State of New South Wales v Whiley (Preliminary)

[2025] NSWSC 509

Supreme Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

28 May 2025

Date of orders:

28 May 2025

Decision date:

29 May 2025

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Order pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"):

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

(b)   Directing the defendant to attend those examinations.

2.   Set down for final hearing before a judge of the Court on 8 August 2025 with an estimate of one day.

3.   Section 77 order to be issued for the defendant to appear via AVL on 8 August 2025.

Consent Orders:

By consent, the Court orders:

1.   The reports of the court appointed experts are to be furnished to the Court by 13 July 2025.

2.   The plaintiff is to serve a draft statement of agreed facts by 20 July 2025.

3.   The defendant is to serve the amended draft statement of agreed facts by 27 July 2025.

4.   The plaintiff is to file and serve any further evidence on which it relies for the final hearing by 29 July 2025.

5.   The plaintiff is to file and serve any submissions on which it relies for the final hearing by 29 July 2025.

6.   The parties are to notify each other if any witnesses are required for cross examination at the final hearing by 1 August 2025.

7.   The defendant is to file and serve any evidence and submissions on which he relies for the final hearing by 5 August 2025.

8.   A partial working folder of material to be tendered at the preliminary hearing is to be provided by the plaintiff to the judicial officer assigned by 10am on 6 August 2025.

9.   The plaintiff is to file and serve any further evidence and submissions in reply by 12:00pm on 7 August 2025.

10.   The plaintiff is to file and serve a statement of agreed facts, if an agreement has been reached, by 12:00pm on 7 August 2025.

11.   Liberty to apply to relist the matter on two working days’ notice.

Catchwords:

HIGH RISK OFFENDER – preliminary hearing – serious sex offender – whether the matters alleged justify the making of an extended supervision order or continuing detention order – where the offender has a significant criminal history – where the defendant has been diagnosed with psychopathy – where a large number of previous offences involve child pornography – where the defendant does not consider he needs assistance – satisfied that the matters alleged, if proved, would justify an extended supervision order – orders made

Legislation Cited:

Child Protection (Offenders Registration) Act 2000 (NSW) s 17

Crimes Act 1900 (NSW) ss 91H, 192E, 547E

Crimes (High Risk Offenders) Act 2006 (NSW) ss 4A, 5, 5A, 7, 10A, 13B, 15, 18A

Crimes (Sentencing Procedure) Act 1999 (NSW) s 10

Cases Cited:

Whiley v R [2010] NSWCCA 53

Whiley v R [2014] NSWCCA 164

Texts Cited:

Nil

Category:

Procedural rulings

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

Judgment

1. By a summons filed 13 March 2025 the State of New South Wales seeks a continuing detention order (“CDO”) for a period of 18 months or in the alternative an extended supervision order (“ESO”) for a period of five years.

2. By way of interim relief, the plaintiff seeks an interim detention order (“IDO”) pursuant to s 18A of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the CHRO Act”) for a period of 28 days from the expiry of the defendant's current sentence being 17 June 2025. In the alternative, the plaintiff seeks an interim supervision order (“ISO”) for that period directing the defendant to comply with the conditions set out in the schedule to the summons.

3. Pursuant to s 15(4) of the CHRO Act, the plaintiff seeks an order appointing two qualified psychiatrists or registered psychologists (or one of each) to conduct separate examinations of the defendant and to furnish their reports to the Court and an order directing the defendant to attend those examinations.

The index offences

4. The defendant is a 55 year old man who is currently serving the balance of parole in respect of his sentences for two offences of possessing child abuse material contrary to s 91H(2) of the Crimes Act 1900 (NSW), being a sentence of six years’ imprisonment imposed by Solomon DCJ on 26 October 2012. That sentence formed part of the total effective sentence of 14 years 7 months and 28 days imprisonment imposed for a number of other offences. An offence contrary to s 91H(2) is an “offence of a sexual nature” within the meaning of s 5(2) of the CHRO Act.

5. On 2 April 2024 the defendant was released to parole. On 8 August 2024 his parole was revoked following his arrest on 12 charges of possessing bestiality material contrary to s 547E(2) of the Crimes Act, to which he pleaded guilty on 6 February 2025.

6. His sentence for the index offences is due to expire on 17 June 2025. However, on 22 April 2025 he was sentenced by Judge Musgrave in the District Court for the offences of possessing bestiality material to 16 months imprisonment commencing 21 October 2024 and expiring on 20 February 2026 with a non-parole period of 10 Months expiring 20 August 2025.

7. One of the pre-requisites for an IDO or an ISO is that the offender’s current custody (ss 10A(a) and 18A(a)of the CHRO Act) or his current supervision (not relevant here) (s 10A(a)) will expire before the proceedings are determined. The final hearing for a CDO or an ESO will now take place on 8 August 2025. Sections 10A(a) and 18A(a) are not, therefore satisfied so that no ISO or IDO can be made.

8. It is necessary only to determine under s15(4) of the CHRO Act if I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a CDO or an ESO, so that two psychiatrists or psychologists can be appointed to examine the defendants and provide reports to the Court.

Criminal history

9. In 1988 the defendant pleaded guilty and was convicted of maliciously wounding with intent to cause grievous bodily harm. He was aged 17 at the time. He received a sentence of imprisonment of 3 years 6 months with a non-parole period of 1 year 8 months. The offence was a “serious violence offence” within the meaning of s 5A of the CHRO Act.

10. 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 contempt he was on parole and subject to a recognisance to be of good behaviour. The Court of Appeal sentenced him to 2 years’ imprisonment commencing 17 May 1993 and concluding on 16 May 1995 with an additional term of 18 months expiring 16 November 1996.

11. In 1991, 1992 and 1996 he received numerous convictions for fraud and other dishonesty offences.

12. Between May and December 1995, the defendant committed four offences of sexual intercourse with a child under 10 years, namely eight or nine years old. These offences are classified as a “serious sex offence” within the meaning of s 5 of the CHRO Act. The victim was the stepdaughter of a man the defendant met while in gaol. After the defendant's release the defendant invited the victim to stay at his and his wife's home on multiple occasions.

13. The offending involved penetrating the child’s vagina and anus with his finger and with an object. The offending occurred on two separate occasions between May and December 1995. It was discovered when photographs were found with other property of the defendant in a caravan. The photographs showed the victim in suggestive poses and showed the defendant’s offending behaviour.

14. The defendant pleaded guilty and was sentenced to 5 years’ imprisonment commencing 16 October 1998 and concluding on 15 October 2003 with a non-parole period 3 years.

15. The pre-sentence report for that sentencing hearing said:

In recent interviews, Mr Whiley claimed that the victim of these offences was a “prostitute” offered to him by her father. He admitted to touching her in order to obtain photographs of her genitals. Mr Whiley could see no problem with this activity.

16. Following these convictions, the defendant was placed on the Child Protection Register and had reporting requirements.

17. On 18 December 1999, the defendant was found to have a number of hand drawn pictures of naked female children in his cell as well as handwritten stories depicting sexually explicit activities involving children. There were also magazine clippings of children, and there was a medical journal with a number of pages tagged of children in a naked and deformed state.

18. On 8 February 2001 the charge was dismissed pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) at Central Local Court.

19. In August 2004, approximately 10 months after his release from custody for the 1995 sexual intercourse offences, the defendant was charged with an offence of possession of child pornography. The material comprised 113 images on his desktop computer including penetration of children by adults and children, and children performing oral sex on adults.

20. He was also charged with failing to comply with his reporting obligations under s 17 of the Child Protection (Offenders Registration) Act 2000 (NSW) (“the CPOR Act”). The offence related to a failure to notify a change of address to the Commissioner of Police. He was also sentenced for possession of a prohibited drug.

21. The defendant was sentenced to 2 years’ imprisonment with an 18 month non-parole period. On appeal to the District Court, the non-parole period was reduced to 13 months and 15 days.

22. In 2007 the defendant was charged with disseminate/produce child pornography. The offence related to his production of child abuse material which consisted of graphically detailed sketch drawings depicting female children and handwritten stories with themes of paedophilia, bondage and bestiality. He was found guilty at a judge-alone trial, having run a positive defence that the creation of the material was for the purpose of a custody based sex offender program.

23. He was sentenced to 4 years’ imprisonment with a non-parole period of 3 years. However, on appeal, the Court of Criminal Appeal reduced the sentence to one of 12 months commencing 25 May 2008 with a non-parole period of 9 months: Whiley v R [2010] NSWCCA 53.

24. In 2008 the defendant was convicted of common assault against his former female partner. He was sentenced to a term of imprisonment for 12 months commencing 3 October 2007 with a non-parole period of 9 months.

25. In 2010, the defendant committed numerous fraud offences. In the context of the investigation for fraud, a thumb drive was recovered from his boarding house which, on forensic examination, revealed approximately 30,000 images depicting child pornography ranging from level 3 (erotica) to level 10 (sadistic/bestiality) on the COPINE Scale. Police also located 124 video files depicting child pornography of which many involved child sexual assault.

26. He was charged with 16 offences of dishonestly obtaining property by deception under s 192E(1)(a) of the Crimes Act, one offence of failing to comply with reporting conditions under s 17(1) of the CPOR Act and two offences of possessing child pornography under s 91H(2) of the Crimes Act.

27. As noted earlier, he was sentenced on 26 October 2012 by Judge Solomon in the District Court. The sentence for the index offences commenced on 18 June 2019 and expires on 17 June 2025.

28. On an appeal to the Court of Criminal Appeal, while the defendant was successful in having two of the sentences for dishonestly obtaining property by deception reduced, there was no alteration to the sentence imposed for the child pornography offences (the index offences): Whiley v R [2014] NSWCCA 164.

29. Since 1989 the pkaintiff has calculated that the defendant has spent relatively short periods of time totalling a little over 5 years when he has lived outside custody, the longest period being 23 months. In the past 25 years he has spent only two years outside custody.

Views of the sentencing judge

30. Judge Solomon noted that it was estimated that 1,972 images of human children in the child abuse material were within the COPINE Scale level 9 rating. That rating involves images of gross assault involving penetrative sex, masturbation or oral sex involving an adult with a child. The majority of the COPINE Scale level 9 images depicted very young children in the 4 to 8 years of age range.

31. His Honour was satisfied that the defendant possessed the pornographic material for his own use and not for dissemination. He found that the defendant had no insight into the probable devastating effect on the children depicted in the child pornography. The defendant had told Dr Richard Furst, who examined the defendant for the purpose of providing a report to the Court, that he was only attracted to pornographic images if the children depicted in the images were “enjoying it”.

32. His Honour found that from 1998 until the date he was sentenced in October 2012, with the exception of a period from June 2009 to November 2009 whilst he was in custody, the defendant had not sought any treatment or counselling for his unnatural sexual interest in children. His Honour was of the view that the defendant had the means to pay for rehabilitation whilst in the community but that he chose not to seek such counselling, and that his record and lack of motivation to obtain counselling led his Honour to the belief that the defendant was unlikely to seek counselling and rehabilitation on release from custody. His Honour found also that the defendant had not indicated remorse or contrition for the offences committed by him.

Psychiatric factors and personality assessment

33. In a risk assessment report dated 4 July 2007, Ms Gillian Tulloh, psychologist, noted:

There are a number of notations in Mr Whiley's psychological file where he has stated that he has been diagnosed as a “sociopath”. …During interviews, and from the Judge’s sentencing remarks, his criminal history and interactions with staff, Mr Whiley's displays some of the personality characteristics such as lack of empathy and remorse, criminal versatility, callousness and glibness.

34. Ms Tulloh recommended that the defendant be formally assessed for psychopathy. Ms Tulloh concluded:

Mr Whiley is a high risk of re offending both sexually and generally as assessed by the Static-99 and the LSI-R. An assessment of his dynamic risk factors indicate (sic) a number of areas such as relationship difficulties, deviant sexual attitudes, lack of sexual self-regulation, evidence of difficulties with general self-regulation serve to increase his risk of re offending.

There is considerable evidence to suggest that Mr Whiley has an Antisocial Personality Disorder which, together with a lack of empathy and remorse, also serves to increase his risk of re offending if released into the community. He has in fact continued to sexually offend in custody by producing child pornography. Perusal of his personal correspondence indicates that he has been actively planning to re offend when he is released from custody.

35. In a risk assessment report of 23 January 2008, Ms Katherine Sahm, Forensic Psychologist, assessed the defendant using the Psychopathy Checklist-Revised (PCL-R). She arrived at a score of 37.9 which is higher than 99% of both North American male offenders and UK offenders.

36. In the psychiatric report of 3 May 2012 prepared for the sentence proceedings before Judge Solomon, Dr Richard Furst diagnosed the defendant as having an obsessive-compulsive disorder, substance use disorder, anti-social personality disorder and long-term effects of childhood sexual abuse. Dr Furst noted that the defendant had been placed in out of home care because his mother had him declared “uncontrollable", and while in that care he was sexually abused between the ages of 12 and 13.

Treatment in custody

37. The defendant participated in the High Intensity Sexual Offender Program (“HISOP”) between 14 June 2022 and 2 March 2023. He was discharged from the program on 2 March 2023. The discharge report relevantly said:

In his initial interview for HISOP, Mr Whiley identified himself as being a 'sociopath', an identity he agreed strongly with. He identified lack of emotions, lack of empathy, glibness and (to some extent) narcissism as being characteristics relevant to him. He identified this personality as being positive, as he is not held back by emotional decision-making. He could not identify any drawbacks to having his personality style. He described offending through his life as a deliberate choice, rather than the result of social, environmental, or psychological factors. In relation to future offending, Mr Whiley expressed the opinion that his personality meant that making a commitment to not offend was sufficient to achieve this goal.

…

During his time in the HISOP Mr Whiley demonstrated an ability to understand concepts, provide insightful feedback to other group members, assist with facilitating group discussions, and showing a desire for group members to be treated fairly. However, he also presented as dismissive of the program, undermining of the treating psychologists, dominating in group sessions at the expense of other group members, and resistant to feedback. He viewed custodial programs as not necessary to mitigate his future risk of offending or to assist him in having a good life. While in the HISOP Mr Whiley also completed RUSH, a skills-based Dialectical Behaviour Therapy (DBT) program. Despite the level of intervention offered to Mr Whiley in this time, he continued to show very limited change in his habitual behaviour, attitudes, and insight ... Ultimately, Mr Whiley's limited investment in the program and commitment to learning led to his discharge.

38. The defendant also completed the Real Understanding Self-Help (“RUSH”) Program and the EQUIPS Program in February 2023. Although the records reflect that the defendant attended and completed the programs as directed, he opined that the programs remain ineffective. Further, the facilitator noted that “Mr Whiley appeared to have a sound understanding of the material presented in the sessions, however, he was of the opinion that they did not apply to him.”

Risk Assessment Report

39. A risk assessment report (“RAR”) in relation to the present application was prepared by Dr Richard Parker, a senior psychologist at the Serious Offenders Assessment Unit on 31 October 2024. The RAR was prepared without the cooperation of the defendant who refused to participate. It was prepared by file review alone.

40. Dr Parker noted Ms Sahm’s assessment of the defendant in 2008 using the PCL-R, and said that he also assessed the defendant using the PCL-R where the defendant obtained a score of 37 out of 40. That score fell into the “very high range” for that instrument.

41. Dr Parker noted an assessment of the defendant on 24 August 2021 by Ms Thomas using the Static-99R instrument. The defendant’s score was 7 which is classified as level IVb, “well above average risk”. Dr Parker reviewed that assessment and said that he agreed with the scoring. His score was in the 97th percentile. The recidivism rate of individuals convicted or charged with sexual offences with the same score as the defendant would be expected to be 5.25 times that the “typical” sexual offender.

42. Dr Parker noted that the defendant had been assessed by Ms Langton, the author of the HISOP discharge report, on the STABLE-2007 instrument. The STABLE-2007 instrument is an actuarial tool developed to assist clinicians in identifying stable dynamic risk factors for sexual offending. The defendant scored 18 out of a possible 26 which is classified as high. Dr Parker said that he believed the score was in the correct range particularly because the defendant's presentation had not changed since March 2023.

39. Dr Parker said the STABLE-2007 can be combined with the Static-99R to generate an overall risk level. Combining those scores yielded a rating of level IVb “well above average risk”.

40. Dr Parker also assessed the defendant on the Violence Risk Appraisal Guide – Revised (“VRAG-R”). This is an actuarial risk assessment tool specifically developed to assess the risk of violence for serious offenders. The defendant’s score was equal to or higher than the score of at least 93% of the construction sample which placed him in the ninth of nine “bins”. 76% of violent offenders with a similar score reoffended violently within five years, and 87% within 12 years.

41. Dr Parker addressed the defendant’s offending as follows:

1. Mr Whiley’s offending appears to be underpinned by several factors. Firstly, his psychopathic personality means that he does not have empathy for others, and does not feel guilty about his behaviour. …

2. His offences of dishonesty appear to be motivated by a range of antisocial beliefs, with the most likely candidates being that he deserves to live the high life, and shouldn’t have to work hard/save to get there, but should get it the easy way. …

3. Despite his denials, his sexual offences appear to be motivated by deviant sexual interests. His sexual assault of a child, in and of itself, is not proof of any deviant sexual interest, but his continual return to child abuse material, his creation of such material, and the intensity of the material he collects, is enough for me to be confident that he is aroused by such material…

4. A deviant sexual interest, by itself, is not sufficient to lead to sexual offending – just as a desire for money is not sufficient to lead to theft. However, as other have pointed out, a desire for non-consensual sexual behaviour, combined with the disinhibition of psychopathy, is a dangerous combination.

   46. Dr Parker identified the relevant criminogenic needs for the defendant as follows:

•   antisocial associates;

•   antisocial personality, psychopathy;

•   substance abuse;

•   self-regulation – impulsivity;

•   attitudes;

•   intimacy deficits;

•   cooperation with supervision.

47. In outlining risk scenarios, Dr Parker said:

1. Mr Whiley's psychopathic personality and deviant sexual preference are both stable (i.e. chronic) dispositions. Consequently, he is likely to seek out further deviant sexual activities. Based on his past history, he is more likely to be caught with child abuse material than to be caught for a hands-on offence. However, this does not mean that his risk of a hands-on sexual offence is anything less than the "well above average" rating derived from the actuarial instruments. 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.

2. Additionally, his history of violence, combined with his psychopathic personality profile means that the possibility of serious physical violence cannot be ignored.

3. The most likely scenario for further offending is that Mr Whiley will begin by committing offences of dishonesty to surround himself with the wealth he believes he deserves. I note his compensation payout may have pushed that need to the side for the moment, but the history of psychopathy research (Cleckley, 1988) would suggest that he will readily lose this money, and be again motivated to offend to maintain a particular lifestyle.

4. However, with or without a luxurious lifestyle, Mr Whiley 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. When this material fails to adequately stimulate him, he may try to procure a child, or coerce an adult into non-consensual sexual activity. Given his high intelligence, he is likely to try new methods to achieve this without getting caught, rather than repeating past scenarios.

5. Consequently, it is near impossible to predict the details of a future sexual offence, beyond repeating the finding that the risk of this occurring is substantially higher than for other offenders. Similarly, Mr Whiley may resort to physical violence as a tactic to support his other offending, or may react violently with little perceived provocation.

…

1. Given his personality, the habitual nature of his antisocial thinking and antisocial lifestyle, it is to be expected that Mr Whiley will struggle to change these patterns and establish a law-abiding lifestyle. Changing the habits of a lifetime will take determination, assistance, and a considerable period of time. His prospects of doing so unaided, are dismal - at least in the medium term.

Risk Management Report

48. A risk management report (“RMR”) was prepared on 28 November 2024 but, again, the defendant refused to participate in the interview process for the preparation of the RMR and did not provide consent for Corrective Services to conduct the necessary third-party enquiries.

49. It was noted that, when the defendant attended a scheduled interview with forensic psychologist, Graeme Randall in May 2024 whilst he was on parole, Mr Randall advised Community Corrections that he considered the defendant's high level of psychopathy to be an impediment to any therapeutic psychological interventions, raising concerns that interventions may in fact increase the defendant's risk of reoffending. Mr Randall declined to continue with treatment.

50. The plaintiff submitted that this conclusion was noteworthy, in that the defendant had been released to parole on the basis of his willingness to engage with psychological intervention in the community. The Serious Offenders Review Council supported the defendant’s release to parole in 2024 on that basis, informing the State Parole Authority (“SPA”) that “Mr Whiley is willing to self-fund private psychology sessions with LSC psychology services” and “if this were to be made a condition of parole then we would have some confidence that he will address some of the risk factors”. Those considerations were cited by the SPA in its determination that release to parole was in the interests of the safety of the community.

51. In those circumstances, the plaintiff submitted that there is accordingly a real issue whether the defendant is able to receive effective psychology interventions in the community. It submitted that Dr Parker's opinion, and the experience with Mr Randall, cast real doubt on whether that part of the supervision plan in the RMR is reasonably practicable.

Consideration

52. The defendant did not contest that the Court would be satisfied that the matters alleged in the supporting documentation, would, if proved, justify the making of a CDO or an ESO. In that way, the defendant did not oppose the appointment of two qualified psychiatrists or psychologists to conduct separate examinations of the defendant and to furnish those reports to the Court. Notwithstanding that concession by the defendant, the Court must satisfy itself under ss 7(4) and 15(4) CHRO Act that the matters alleged in the supporting documentation would, if proved, justify the making of a CDO or an ESO.

53. The prerequisites for that consideration are established. The defendant is an "offender" within the learning ss 4A and 5 of the Act. He is over 18 (having been born in January 1970) and has served a sentence of full-time imprisonment following convictions for a “serious offence" being the offences referred to at [12] above. Secondly, the defendant is a “detained offender” within the meaning of s 13B(2) of the Act because the defendant was in custody serving a sentence of imprisonment for an "offence of a sexual nature” (being the index offences) at the time when the application was made. Thirdly, the application is made in accordance with s 13B in that it was made within nine months of the expiry of the defendant's total sentence.

54. Since it is not necessary for me to make either an IDO or an ISO, I consider that all that is necessary on this application is to determine whether the matters alleged in the supporting documentation would, if proved, justify the making at least of an ESO, being the less restrictive of the two options available to the Court. Such a determination is not any indication of what order should made at a final hearing. Rather, it is only necessary to make that determination under s 7(4) or s 15(4) for the purpose of appointing the psychiatrists and/or psychologists to examine the defendant and provide reports.

55. Although the offences that constituted serious sex offences were committed in 1995, a matter that in many cases might simply be a matter of historical interest, two other aspects of the defendant's personality and behaviour lead me to the conclusion that the test in those sections is made out. The first is the diagnosis of psychopathy, suggested in 2007 by Ms Tulloh and confirmed in the assessment made Ms Sahm in 2008, and supported by Dr Parker in the RAR.

56. That psychopathy has resulted in the matters identified in the discharge report from HISOP and the matters identified in Dr Parker's RAR. It seems likely that this psychopathy has been responsible for the fact that defendant has spent most of his adult life from September 1989 to the present in custody for various offences as is made clear in the HISOP discharge report, the RAR of Dr Parker and the RMR. Indeed it is difficult to think that the defendant is not institutionalised, with all the usual difficulties that brings on releasee from custody. To those difficulties there must be added the psychopathy and how that manifests itself in the defendant’s attitude to treatment. Moreover, the defendant’s offending generally, not just the sex related offending, is connected to that psychopathy.

57. The second matter, not unrelated to the first, is the manifestation of the defendant's personality issues in deviant sexual activities, with the result that there have been a large number of offences involving child pornography. Indeed, had it not been for further offences in that regard the defendant would be likely under supervision on parole at the present time. That those recent offences were committed just over four months after his release on parole suggests how intractable the defendant’s problems with self-regulation are.

58. The concern is, as Dr Parker makes clear, that the defendant will desire more and more exciting material to stimulate himself and it is likely when that material fails to stimulate him sufficiently he may try to procure a child or coerce an adult into nonconsensual sexual activity.

59. The HISOP discharge report and the RAR also demonstrate clearly that the defendant does not consider he needs the assistance to deal with his issues as the experts have suggested. The result is, that his personality defects are not being treated which leads to the conclusion that he needs to be kept under some form of close supervision, whether it is an ESO in the community with restrictive conditions or a CDO where he can be more closely monitored.

60. I note that at the final hearing the Court must be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not either kept under supervision or kept in detention.

61. For the reasons given, I am satisfied that matters alleged in the supporting documentation would, if proved, justify the making at least of an ESO.

Orders

62. I make the following orders:

1. Order pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"):

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

(b)   Directing the defendant to attend those examinations.

1. Set down for final hearing before a judge of the Court on 8 August 2025 with an estimate of one day.

2. Section 77 order to be issued for the defendant to appear via AVL on 8 August 2025.

**********

Decision last updated: 29 May 2025