as to the risk referred to in subsection (d).

56. However, the fourth precondition differs as between subss 5B(d) and 5C(d) in that, in the first case, the Court is required to assess whether the offender poses an unacceptable risk of committing another serious offence if not kept under supervision, and in the second instance, the assessment of unacceptable risk in that way is confined to the limitation “if not kept in detention”.

57. 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”.

58. In broad terms, the principles applicable to the unacceptable risk test are set out in my judgment in State ofNew South Wales v Ryan [2023] NSWSC 1138 (“Ryan”) (at [12]-[19]). Those principles are also applicable to the consideration of unacceptable risk in subs 5C(d), save for the differences between the provisions of subss 5B(d) and 5C(d) discussed above.

59. Even where the four preconditions are satisfied, the Court’s power to make an ESO or a CDO is discretionary. The factors that must be taken into account in the exercise of that discretion appear in subs 9(1) of the Act in the case of an ESO, and subs 17(1) in the case of a CDO. I will deal with the implications of those factors for the assessment of unacceptable risk below.

60. Section 17(1) of the Act provides that the Court may dispose of a CDO application in one of three ways: by making an ESO, by making a CDO, or by dismissing the application. Subsection 9(1) confines the determination the court may make, in the case of an application for an ESO, to either the making of an ESO or dismissal of the application.

61. In both ss 9 and 17 of the Act, the determination of an application for an ESO or a CDO requires the Court to treat the safety of the community as a paramount consideration (see subs 9(2) and 17(2) of the Act).

Relevant aspects of the legislative and jurisprudential history of the Act

62. Before turning specifically to the questions, it is appropriate to consider the relevant aspects of the legislative and jurisprudential history of the Act.

63. The Act was substantially amended in 2013 by the Crime (Serious Sex Offenders) Amendment Act 2013 (NSW) (“the 2013 Amendment Act”). The Act was further amended in 2017 by the Crimes (High Risk Offenders) Amendment Act 2017 (NSW) (“the 2017 Amendment Act”).

64. From the 2013 Amendment Act until the passage of the 2017 Amendment Act, the immediate former version of the Act (“the former Act”) contained Part 1A. Part 1A of the former Act had two divisions dealing respectively with “high risk sex offenders” (Div 1) and “high risk violent offenders” (Div 2).

65. “High risk sex offender” was defined in s 5B of the former Act, and provided that the court’s jurisdiction to make a CDO or ESO was enlivened “if and only if the offender is a high risk sex offender”: subs 5B(1) of the former Act. Subsection 5B(2) of the former Act provided as follows:

“An offender is a high risk sex offender if the offender is a sex offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision.”

66. Comparable provisions were contained in subs 5E(1) and (2) of the former Act in relation to a “high risk violent offender”.

67. Section 5C(1) of the former Act provided that the court may make an ESO if the offender was a high risk offender.

68. Subsection 5D(1) of the former Act, concerning CDOs, provided that:

“5D Continuing detention orders for high risk sex offenders

The Supreme Court may, on application under this Act, make an order for the detention of an offender if the offender is a high risk sex offender and the Supreme Court is satisfied that adequate supervision will not be provided by an extended supervision order.”

69. Section 5G of the former Act applied in relevantly identical terms to high risk violent offenders.

70. Subsection 17(1) of the former Act was in the same terms as the Act. Subsection 17(2) did not exist. Subsection 17(4) set out a list of factors from (a) to (k) which included the safety of the community (subs 9(3) contained equivalent factors save for subsubsections (j) and (k)).

71. I agree with the submissions of the State that the effect of these provisions of the former Act was, therefore, that a CDO could only be made if the court was satisfied that supervision under an ESO was not adequate.

72. Soon after the passage of the 2013 Amendment Act, Justice Beech-Jones, sitting in the Common Law Division of this Court (as he then was) made the following observations about the newly minted Act in State of New South Wales v Fisk [2013] NSWSC 364 (“Fisk”) at [22] and [84] as follows:

“[22] Second, the structure of the Act in its current form appears to require that a determination that a person falls within the definition of "high risk sex offender" be undertaken prior to considering whether or not to make an ESO. It appears that, it is not until that latter stage, that the criteria in s 9(3) are required to be addressed. This is curious in that it is very hard to imagine a case in which a person could be found to satisfy the definition of being a "high risk sex offender" but that a consideration of the criteria in s 9(3) would nevertheless result in the Court dismissing the application. The position is different under s 17(1) where, on an application for an extended detention order, the Court can either make that order, make an ESO or dismiss the application. A consideration of the equivalent of the criteria of s 9(3) found in s 17(4) could certainly provide guidance as to whether to make a detention order or an ESO.

…

[84] I have already noted how a determination that a person falls within the definition of high-risk sex offender appears to be a step that must be undertaken prior to considering whether or not to make an ESO and addressing the criteria (s 9(3)). However, the criteria in s 9(3) appear to be relevant to an assessment of whether a person falls within the definition of "high-risk sex offender" and especially to whether they pose an unacceptable risk "unless kept under supervision". I address those criteria next, but my consideration of them only confirms my conclusion that Mr Fisk falls within that definition.”

73. That judgment was followed by Hall J in State of New South Wales v Wilde [2014] NSWSC 305 at [111] (“Wilde”).

74. In State of New South Wales v Kamm(Final) [2016] NSWSC 1 (“Kamm (No 1)”) at [26] and [42], Harrison J (as he then was) followed the approach taken by Beech-Jones J in Fisk above. Harrison J referred to the apparent tension in relation to the order in which the s 17(4) criteria were to be considered (but in the context of an ESO). At [46] and [48] Harrison J stated as follows:

“[46] Under the Act, if the State discharges its burden to establish that the offender is a high risk sex offender under s 5B, the Court still has a discretion whether or not to make an order, and must take into account the criteria in s 9(3). However, where a court is satisfied according to the relevant standard that the offender is a high risk sex offender, it would be an unusual case before the court would decide in its discretion not to make an ESO under s 9.

…

[48] As noted above, in considering whether an offender is a high risk sex offender for the purposes of s 5B, regard may be had to the relevant factors listed in s 9(3). Those factors may bear upon both the threshold state of satisfaction as to whether Mr Kamm is a high risk sex offender who may be subject to an ESO under ss 5B and 5C of the Act and the exercise of the discretion to make an ESO under s 9.”

75. The judgment in Kamm (No 1) was appealed, but before judgment on the appeal (Kamm v State of New South Wales (No 4); (2017) 95 NSWLR 179; [2017] NSWCA 189 (“Kamm (No 4)”)), the Court of Appeal delivered judgment in the matter of Anderson v State of New South Wales (2016) 258 A Crim R 381; [2016] NSWCA 86 (“Anderson”).

76. In Anderson, the notion of a two stage process was mentioned in the following passages from that judgment (at [14]- [15]):

“[14] It suffices in order to summarise and resolve the essential submissions which arise on this appeal to observe that ss 5B and 5D mandate a two stage process. The first question is that posed by s 5B, which is whether the person is a high risk sex offender. This entails the Court being satisfied, to a high standard, that the offender would pose an “unacceptable risk of committing a serious sex offence if he or she is not kept under supervision”. Only if the answer to that question is affirmative can there be power to make either a continuing detention order or an extended supervision order.

[15] The second question only arises if the person is a high risk sex offender. It is the question posed by s 5D, which is whether the Court is satisfied that adequate supervision will not be provided by an extended supervision order. If the answer to that question is affirmative, then there is power to make a continuing detention order. (For the purposes of this appeal, we put to one side the separate discretion whether to make a continuing detention order at all, discussed in State of New South Wales v Donovan [2015] NSWCA 280 at [14]-[15].)”

77. In Anderson, the Court of Appeal was concerned with appeals from a first instance judgment in which an order for a CDO was made. It is apparent from the above-mentioned extract that in referring to a two stage process the Court was not referring to a distinction between a finding as to unacceptable risk and a discretion as to whether to make a CDO. Rather, the Court was concerned with two preconditions found respectively within s 5B and 5D of the former Act. The exercise of a discretion under s 17(1) of the former Act (which was in the same terms as the Act) was described as a “separate discretion”.

78. On appeal in Kamm (No 4) at [61], Beazley P (with whose reasons Bathurst CJ agreed) upheld Harrison J’s reasoning in Kamm (No 1) at [46], that s 5B required establishing that an offender was a high risk sex offender – a provision that did not import or imply a discretion; that his Honour had correctly understood that the relevant discretion arose under s 9 (in the case of an application for an ESO); and that, at [48], his Honour had observed correctly that it was in the exercise of the discretion as to whether to make an order that the Court “must” take into account the matters specified in subs 9(3). Beazley P did not separately consider or comment on his Honour’s finding at [48] that the s 9(3) factors may bear upon the threshold state of satisfaction under ss 5B and 5C of the Act.

79. Under the heading “Essential characteristic of a court exercising federal jurisdiction/institutional integrity”, Payne JA (with whom Bathurst CJ also agreed) formed the following view as to the relevance of subs 9(3) factors to the assessment of unacceptable risk (in the case of an application for an ESO) (at [120]):

“The High Risk Offenders Act requires, in s 5B, the attainment of a state of satisfaction that an offender poses “an unacceptable risk of committing a serious sex offence if he or she is not kept under supervision”, having regard to a non-exhaustive list of matters relevant to reaching that state of satisfaction set out in s 9(3), including psychiatrist reports and evidence of participation in rehabilitation programs. The Court has a discretion, even if satisfied of that matter, whether or not to make an order and, if so, as to the content of that order. Subject only to a consideration of the effect of s 5B(3), addressed separately below, the provisions of the Dangerous Prisoners (Sexual Offenders) Act and the High Risk Offenders Act are relevantly identical.”

80. His Honour did not pass upon the application of those factors to the separate exercise of a discretion under subs 9(1) of the former Act, but that may well have been the case because of the mandatory nature of subs 9(3) with respect to the exercise of discretion (noting that Beazley P had found the factors to be mandatory).

81. It may also be noted that, at [160], Payne JA referred to State of New South Walesv Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280 (“Donovan”), relevantly as follows:

“[160]. In Donovan the Court (Beazley P, Macfarlan and Leeming JJA) held at [15] and [71]:

“[15] First, it was common ground that s 5G(1) conferred a separate discretion upon the court to decline to make a continuing detention order, even if the court were satisfied that adequate supervision will not be provided by an extended supervision order. That distinction may be important for the purpose of an appeal. Appellate review of a decision not to make an order because of a failure to be satisfied that adequate supervision will not be provided by an extended supervision order is different from review of a discretionary decision not to make an order even though the court is satisfied of that fact. One is discretionary in the ordinary sense of the word; the other well answers the description given in Norbis v Norbis (1986) 161 CLR 513 at 518 by Mason and Deane JJ of the application of “a very general standard” which calls for “an overall assessment” in the light of a range of factors. The primary judge squarely rested her decision on not being satisfied that adequate supervision will not be provided by an extended supervision order: see at [112].

…

[71] Further, the State’s submission is inconsistent with the discretionary aspect flowing from the opening words of s 5G (“The Supreme Court may, on application under this Act, make an order …”). The substance of the State’s submission was that a continuing detention order must be made unless there ceased to be an unacceptable risk, because that risk had been eliminated or substantially reduced by reason of the adequate supervision afforded by the extended supervision order. That submission cannot stand with the undoubted discretion to make an order. (The likelihood or unlikelihood of the discretion being exercised matters not for present purposes; the point is that its presence undercuts the State’s submission.)”

82. The conclusion reached by Payne JA as to the applicability of subs 9(3) factors to the assessment of unacceptable risk in the case of an application for an ESO must, by analogy of reasoning, be applicable to an application for a CDO under the former Act as s 5B(1) and (2) were applicable to both applications for an ESO and a CDO and subss 9(3) and 17(4) relevantly operated in the same way in the conferral of the discretion to make an ESO or a CDO.

82. Sections 5D and 5G of the former Act were repealed by the 2017 Amendment Act.

83. For the purposes of these proceedings, a number of significant aspects of the amendments introduced by the 2017 Amendment Act should be mentioned:

1. Subsection 17(2) makes the safety of the community a paramount consideration, as opposed to it being one of several factors required to be considered under subs 17(4).

2. Subsections 17(4)(e1) and (e2) were introduced in the following terms:

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

(e2) whether the Court is satisfied that the offender is likely to comply with the obligations of an ESO,

3. As mentioned, s 5D was repealed. No equivalent provision appears in s 5C of the Act or elsewhere in the Act.

4. Subsection 17(5) was introduced in the following terms:

“(5) In determining whether or not to make a continuing detention order, the Supreme Court is not to consider the ability to take action for a breach of the order in relation to whether there is an unacceptable risk of the offender committing further serious offences.”

85. The speech introducing the Crimes (High Risk Offenders) Amendment Bill 2017 (NSW) (“the Bill”) to the Legislative Assembly on 11 October 2017 explained the reasons for the 2017 amendments (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017 at 15):

“…will insert statutory amendments to change the test to be applied by “the Supreme Court in deciding whether or not to make a CDO in respect of a high risk offender. Under the existing test for making a CDO, an offender is likely to be released to supervision in the community provided adequate supervision can be provided. There are a number of issues with the current process…. … Offenders cycle between being on an ESO and being in custody-having breached that ESO-with no change to underlying behaviour, and Corrective Services NSW is required to provide detailed information on how an unmanageable offender might be supervised in the community, even when Corrective Services does not have confidence that the proposed supervision measures will be effective in keeping the community safe.

The bill will strengthen the test for deciding whether to impose a CDO. The test will be reframed so that an offender's risk to the community is the emphasis, instead of whether he or she can be adequately supervised. Under the reframed test the court must be satisfied that the risk of the offender committing another serious offence will be unacceptable unless a CDO is made. In determining whether and what type of order to impose, the court would be required to have regard to the existing considerations in sections 9 and 17 of the Act, including community safety, the offender's criminal history and the sentencing remarks of the original sentencing court. In addition to existing considerations, the reframed test will require the court to consider two additional factors; whether the offender is likely to comply with an ESO, and options in the community or in custody that would help reduce the offender's risk of reoffending over time.

This second point is framed to enable the court to consider a range of options, including proximity to family, ensuring the offender's links to the community are retained, rehabilitative programs or other options available in custody or in the community. Further, when considering whether to make a CDO the Act will state that the court must not consider a breach of an ESO condition as an effective form of intervention. These reforms strengthen the test for deciding whether to impose a CDO so that an offender's risk to the community is considered instead of whether he or she has been adequately supervised. Community safety will be the Supreme Court's paramount consideration when considering whether to make an order under the Act. This aspect of the reform is expected to mean that some offenders who had previously received an ESO will now receive a CDO. That is appropriate if the offender cannot be managed in the community on an ESO.”

(emphasis added)

86. The explanatory memorandum accompanying the Bill also explained that the object of the Bill was to amend the Act (Explanatory Note, Crimes (High Risk Offenders) Amendment Bill 2017 (NSW)):

“by changing the test to be applied by the Supreme Court in deciding whether or not to make a continuing detention order in respect of a high risk offender so that an order may be made if the Supreme Court is satisfied that the risk of the offender committing another serious offence would be unacceptable unless the order is imposed instead of being satisfied that adequate supervision will not be provided by an extended supervision order”

87. The provisions of the Act concerning applications for a CDO were considered by Adams J in a trilogy of judgments, two of which were delivered in 2018 and one in 2020.

88. The first of those judgments was State of New South Wales v Jones [2018] NSWSC 459 (“Jones (2018)”), being the first final hearing considering an application for a CDO under the Act (as amended) by the 2017 Amendment Act.

89. It was in this judgment that her Honour accepted a submission by the State that a two stage process should be adopted in considering an application for a CDO (her Honour distinguished the two stage process referred to in Anderson). At [207], her Honour stated:

“[207]. I have had regard to the recent amendments to the Act. It was submitted on behalf of the State that the Court would take the two stage process set out in Anderson v State of New South Wales extracted above at [19]. It was submitted that the first stage was whether the court could impose a CDO under s 5C of the Act and, if so, the second question is whether such an order should be made having regard to the matters set out in s 17(4) of the Act, bearing in mind that the safety of the community must be the paramount consideration under s 17(2) of the Act…”

90. In Jones (2018), the Court was considering, as in this matter, an application for a CDO with an alternative application for an ESO. The appraisal adopted by her Honour at [208] and [209] was as follows:

“[208]. Given that the State seeks a CDO as its primary application in this matter, I propose to approach the statutory task by first considering whether s 5C(d) is satisfied and then turn to consider whether, in the exercise of the discretion conferred under s 17(1) of the Act, I would dispose of the application by way of a CDO or an ESO.

[209]. The first question is whether I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence if not kept in detention under a CDO.”

91. I agree with the submission of the State that, in that case, her Honour appears to have considered the matters listed in subs 17(4) in arriving at her conclusion regarding unacceptable risk (i.e. when dealing with the first stage), though her Honour did not expressly refer to that subsection in the relevant paragraphs of the judgment: Jones (2018) at [210], [213] and [224].

92. I also agree with the submission by the State that her Honour did not apparently consider the factor under subs 17(4)(e2), but did include the factor under subs 17(4)(d1) of the Act.

93. In exercising her discretion, her Honour made the following observation (at [225]):

“[225].The next question is whether, in the exercise of the court’s discretion under s 17(1) of the Act the defendant should be placed on a CDO for a period of two years as sought by the State, placed on a CDO for some lesser period, or placed on an ESO for five years or less. As stated above, the defendant consents to being placed on an ESO for a period of two years. I have had regard to the fact that following the amendments, the “paramount consideration” in this regard is the safety of the community. I have also had regard, inter alia, to the mandatory factors in s 17(4) of the Act.”

94. Further, at [231] her Honour discussed the applicability of subs 17(5) of the Act, to the exercise of her discretion:

“[231]. The risk of the offender committing a serious offence if placed on an ESO would be ameliorated to some extent by the fact that if he commenced to groom young boys this would be a breach of his ESO which might be detected before any offences were committed. But for s 17(5) of the Act, given the nature of the defendant’s particular offending, this could have been a relevant factor weighing in favour of an ESO rather than a CDO…”

95. In her Honour’s second judgment, State of New South Wales v Barrie (Final) [2018] NSWSC 1005 (“Barrie”), Adams J reconsidered the approach in Jones (2018) and determined that the consideration of ss 5C(d) and 17 involved “one evaluative decision rather than two.” (at [24]).

96. Her Honour’s reasons for reaching that view were as follows (at [31]):

“[31]. As a matter of practical reality, in most cases, the question of whether a one-stage or two-stage test is applied will not make any difference to the result so long as ss 17(2) and 17(4) are considered (as occurred in State of NSW v Jones). But the problem with a two-stage test, which was not addressed in the State’s supplementary submissions, is that it means that a decision has already been made by the Court at the end of the first step that it is satisfied to a “high degree of probability” that the relevant offender poses an unacceptable risk of committing a serious offence if not detained. I can see no textual basis to then require the Court to consider s 5C(d) again but this time having regard to the factors in ss 17(2) and 17(4) of the Act. The better reading of the provisions is that the Court addresses the question of whether s 5C(d) is established, having regard to all of the factors in ss 17(2) and 17(4) of the Act. A CDO would be appropriate if the test in s 5C(d) was satisfied and an ESO would be appropriate if the test in s 5C(d) was not satisfied (so long as the test in s 5B(d) was satisfied).”

97. In Russell, Adams J, after reviewing her Honour’s decisions in Jones (2018) and Barrie, took a contrary view to Barrie. Her Honour found that the correct approach was that taken by her Honour in Jones (2018) in the following passage of her judgment (Russell at [33]):

“[33]. Having given the matter further consideration, I am satisfied that the approach I took in Jones is the correct approach. I remain of the view that it would be an unusual case where a court would be satisfied to a “high degree of probability” that an offender posed an “unacceptable risk of committing a serious offence” if not detained and then go on to release them on an ESO in the exercise of the Court’s discretion. This was the view that led me to conclude in Barrie that the amendments must have required one evaluative exercise. Despite still holding this view, I am also satisfied that the structure of the Act suggests that two separate decisions are required: s 5C of the Act provides the test for whether the Court could impose a CDO and, if made out, s 17 of the Act provides for the mandatory considerations to have regard to when considering whether a CDO should be imposed. That is the approach I propose to take in this matter.”

98. Her Honour reached a conclusion that the factors in subs 17(4) of the Act were “relevant” to the first evaluative step in considering an application for a CDO, namely, unacceptable risk, relying upon the judgments in Fisk, Wilde, the earlier judgment of Button J concerning Mr Russell, and Kamm (No 1). She also applied some of the subs 17(4) factors in assessing unacceptable risk (at [168]).

99. By reference to the legislative history, her Honour observed (Russell at [28]):

“The purpose of the amendment to the test for imposing a CDO was to place greater emphasis on an offender's risk to the community than on the question of whether he or she could be adequately supervised. It was expressly stated by Attorney-General Mark Speakman SC that it was anticipated that some offenders who had previously received an ESO would receive a CDO following the amendments (see Jones at [27]-[29]).”

100. In State of New South Wales v Sturgeon (No. 2) [2019] NSWSC 883 (“Sturgeon"), Garling J held that, in considering the making of a CDO, the Court must first be satisfied, by reference to s 5C of the Act, that the Court has power to make such an order and then, if so satisfied, the Court has a discretion. His Honour observed that “it does not follow that a CDO will necessarily be made” (at [20]).

101. Garling J compared the structure of the former Act with the Act and concluded (at [25]) as follows:

[25]. Today, the legislation does not involve such a comparison. The only comparison that can take place is one between the safety of the community having regard to the level of risk, where a person is in detention or not. It is unsurprising then that the Attorney-General in his Second Reading Speech delivered 11 October 2017, said:

“The Bill will strengthen the test for deciding whether to impose a CDO. The test will be reframed so that an offender’s risk to the community is the emphasis, instead of whether he or she can be adequately supervised. Under the reframed test the Court must be satisfied that the risk of the offender committing another serious offence will be unacceptable unless a CDO is made. …”

102. In State of New South Wales v Farzad (also known as Arthur Fairwell) (Final) [2024] NSWSC 265 (“Farzad”), Hamill J applied the judgment of Garling J in Sturgeon in finding that, since the 2017 Amendment Act, “it is no longer appropriate to consider whether suitable or adequate supervision can be provided by a supervision order” in considering an application for a CDO (at [82]).

103. Lastly, in State of New South Wales v SLD (Final) [2025] NSWSC 203, the court considered whether to make a CDO in circumstances where the defendant was already the subject of an ESO.

104. Ierace J was satisfied that the defendant posed a risk of committing a serious offence if not kept in detention (at [58]). However, his Honour concluded that, if a CDO is not made, the defendant would be the subject of an ESO which had the capacity to manage the risk to the safety of the community. In the result, his Honour was not satisfied that the defendant posed an unacceptable risk of committing another serious offence if not kept in detention.

105. The State submitted that his Honour’s approach, in this respect, was not correct. In my view, the decision is explicable on the basis that the defendant was already successfully the subject of an ESO at the time the application for a CDO was made.

Consideration of the questions

106. Before turning to the resolution of the questions, it is convenient to deal with a series of propositions advanced in the defendant’s written submissions. This is a convenient course because the defendant’s submissions tended to raise a series of propositions under questions 1 and 2 which plainly had some relevance to both topics.

107. Amongst those submissions were a number of key propositions, which should be identified at the outset as follows:

1. If an application is made for a CDO, the Court is required to engage in a single evaluative exercise guided by the objects of the Act and the mandatory factors under subs 17(4). That evaluative exercise will result in one of two conclusions consistent with the different tests set out in section 5B(d) or 5C(d). Alternatively, if not satisfied of either test the Court may dismiss the application.

2. The language of the Act makes clear that whether or not to make a CDO or ESO is part of the same evaluative exercise. Subsection 17(1) of the Act provides that the Supreme Court may determine an application made under this part for a CDO, (a) by making an extended supervision order, or (b) by making a continuing detention order, or (c) by dismissing the application.

3. The mandatory factors in subs 17(4) of the Act are highly relevant to the assessment under ss 5B(d) and 5C(d) of whether the risk of committing a serious offence can be managed in the community, or whether the risk is unacceptable and requires the offender to be kept under supervision or detained. These factors should be addressed as part of a single evaluative exercise.

4. The defendant went further and submitted that the court should consider the requirements of ss 5B and 5C “at the same time”.

5. A contextual approach to the interplay between ss 5B(d) and 5C(d) makes clear that there are different statutory tests. In particular, the words, ‘if not kept in detention’, limit the Court to making the order only in circumstances where satisfied that an extended supervision order is not an option. It is implicit in considering this aspect of the test that consideration must be given to whether the offender poses an unacceptable risk if not supervised.

108. I do not accept the defendant’s submissions, in this respect, for the following reasons:

1. It is evident from the foregoing discussion of this Court’s consideration of the unacceptable risk test under each ss 5B and 5C that the provisions of subclause (d) in each provision is a statutory precondition to the making of an ESO or CDO. That was the approach taken in Anderson under the former Act. The same approach is evident in the decision of the Court of Appeal, albeit in relation to s 5B, in Rigby v State of New South Wales [2022] NSWCA 14 (per Basten JA, with whom Bell P and Macfarlan JA agreed) at [18], and in first instance decisions such as State of New South Wales v Thurston [2018] NSWSC 421 (per Garling J) at [15] and [16]. This proposition seems to be accepted in the defendant’s written submissions at [17], and, in any event, is evident from the structure of Part 1A of the Act, which limits the power of the Court to make an ESO or CDO to the court being satisfied as to the existence of the conditions set out in subclauses (a) to (d) in each case (with the court being required, in subparagraph (d), to reach a state of satisfaction in an evaluative exercise). This is evident from the use of the word “if” in the preamble to ss 5B and 5C and the discretion residing in the Court found elsewhere in ss 9 and 17 of the Act.

2. The defendant’s submission that the Court is required to engage in a single evaluative exercise, guided by the objects of the Act and to the mandatory factors in subs 17(4) of the Act, does not accord with the long-standing authority that I have hitherto discussed in this section of my judgment. That authority makes abundantly clear that the making of orders under the Act, for either an ESO or CDO, involves, firstly, a question of power, governed by the requisite preconditions in ss 5B and 5C (or equivalent provisions under the former Act), and, secondly, the exercise of a discretion in ss 9 and 17 of the Act.

3. The State was correct to point to the judgement of the Court of Appeal in Kamm (No 4). I accept the case concerned the former Act, but the judgment is applicable because it not only confirms that the unacceptable risk determination and the discretion residing in the court to make an ESO or CDO are separate questions, but the essential basis upon which such a conclusion was reached which confers that distinction. In Kamm (No 4), the Court of Appeal considered that the ability to dismiss an application under subs 17(1), despite having reached the state of satisfaction regarding unacceptable risk, was an important reason why the Act does not infringe the Kable principle: per Payne JA at [116]-[120] (with whom Bathurst CJ and Beazley P agreed). It may be noted further, in this respect, that the same approach was adopted by the Court of Appeal in Anderson. As I have emphasised earlier, the two stage test in Anderson related to the particular features of the former Act being the requirements of ss 5B and 5D. However, the Court of Appeal, nonetheless recognised, by reference to Donovan at [14]-[15], that there remained a discretion as to whether to make a CDO, even if the conditions in ss 5B and 5D of the former Act were satisfied (Anderson at [15]) (see also Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [48] and Davie v State of New South Wales [2016] NSWCA 96 at [100]).

1. The sole authority relied upon by the defendant in support of the contentions advanced was Barrie. This was a curious approach given that the author of the judgment in Barrie eschewed reliance upon it in favour of, as her Honour Justice Adams did, the judgments in Jones (2018) and Russell. Before I turn to the judgment in Russell, I observe the defendant’s reliance upon Barrie is misplaced, in so far as it was proposed that the single evaluation contended for by the defendant involved a consideration of both subss 5B(d) and 5C(d) and the discretion under subs 17(1) of the Act at the same time. That proposition is not supported by Barrie. As the State correctly pointed out, Adams J stated in Barrie (at [24]):

“[24]….The question is simply whether s 5C(d) of the Act, having regard to s 17(2) and 17(4) of the Act, is satisfied. If so, the court may impose a CDO. The consideration of whether the test in s 5C(d) is established must be undertaken by reference to s 17 of the Act. That involves one evaluative decision rather than two.”

I agree with the contention advanced by the State that her Honour made no reference to s 5B in that statement. The reference to subs 5B(d) appeared at [31] of her Honour’s judgment indicating that her Honour considered subs 5B(d) to be a separate decision (see also at [32]). I also note that her Honour had mentioned (at [30]) there existed a two step process under the former legislation, which, as I have mentioned, is not strictly correct having regard to the judgment in Anderson. Nor is it clear why in [31] her Honour considered that the Court would be required to consider subs 5C(d) “again” in a second stage of analysis.

5. In any event, in Russell, Justice Adams returned to her approach in Jones (2018) where she identified the necessity for a two stage approach consistent with an earlier decision of Button J also concerning Russell: Russell at [32]. Her Honour indicated that her decision in Barrie was predicated upon the view that it would be an unusual case where the court would be “satisfied to a ‘high degree of probability’ that an offender posed an ‘unacceptable risk of committing a serious offence’ if he was not detained and then go on to release them on an ESO in the exercise of the Court’s discretion” (Russell at [33]). Her Honour nonetheless expressed the view that, as I have earlier set out but repeat for convenience, “I am also satisfied that the structure of the Act suggests that two separate decisions are required: s 5C of the Act provides the test for whether the Court could impose a CDO and, if made out, s 17 of the Act provides for the mandatory considerations to have regard to when considering whether a CDO should be imposed” (Russell at [33]). I note further that her Honour made reference to earlier authority that the criteria in subs 17(4) of the Act are still relevant to the question of whether a person poses an unacceptable risk within the meaning of the Act (there referring to Fisk at [84]; Wilde at [111] and Kamm (No 1) at [48]) (Russell at [25]).

6. The defendant correctly identified that subss 5B(d) and 5C(d) make clear that there are different statutory tests involved in considering an application for an ESO or CDO. However, the defendant went further and contended that the words “if not kept in detention” limit the court to making an order only in circumstances where the court is satisfied that an ESO is not an option. Further, it was submitted that it was implicit in considering this aspect of the test, that consideration must be given to whether the defendant poses an unacceptable risk “if not supervised”. This proposition cannot be sustained in the light of the legislative history which precedes these reasons. The Legislature’s repeal of the “adequate supervision test” makes plain the legislative intention to remove the very test that, in my view, the defendant now wishes to resurrect. In my view, the legislative history significantly influences the determination of this issue. Further, a construction of the provisions of subss 5B(d) and 5C(d) make clear the distinction contemplated by the legislature by the use of the quite distinct and separate considerations of “if not kept under supervision” in subs 5B(d) and “if not kept in detention” in subs 5C(d).

7. The relevance of factors in subs 17(4) of the Act, in my view, raise different considerations to which I will now turn as a discrete consideration below.

109. The defendant made the following submissions as to the applicability of subs 17(4) factors to the unacceptable risk test:

1. The Court cannot engage in that evaluative exercise of determining whether it is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a further serious offence if not supervised, or not detained, in a vacuum. The Court must be informed by relevant considerations. The mandatory factors set out in s 17 of the Act must be taken into account when determining unacceptability of risk and whether to make an ESO or CDO. Section 17 of the Act provides structure and guidance to the relevant factors for making a determination under subss 5B(d) or 5C(d). The alternative approach would permit unstructured, arbitrary and potentially irrelevant considerations to be taken into account at subss 5B(d) and 5C(d).

2. In assessing unacceptability of risk, the Court is required to consider whether the defendant can reasonably be managed in the community (subss 17(4)(d1) of the Act) and whether the Court is satisfied that the offender is likely to comply with the obligations of an ESO (subs 17(4)(e2) of the Act).

3. If contrary to this position the Court comes to the view that it should adopt a two stage test, the defendant nonetheless observes that her Honour in Russell (at [29]) found that the s17 factors must be taken into account at the second stage. In Barrie (at [31]), her Honour observed that, as a matter of practical reality, a one stage or two stage test will not make a difference to the result as long as subss 17(2) and 17(4) are considered.

4. Senior Counsel for the plaintiff made this very submission in exchange with the Bench during the hearing. The Court responded that there were ‘other members of this court’ who may not agree with such a submission although those views were not binding. It was submitted that: “It is difficult to gauge the significance of that exchange in light of the specific questions posed to the parties and to identify precisely what authorities were exercising the court’s mind.”

5. If the Court is referring to Justice Adams’ comments in Russell at [33] that, on the two stage test, it would be an ‘unusual case’ where the discretion was exercised to make an ESO if the defendant was found to be an unacceptable risk of committing a serious offence if not kept in detention, then such comments should not be followed. It was submitted that: “[t]hey are obiter, unpersuasive, and impermissibly fetter the exercise of the Court’s discretion.”

6. Indeed, there are many examples of first instance courts adopting a two stage test yet making an ESO instead of a CDO in the exercise of the discretion (see, for example, Sturgeon and Farzad).

110. It is wrong to suggest that the two stage approach provides no guidance as to the relevant considerations to be taken into account in determining unacceptable risk. The long line of authority, which I have earlier discussed and which, in part, was referred to in Russell, makes clear that the factors in subs 17(4) may be relevant to the assessment of unacceptable risk. The judgment of McCallum JA in Jones (2020) is no exception. I agree with the submission of the State that her Honour’s reference to subs 17(4) as being mandatory “in the exercise of discretionary power that follows” was a comment on the exercise of a discretion only.

111. Nor does this approach result in an unstructured or arbitrary approach. The court will consider those factors in subs 17(4) which are relevant to the determination of the questions arising under subs 5C(d). This may vary in a particular case but it is evident from the language of the Act that some of the subs 17(4) factors will be relevant in most cases. For example, subs 17(4)(c) refers to reports as to the likelihood of the offender committing a further serious offence.

112. Nonetheless, I also agree with the State that the provisions of subss 17(4)(d1) and 17(4)(e2) should not be applied in a way that amounts to the Court indirectly applying a precondition in s 5C(d), involving the consideration of the adequacy of supervision under an ESO in determining the unacceptable risk test. In this respect, I repeat my observation that there are aspects of the defendant’s submissions which do seem to suggest an attempt to revive the test under s 5D of the former Act, and the State is well to caution against that approach. Subsection 17(2) of the Act and the Second Reading Speech for the 2017 Amendment Act reflect the intention of the Legislature that the assessment of unacceptable risk be based on the risk to the community and not an alternative means of giving effect to the weighing exercise regarding adequate supervision formerly found in s 5D of the former Act.

113. However, subs 17(4)(d1) refers to a very particular factor which, in my view, may be relevant, in an applicable case such as the present one, and may be taken into account in assessing unacceptable risk.

114. The argument by the defendant that the court may take into account irrelevant considerations is a rather circular proposition, as the court is bound not to do so.

115. The submission advanced by senior counsel for the defendant at [109(4)] above is rather unfortunate. Apart from the fact that senior counsel seems to have a clear understanding of the subject matter of the Court’s observations, in arguendo, by the submission made in the following sub-para of their written submission, the very subject matter (or lack of definition thereof) complained of was the subject of actual discussion by the Court with senior counsel for the defendant who acknowledged that he understood what the court was referring to in that respect (see transcript, 8 August 2025, p 65-66)

116. Those considerations, in many respects, resolve the issues raised by the questions, although the first question has received the least attention in that respect.

Question 1: Should the court consider an application for a CDO before turning to an application for an ESO?

117. For the most part, the defendant’s submissions as to this question traversed the very issues that have been discussed above.

118. I agree with the submission of the defendant that the axis for the determination of this    question cannot be the form of the application made by the State.

119. However, the State was correct to submit, as I have discussed above, that the Act no longer requires the Court to consider the adequacy of supervision under an ESO as a threshold jurisdictional factor in determining whether there is power to make a CDO. It is plain from the amendments made in 2017 and the extrinsic materials referable to the 2017 Amendment Act that the requirements under s 5D of the former Act were repealed and no longer apply.

120. The legislative intention that an application for a CDO will be determined first (whether accompanied by an alternative application for an ESO or otherwise) is given by the provisions of s 17(1) of the Act. Under that provision, the Court is not confined to a consideration of the making of a CDO or a dismissal of the proceedings but extends to the making of an ESO. However, the power to do so arises only in the context of the provisions of s 5C of the Act. The discretion to make a CDO does not arise under subs 9(1) of the Act, when the court is considering an ESO. The structure of the Act, and the logic of the adjudicating process arising therefrom, indicates the legislature’s intention that the court will first consider the CDO. That conclusion is consistent with the judgment of Adams J in Russell as extracted in [97] of this judgment.

121. There is also merit in the State’s submissions as to the effect of subs 17(5) of the Act, which were as follows:

1. Subsection 17(5) of the Act provides that, in determining whether or not to make a CDO, the Court is not to consider the ability to take action for a breach of the order in relation to whether there is an unacceptable risk of the offender committing further serious offences. In context, the reference to “a breach of the order” refers to the breach of an ESO.

2. While this subsection could possibly be read as consistent with the proposition that the availability of an ESO is relevant to whether the unacceptable risk test is met, this does not mean that the adequacy of supervision under an ESO can be taken into account under subss 5C(d). Rather, subs 17(5) is consistent with the Court’s ability to take into account subs 17(4) factors or some of them, including a report prepared by Corrective Services under subs 17(4)(d1) as to the extent to which the offender can reasonably and practicably be managed in the community. This is quite different from considering whether adequate supervision will not be provided by an ESO before the power to make a CDO is enlivened.

122. The answer to question 1 is yes.

Question 2: A two stage approach?

123. In considering an application for a CDO, I agree with Adams J in Russell, that the application for a CDO involves a two step process.

124. I do not repeat my earlier analysis of the structure of the Act and jurisprudential considerations in that respect.

125. In my view, the structure of the Act clearly delineates between two separate determinations which must be made by the court. The exercise of the court’s discretion pursuant to subs 17(1) of the Act plainly comes as a separate step, only after the court has made a determination as to the preconditions, including the test for unacceptable risk, in s 5C of the Act.

126. Whether there exists a practical distinction between a one stage and two stage test, if factors under subss 17(2) and 17(4) are considered, is irrelevant to the present question. I have earlier made some observations that particular subs 17(4) factors may well be relevant in the consideration of unacceptable risk. Nor do I consider that the finding of unacceptable risk under s 5C(d) of the Act necessarily confines the discretion of the court to refuse a CDO and to make an ESO such that the making of an ESO in those circumstances should be considered “unusual”. There is no warrant under the Act in limiting the Court’s discretion in that manner.

127. There are examples of the court at first instance adopting a two stage test, yet making an ESO instead of a CDO in the exercise of the court’s discretion, namely, Sturgeon and Farzad.

128. The answer to question 2 is yes.

Question 3: the authority in Jones (2020)

129. In Jones (2020) at [38], McCallum JA noted the following:

“[38]…The amendments removed the requirement that, before a continuing detention order could be made, the court had to be satisfied that adequate supervision would not be provided by an extended supervision order. The authority to make a continuing detention order is now enlivened by the satisfaction of a single condition requiring the court to make an assessment of risk of committing a serious offence if an offender is not kept in custody beyond the term of his or her sentence: s 5C. The possibility of mitigating the risk by placing the offender under supervision does not enter into that assessment…”

130. The amendments to the Act referred to by her Honour have already been discussed at considerable length earlier in these considerations. It is useful, however, to point out that the Amendments were introduced with the purpose of placing greater emphasis on an offender’s risk to the community than on the question of whether they could be adequately supervised: Russell at [28]. The second reading speech also noted that "the reforms will reframe the test for making an extended supervision order or continuing detention order to ensure that where an offender cannot be safely managed in the community on an ESO they are instead subject to continued detention in a correctional centre": New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017.

131. In my view, her Honour’s observations in the passage of her judgment in Jones(2020) extracted above goes no further than observing that the previous precondition for the making of a CDO in s 5D of the former Act had been removed and was no longer an applicable consideration in determining whether or not the unacceptable risk test had been satisfied. Her Honour also, with respect, properly in my view, drew a distinction between the requirements of subss 5B(d) and 5C(d), so as to observe that the test under subs 5C(d) does not import the test under subs 5B(d). They are distinct tests.

132. The answer to the third question is given in those terms, when read with my discussion of the two stage test discussed above.

SUBSECTION 17(4) FACTORS

Criminal history – subs 17(4)(h) of the Act

133. The defendant’s relevant criminal history was, in my view, accurately set out in the submissions of the State, which primarily form the factual basis for the following discussion (in a chronological order). The parties made submissions as to the significance of this history which shall also be addressed.

134. In 1988, the defendant pleaded guilty and was convicted of maliciously wounding with intent to cause grievous bodily harm. The facts involved the defendant stabbing the victim three times in the chest after the defendant apparently lost his temper. He was aged 17 years at the time and received a sentence of imprisonment of 3 years and 6 months with a non-parole period of 1 year and 8 months. This offence was a “serious violence offence” within the meaning of s 5A of the Act.

135. Throughout 1991 and 1992 the defendant was convicted of numerous fraud and other dishonesty offences.

136. In 1993, the defendant was found to be in contempt of court for attempting to influence the outcome of Children’s Court proceedings by using threats of violence against the foster parents of his son. At the time of this offence, the defendant was on parole and subject to a recognisance to be of good behaviour. The Court of Appeal sentenced him to a minimum term of 2 years’ imprisonment commencing 17 May 1993 and concluding on 16 May 1995, with an additional term of 18 months expiring on 16 November 1996.

137. In 1996, the defendant was convicted of further fraud and dishonesty offences.

138. In 1998, the defendant pleaded guilty to four offences of sexual intercourse with a child under 10 years, namely 8 or 9 years old. The offences were committed on two separate occasions between May and December 1995. The facts were that the defendant had become acquainted with the stepfather of the victim while in gaol. After the defendant’s release from custody, he invited the victim to stay at his and his wife’s home on multiple occasions. The offending involved the defendant penetrating the child’s vagina and anus with his finger and an object. The offending was discovered when photographs were found with other property of the defendant in a caravan, which showed the victim in suggestive poses as well as the defendant’s offending behaviour. In the Pre-Sentence Report, the author noted that the defendant claimed that the victim was a “prostitute” offered to him by her father, admitted to touching her in order to obtain photographs of her genitals, and could see no problem with this activity.

139. The defendant was sentenced to 5 years imprisonment which commenced on 16 October 1998 and concluded on 15 October 2003, with a non-parole period of 3 years. Following these convictions, the defendant was placed on the Child Protection Register (“CPR”) and had reporting obligations. Each of these offences, which I will herein refer to as the “1995 sex offences”, is, as earlier mentioned, a “serious sex offence” within the meaning of s 5(1) of the Act.

413. In reaching my conclusion, I have taken into account the objects of the Act in subs 3(1). In particular, I am cognisant that the primary object of the Act is to provide for the extended supervision or continuing detention of high risk sex offenders and high risk violence offenders so as to ensure the safety and protection of the community (see also subs 17(2) of the Act, which also refers to the paramount consideration in that respect).

414. Hence, having taken into account the entirety of those considerations and my earlier assessment of the evidence, I am not satisfied to a high degree of probability that the defendant poses an unacceptable risk if not kept in detention under a CDO.

415. That conclusion disposes of the State’s application for a CDO and obviates the need to entertain discretionary considerations as to the making of a CDO under subs 17(1) of the Act, as the precondition to the making of a CDO has not been met.

416. If the Court was called upon to consider the exercise of its discretion, it would exercise that discretion to not make a CDO. Plainly, the factors I have discussed above are relevant in that respect. However, there are some additional considerations which, in my view, bear upon the exercise of that discretion:

1. The defendant has secured accommodation at Nunyara COSP for the first 6 months of his release into the community on an ESO. If an ESO is made the defendant will be released from prison into a strict, highly supervised setting which will allow for his gradual transition into the community while challenging the defendant to "prove himself" to the court. Both independent experts considered that the defendant’s risk could be adequately managed in the community whilst the defendant resided in the structured accommodation environment of the COSP and was the subject of conditions for an ESO as sought by the State.

2. Following the defendant's period in secured accommodation at COSP, any decisions regarding the defendant's accommodation will be at the discretion of the DSO. The DSO will find suitable accommodation in accordance with the principles of the Act and with the assistance of a multidisciplinary case management team, in order to make a decision that is appropriate. Both independent experts accepted that a similar position would apply if the defendant were provided stable and suitable accommodation after the expiration of his stay at the COSP, at the discretion of the DSO.

3. If there was no possibility of suitable accommodation being provided in six months time, there are still other alternatives. The matter could be brought back to the Court to vary the conditions or there is a power under the Act which permits an emergency detention order to be made.

4. I agree with the submission advanced by senior counsel for the defendant, that the defendant's motivation to not spend any more time in custody, converging with the opportunity to be under an ESO, be accommodated at the COSP, and the opportunity to be subject to intervention by the TRC, are all factors which support the fact that "now is the time to make an ESO". The alternative, as the defendant put it, of making a CDO, "is doing no more than kicking the can down the road because the defendant is not going to get any beneficial treatment in custody."

420. That is not the end of the analysis required by the Court, as attention must next be directed as to whether the Court should make an order for an ESO.

421. I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an ESO. Whilst that assessment is ultimately a matter for the Court, no party to the proceeding suggested that any other conclusion should be reached by the Court if the Court did come to consider the evaluative exercise under s 5B(d) of the Act.

422. In my view, the evidence in the proceedings, referable to factors under subs 9(3) (largely equivalent to the factors discussed above in relation to subs 17(4)), points overwhelmingly to the Court reaching that conclusion. The independent experts were of the view that the risk posed by the defendant could only be managed in the community by the making of an ESO, with the full suite of conditions proposed by the State (as amended).

423. I do not consider there are any discretionary factors against the making of an ESO.

424. Notwithstanding the position of the independent experts in favour of the conditions attaching to an ESO proposed by the State, given the submissions of the parties it is appropriate to make a separate evaluation of the conditions proposed, albeit in an amended form, by the State. All parties accepted that an ESO should be made for a 5 year duration. That approach accords with the evidence and I shall adopt it.

Conditions

Principles

425. In considering the imposition of conditions under an ESO, I adopt the principles outlined in my judgment of Ryan (at [55] to [56]), which are as follows:

“[55] In considering the imposition of conditions, I note the following principles from [State of NSW v Wilkinson (Preliminary) [2020] NSWSC 1813] set out by Hoeben CJ at CL (as his Honour then was) at [44]:

[44] i) Having served a sentence of imprisonment for their offences, an offender has a right to personal liberty, however this right is not absolute: State of New South Wales v Donovan [2015] NSWSC 1254 at [83].

ii) In imposing conditions, the Court needs to strike a balance between competing considerations: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [68].

iii) A relevant consideration in imposing conditions is that a breach gives rise to criminal penalty: State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36].

iv) Conditions do not have to have a demonstrated link to past offending, but they should address the risk of future offending based on the scope, purpose and objects of the Act: Wilde v State of New South Wales [2015] NSWCA 28 at [53].

v) Conditions should not be designed toward future general criminal conduct, but instead focussed on mitigating the risk of a serious offence: State of New South Wales v Green (Final) [2013] NSWSC 1003 at [36] to [38].

vi) Conditions must not be unjustifiably onerous or punitive, “[n]either may they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision”: State of New South Wales v Bugmy [2017] NSWSC 855 at [89].

vii) Conditions “must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice”: State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36].

viii) To ensure a balance between the community interests and personal liberty, the Court should impose conditions that are the least intrusive possible: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [129]-[131].

[56] Despite it being a final hearing, I adopt the approach set out in my decision in Boney at [119]-[127], in which the principles for the imposition of conditions are applicable. Those principles are as follows:

[119] The Court of Appeal in Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 (“Wilde”) held that s 11 vests the Court with a “broad” discretion but one which must be exercised having regard to the scope and purpose of the Act and its objects (at [47]). As mentioned, the purpose and statutory objects are those specified in s 3 whilst the scope is that found in ss 9(3) and 11 (being non-exhaustive matters) (at [48]).

[120] Although s 3(2) specifies the encouragement of offenders to undertake rehabilitation as an objective, it is permissible to impose conditions that are directed to “facilitating rehabilitation” even when they do not personally require an offender to “undertake” rehabilitative steps (at [49]).

[121] The Court of Appeal further held at [53]-[54]:

[53] Care always needs to be taken with use of language which is different from the statutory text. Section 11 does not require that there must be a specific demonstrated link to the past offending which is the basis of the order made under the Act. Rather, the court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order.

[54] As the cases to which we have referred correctly state, it is not appropriate for the court under s 11 to impose conditions on a person directed to general future criminal conduct. But the condition does not have to have a ‘demonstrated’ link to the past offending in the sense submitted by the appellant. Conditions C(19) and E(30)12 provide a good example of conditions that may be appropriate notwithstanding that the past sex offences did not involve conduct of the type constrained by such conditions. Here, the appellant’s serious sex offences had no connection with any association with an Outlaw Motorcycle Gang. Nonetheless, for the reasons we explain below, at [69]-[70], there was no error in his Honour imposing conditions prohibiting the appellant’s association with such groups.

[122] During the final hearing, submissions were advanced by the defendant as to State of New South Wales v Sturgeon (No 2) [2019] NSWSC 883 (“Sturgeon”) at [99]:

[99] The bases upon which conditions are to be regarded as appropriate have been discussed in many cases. It seems that the following matters are regarded as relevant in determining what conditions ought be imposed:

(1) an appropriate condition may be one which constrains particular conduct, or else imposes positive conduct obligations which are to be fulfilled: Attorney-General for NSW v Tillman [2007] NSWCA 119 at [10];

(2) the imposition of conditions involves striking a balance between relevant considerations so as to provide an outcome which is “fit and proper”: State of NSW v Ali [2010] NSWSC 1045 at [88]; State of NSW v Fisk [2013] NSWSC 364 at [96];

(3) as a breach of a condition has the consequence that an offence is committed, for which a term of imprisonment of up to 5 years may be imposed (s 12 of the HRO Act), there is a need for a proper basis to be demonstrated for a condition to be made in the first place: Ali at [88]; Wilde v State of NSW [2015] NSWCA 28 at [48];

(4) ordinarily, it will be necessary for any condition which is imposed to be related to the mitigation of the identified unacceptable risk which led to the Court’s conclusion that the person was a high risk offender: State of NSW v Burns [2014] NSWSC 1014 at [59]; Wilde at [53];

(5) any condition attached to an ESO must address issues relevant too identified risk factors in relation to future commission of serious offences and not criminal offending generally: State of NSW v Green (Final) [2013] NSWSC 1003 at [36]-[38]; Wilde at [45];

(6) any condition which is imposed is not to be unjustifiably onerous or simply punitive: Green at [37];

(7) a condition cannot be simply an expression of the State’s paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense, or because it might be a convenient or resource-efficient means for the Department exercising supervision under the ESO: State of NSW v Bugmy [2017] NSWSC 855 at [89].

[123] Counsel for the defendant placed particular reliance on (4), as appears within the above extract from Sturgeon, in conjunction with the principles of Wilde to contend that for each condition imposed “there must be some sort of identification of the unacceptable risk and how that condition goes to it”.

[124] In light of that submission, I turn to the decision of Button J in State of NSW v Farringdon [2018] NSWSC 874 (“Farringdon”). In Farringdon, the dispute concerned the conditions to be imposed as part of an extended supervision order for an intellectually disabled offender who was at risk of sexual offending on children. Opposition was taken to the imposition of particular conditions including electronic monitoring, curfew and a schedule of movements.

[125] In Farringdon, Button J was ultimately satisfied that the making of an extended supervision order would go some way to preventing the defendant reoffending “and thereby aiding his rehabilitation” (at [37]). In applying the “test” set out in Wilde at [53]-[54], his Honour bore in mind “that one can expect the ‘Departmental Supervising Officer’ (DSO) who is responsible for the defendant to undertake his supervision in a common sense way, informed by a practical and constructive exercise of discretion” (at [46]).

[126] His Honour imposed the disputed conditions for the reasons outlined at [47]-[58]. Button J held (at [59]):

[59] …Those of them that do not directly relate to his prior offending do nevertheless relate to preventing its recurrence indirectly, in my opinion. As I say, I am relying upon his DSO to exercise his or her discretion with regards to them in a practical and common sense way.

[Original emphasis.]

[127] With respect, I accept Button J’s statement of principles in Farringdon.”

Conditions in dispute

426. The final position as to the disputed conditions between the parties were contained in the Schedule.

427. Both independent experts were asked to “consider each of the conditions set out in the Summons filed on 13 March 2025 and indicate your view on whether, and if so how, that condition may: (i) assist in management or reduction of the risk of [the defendant] committing a serious violence offence or serious sex offence or (ii) assist, or be counter-productive to, [the defendant’s] clinical treatment and rehabilitation.”

428. Dr Dayalan expressed the view that considering the defendant suffered from psychopathy, has limited insight into his recidivism and has a history of being deceitful, he “requires a high level of supervision in the community”. Dr Dayalan qualified that view by recommending that the conditions should allow for a graded reduction in the level of supervision over time. In this respect, Dr Dayalan stated:

“[148] The conditions listed in the summons filed on 13 March 2025 are quite extensive in nature and would be required in the early stages of transition into the community. It is recommended that there are not too many restrictions on [the defendant] accessing legally permitted pornography or securing employment. Inability to gratify his sexual needs in a legally acceptable manner and lack of purpose and structure to his day from unemployment could be counterproductive to managing his risk and rehabilitation. As [the defendant] adapts to living in the community, the conditions need to be scaled back in a graded manner.

[149] Given the enduring nature of his personality disorder and limited anticipated response to treatment interventions [the defendant] will require long term supervision and interventions. He will require a period of observation after some of the restrictive conditions such as schedule of movements and electronic monitoring are relaxed to ensure there is no escalation in his risk factors. Prior to being released from any form of supervision, [the defendant] would need to demonstrate that he can refrain from offending behaviour whilst on minimal conditions. A duration of five years would allow for graded reduction in the level of supervision.”

429. When Dr Elliott was asked to comment on the imposition of conditions, he opined that “all of the conditions as set out in the summons [would] be important in managing [the defendant’s] risk”. Dr Elliott commented on the importance of particular conditions in more detail as follows:

“It is essential that he be subject to intense monitoring and reporting requirements to enable his DSO to monitor who he has been associating with and ensure he is not accessing vulnerable persons. His bracelet and schedule must be used to ensure he does not access places where he could access children or other potential vulnerable victims. His accommodation must be vetted and strict conditions placed on those he is allowed to have visit him at those premises, and particularly those who may stay overnight. He must surrender his passport. I note he has threatened to use his boat to escape New South Wales. His monitoring bracelet must also be used to guard against any such possibility. With regards employment, I had concerns about many of the comments he made regarding his time in the Aldi supermarket and the potential access he had there to vulnerable persons. His DSO must be allowed to monitor and vet any employment he accesses, as well as any courses. His financial affairs must be monitored given his extensive history of fraud and similar offences and the potential for him to manipulate and exploit others financially. He must of course be forbidden from accessing illicit substances and his use of alcohol should be kept to a minimum or at most two drinks in any one day. Substance use is a key risk factor for both violent and sexual offending and this applies equally to [the defendant]. He must of course not be allowed to associate with children or antisocial peers. He must also be forbidden from possessing weapons. Given his history of repeated child pornography offences it is essential that his DSO be allowed to strictly monitor his access to the internet via any means. I retain particular concerns in this regard that he may still be able to acquire such means surreptitiously and conceal this from the best of searches. Nonetheless, he must be forced to submit to search and seizures by his DSO, particularly of electronic devices and any area where he may conceal such devices. He must of course not be allowed access to pornographic or similar material. With regards medical intervention and treatment, it is difficult to recommend that he be compelled to take an antilibidinal treatment. Treating clinicians are justifiably reluctant to prescribe antilibidinals under such conditions. Nonetheless, he should be required to cooperate with at least an initial assessment at the TRC.”

430. Dr Elliott was also of the view that one way to manage the defendant’s risk is by ensuring that the defendant is aware that he will be quickly subject to sanction should he breach his conditions.

431. During the concurrent evidence, the independent experts approached their opinions, as to the risk of the defendant in the community, on the apparent basis that all of the conditions listed in the Schedule to the Summons would apply, together with the accommodation arrangements in the COSP.

432. In the concurrent evidence, Dr Dayalan endorsed the conditions as proposed, stating that: “the conditions of the ESO, as proposed, are quite extensive and… certainly lower the risk of [the defendant] committing a serious sex offence”.

433. In order to manage the defendant’s risk, Dr Dayalan was of the view that “it is important to kind of have a close level of monitoring so that any breaches are identified quite early before it progresses any further.”

434. An equally strong position, as to the strength of the conditions required, was given in the RMR.

435. In relation to electronic monitoring, the RMR stated that “electronic monitoring would assist Community Corrections to monitor the defendant’s movements within a community setting in real time with the assistance of schedules, and via regular audit of available reports.” However, “[t]he ability to flexibly apply and remove electronic monitoring throughout any future term of supervision, in accordance with his presenting risks, is a crucial component of his case management.”

436. In relation to the schedule of movement, the RMR stated:

“… a condition requiring a weekly schedule of movements would be beneficial to allow the supervising team to accurately assess and observe [the defendant’s] movements, associations, and behaviours in the community.

This would assist in identifying and mitigating his risk of reoffence when assessing his proposed activities, in terms of victim access as well as notifying the Extended Supervision Order (ESO) team if he has deviated from his approved activities.

Furthermore, a discretionary curfew may assist should [the defendant] attempt to form an undisclosed intimate relationship or show any significantly heightened or risky behaviours in the future, given the increased density of vulnerable persons during these hours and the fact that one of [the defendant’s] risk scenarios is the potential for him to attempt to coerce an adult into non-consensual sexual contact (RAR, p 19).”

437. The RMR considered that conditions pertaining to accommodation, to ensure the defendant is only residing at his approved address and adhering to a curfew is “imperative given [the defendant’s] history of diverse offending habits including a contact sex offence against a prepubescent female after he had ingratiated himself with the father of the victim and had been spending nights at their residence”. Furthermore, “[a] condition relating to not allowing any person to stay overnight at his residence without prior approval (other than those who may ordinarily reside there), should be imposed to ensure there is no covert contact with any unapproved persons”.

438. In conjunction with electronic monitoring, the RMR considered that conditions imposing place and travel restrictions on the defendant “can assist to mitigate [the defendant’s] access to a number of high-risk locations”. These conditions were also “considered pertinent given [the defendant’s] reported intention to flee NSW via his yacht should an ESO be imposed”.

439. In relation to employment and finance, the RMR identified that “a suite of conditions allowing a DSO to monitor the defendant’s employment and financial situation are considered imperative should an ESO be imposed (CSNSW records, 23 October 2024)”.

440. The RMR considered that “conditions relating to non-association would be essential to the defendant’s case management”. The RMR explained the purpose of these conditions as follows:

“[the defendant] would be required to disclose the details of any person whom he wishes to reside with or truthfully answer questions around persons whom he has formed associations within the community. This would assist Community Corrections to monitor for the presence of children, the progression of any such relationship and identify if there is a connection between the contact or association and his risk of re-offending.

This would be monitored via contact with third parties, observations by Community Corrections and ESOIT and audit of electronic movements.”

441. In relation to electronic communications and internet access, the RMR again emphasised that “conditions pertaining to his use of electronic communications and internet access would be required.” The RMR quoted the following section of the RAR:

“[the defendant] will desire more and more exciting material to stimulate himself. Given his history with illegal sexual material, it is likely he will again turn to such material to ingratiate his desires… It is possible that his access to child abuse material precedes his hands-on offending, hence detection of child abuse material may interrupt the pathway to a hands-on offence”.

442. In the result, the RMR concluded that “[t]he ability to restrict access to unapproved content and closely monitor his internet activity will be a key component of the defendant’s case management and allow Community Corrections to identify and address any concerns as a matter of priority.”

443. The RMR assessed the search and seizure conditions as “essential and necessary to ensure that he is not engaging in risk related behaviours”. These conditions would allow Community Corrections to “effectively monitor [the defendant’s] compliance with his order conditions, the nature of his communication with others, his use of the internet and the nature of the information he is accessing on the internet”.

444. During the hearing senior counsel for the defendant submitted that one of the conditions strongly disputed by the defendant concerned the schedule of movements. However, senior counsel conceded that “if that was a sticking point to your Honour making a decision to grant an ESO my instructions from the defendant are very clear that he would comply with the schedule rather than remaining in custody.”

Conclusions

445. Based on my assessment of risk, and the opinion of the independent experts as to necessary conditions along with the RMR, in my view, nothing short of the full suite of conditions proposed by the State (as amended) would be sufficient to ensure community safety and manage the risks associated with the defendant. Accordingly, I propose to impose the conditions found under the last column of the Schedule.

446. I propose to say something further about financial condition 24, being the condition that the defendant “must provide any information, relating to [his] financial affairs, including income and expenditure, if directed by a DSO”.

447. The defendant opposed this condition, stating that the “[c]ondition is too broad”. Senior counsel for the defendant made the following submission:

“The only other point that is very, very briefly raised is that there are certain conditions on finances in terms of 24 about providing information about your financial affairs. All that is simply submitted on that is when your Honour goes to the evidence of Dr Elliott, in particular, about the need for that condition the reasons articulated, the reason for that condition is to avoid the risk of any further fraud, that's not a proper purpose for the Act. Similarly, I think my reading of the risk assessment report is in similar terms that it is avoid to committing further fraud offences. I submit, that's not in line with the proper purpose of the Act. I think there are a number of cases that say that section 11 conditions need to be directed to committing a further serious offence, not committing a fraud offence. Again, the client's residual position is that should not be a sticking point and if it is a sticking point and your Honour is against me on that position he would certainly take the condition as opposed to custody.”

448. The State, in this respect, conceded that “[p]rima facie my friend's submission is correct that the risk is not the risk per se of fraud offending, but there is a link drawn in the expert evidence…”. The State referred to Dr Elliott’s report, which opined that “[the defendant’s] financial affairs must be monitored given his extensive history of fraud and similar offences and the potential for him to manipulate and exploit others financially.”

449. As noted earlier in the extraction of principles concerning the imposition of conditions, the Court of Appeal in Wilde held (at [53]) that:

“[53] … Section 11 does not require that there must be a specific demonstrated link to the past offending which is the basis of the order made under the Act. Rather, the court must be satisfied, having regard to the scope, purpose and objects of the Act, that it is appropriate to impose a particular condition so as to address the risk of future offending of the type which was the basis of the order.”

450. However, conditions “must not be unjustifiably onerous or punitive”: State of NSW v Wilkinson (Preliminary) [2020] NSWSC 1813 at [44(vi)].

451. Although the RMR concluded that “a suite of conditions allowing a DSO to monitor [the defendant’s] financial situation are considered imperative should an ESO be imposed”, it appears those comments were made in the context of fraudulent offending. However, while it was not the subject of any submissions of substance by the parties, in my view, there would appear to be some connection between controlling the defendant’s financial affairs and by his access to pornography and the manipulation of vulnerable individuals. Relevantly, the RMR quoted the opinion of Dr Parker, that “[i]t is possible that [the defendant’s] access to child abuse material precedes his hands-on offending, hence detection of child abuse material may interrupt the pathway to a hands-on offence.”

452. I note that the defendant proposed an amended version of condition 24 concerning financial matters. I propose to adopt the amended version of condition 24 proposed by the defendant, but otherwise adopt the remaining conditions as proposed by the State in the Schedule.

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Decision last updated: 28 August 2025