State of New South Wales v Wilmot (Final) - [2023] NSWSC 605

Supreme Court

New South Wales

Medium Neutral Citation: State of New South Wales v Wilmot (Final) [2023] NSWSC 605
Hearing dates: 01 June 2023
Date of orders: 07 June 2023
Decision date: 07 June 2023
Jurisdiction: Common Law
Before: Lonergan J
Decision:
(1) Pursuant to s 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 (NSW) the defendant is subject to a continuing detention order for a period of 1 year commencing 10 June 2023 and expiring on 9 June 2024.
(2) Pursuant to s 20(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) a warrant is to be issued for the committal of the defendant to a Correctional Centre for the purpose of order (1).

Catchwords:
HIGH RISK OFFENDER – Final hearing – Application for continuing detention – serious violent and sexually violent offender – history of random attacks on women and vulnerable persons – lack of insight – psychopathic traits – unwilling to acknowledge past offences – community safety paramount concern – CDO imposed

Legislation Cited:
Crimes (High Risk Offenders) Act 2006 (NSW)

Cases Cited:
State of New South Wales v Wilmot (Final) [2019] NSWSC 1276
State of New South Wales v Wilmot (Preliminary) [2019] NSWSC 776
State of New South Wales v Wilmot (Preliminary) [2021] NSWSC 1189

Category: Principal judgment
Parties: State of New South Wales (Plaintiff)
Wayne Wilmot (Defendant)
Representation:
Counsel:
I Fraser (Plaintiff)
M Johnston SC / D Bhutani (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Ryan Payten Le (Defendant)

File Number(s): 2021/00213919
Publication restriction: Nil

JUDGMENT

By amended summons filed in court on 1 June 2023, the State of New South Wales seeks an order that the defendant, Wayne Wilmot, be placed on a continuing detention order (“CDO”) for a period of 12 months pursuant to s 5C of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). In the alternative, the State seeks that Mr Wilmot be placed on an extended supervision order (“ESO”) for a period of 5 years.
The defendant is 50 years old and has been in custody for almost 33 years having been incarcerated since he was 15 years old, except for a short period of 1 year and 8 months in late 1996 to mid-1998.
These proceedings are the second post-sentence proceedings brought against the defendant. At the time the proceedings were commenced, the defendant was subject to a 2 year CDO that I imposed on 24 September 2019: State of New South Wales v Wilmot (Final) [2019] NSWSC 1276. That CDO expired on 23 September 2021.
On 17 September 2021, following a preliminary hearing, I imposed an interim detention order (“IDO”) for a period of 28 days: State of New South Wales v Wilmot (Preliminary) [2021] NSWSC 1189. On 9 September 2021, the defendant was charged with alleged sexual offending while in custody. From that date he was on remand pending determination of those charges and his IDO was suspended under s 18C(1A) of the Act.
Those matters resolved on 10 March 2023 when the defendant was acquitted after two consecutive judge alone trials dealing with the separate charges. The IDO imposed on 17 September 2021 came into operation from 10 March 2023 to 7 April 2023. That IDO was extended twice, pending final hearing, to 10 June 2023, which is the maximum period provided under the Act.
The defendant’s history of offending is set out in [34] to [53] of my judgment State of New South Wales v Wilmot (Preliminary) [2019] NSWSC 776:

“[34] The defendant has a history of committing sexual offences against adult women and, [REDACTED], adult males. The defendant has also committed other offences of violence against women. Key aspects of the defendant’s offending history are set out below, in chronological order.
Sexual intercourse without consent and related offences: 20 January 1987
[35] The defendant committed his first recorded sexual offence at just 13 years of age.
[36] On 20 January 1987, the defendant approached the adult female victim, RB, from behind as she walked through Minto Park at about 3:30 pm. He threw her to the ground and made threats to kill her and covered her mouth. He removed her clothing. During the attack the defendant touched the victim’s vagina, performed cunnilingus, attempted to engage in penile-vaginal intercourse, and attempted to place his penis in the victim’s mouth. He was apprehended at the scene, where he stated ‘I’ve…got a problem’ and ‘this is not the first time I’ve done this’.
[37] The defendant was subject to a control order, imposed by the Children’s Court when he committed the offences. He later entered pleas of guilty to offences of sexual intercourse without consent, attempted sexual assault, assault with intent to commit felony, namely sexual assault, and indecent assault. On 26 March 1987, he was dealt with by Campbelltown Children’s Court and committed to an institution.
Obscene exposure and related offences: 19 July 1987
[38] On 19 July 1987 the defendant assaulted and robbed a female victim, CR, of her handbag in a public street in Campbelltown. Before assaulting the victim, the defendant pulled down his tracksuit pants and exposed his penis to her. The defendant was charged with offences of common assault, robbery and wilful and obscene exposure. He was later dealt with by Campbelltown Children’s Court, on 30 July 1987 (assault and robbery) and 25 February 1988 (obscene exposure) and a control order for two years with conditions imposed for the assault and robbery, and a two-year probation order imposed for the wilful and obscene exposure.
Indecent assault: 20 July 1987
[39] On 20 July 1987, the defendant, then aged 14 years old, followed the adult female victim, HS, as she pushed her 18-month old son in a pram. As the victim entered an oval near Campbelltown Shopping Centre at about 2pm, the defendant approached her from behind. He threw the victim to the ground and threatened to kill her when she screamed that she was pregnant. He placed his hand over her mouth and struck her in the face (causing a bloody nose). He touched her vagina over the top of her pants and attempted to pull her pants down. The victim’s infant son, who was in his pram, cried. The victim kept screaming and the defendant desisted and ran away. He was charged with indecent assault and pleaded guilty. On 25 February 1998, Campbelltown Children’s Court ordered that he be subject to two years’ probation, to be supervised by the Department of Youth and Community Services.
Detain with intent to gain advantage, robbery in company, sexual intercourse without consent (4 counts), receiving and obtaining financial advantage by deception: 8 September 1988
[40] On 8 September 1988, the defendant, then aged 15 years old, travelled to Sutherland Railway Station with a female co-offender and male co-offenders. A plan was formed beforehand to randomly abduct a woman to sexually assault her.
[41] In the early evening the victim, Janine Balding, exited the station and was walking to her car. Male co-offenders abducted her at knife point and forced her into the backseat of her car. The defendant drove the car whilst the victim was sexually assaulted in the back seat.
[42] The defendant drove to an isolated spot off the F4 Freeway, where the victim was removed from the car and sexually assaulted further times by the male co-offenders. The victim was then bound, gagged and thrown over a fence. She was then dragged screaming for about 100 metres and held under water in a dam until she drowned. Her naked body was left in the dam. This was done by the male co-offenders without the defendant’s involvement (he remained in the car). Some of the victim’s personal items were shared and her ATM card used to withdraw money later that same day. The defendant was on bail. He was taken into custody on 10 September 1998.
[43] On 22 March 1990, Justice Wood sentenced the defendant to a total term of imprisonment of 9 years and 4 months, with a 7 year non-parole period (NPP). The defendant was released to parole on 16 October 1996.
Robbery: 14 August 1997
[44] On 14 August 1997, the adult female victim, V4, was walking along a street at night in Ashfield. The defendant, then aged 24 years old, ran at the victim from about seven metres away, pushed her down to the concrete paving and stole her handbag. He was on parole when. he committed the offence. He later pleaded guilty to robbery. On 9 June 2000, Judge Graham sentenced the defendant to a term of imprisonment for three years for this offence. His Honour also sentenced the defendant for other offences.
Common assault: 2 October 1997
[45] On 2 October 1997, the defendant approached the adult female victim, DV, in a park in Ashfield as she walked her dog. He walked and spoke with her for a short time. He attempted to kiss her and pushed her shoulders causing her to fall to the ground. She got up and they left the park and went their separate ways. When interviewed by police, the defendant stated that as he and the victim walked “she was just talking, like just being so close and…like eyes kept wandering on to me…we just laughing…she tried to grab me hand sort of thing”. He later admitted his guilt for this offence – and it was dealt with as part of a Form 1 when Judge Graham sentenced him for other offences on 9 June 2000.
[46] The defendant was released to bail after being charged with the offences committed on 14 August and 2 October 1997. His parole was not revoked because of the charged offences.
Detain with intent to gain advantage, sexual intercourse without consent (3 counts): 2 June 1998
[47] On 2 June 1998 the defendant, then 25 years old, was sitting at Leightonfield railway station in Villawood at about 6:00am when the 19 year old female victim, SM, a railway employee, arrived at the station for work. As the victim unlocked the station office to enter the defendant rushed from behind striking her to the face. He forced her inside and made her lie on her stomach, tied her hands behind her back and blindfolded her. He removed the victim’s clothing and indecently touched her breast area, forcibly performed cunnilingus on her and forced his penis into her mouth. He ejaculated on her face, and then rubbed and smeared his semen over her lips and face. He left her tied up on the floor in the office. The defendant was not charged with this offending until 2004 when a DNA match was identified. He was on bail for the 1997 offences at the time of offending. His parole had expired on 10 January 1998.
[48] On 27 February 2006, Judge Marien sentenced the defendant for offences of detaining and three counts of sexual intercourse without consent following pleas of guilty being entered. Judge Marien sentenced the defendant to a total term of imprisonment of 12 years, with 9 year NPP. Judge Marien remarked that there were “chilling similarities in the nature of his offending … against defenceless women”. Judge Marien said that he was satisfied, beyond reasonable doubt, there was a high risk the defendant would re-offend upon release from custody.
[49] On 1 March 2007, the Court of Criminal Appeal (Sully, Bell and Buddin JJ) dismissed an appeal against the sentence imposed by Judge Marien.
Malicious wounding and detain with intent to gain advantage: 29 June 1998
[50] On 29 June 1998 the defendant, whilst still on bail, drove to Glenfield railway station (alone) and pulled his car up beside the 20-year old female victim, V3, who was about to exit her parked car to enter the train station. When the victim opened her driver’s side door he lunged at her, pushing her into the front passenger seat and thrusting himself into the driver’s seat. A struggle ensued. The defendant had a knife and suffered cuts to his face in the struggle. As the defendant looked for the ignition keys, V3 opened the passenger side door and fled the car. The defendant fled the scene and was apprehended later that day (and has remained in custody since then). He denied committing the offence.
[51] On 9 June 2000, Judge Graham sentenced the defendant for offences including the detaining of the victim near Glenfield railway station and the malicious wounding of her, and for the robbery committed on 14 August 1997. For the offence of detain for advantage the defendant was sentenced to a term of imprisonment of 6 years, with four years NPP. For the offence of malicious wounding, the defendant was sentenced to imprisonment for four years. Judge Graham imposed an effective total term of imprisonment of 9 years, with a 7 year NPP.
Sexual intercourse without consent and indecent assault: [REDACTED].
[52] [REDACTED].
[53] The defendant denied the offences and was found guilty after trial. On 27 November 2015, Judge Townsden sentenced to a total term of imprisonment of 5 years, with 3 years and a 9 month NPP. He is serving the sentence imprisonment imposed for the sexual intercourse without consent (Crimes Act, s 61I) – which is a term of imprisonment of four years (commencing on 27 June 2015 and expiring on 26 June 2019), with two years and a 9 month NPP (which expired on 26 March 2018).”

It should be noted that the context of some of the offending was whilst the defendant was given the benefit of parole and bail. On release to parole in October 1996, the defendant breached his parole by committing further offences. He robbed a female victim in August 1997 and assaulted another female victim in October 1997. When released on bail for that offending, he carried out two other very serious violent and sexual attacks on two young women, just weeks apart, in June 1998, leading to further sentences of imprisonment.

The Legislative Scheme

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: s 3(1). Another object is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation: s 3(2).
The Court’s power to make a CDO is discretionary. Section 5C of the Act provides that the Court may make a CDO if four preconditions are made out. It is common ground that the following three preconditions are satisfied:

Mr Wilmot is an offender who is serving or who has served a sentence of imprisonment for a “serious offence” as defined in s 4 of the Act: s 5C(a).

Mr Wilmot is a “detained sex offender” within the meaning of s 13B of the Act: s 5C(b).

The present application has been made in accordance with s 13B of the Act: s 5C(c).

The fourth condition under s 5C comprises the substantive test for consideration before this Court. It provides that in order to make a CDO, the Court must be “satisfied to a high degree of probability that the person poses an unacceptable risk of committing another serious offence if not kept in detention under the order”: s 5C(d).
The defendant accepts (via his counsel) that test is met on the evidence tendered, that is, that the Court can be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under an order: ss 5B(d); 5C(d). This acceptance is in my opinion the only sensible position that the defendant can take, given his criminal history and the views of the independent experts to which I will come to, and the very high level of supervision and support in the community that the defendant would require to be in place before he could even be considered for release on an ESO.

The evidence and final hearing

The State tendered the following evidence:

Five affidavits of Sarah Najjar, solicitor, affirmed 26 July 2021, 26 August 2021, 14 September 2021, 28 April 2021 and 26 May 2023, annexing multiple volumes of reports and evidentiary material responsive to the s 17(4) factors that this Court is required to consider in determining the application;

An affidavit of Kelli Grabham, High Risk Offender’s Applications and Operations Governance Officer, affirmed 14 September 2021;

Two affidavits of Jessie Slattery-McDonald (Ms Grabham’s successor), affirmed 28 April 2023 and 26 May 2023;

Affidavit of Ryan Gaffney, “Project Coordinator, Co-existing Disorders Program,” affirmed 26 May 2023;

Affidavit of Sharryn Coe, Director of the ESO Team, affirmed 29 May 2023.

Ms Coe was cross-examined by senior counsel for the defendant Mr Johnston SC. The effect of her answers was that steps were already in train to set up a potential plan for supervision of the defendant and that these steps could be completed in six months.
A paginated collection of Offender Information Management System (“OIMS”) notes was separately tendered, as well as a bundle of emails containing efforts made by the plaintiff to secure accommodation for the defendant and responses.
Two victim statements were also tendered on a confidential basis and received under s 21A of the Act. I have taken those statements into account. As I observed in 2019, statements of this kind provide a human face to the serious lifelong effect that the violent and sexual offending engaged in by the defendant has had on these victims. It is important and helpful in assisting to understand the gravity of the offending which in turn, informs the question of unacceptable risk.
The defendant tendered two affidavits of the solicitor for the defendant, Hayley Le, affirmed 9 September 2021 and 30 May 2023 which annexed selected records from the OIMS notes.
Two court appointed experts supplied reports: Dr Kerri Eagle, Forensic Psychiatrist dated 5 November 2021 and 23 May 2023, and Dr Sally McSwiggan, Consultant Neuropsychologist, dated 11 November 2021 and 23 May 2023.
The evidence confirms that there is currently no available accommodation suitable for the defendant. In particular, both the Community Offender Support Program (“COSP”) and the Integrated Support Centre (“ISC”) have refused to accommodate the defendant, identifying, amongst other concerns, inadequate “wrap around support services”, and that he may assault vulnerable residents who have mental health issues or disabilities. [1] There are also exclusion zones [REDACTED] which has ruled out other agencies and accommodation options. Obviously it is essential these exclusion zones are protected.
1. Exhibit J: Affidavit of Ryan Gaffney, 26 May 2023, par [20] and [25]
The State’s primary position is that the defendant is an unacceptable risk and a further 12 month period under a CDO remains necessary. This was expressed in the plaintiff’s written submissions as necessary to ensure that appropriate accommodation, community supports and supervision resources are available before there could be an acceptably safe release under an ESO,[2] but in oral submissions the position was clarified to confirm that the order is sought in furtherance of the primary object of the Act, that is, to ensure the safety and protection of the community: s 3(1).
2. Plaintiff’s written submissions at [9].
The level of supervision that would be required if the defendant was to be released on an ESO is set out in Ryan Gaffney’s affidavit:

“[13] The defendant has been in custody for the majority of his life and is institutionalised. He will require "wrap around support services" which involve multiple levels of support services. Ideally, the defendant should have the following wrap around support services in place:
a. At least two male staff members from the ESO Team to supervise the defendant with line of sight supervision while he is outside of his supported accommodation.
b. Community Corrections staff to support the defendant's reintegration into the community for tasks like taking him to the local shops and accompanying him on public transport, attending a local medical centre, attending Centrelink, attending Service NSW to obtain photo identification, setting up banking facilities, obtaining a mobile phone, attending expert appointments if required, accompanying him on planned walks to monitor behaviour within the community, and attending the local library.

c.   Other supports provided by Community Corrections staff in accordance with the ESO conditions including, for example, assistance with the mechanics of his electronic monitoring and his obligations regarding conditions and directions, checking the defendant's phone to monitoring for online activity, introducing the defendant to CSNSW services and external agencies such as the NSW Police Force's ESO Investigation Team ("ESOIT") allocated officer, and staff from the NDIS and other external supports.
d.   Staff from the Personality and Behavioural Disorder Service ("PBDS") within CSNSW to act in a consultancy role to support the defendant rather than having direct contact with the defendant. PBDS staff should be required to visit the defendant on a weekly basis at his accommodation to provide on-site support to staff.
e.    Senior Psychologist from Risk Management Programs within CSNSW to engage in individual weekly risk management intervention sessions with the defendant to address his identified risk factors.”

It seems to me that if “at least” two male staff members are required to directly supervise the defendant when he is outside the “supported accommodation”, surely the same needs apply within the accommodation to protect staff and other residents. It also begs the question of whether a person who requires that level of supervision is safe to release. Dr Parker, Psychologist, concluded in June 2021 that the risk scenario for the defendant appeared to be “any opportunity where a potential victim is alone and Mr Wilmot is unsupervised.”
There are also pre-release requirements that would need to be met as set out at [17] to [18] of the affidavit of Sharryn Coe, Director of the ESO Team:

“[17] The COSP is the most ideal place for the defendant to reside as it acts as a “step down” from a custodial environment. I understand the CODP would be able to offer the defendant accommodation on the condition that the “wraparound services”, as described by Mr Gaffney in his affidavit at [13], were available for the defendant. I understand that currently almost all of the staff at the COSP are female.
[18] Prior to the defendant’s release to COSP, the following things would need to occur:
a.   Community Corrections will work collaboratively with the classification unit and custodial staff to transfer him to a metropolitan correctional centre to better prepare for his transition to the community. Any move and subsequent timeframes will be determined with consideration given to his custodial behaviour, non-associations, and his current Special Management Area Placement (“SMAP”).
b.    Commencement of one on one sessions with a Senior Psychologist from the Serious Offenders Assessment Unit (“SOAU”).
c.    As soon as the defendant is transferred to metropolitan correctional centre, the ESO team will meet with him regularly to explain who they are, how they work, expectations and boundaries. This includes explanations of how the COSP operates. A critical component of a successful transition of the defendant to the community is to build rapport with the defendant while he is in custody so that when he transitions into the community, a relationship with those supervising him has already been established.
d.   Formulation of a behaviour management plan with an appropriate focus on his imminent release to the community. This would be formulated with the assistance of the Personality Behavioural Disorders Unit (“PBDS”) and the Senior Psychologist who is undertaking one on one sessions with the defendant.
e.    Formulation of a comprehensive reintegration plan in conjunction with the PBDS, the SOAU, the COSP and the Senior Psychologist seeing the defendant.
f.    Following the formulation of the reintegration plan, specific training will be delivered to the staff at the COSP and other that will be involved in the defendant’s supervision. This training needs to be tailored to the individual offender in light of his reintegration plan, his particular behaviours and issues at risk.”

Ms Coe’s answers in cross-examination modified her evidence to an extent to assert that the steps required to implement this re-integration could be done in six months, a slight shift from her affidavit evidence of a six month “minimum”. She stated that a meeting with “stakeholders” was taking place on 2 June 2023 to undertake further planning.
In the written submissions filed 30 May 2023, counsel for the defendant contended that in exercising its discretion the Court should impose an ESO rather than a CDO. However through his counsel, Mr Johnston SC, during the hearing this position was modified to accept that a CDO would likely be imposed in the circumstances (i.e. no proper arrangement yet available and in place). Mr Johnston SC submitted however that any CDO should not exceed six months given Ms Coe’s oral evidence that arrangements could be in place within that timeframe. Mr Johnston SC submitted that the risk of fixing a CDO of 12 months length is that the “stakeholders” may not act sufficiently quickly to take the necessary steps and make the necessary arrangements, creating a situation where there is still no adequate plan in place in 12 months, due to loose timeframes.

Consideration

In determining whether or not to make either a CDO or an ESO, the safety of the community is the paramount consideration: ss 17(2) and 3(1) of the Act. When determining an application, the Court may have regard to any matter it considers relevant, but must take into account matters set out at s 17(4)(b) to (i).

Section 17(4) mandatory factors

The reports received from the persons appointed under s 15(4) to conduct examinations of the offender, and the level of the offender’s participation in any such examination: s17(4)(b)

(i) Dr Kerri Eagle

Dr Eagle examined the defendant for the previous application for a CDO in July 2019 when she conducted an extensive review of records, assessed him over two hours and provided a very detailed report dated 9 August 2019. This was followed by a further report dated 5 November 2021 prepared in the context of the 2021 application that was suspended.
In my final judgment in 2019, State of New South Wales v Wilmot (Final) [2019] NSWSC 1276, I summarised Dr Eagle’s key findings in her August 2019 report. The summary is provided for context in circumstances where Dr Eagle has confirmed in her May 2023 report that “little has changed since my previous reports”:

“[25] Under the heading, ‘Mental State Examination’, Dr Eagle noted that the defendant was cooperative and appeared euthymic (non-depressed reasonably positive mood). Dr Eagle noted significantly to my mind that he “exhibited cognitive distortions, such as an attributional bias and an external locus of control”, stating:
“Mr Wilmot accepted no responsibility for his offending conduct. He had poor insight into the factors that might have resulted in his incarceration. He tended to attribute responsibility for all problematic behaviours to external factors. He had unrealistic expectations of his ability to reintegrate into the community and his plans were not goal directed. He did not appear capable of appreciating the seriousness of his situation and made demands “you’ve got to work with me” for his release.

[26] Under the heading ‘Treatment Reports’, reference was made to reports concerning the defendant’s participation in sex offender programs, including the use of post program testing using BRS (Burt Rape Scale) in the ‘ESO Program October 2000’ and subsequently for CUBIT in May 2018. Importantly, the report of testing in 2012 indicated that his understanding and insight had not developed:
“Testing using the BRS (Burt Rape Scale) amongst other tests are noted. Mr Wilmot undertook the BRS on 22 June 2012 and demonstrated the same cognitive distortions present in 2000, including “if a woman gets drunk at a party, it is really her own fault if someone takes advantage of her sexually” [strongly agree]; “when women wear tight clothes, short skirts, and no bra or underwear, they are asking for sex” [agree]; “if a woman lets a man kiss her mouth and touch her sexually, she should be willing to go all the way” [strongly agree]; “most women are sluts and get what they deserve” [agree].”

[27] Under the heading ‘Diagnosis’, Dr Eagle stated her opinion that the defendant did not show any signs or symptoms of a major mental disorder at the time of interview. The defendant‘s cognitive function appeared to be in the low average range. Dr Eagle concluded:
“Mr Wilmot has a poly substance use disorder, in remission in a controlled environment. He has been reported to have engaged in the use of illicit substances since 8 years old. Substances have included alcohol, cannabis, amphetamine and sedatives (benzodiazepines). He has previously sought prescribed and unprescribed medications to cope with emotional distress. He is vulnerable to a relapse of his substance use disorder in a less restrictive environment in the context of increased stress.
Mr Wilmot has a severe personality disorder characterised predominantly by emotional instability. He would satisfy criteria for an antisocial personality disorder and borderline personality disorder. …
Mr Wilmot has been reported to demonstrate a number of more severe personality characteristics consistent with psychopathy, for instance deception, callousness and manipulation. On an assessment using the Psychopathy Checklist Revised (PCLR), Mr Wilmot displayed a number of psychopathic traits including a need for stimulation/proneness to boredom; pathological lying; conning/manipulation; lack of remorse or guilt; shallow affect; callous/lack of empathy; parasitic lifestyle; poor behavioural controls; promiscuous sexual behaviour; early behavioural problems; lack of realistic long term goals; impulsivity; irresponsibility; failure to accept responsibility for his own actions; juvenile delinquency; revocation of conditional release; and criminal versatility. Many Short-Term Marital Relationships was omitted from the assessment because Mr Wilmot has spent a consider-able majority of his life in correctional or institutional settings. Mr Wilmot scored 32 out of a possible 38. When the score is prorated due to the omission of one item, Mr Wilmot scored 33.7.
The PCL-R was not designed to predict criminal behaviour or assess risk of violence. However, the PCL-R has been found to be a robust predictor of criminal behaviour including violence and sexual violence. The PCL-R provides a dimensional score that represents the extent to which an individual is considered to represent the “prototypical psychopath.” The higher the score, the closer the match. An arbitrary “cut score” of 30 has been identified to classify male offenders as psychopaths. A score above 30 has been rewarded as a high PCL-R group. The higher the score, the more strongly associated with criminal recidivism including violent recidivism.
It is not clear whether Mr Wilmot has a paraphilia. The nature of his previous offending suggests that he may experience sexual arousal in response to the physical or psychological suffering of others consistent with a sexual sadism disorder. His poor insight, denial of his sexual offending and lack of engagement in psychological programs limits an assessment of his sexual arousal patterns and behaviours. His sexual offending appears to largely occur in the context of a combination of callousness, distorted attitudes towards victims (such as women [REDACTED]) and the willingness to use violence to meet his needs (sexual or otherwise). It is not clear that Mr Wilmot’s sexual offending is driven by intense sexual urges or deviant sexual fantasies (such as sadistic sexual arousal).”

[28] Under the heading ‘Risk Assessment’, Dr Eagle noted that there are “inherent limitations” in any process of risk assessment, and that “the best evidence supports a structured professional judgment approach”.
[29] Using the Static 99R, an actuarial risk assessment tool, the defendant scored 9 on assessment, which placed him into a category of high risk/high need offenders. It was noted by Dr Eagle that “the average 5 year sexual recidivism rate for a person in that group with a score of 9 is between 32.6% and 52.5%, 9 times out of 10. The overall predicted recidivism rate is 42.2%.”
[30] Using the Stable 2007, another risk assessment tool, the following results are noted:
“Mr Wilmot demonstrated a number of dynamic risk factors for sexual reoffending based on this tool with a score of at least 20. He falls within the highest risk category of offenders. In particular, he has displayed the following dynamic risk factors: problems with significant social influences (no established positive influences and potential negative influences); lack of capacity for relationship stability (no current or previous stable intimate relationships); hostility towards women (persistent cognitive distortions in relation to females); general social rejection (no meaningful social contacts or supports, perceived rejection); lack of concern for others; impulsivity; poor problem solving skills (unrealistic goals and poor decision making); negative emotionality (grievances regarding perceived injustices and unfair treatment); unrealistic expressed intention to avoid sexual activity; high number of sexual offence victims (at least 7) indicating potential deviant sexual disorder; and problems cooperating with supervision.”

[31] Dr Eagle concluded that when the Static 99R score of 9 is combined with the Stable 2007 score of 20, the defendant is placed in the “very high” risk category. The average 5 year sexual recidivism rate for a person in that group is between 24.6% and 57.7%, 9 times out of 10.
[32] Under the heading, ‘Violent Re-offending’, Dr Eagle noted that the defendant has a substantial loading of historical risk factors associated with violent reoffending including a history of problems with violence, other antisocial behaviour, substance use, relationships (intimate and family), employment, major mental disorder (cognitive disorder and mood disturbance), personality disorder, traumatic experiences, violent attitudes and treatment or supervision response.
[33] Dr Eagle also noted that over the last six months, the defendant had demonstrated “a number of persistent clinical factors that have been found to be associated with violent offending including problems with insight into his behaviour and offending history; persistent cognitive, behavioural and emotional instability; and problems accepting and tolerating supervision.” Dr Eagle then noted that future problems with risk management factors have been associated with an increased risk of future violence, expanded as follows in terms of the defendant:
“Mr Wilmot has a number of potential future problems with risk management based on his current plans for release. Professional services and plans: he requires assertive psychological monitoring and support to ensure his transition into the community but he has refused to engage with a corrective services (CS) retained psychologist following release. A private psychologist would be less able to provide the necessary communication and collaboration with Mr Wilmot’s CS supervision team to ensure effective risk management. Living situation: due to Mr Wilmot’s extended period of incarceration and his continued difficulty tolerating rules and restrictions, he will require the highest level of supported accommodation following his release. He has expressed concern regarding the restrictiveness of a COSP following release and this may indicate potential problems tolerating that living environment. However, independent living will not provide a sufficient level of monitoring or support for effective risk management in Mr Wilmot’s case. Personal support: Mr Wilmot has few, if any, personal or family supports in the community. Treatment or supervision response: Mr Wilmot has never demonstrated the ability to tolerate supervision without reoffending or breaches in the community. It is highly likely that he will continue to experience difficulties tolerating supervision. His attitude towards supervision remains problematic and demonstrates a tendency to externalise responsibility for his behaviour. Stress and coping: Mr Wilmot’s pervasive difficulties with emotional regulation combined with a lengthy period of institutionalisation suggest that he will have significant difficulties coping with the anticipated challenges of reintegrating into the community.

[34] In terms of a ‘Risk Formulation’, Dr Eagle referred to the defendant having engaged in repeated sexual and violent offending from adolescence, that he has displayed a pervasive disregard for social rules and laws from an early age and appears to have repeatedly used violence to achieve his needs. It is noted that: “[i]t is unclear what specifically drives his sexual offending although the nature of his offending suggests that he may experience sexual arousal in response to the pain or suffering of others.” Additionally and significantly, Dr Eagle stated:
“Mr Wilmot has consistently denied responsibility for and/or minimised his involvement in his sexual offences. He has routinely attributed responsibility for his behaviour to external events or persons. He has displayed no genuine capacity for internal reflection and has not been able to demonstrate benefit from psychological or rehabilitation programs.”

[35] Dr Eagle also stated that as a result of his traumatic and dysfunctional childhood, the defendant has “never developed a stable self-identity or awareness and has low self-esteem. He has poor coping skills resulting in emotional instability and has used a variety of substances to cope with stress and emotional dysregulation”. Dr Eagle stated:
“Mr Wilmot appears to have developed severe maladaptive personality traits including callousness, deceptiveness and manipulative behaviours. Unfortunately, these personality traits are difficult to manage or modify and they are likely to contribute significantly to his ongoing reoffending risk. His lengthy incarceration in an institution has further exposed him to an environment where he has associated with antisocial peers and survival is perceived as largely dependent on isolating himself or dominating others using aggression, deception and/or manipulation.
Mr Wilmot’s capacity to change a lifetime of problematic attitudes, traits and behaviours as he reintegrates into the community is uncertain. Any attempt at reintegration will need to be undertaken with the highest level of monitoring and support available in order to reduce his risk of reoffending.”

On 28 October 2021, pursuant to orders I made as part of an IDO imposed on 17 September 2021, Dr Eagle conducted a one hour review by phone (not AVL), relevantly noting the following matters:

“[93] Assessment using the WAIS-R (Wechsler Adult Intelligence Scale - Revised) in 1992 indicated a full scale IQ of 74 (Cowie 1992). Dr Marcelo conducted neuropsychological testing in 2019 and found Mr Wilmot to have a full scale IQ of 74, consistent with the Cowie assessment. Overall, Mr Wilmot appears to have a level of cognitive function that appears to fall within the borderline level of intellectual functioning based on the most recent testing. Borderline intellectual functioning has not been viewed as a formal disability and does not necessarily indicate deﬁcits in intellectual or adaptive domains. It describes individuals who function in the well-below average range (for instance an IQ between 71 and 85, or one standard deviation below the population mean). The cut oﬀ for an intellectual disability has historically been recognised as 70. Mr Wilmot appears to have signiﬁcant deﬁcits in his adaptive function, particularly in the social and communication domain. He may appear to have better adaptive function in other domains, such as the practical domain (personal care, ﬁnancial management, employment) in the highly institutionalised environment of the correctional facility compared to in the community. He is likely to have signiﬁcant diﬃculties adjusting and functioning following transition into the community.

[94] Mr Wilmot has a substance use disorder, in remission in a controlled environment. He has been reported to have engaged in the use of illicit substances since 8 years old. Substances have included alcohol, cannabis, amphetamine and sedatives (benzodiazepines). He has previously sought prescribed and un-prescribed medications to cope with emotional distress. He is vulnerable to a relapse of his substance use disorder in a less restrictive environment in the context of increased stress. He has denied the use of illicit or unprescribed sub-stances for many years in the correctional environment.
[95] Mr Wilmot has a severe personality disorder characterised predominantly by emotional instability. He would satisfy criteria for an antisocial personality disorder and borderline personality disorder. He has demonstrated pervasive and dysfunctional personality traits throughout his lifetime and from an early age, including frantic eﬀorts to avoid real or imagined abandonment; a pattern of un-stable and intense interpersonal relationships; marked identity disturbance; impulsivity; recurrent suicidal behaviours; in appropriate intense anger; transient stress related paranoid ideation; failure to conform to social norms; deceitful-ness; aggression; reckless disregard for the safety of others; consistent irresponsibility; and lack of remorse. His childhood behaviour was consistent with a severe conduct disorder. Personality testing and assessment conducted from early adulthood has demonstrated prominent personality characteristics consistent with severe emotional instability, antisocial or pro-criminal cognitions and poor self control (Cowie 1992; Mears 1994; Dennis 1995; Taylor 1999; Allen 2015). He has also been described as having some narcissistic traits (Taylor 1999).
[96] Mr Wilmot also has a number of more severe personality characteristics consistent with psychopathy, for instance deception, callousness and manipulation. On an assessment using the Psychopathy Checklist Revised (PCLR), Mr Wilmot displayed a number of psychopathic traits including a need for stimulation/proneness to boredom; pathological lying; conning/manipulation; lack of re-morse or guilt; shallow aﬀect; callous/lack of empathy; parasitic lifestyle; poor behavioural controls; promiscuous sexual behaviour; early behavioural problems; lack of realistic long term goals; impulsivity; irresponsibility; failure to accept responsibility for his own actions; juvenile delinquency; revocation of conditional release; and criminal versatility. Many Short-Term Marital Relationships was omitted from the assessment because Mr Wilmot has spent a considerable majority of his life in correctional or institutional settings. Mr Wilmot scored 32 out of a possible 38. When the score is prorated due to the omission of one item, Mr Wilmot scored 33.7.”

And the following risk formulation:

“[111] Mr Wilmot has engaged in repeated sexual and violent oﬀending from adolescence. His sexual oﬀending has involved the use of violence, weapons (knives), threats of death, and physical and mechanical restraint. Victims have been female in the community and male [REDACTED]. The victims appear to be those who are vulnerable to him either due to physique, age, sex, circumstances or other factors (ie. culture/language; isolation). Acts of sexual aggression have occurred in public, during daylight against strangers and in the presence of an infant or child. There appears to have been premeditation on at least one occasion (2 June 1998 oﬀence) in that Mr Wilmot was observed at the scene of the oﬀence on the day prior and this may indicate planning.
[112] Mr Wilmot has displayed a pervasive disregard for social rules and laws from an early age. This has resulted in a variety of criminal behaviours including stealing, driving oﬀences, robbery, violence, arson and escapes from lawful custody. He has consistently associated with a pro-criminal peer group and participated in serious joint criminal endeavours with peers. He appears to have repeatedly used violence to achieve his needs, and he continues to justify this. It is unclear what speciﬁcally drives his sexual oﬀending although the nature of his oﬀending suggests that he may experience sexual arousal in response to the pain or suffering of others. His sexual oﬀending appears to be motivated, at least partly, by antisocial attitudes including a combination of callousness, distorted attitudes towards victims (such as women [REDACTED]); emotional dysregulation and the willingness to use violence to meet his needs (sexual or otherwise). It is not clear whether Mr Wilmot’s sexual oﬀending is also driven by intense sexual urges or deviant sexual fantasies (such as sadistic sexual arousal).
[113] Mr Wilmot has consistently denied responsibility for and/or minimised his involvement in his sexual oﬀences. He has routinely attributed responsibility for his behaviour to external events or persons. He has displayed no genuine capacity for internal reﬂection and has been unable to demonstrate beneﬁt from psycho-logical or rehabilitation programs. This has been an ongoing barrier to progress within the correctional facility and towards release.
[114] Mr Wilmot’s extensive oﬀending history has occurred on a background of an extremely deprived and abusive childhood experience. Mr Wilmot was neglect-ed, physically and psychologically abused by a highly dysfunctional mother. He was placed into State care from an early age only to be exposed to violence and sexual abuse. He has had no stable caregivers or role models and was living on the street from an early age, where his primary role models were homeless peers likely from similar backgrounds. He described a “prostitute” as an early sexual role model and was exposed to his mother’s own sexual behaviours which he described as being like an “unpaid prostitute.” Mr Wilmot’s poor understanding of sexual and societal boundaries likely arises largely from his own experience of childhood sexual abuse and early inappropriate exposure to sexual activity; having no stable prosocial role models; and being exposed from an early age to a number of anti-social pro criminal role models.
[115] Mr Wilmot has never developed a stable self identity or awareness and has low self esteem. He has poor coping skills resulting in emotional instability and has used a variety of substances to cope with stress and emotional dysregulation. He appears to have an inability to understand or tolerate intimacy and close relationships. He expects rejection or abandonment from others resulting in behaviours that increase his social isolation. As a result, Mr Wilmot appears to have developed severe maladaptive personality traits including callousness, deceptiveness and manipulative behaviours. Unfortunately, these personality traits are diﬃcult to manage or modify and they are likely to contribute signiﬁcantly to his ongoing reoﬀending risk. His lengthy incarceration in an institution has further exposed him to an environment where he has associated with antisocial peers and survival is perceived as largely dependent on isolating himself or dominating others using aggression, deception and/or manipulation. Institutionalisation over such a lengthy period of time would have signiﬁcantly reduced Mr Wilmot’s ability to adjust to a lifestyle outside the correctional environment.
[116] Unfortunately, Mr Wilmot is likely incapable of changing a lifetime of problematic attitudes, traits and behaviours. Any attempt at community reintegration will need to be undertaken with the highest level of monitoring and support available in order to reduce his risk of reoﬀending.”

On 16 May 2023 Dr Eagle conducted a 60 minute assessment of the defendant via audio-visual link (“AVL”). She was asked to provide a current assessment of the defendant’s risk of committing a further serious offence and whether her opinions expressed in her previous reports had changed. Dr Eagle set out the defendant’s current presentation, noting that he is currently housed in a one out (single) cell as an Extreme High Risk (EHR) inmate, which the defendant “preferred”. [3]
3. Report of Dr Kerri Eagle, 23 May 2023, at [14].
Dr Eagle stated that the defendant has “demonstrated an ongoing lack of acceptance of responsibility for past actions” and “continued to display poor insight into the factors that might have resulted in his incarceration and may place him at risk in future”. [4]
4. Report of Dr Kerri Eagle, 23 May 2023, at [36].
Dr Eagle referred to certain very recent entries in the OIMS notes that she viewed as a concern:

“On 14 March 2023 during a meeting with Ms Constable, Mr Wilmot was “not willing to engage in pre-release/reintegration tasks with CMO stating he had done several programs in the past and the accusing CSNSW for leaving it “too late” to be of any assistance stating “I’ve done 30 years without any help from this dept, I don’t want it now.” He was noted to continue “to remain head-strong and is easily agitated during conversation. He becomes highly animated when speaking and is rarely able to listen with reason, displaying difficulties with negotiating and compromising with others. Wayne continues to deflect blame and refuses to take responsibilities for actions that have resulted in consequences throughout his gaol history.” It was noted that he “has already made statements regarding rules he is not willing to abide by regarding his Electronic Monitoring. [5]
On 20 March 2023, Mr Wilmot’s transition was discussed and it was “recommended no female staff to be assigned to work with Wayne at any time” to NDIS”. [6]

And on 22 March 2023:

“Wayne remains adamant that he will be able to negotiate with the EM via his Solicitor and Magistrate in the Civil Court. He again confirmed he would not be agreeable to “strict” conditions and would argue they be “down-graded”. [7]
5. Report of Dr Kerri Eagle, 23 May 2023, at [50].
6. Report of Dr Kerri Eagle, 23 May 2023, at [51].
7. Exhibit L: Affidavit of Hayley Le, 30 May 2023, Annexure A OIMS note, 22 March 2023.

Using the Static 99R, an actuarial risk assessment tool, Dr Eagle assessed the defendant as 9 (as he scored in 2019 and 2021), and concluded that he remains in the well above average risk category. [8] Dr Eagle noted that the average 5 year sexual recidivism rate for a person in that group is between 17.4% and 36.3%, 9 times out of 10. [9]
8. Report of Dr Kerri Eagle, 23 May 2023, at [65].
9. Report of Dr Kerri Eagle, 23 May 2023, at [68].
Using the Stable 2007, another risk assessment tool, the defendant received a score of 15, down from 17 in the 2021 assessment. It is worth noting that in this assessment Dr Eagle recorded that the defendant “is guarded in his discussion of his interactions or potential interactions with women, but did not express any negative or stereotyped comments about women on this review, or in recent case notes”. [10]
10. Report of Dr Kerri Eagle, 23 May 2023, at [67.3].
In relation to ‘Violent Re-offending’, Dr Eagle stated the following:

“Mr Wilmot has a substantial loading of historical risk factors associated with violent reoffending including a history of problems with: violence, other antisocial behaviour, substance use, relationships (intimate and family), employment, major mental disorder (cognitive disorder and mood disturbance), personality disorder, traumatic experiences, violent attitudes and treatment or supervision response. On that basis, Mr Wilmot would be considered to have a high baseline risk of reoffending over the longer term”. [11]
11. Report of Dr Kerri Eagle, 23 May 2023, at [70].

Dr Eagle also noted that over the last six months, the defendant had demonstrated a “number of persistent clinical factors that have been found to be associated with violent offending including problems with insight into his behaviour and offending history; persistent cognitive, behavioural and emotional instability; and problems accepting and tolerating supervision”. [12] Dr Eagle noted that future problems with risk management factors have been associated with an increased risk of future violence, identifying the following:

“Professional services and plans: he requires assertive psychological monitoring and support to ensure his transition into the community. He appears to be more willing to engage with a psychologist following release. He has indicated a willingness to accept support from NDIS case workers. He has indicated a reluctance to share criminal history information which could jeopardise the safety and feasibility of support programs.
Living situation: due to Mr Wilmot’s extended period of incarceration and his continued difficulty tolerating rules and restrictions, he will require the highest level of supported accommodation following his release. Mr Wilmot is unsuitable for shared accommodation due to his interpersonal deficits and his risk to others. He will need a high level of support following release as he adjusts to community living, given his long period of institutionalisation.
Personal support: Mr Wilmot has few, if any, personal or family supports in the community. The supports that he has identified, have not yet demonstrated that they are a source of support for him in the community. He has also indicated he will associate with ex-prisoners following release which could be a negative influence.
Treatment or supervision response: Mr Wilmot has not yet demonstrated the ability to tolerate supervision without reoffending or breaches in the community. He has recently been managed in custody in segregation and as an Extreme High Risk inmate which is highly restrictive, but in that environment he appears to have been sufficiently contained to avoid sanctions. It is highly likely that he will experience difficulties tolerating supervision in the community. His attitude towards supervision remains problematic and demonstrates a tendency to externalise responsibility for his behaviour. He is unlikely to engage meaningfully in rehabilitation or treatment programs, even if they are outside corrective services. He would benefit from consistent supports who attempt to exercise positive reinforcement and recovery focussed approaches to encourage incremental improvements in engagement over time.
Stress and coping: Mr Wilmot’s pervasive difficulties with emotional regulation combined with a lengthy period of institutionalisation suggest that he will continue to have significant difficulties coping with the anticipated challenges of reintegrating into the community. He will require considerable support to tolerate the reintegration process”. [13]
12. Report of Dr Kerri Eagle, 23 May 2023, at [72].
13. Report of Dr Kerri Eagle, 23 May 2023, at [74].

In terms of a ‘Risk Formulation,’ Dr Eagle stated that the defendant’s “risk formulation remains largely unchanged from previous reports”,[14] noting that:

“Mr Wilmot has consistently denied responsibility for and/or minimised his involvement in his sexual offences. He has routinely attributed responsibility for his behaviour to external events or persons. He has displayed no genuine capacity for internal reflection and has been unable to demonstrate benefit from psychological or rehabilitation programs. This has been an ongoing barrier to progress within the correctional facility and towards release”. [15]
14. Report of Dr Kerri Eagle, 23 May 2023, at [75].
15. Report of Dr Kerri Eagle, 23 May 2023, at [77].

Dr Eagle’s current risk assessment of the defendant comprises the following:

“Mr Wilmot remains at a significantly elevated risk of committing a serious offence following his release in to the community in the absence of the most assertive and comprehensive supervision regime. Based on structured risk assessment tools for the assessment of sexual offending risk and violence risk, Mr Wilmot is in a group of offenders with shared characteristics who are at the highest relative risk of sexual and violent reoffending. The factors that contribute to that risk include a high loading of static and historical (unchangeable) risk factors such as his history of substance use, relationship problems, lack of employment, personality traits, and lack of cooperation. Dynamic and clinical risk factors that continue to contribute to his risk including his antisocial personality style, attitudes and cognitive distortions, his general lack of concern for others, negative emotionality, the lack of capacity for relationship stability, poor problem solving skills, impulsivity, a lack of positive social supports and potential exposure negative peer groups, poor insight and his lack of engagement with supervisory regimes.
Mr Wilmot has demonstrated a small positive shift in his attitude since the last assessment, in that he appeared to acknowledge the need to comply with conditions on release (previously indicating he would not), although he did appear to have some ongoing unrealistic expectations regarding those conditions, and his capacity to comply remains in question. He was also prepared to engage with professional supports and acknowledged he would face difficulties adjusting to community living. A comprehensive monitoring regime, with adequate supports and suitable secure supported accommodation may to some extent mitigate Mr Wilmot’s significantly elevated ongoing risk of reoffending in the community. Given his presentation, he would appear to be at most risk of committing a technical breach of his ESO, in that context. Although notably, scheduling and electronic monitoring do not prevent reoffending, and the risk to staff or other residents even with those restrictions would be significant. A comprehensive safety plan for support staff having contact with Mr Wilmot would be necessary to mitigate that risk (ie. for instance, having a 2:1 staffing ratio). It is essential support staff be aware of Mr Wilmot’s risks and his risk management plan”. [16]

16. Report of Dr Kerri Eagle,23 May 2023, at [80].

(ii) Dr Sally McSwiggan

In November 2021 Dr McSwiggan reviewed the defendant by telephone as AVL review was not available due to the defendant refusing to cooperate with personal protective equipment (PPE) requirements related to COVID-19 risks. The following aspects of his self-account (and continuing lack of insight) were noted:

“[18] He viewed the hearing of the application as a failing of the system to assist him. He described the NDIS as his alternative. He described his future plans and goals as leaving jail, employment and his own accommodation. He had an idea he may be working “in a month” and the “main thing is not to commit crime”.
[19] Mr Wilmot was aware he had been rejected from alternative housing. He described a belief there was a government conspiracy. He rejected the view it may be related to his offending profile.
[20] He described the NDIS being engaged by his legal team. He said he was prepared to give them a fair go. He hoped to have things explained such as shopping and transport. Mr Wilmot was of the view there was no accommodation option going to be funded the NDIS. He said he “can’t get the ball rolling” until he has a release date.
[21] When the proposed ESO was broached, Mr Wilmot told me the conditions had been explained, he strongly disagreed with the process but that he had “no say”. He spontaneously added “if they make it too strict, it’s more likely I’m not going to comply which is natural”. He was of the view the process should be about his resettlement.”

Dr McSwiggan concluded:

“[86] Mr Wilmot has been shown to be an unremitting opportunistic offender with a disregard for potential sanctions. There are inherent difficulties managing risk with impulsive sexual offenders. Containment has not been effective to manage risk or as an effective deterrent.
[87] The risk of Mr Wilmot committing a further serious sex offence cannot be managed by an NDIS package. It is a health support service where Mr Wilmot has no obligation to participate. As it is currently funded, it provides for an hour or so a week, leaving Mr Wilmot to live independently in the community.

[88] Support workers would have no position to challenge Mr Wilmot, he can dismiss them. If there is intimidation of a support worker, the service and his housing provider can ‘pull out’ and withdraw their services and accommodation.
[89] At present there is no housing identified. Until this is resolved he will be limited in his options to have an address for an ESO. His needs will likely exceed others from custody.
[90] In the 2 years since the CDO was put in place, his progress has been to be charged with serious sexual offences, and still no accommodation option suitable and available to him. He has not progressed with his rehabilitation and or developed insight into his offending”.

Dr McSwiggan conducted her most recent assessment via AVL on 12 May 2023 over almost two hours. She was asked to provide a current assessment of the defendant’s risk of committing a further serious offence and whether her opinions expressed in her previous reports had changed. [17]
17. Affidavit of Jessie Slatery-Mcdonald, 28 April 2023, at [12].
In relation to the defendant’s Static 99R and 2002R scores, Dr McSwiggan noted that his scores “were higher than 99.7% of routine samples of individuals charged or convicted of a sexual offence”. [18] Using the assessment Static 2002/R(BARR/200R, for testing of general criminality, Dr McSwiggan noted the following:

“Mr Wilmot’s general criminality was at a level that was higher than 93% of the sample. In the same range as Mr Wilmot, the 5 year observed recidivism rate for general criminal offending was 46% and for violent (including sexual offences) the 5 year observed recidivism rate was 28%”. [19]
18. Report of Dr Sally McSwiggan, 23 May 2023, at [94].
19. Report of Dr Sally McSwiggan, 23 May 2023, at [95].

Using the Violence Risk Appraisal Guide, Dr McSwiggan assessed the defendant’s risk rate to be in the high range of High. Using the Sex Offender Risk Appraisal Guide the defendant was also estimated to be in the high range of High. [20]
20. Report of Dr Sally McSwiggan, 23 May 2023, at [97].
Dr McSwiggan stated that supervision of the defendant will be problematic, noting that he “seriously offended after less than a year in the community around 20 years ago and that since being in custody, he has attracted [REDACTED] custodial infractions suggesting a pattern that may well be repeated”,[21] the “circumstances of his offending seemed to have minimal thought in it. His history is an opportunistic offender. Interventions during custody do not appear to have substantially shifted his attitudes and behaviours”. [22]

The results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender’s participation in any such assessment: s 17(4)(c)

21. Report of Dr Sally McSwiggan, 23 May 2023, at [104].

22. Report of Dr Sally McSwiggan, 23 May 2023, at [119].

Dr Parker, Psychologist, prepared a comprehensive risk assessment report in June 2021. He concluded:

“[109] Through his upbringing and lengthy incarceration, Mr Wilmot has developed a set of deepseated antisocial beliefs. I believe it is these, rather than any underlying deviant sexual arousal, that drive his sexual and non-sexual offending. His psychopathic personality means that the normal inhibitions which restrain most people from offending, and most offenders from committing certain types of offences, are not operative, or are of lesser strength. For most people, guilt operates in a pre-emptive manner to dissuade people from behaviours they judge morally wrong (Parker, 2011) - the absence of guilt removes an important restraint against offending.
[110] Motivation to offend is best construed as net motivation - a surplus of drive motivations over restraint motivations, in the presence of opportunity (Parker, 2011). People with high scores on the PCL-R experience less internal restraint to crime and violence; consequently, less motivation is required for crime and violence to occur. Hence, while Mr Wilmot may not actively seek to sexually or violently offend, the threshold for it to occur is relatively low. The actuarial instruments used in this report place Mr Wilmot at a high risk of sexual, violent and general recidivism.
[111] While the actuarial instruments used in this report adopt a broader definition of recidivism than the "serious offence" used in the Act; the developers of the VRAG-R found that scores on its predecessor, the VRAG, were significantly correlated with " ... the severity of recidivistic offences (r = .21), and the seriousness of injuries caused (r = .35)" (Harris, Rice, Quinsey, & Cormier, 2015, p. 133). They noted that serious violence was predicted by the same factors as lesser forms of violence, and that the ability of the VRAG family of instruments " ... to predict violent recidivism, as assessed by ROC7 area, are unaffected by the adoption of even very extreme definitions [of recidivism] (e.g., murder committed within 6 months at risk)" (p. 316). Consequently, while the base rate of serious recidivism will be lower than the figures quoted earlier, groups of offenders with higher scores, on these instruments, should have higher rates of future serious offending than groups of offenders with lower scores. However, I am not aware of any empirical research investigating this concept among sexual offenders.
Risk scenarios
[112] The process of developing risk scenarios attempts to draw together the dynamic risk factors that contributed to the serious sexual offence, and to identify circumstances and situations where risk of re-offending may increase in the future. This is based on the case formulation developed above.
[113] Mr Wilmot has sexually offended in the community [REDACTED]. While the presence of antisocial peers is a risk factor, he has mostly offended on his own. His personality and his antisocial cognition would appear to be rather constant factors, which underpin his offending. A risk scenario would appear to be any opportunity where a potential victim is alone and Mr Wilmot is unsupervised.
Conclusions and Recommendations
[114] Mr Wilmot is a 48 year old man, who had a dysfunctional upbringing. He began committing crimes at an early age, and these escalated until, at 15 years of age, he was incarcerated for eight years, for his role in the abduction, sexual assault and murder of a young woman.
[115] At 23 years of age, he was released to the community, but quickly reverted to an antisocial lifestyle, committing four interpersonal offences within 20 months. The most serious of these was an incident where he detained a woman and had sexual intercourse without consent, but two of the others appeared to be sexually motivated. [REDACTED]. He has been incarcerated for most of his life and is currently serving a two year CDO.
[116] He is assessed as being high risk of committing further offences, if released unsupervised at the end of his current sentence. These offences include general, sexual and violent offences and could include serious offences.
[117] In the event that Mr Wilmot is subject to an Extended Supervision Order (ESO), he would receive intensive supervision and case management by CSNSW. This may include electronic monitoring, the obligation to provide weekly schedules of movement; unannounced visits by supervising staff; assistance finding suitable accommodation; scrutiny of social contacts, employment and leisure activities; and participation in ongoing psychological intervention from a CSNSW psychologist.
[118] Mr Wilmot has not been in the community for over twenty years and is institutionalised. Given his attitudes and personality profile it is difficult to know whether he would comply with the conditions of an ESO, and whether that level of supervision would be sufficient to contain any offending. However, he is unlikely to make more than minor improvements in custody. Substantial change, if he is to make it, would likely only occur in the community.
[119] Mr Wilmot was expelled from HISOP shortly before completion, but was considered to be unlikely to make further gains from that program if returned at that time. Since then he has been participating appropriately in individual intervention with a CSNSW psychologist. Some small gains have been made during this time, but not enough to make any significant impact upon his level of risk. If the Court is not satisfied that an ESO is capable of containing the risk sufficiently, it may consider imposing a further CDO. In such a scenario he could re-attempt HISOP and/or continue individual intervention.”

Pre 2021 psychological assessments were set out in my judgment, State of New South Wales v Wilmot (Preliminary) [2019] NSWSC 776 at [75] to [103]. These assessments cover 1999 to 2019. I recount that summary as it provides important diagnostic and other background relevant to the risk presented by the defendant due to his psychopathy and personality disorder:

“[75] The defendant was diagnosed in his early adult life as possibly suffering from schizophrenia, or some other psychotic illness, based on reports he made about hearing voices. Over time, a consensus of sorts developed that the defendant does not suffer from a psychotic illness although the management of difficult behaviours can be assisted with antipsychotic medication.
[76] The defendant has been diagnosed by numerous psychiatrists and psychologists as having a severe personality disorder with antisocial and aggressive traits, or an antisocial personality disorder. This personality disorder manifests in manipulative and aggressive behaviours, along with a propensity to violence and resistance to authority. The defendant also abused illicit substances, with intoxication likely to cause a greater loss of inhibition.
[77] Psychiatrists and psychologists who have assessed the defendant and provided opinions as to his functioning and risk of re-offending include the following.
[78] Dr Rod Milton (consultant psychiatrist): Dr Milton assessed the defendant in 1999. The defendant reported to Dr Milton that, before his arrest, he had established a normal life, that the authorities had taken an unfair attitude to him, and he did not know “how they can say I am a violent man”. When asked if he thought it would be all right to sexually assault a woman, the defendant stated “You’re looking at it in the law’s kind of way. In the law’s way it wouldn’t be right, but if you’ve had a hard time with women growing up, you’d probably think in your own mind it was all right”.
[79] Dr Milton assessed the defendant as “chronically a very dangerous person” whose risk was likely to persist into the foreseeable future (decades rather than years). The defendant was incapable of rehabilitation and saw others as being responsible for his offending. No treatment could be offered. An environment that provided support, restrictions, limitations on his antisocial behaviour and medication occasionally (when he broke with reality) was “the one likely to do the most for him”.
[80] Dr Yvonne Skinner (psychiatrist): Dr Skinner assessed the defendant in 2006. She detected no signs of cognitive difficulty or psychotic phenomena during assessment. In Dr Skinner’s view, he did not suffer schizophrenia or any other psychotic illness. Nor was he being prescribed antipsychotic medication. Although he reported hearing voices, his description of those did not fit that of auditory hallucinations of mental illness. The Defendant had an underlying severe personality disorder with borderline and anti-social traits arising from his background of emotional and physical abuse. He also had a problem with substance abuse (in remission). His personality and substance abuse problem influenced his offending with his substance intoxication causing a loss of inhibition. On release from the structured environment of prison, with drugs being available, he will find it difficult to cope and would require assistance.
[81] Ms Ruth Allen (psychologist): Ms Allen assessed the defendant in 2015. The defendant reported to Ms Allen he had seen a counsellor whilst on release to parole in 1996 to 1997 whom he trusted, but she had then spoken of her own rape experience and wore tight clothes and “giving him body messages” which unsettled him. When discussing his offences committed on 2 June 1998 (at the train station), he said he had “considered that she was sending body signals that she was sexually interested in him” but he now understood he misread the signals. He stated he had stopped when she said “no”.
[82] In Ms Allen’s view, the defendant did not have the cognitive or emotional insight to identify the seriousness of his offences or their impact on others. He appeared to confuse his emotional needs with sexual needs by “misreading the signals”. His emotionally isolated and abusive childhood had left him with a core experience of abandonment and no adequate parental figure to impart him sufficient understanding of healthy relationships. He would require a high level of support and monitoring on release, otherwise he would become isolated without support.
[83] Ms Laura O’Neill (forensic psychologist): Ms O’Neill prepared a psychological risk assessment report, dated 17 May 2018, at the request of the State Parole Authority . Ms O’Neill interviewed the defendant four times, extending over some 7 hours, in March and April 2018. Ms O’Neill reported that he presented with a limited range of emotions and poor insight generally. He denied responsibility for the index sexual offences [REDACTED] and minimised the gravity of the offending. Ms O’Neill said:
“[The defendant] denied responsibility for the index offences. [REDACTED].”

[84] Of his prior sexual offending, Ms O’Neill reported:
“[The defendant] also significantly minimised his prior sexual offending. Attempts to elicit detailed information about his prior sexual offences were unfruitful as [the defendant] denied responsibility for his offences and minimised his behaviour. With regard to his juvenile offending, [the defendant] stated that he could not recall them and that ‘it wouldn't have been anything major...it wasn’t rooting...maybe touching someone’. When questioned about his obscene exposure charge, [the defendant] reported that he was charged after urinating in public. He reported that he plead guilty to the sexual assault against the female railway employee as he confused it with a consensual sexual encounter he had with a female. He stated that when he saw the victim in court after pleading guilty to the offence, he realised that she was not the woman whom he’d had sex with. During discussions about his alleged offending, [the defendant] commented that he thought it was wrong that the law saw non-consensual penile-oral intercourse as the same as non-consensual penile-vaginal intercourse, and stated that ‘there's a lot of people that think the same way’. It appears that these attitudes may be used to justify his offending behaviour.
Throughout discussions, [the defendant] continued to deny that he has forced himself sexually on anyone, stating that ‘most people just do it (engage in sexual behaviour with him)… they don't give any sign that they don't want it’. When challenged, he did acknowledge that others ‘most probably’ were intimidated by him. Despite this acknowledgement, he then proceeded to state that they should have made their lack of consent known. On another occasion, he reported that if a person does not say no, and further sexual behaviour occurs, then they must be consenting. These comments indicate that [the defendant] has significant treatment needs regarding understanding consensual sexual behaviour and the minimisation of his offences”.

[85] Ms O’Neill assessed the defendant’s risk of sexually re-offending by reference to actuarial and other instruments.
[86] Using the STATIC-99R actual risk assessment tool, the defendant scored a ‘9’, which put him in the category of “Well Above Average” risk, being the equivalent to the former category of ‘High Risk Level’. The rate of recidivism for individuals with that score is estimated to be about 7 times higher than the rate of recidivism of the ‘typical’ sex offender.
[87] Using the STABLE-2007 risk assessment tool, the defendant scored a ‘19’ which indicated a high density of criminogenic needs relative to other sexual offenders. The stable dynamic risk factors indicated for him included:
a.   capacity for relationship stability – lack of a significant long-term partner and a history of mistrust and superficial relationships.
b.   hostility towards women – significant file information evidenced his hostility to women. He acknowledged problems communicating with them and appeared to sexualise his encounters with them, including innocent behaviours (e.g. talking to him). He appeared to alternate between idealisation and devaluation of women.
c.   impulsivity – this has been a factor in his past offending and in his difficulties with relationships.
d.   poor problem-solving skills – he blames others for his problems and minimises his role in situations. He also had vague plans for the future.
e.   negative emotionality – this is the strongest risk factor. He sees himself as a victim of the system and ruminates on perceived injustices and appears vulnerable to emotional collapse when stressed. These attitudes have led to offending.
f.   sexual preoccupation – he has extensive sexual offending behaviour, including that in custodial environments, suggestive of sexual preoccupation. He admitted a ‘fairly high sex drive in the past’. Although he reported decreases in that drive in the past five years with less frequent thinking about sex, that appeared contradictory to recent concerns of staff about his desire to be placed with young cellmates. Given his primary interest is in adult females, his sexual drive might change on release to the community when surrounded by individuals within his primary interest group.
g.   sexual deviance – his offending on at least eight sex offence victims, two of which would be considered deviant under the STABLE-2007 definition, indicate deviance as a risk factor.

[88] In terms of stable dynamic risk factors somewhat or partially present:
a.   significant social support and general social rejection – he appeared to have difficulty trusting others and has developed few relationships. Whilst he has a few current support people, some of whom are considered positive, he reported being happy having alone time.
b.   lack of concern for others – he presented in his discussion of others as self-focused and showed limited victim empathy.
c.   sexual coping – there is some suggestion he engaged in some sexual offending whilst upset (an issue requiring further exploration in treatment).
d.   poor co-operation with supervision – he continues to demonstrate poor attitudes towards authority figures throughout his life although appears motivated to gain release and willing to engage in recommended programs.

[89] In Ms O’Neill’s view, the defendant presented as highly institutionalised and lacking in specific skills and knowledge about life in the community. He had recently reported anxiety about the prospects of release. He had not engaged in external leave programs. Such leave would be critical to reducing his anxiety and improving his prospects of re-integration on release.
[90] Ms O’Neill said in her assessment:
“The results of the current assessment estimate that [the defendant] presents as being a high risk of future sexual offending based on the combined risk rating from his Static-99R and STABLE-2007 risk assessments. He has a high level of treatment needs, including addressing his attitudes toward women, understanding of consent. his sexual self-regulation, poor coping and problem solving skills, impulse control management, and his perception that others are responsible for his problems.”

[91] More proximate risk factors were difficult to determine. His perception of rejection by a female may lead to increasing hostility to women and impulsive acts to get his needs met. He may also cease associating with positive supports.
[92] Ms O’Neill considered his completion of the CUBIT program before release was a priority. His pattern of externalising responsibility for poor behaviour to others means he avoids changing his behaviour. Ms O’Neill considered this will pose a challenge in the CUBIT therapy and for those supervising.
[93] In terms of future recommendations, placement in the Nunyara Community Offender Support Program (COSP) would be an appropriate short-term accommodation placement upon release, and thereafter other support accommodation such as that provided by Foster House. Staff should continue to monitor his behaviour to female and male staff and co-residents. The defendant also required the assistance of an intensive case management service such as the Community Restorative Centre to assist his transition into the community. Conditions mandating abstinence from drugs and alcohol were also recommended.
[94] Dr Richard Parker (senior psychologist): Dr Parker assessed the defendant in February 2019, to prepare the Risk Assessment Report (“RAR”). Regarding his offending on 2 June 1998, the defendant claimed this was a consensual encounter where “one thing led to another” and that he thought nothing of it at the time.
[95] Using the Psychopathy Checklist-Revised (PCL-R), Dr Parker assessed the defendant as scoring in the ‘high’ range of psychopathy. That score was on the cusp of the figure commonly used for diagnosis of psychopathy in North America (at [36]). The psychopathic personality may be more concerning than a diagnosis of antisocial personality disorder regarding the person’s capacity to inhibit his potentially harmful behaviours in future. Essentially, psychopathy supplies disinhibition or a willingness to break rules.
[96] In terms of actuarial and risk assessment instruments, Dr Parker recorded the defendant had been assessed:
a.   in January 2007, using the Level of Service Inventory-Revised (LSI-R), to fall within the High-Risk range of general reoffending. This actuarial instrument indicates a level of risk of general and violent recidivism within 12 months of release and an offender’s needs in terms of supervision.
b.   in May 2016, using the STATIC-99R, to score ‘8’ which placed him in the ‘well-above average risk’ category, the risk range formerly called ‘high’. His score fell in the 99th percentile, with about 1% of sex offenders having a similar score. Sexual recidivism rates of individuals with the same score would be expected to be 7.3 times that of the ‘typical’ sex offender.
c.   in June 2018, using the STABLE-2007 (which assesses criminogenic needs of an offender relative to other sex offenders), to score ‘19’, which placed him in a high-risk category. Combining the STABLE-2007 and STATIC-99R scores to generate an ‘overall risk level’, The defendant’s scores put him in the ‘well above average risk’ category.
d.   in February 2019, using the VRAG-R (actuarial instrument about violent offending), to fall in the ninth of nine bins. Of the violent offenders falling within that bin with a similar score, 76% of reoffended violently within 5 years and 87% within 12 years.

[97] Regarding self-regulation, the defendant appeared unable or unwilling to regulate his desires generally and not just in relation to his sexual desires.
[98] Regarding intimacy deficits his childhood was marked by a lack of stable and competent care-givers. He had spent the majority of his adult life in custody and there had been an absence of long-lasting relationships involving deep levels of intimacy.
[99] Regarding social supports, the defendant had not had contact with his mother since the early 1990s. He had no contact with his siblings and has very limited contacts in the community. The Nunyara COSP appears to be the most suitable accommodation placement on his return to the community.
[100] Regarding supervision, the defendant had superficially complied with Community Corrections and reverted to serious offending within a year of his release. His behaviour in custody since then suggested this pattern “may well be repeated”.
[101] Dr Parker said at [100]-[101]:
“Through his upbringing and lengthy incarceration, [the defendant] has developed a set of deep-seated antisocial beliefs. I believe it is these, rather than any underlying deviant sexual arousal, that drive his sexual and non-sexual offending. His psychopathic personality means that the normal inhibitions which restrain most people from offending, and most offenders from committing certain types of offences, are not operative, or are of lesser strength. For most people, guilt operates in a pre-emptive manner to dissuade people from behaviours they judge morally wrong (Parker, 2011) – the absence of guilt removes an important restraint against offending.
Motivation to offend is best construed as net motivation – a surplus of drive motivations over restraint motivations, in the presence of opportunity (Parker, 2011). People with high scores on the PCL-R experience less internal restraint to crime and violence; consequently, less motivation is required for crime and violence to occur. Hence, while [the defendant] may not actively seek to sexually or violently offend, the threshold for it to occur is relatively low. The actuarial instruments used in this report place [the defendant] at a high risk of sexual, violent and general recidivism.”

[102] Dr Parker further said:
“He is currently participating in the HISOP program, but is unlikely to finish this much before the end of his sentence. He is assessed as being high risk of committing further offences, if released unsupervised at the end of his current sentence”.

[103] Regarding risk scenarios, Dr Parker said:
“[The defendant] has sexually offended in the community and in custody. While the presence of antisocial peers is a risk factor, he has mostly offended on his own. His personality and his antisocial cognition would appear to be rather constant factors, which underpin his offending. A risk scenario would appear to be any opportunity where a potential victim is alone and [the defendant] is unsupervised.”

The results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence: s 17(4)(d)

These statistical assessments have been covered above in my discussion of Dr Eagle and Dr McSwiggan’s reports and the various assessments set out in [45] of this judgment. In short, the defendant’s risk is in the highest range of sexual, violent and general recidivism.

Any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community: s 17(4)(d1)

The affidavits of Ms Coe an Mr Gaffney make it clear the defendant’s risk cannot be managed in the community at this stage without appropriate supervised accommodation and the extensive “wrap around” services identified. These affidavits supersede the risk management report prepared in July 2021 by Ms Robinson.

Any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender’s participation in any such programs: s 17(4)(e)

The situation as at 26 July 2019 was covered in my final judgment in 2019 at [59] to [60]:

“[59] The position was updated at the final hearing by the HISOP report of Ms Holden dated 26 July 2019. Ms Holden noted that the defendant was unwilling to discuss most of his criminal offending. Ms Holden noted however that he was able to demonstrate significant improvements in his engagement and emotional regulation, when compared to his past behaviour.
[60] Ms Holden assessed the defendant as within the highest category of risk of re-offending (Level IVb). There is no plan for the defendant to engage further with HISOP:
“In his most recent attempt at treatment, Mr Wilmot was removed from the treatment wing prior to fulfilling all program requirements. He was discharged due to: ongoing difficulties managing aggressive behaviour; poor insight and resistance to planning for the future; limited willingness to discuss sexual offending; and concerns about his ability to control his behaviour in the context of increasing agitation and aggression. Whilst Mr Wilmot has not completed all aspects of the program it was also noted that he had likely achieved as much as he would at this time and that he would not gain anything further from re-entering HISOP at this time”.
(HISOP is a reference to the High Intensity Sex Offender Program).

It appears to me on my reading of the more recent OIMS notes and other 2022/2023 material, staff are “working around” the defendant, leaving him alone and requiring nothing of him. An OIMS note dated 27 January 2022 stated: “Wayne has not completed any further programs or intervention activity refusing all suggestions of engagement…”. His AVL sessions with Ms Lau, Psychologist ceased in April 2022 after two years. The next one-on-one psychologist provided appears to have only conducted three sessions and no therapeutic relationship was established.

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: s 17(4)(e1)

Nothing has been identified other than one-on-one psychologist counselling and the more intensive steps set out in Ms Coe’s affidavit reproduced at [22] in this judgment. It remains to be seen whether the defendant will cooperate with those proposals.

Whether it is satisfied that the offender is likely to comply with the obligations of an extended supervision order: s 17(4)(e2)

I have significant doubts that the defendant will cooperate. The defendant has repeatedly commented about what he will and will not accept. He has an unrealistic expectation that he and his lawyers can “negotiate” conditions to what the defendant thinks is acceptable. He also said to Ms Lau on 27 April 2021 that if the ESO is too strict, he “might run, because what’s the point”. He said something similar to Dr McSwiggan in September 2021.

Without limiting paragraph (e2), the level of the offender’s compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an interim supervision order or an extended supervision order: s 17(4)(f)

The defendant has not been on parole or released on any basis for 25 years. When last on parole and then bail, he committed four separate random violent attacks on four women and afterwards repeatedly denied or minimised these attacks as “consensual” or “misunderstandings”.

The offender’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history: s 17(4)(h)

This has been set out in [6] of this judgment. The pattern of offending is opportunistic, versatile, violent and without any insight or remorse despite years of incarceration programs and supportive counselling.

The views of the sentencing court at the time the sentence(s) of imprisonment was (were) imposed on the offender: s 17(4)(h1)

This consideration was addressed in State of New South Wales v Wilmot (Preliminary) [2019] NSWSC 776 at [55] to [59] and that summary remains relevant:

“[55] In sentencing the defendant on 22 March 1990 for the offences committed regarding Janine Balding, Justice Wood found the defendant to be ‘highly institutionalised’ and to lack the social skills and problem-solving abilities for stable community living remains relevant. The defendant was described as having no family or pro-social supports in the community and historically as having failed in forming deep intimate relationships. Those findings remain relevant.
[56] In sentencing the defendant on 9 June 2000 for the offences committed in 1997 and on 29 June 1998, Judge Graham noted the psychiatric opinion of Dr Milton that the commendable efforts of in custody therapeutic providers during the period 1989 to 1996 had “made no difference” and Dr Milton’s opinion that the defendant was “quite incapable of engaging in rehabilitation”. His Honour considered the defendant’s prospects of rehabilitation to be “very guarded”.
[57] In sentencing the defendant on 27 February 2006 for the 2 June 1998 offences, Judge Marien found that the victim “was subjected to extreme brutality and sexual violation” by the defendant. That offending had had a devastating impact on the victim’s well-being. His Honour appeared to accept the psychiatric opinion of Dr Yvonne Skinner that the defendant suffered a severe personality disorder with borderline and anti-social traits and a substance abuse problem (said to be then in remission) and described Dr Skinner’s view of the defendant’s prospects of rehabilitation as not being ‘optimistic’. His Honour further said:
“On all the material before me, and particularly as the Crown described, the chilling similarities in the nature of the offending by this Offender against defenceless women, I am satisfied beyond a reasonable doubt that there is a high risk that he will re-offend upon release”.

[58] On 1 March 2007, the Court of Criminal Appeal dismissed the defendant’s appeal against the severity of the sentence imposed by Judge Marien. Bell J (with whom Sully and Buddin JJ agreed) relevantly said:
“The applicant has a criminal history including for the commission of serious offences of violence against women. He has failed to comply with the conditions of parole and bail. He has an underlying severe personality disorder with borderline antisocial traits. His history of alcohol abuse may have influenced his criminal behaviour and he lacks insight into this condition. Dr Skinner considers that when he is out of the structured prison environment the applicant is likely to have difficulty in coping. It was open to the Judge to assess the applicant’s prospects of rehabilitation as he did”.

[59] In sentencing the defendant on 27 November 2015 for the 2012 offences, Judge Townsden found that the defendant continued to show a lack of insight into his offending behaviour, that he presented as “institutionalised”, and there was a clear need for intensive intervention in the community upon his release.”

Decision

It was common ground that the material tendered by the plaintiff was sufficient to satisfy the Court to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept in detention under the order.
The alternative initially proposed by the defendant of an ESO of some unspecified length was not pressed at the hearing, Mr Johnston SC recognising, responsibly and appropriately, that there was no accommodation that would accept the defendant unless and until certain arrangements for extensive direct supervision and support were in place and so an ESO was out of the question.
There is more work to be done by the State, but some of this preparation work requires the defendant’s cooperation.
Rehabilitation is a two-way street. It requires effort and cooperation by the defendant, not a sitting back and criticising anything that does not suit him, or alternatively, becoming aggressive or walking out of sessions arranged to this end. This has been the defendant’s repeated behavioural pattern to date.
The defendant seems to be under the seriously mistaken impression that he can dictate the terms of his release. He has declared that he will only cooperate with the NDIS or organisations that he apparently thinks he can manipulate and that are separate to the Department of Corrective Services.
I accept that rehabilitation of an offender can facilitate protection of the public, but this defendant needs to recognise that he has to participate and cooperate in that rehabilitation. I acknowledge that the more recent OIMS notes often repeat as a daily report that the defendant is “compliant with unit routine” and “respectful towards segregation staff”. It seems however that whenever anything is required of him that he does not want to do, or does not agree with, that response changes dramatically and he becomes abusive and threatening.
The OIMS notes and other notes and assessments over the years are replete with complaints by the defendant that “the system” is the problem, that Corrective Services did not alter his classification to the level he thinks it should have, and that the State has let him down because it is not ready to provide the intensive level of direct supervision the defendant would require before he could be considered for release on an ESO.
The defendant needs to recognise that these difficulties were and are created by himself. They are a result of the nature and extent of his appalling offending and his violent, offensive and uncooperative behaviour in custody.
I have not lost sight of the role of rehabilitation in the Act, but safety of the community is paramount, and that is why I have concluded that the order sought for a 1 year CDO should be made.
The expert evidence remains unanimous that the defendant is insightless, remorseless, and his expectations of life on release are short-sighted and unrealistic.
His attitudes regarding sex, women and consent are particularly troubling and entrenched and betray a very high risk of future serious sexual offending. In 2020 when discussing the issue of consent with his trusted psychologist Ms Lau, he stated that he believes people in the community do not actually obtain consent prior to engaging in sexual activities.

“He stated that he had spoken to many males previously who confirmed his opinion about this. He stated that believes if he were to have met a woman in the community, and they progressed to some level of physical intimacy (e.g. kissing), if he were to ask whether she would consent to having sex with him he would “blow my chances” and that the woman would not be interested in engaging in sexual activities with him. Mr Wilmot stated that his HISOP treating psychologist has previously spoken to him about the importance of obtaining consent, but he believes that this is only the opinion of females”.

I am not at all confident that the defendant will cooperate with the steps required of him as set out in the evidence of Ms Coe and Mr Gaffney. If he does not cooperate, this will cause delays. I am not at all confident the necessary steps and arrangements can be accomplished within 6 months, despite what Ms Coe ended up stating in cross-examination, even if the defendant does cooperate.
However the task I am assigned under the Act is not to design the length of CDOs around how long is required to set up a hypothetically acceptable arrangement in the community so that the defendant’s release into that arrangement can be considered.
The task is to consider the application made on the basis of the evidence tendered. That evidence supports to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sexual offence if not kept in detention under the order. The 12 month CDO sought by the Crown should be made.
The defendant must recognise that he bears a high degree of ongoing responsibility for what will be the nature of the next application made by the State 12 months from now.

Orders

I make the following orders:

Pursuant to s 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 (NSW) the defendant is subject to a continuing detention order for a period of 1 year commencing 10 June 2023 and expiring on 9 June 2024.

Pursuant to s 20(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) a warrant is to be issued for the committal of the defendant to a Correctional Centre for the purpose of order (1).

**********

Endnotes

Decision last updated: 09 June 2023

Medium Neutral Citation:	State of New South Wales v Wilmot (Final) [2023] NSWSC 605
Hearing dates:	01 June 2023
Date of orders:	07 June 2023
Decision date:	07 June 2023
Jurisdiction:	Common Law
Before:	Lonergan J
Decision:	(1) Pursuant to s 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 (NSW) the defendant is subject to a continuing detention order for a period of 1 year commencing 10 June 2023 and expiring on 9 June 2024. (2) Pursuant to s 20(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) a warrant is to be issued for the committal of the defendant to a Correctional Centre for the purpose of order (1).
Catchwords:	HIGH RISK OFFENDER – Final hearing – Application for continuing detention – serious violent and sexually violent offender – history of random attacks on women and vulnerable persons – lack of insight – psychopathic traits – unwilling to acknowledge past offences – community safety paramount concern – CDO imposed
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW)
Cases Cited:	State of New South Wales v Wilmot (Final) [2019] NSWSC 1276 State of New South Wales v Wilmot (Preliminary) [2019] NSWSC 776 State of New South Wales v Wilmot (Preliminary) [2021] NSWSC 1189
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) Wayne Wilmot (Defendant)
Representation:	Counsel: I Fraser (Plaintiff) M Johnston SC / D Bhutani (Defendant) Solicitors: Crown Solicitor’s Office (Plaintiff) Ryan Payten Le (Defendant)
File Number(s):	2021/00213919
Publication restriction:	Nil