State of New South Wales v Wilmot (Preliminary)

[2024] NSWSC 354

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of New South Wales v Wilmot (Preliminary) [2024] NSWSC 354

Hearing dates:

4 April 2024

Date of orders:

4 April 2024

Decision date:

05 April 2024

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

Interim and interlocutory relief

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

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

(b) directing the defendant to attend those examinations.

(2) An order:

(a) pursuant to s. 10A of the Act, that the defendant be subject to an interim supervision order from [redacted] upon [redacted] (the interim supervision order);

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

(c) pursuant to s. 11 of the Act, directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule to this Summons.

Ancillary relief

(3) An order that access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application of access.

(4) The parties are to provide an electronic copy of short minutes of order for endorsement by close of business on 5 April 2024.

(5) Reasons reserved until 5 April 2024.

(6) The matter is listed before the High Risk Offender List Judge for Directions on Thursday, 11 April 2024 at 9:30am

Catchwords:

HIGH RISK OFFENDERS – high risk sex offender – offender with long history of violent sexual offending - application for interim supervision order – continuing detention order previously imposed on defendant – no opposition to preliminary orders – orders made

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 (Final) [2023] NSWSC 605

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Wayne Wilmot (Defendant)

Representation:

Counsel:
A Mykkeltyedt (Plaintiff)
M Johnston SC with D Bhutani (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Ryan Payten Le (Defendant)

File Number(s):

2024/00086297

Publication restriction:

Nil

JUDGMENT

1. WILSON J: By summons filed on 5 March 2024 the State of New South Wales asks the Court to impose an extended supervision order (“ESO”) upon the defendant, Wayne Wilmot, pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). On 4 April 2024, the Court heard the initial aspect of the application, dealing with prayers 1 and 2, together with an application for ancillary relief relating to access to the Court’s file. The defendant did not take issue with the orders sought by the State, or with the conditions of supervision suggested.

2. In the absence of any issue with the preliminary orders sought, prayers 1, 2 and 5 of the summons can be dealt with relatively expeditiously.

The Preliminary Application

3. The State’s preliminary application is for the defendant to be assessed by two experts appointed by the Court for that purpose pursuant to s 7(4) of the Act, and for him to be made subject to an interim supervision order (“ISO”) pursuant to s 10A, which will take effect upon [redacted].

4. The defendant concedes that the statutory preconditions for the making of an order are satisfied. That is, he has served a period of imprisonment for a serious sexual offence (s 5B(a) of the Act); he is a supervised offender (s 5B(b)); and the application meets the requirements set out in s 5I (s 5B(c) of the Act). He does not wish to be heard with respect to the statutory test for the making of the interim order provided by s 5B(d).

5. As those concessions suggest the evidence tendered by the State meets the statutory pre-conditions applicable to the application and, further, is such that I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision. I propose to make the interim orders.

6. The State relies upon affidavits of Penelope Smith affirmed on 5 March 2024, producing a volume of evidentiary material exhibited as Ex. PS-1; an affidavit of Jessica Slattery-McDonald affirmed on 14 March 2024; and a further affidavit of Ms Slattery-McDonald of 2 April 2024.

7. Ms Smith’s affidavit deals with procedural and historical matters and, importantly, provided the Court with the bulk of the evidentiary material relied upon by the State in support of the application. Of most interest for present purposes of the documentation are the judgments of Lonergan J from 2019 and 2023 with respect to the imposition of two earlier CDOs, and the risk assessment and risk management reports prepared with respect to the present application.

8. The two earlier judgments of the Court, State of New South Wales v Wilmot (Final) [2023] NSWSC 605 and State of New South Wales v Wilmot (Final) [2019] NSWSC 1276, are a matter of public record and accessible on the NSW Caselaw website. It is not intended here to reproduce the contents of the judgments, but they make for essential reading with respect to the present application and should be taken as incorporated into this judgment. In the 2019 judgment, Justice Lonergan set out (at [3]) the defendant’s extensive and deeply troubling offending history, and in both she detailed his long years of incarceration, and observations and assessments made of him during that time.

9. In the 2019 judgment, Lonergan J, with the benefit of expert reports and oral evidence from both Dr Kerri Eagle, forensic psychiatrist, and Jenny Howell, forensic psychologist, together with a great deal of other documentary evidence, concluded (at [118]) that the defendant posed an unacceptable risk of committing a serious offence if not kept in detention. In the 2023 judgment, having received expert evidence from Dr Eagle and Dr Sally McSwiggan, consultant neuropsychologist, together with other, extensive, evidence, Her Honour came to that same conclusion, at [55] and [63]. She noted at [53] of the 2023 judgment that the defendant’s “pattern of offending is opportunistic, versatile, violent and without any insight or remorse despite years of incarceration programs and supportive counselling”, and that he continued to present a very high risk to others that, in the absence of active co-operation from him towards his rehabilitation, would likely endure.

10. Steps have been consistently taken by Corrective Services NSW (“CSNSW”) to prepare the defendant for eventual release into the community. An agreed statement of facts prepared by the parties notes that the following measures have been implemented:

“a. developing a reintegration plan with the input of various internal and external stakeholders;

b. taking steps to facilitate the defendant's participation in employment programs and work readiness;

c. arranging accommodation […];

d. scheduling additional training for [staff at the nominated accommodation] tailored to the needs of the defendant;

e. providing one on one psychological services via Dr Richard Parker approximately 2- 3 times per month since July 2023;

f. meeting with the defendant on a monthly basis to familiarise him with community expectations and supervision arrangements following his release if an ESO is granted;

g. developing Community Management Guidelines intended to support staff interacting with the defendant; and

h. various steps to facilitate the defendant's access to [National Disability Insurance Scheme] support.”

11. Support through the National Disability Insurance Scheme (“NDIS”) has in fact been obtained, and will provide the defendant with, among other things, eight hours of support for assistance with daily life each week and 16 hours weekly of assistance with social, economic and community participation, as well as access to behaviour and health support professionals. The funding for this support will continue, at this stage, until 11 January 2025.

12. Despite the level of assistance provided to the defendant to date, in custody and to prepare him for life in the community, the concerns identified by Lonergan J in 2023 remain matters of concern, as a risk assessment report (“RAR”) of 20 November 2023 reveals. In that report, prepared by Sarah Wright, a forensic psychologist with the High Risk Offender’s Team, the risk posed by the defendant for violent re-offending was assessed as high; whilst the risk for sexual reoffending was placed at well above average.

13. Ms Wright set out the defendant’s personal and social history, drawn largely from the documentary record, as the defendant expressed an unwillingness to revisit his past. Much of that past has been spent in custody, the defendant having commenced his history of sexual offending at the age of 13 years. As that fact suggests, the defendant’s upbringing was dysfunctional and anti-social. At the age of five he was made a State Ward as an “uncontrollable child”, and experienced impermanent and abusive care thereafter. At the age of nine the defendant was homeless; by 10 he was committing acts of fatal animal cruelty. He was diagnosed with a Severe Conduct Disorder and it was correctly predicted then by treatment professionals that he would become an adult with a well defined anti-social personality disorder. He has been diagnosed with such a disorder, and a borderline personality disorder. His overall diagnosis is one of Severe Personality Disorder.

14. He has a disturbing history of sexual offending which he continues to deny or minimise, according to Ms Wright’s report. He has no insight into the risk he poses to others, and refused to acknowledge a need for risk management strategies. In custody, he has been designated as an Extreme High Security prisoner and managed by the Serious Offender’s Review Council. He has a history of violence and aggression to institutional staff. The defendant accepts that the imposition of an order is inevitable, but regards it as “bullshit” nevertheless ([47] of the RAR).

15. Ms Wright recorded some specific matters relevant to the level of risk the defendant poses to others, including the following features.

1. The defendant is a recidivist sex offender, with “persistent and frequent” offending, using threats, weapons and violence as necessary.

2. He has negative and sexist views of women and is supportive of sexual violence towards women, deeming them to deserve sexual violence depending upon their clothing, level of intoxication, or perceived permissiveness.

3. The defendant has no concern or empathy for others and expresses a sense of entitlement, to simply take whatever he wants. He demonstrates psychopathic personality traits, a “robust predictor” of violence and criminality.

4. He consistently denies or minimises his sexual offending, this being a barrier to treatment and rehabilitation, and has no insight.

5. The defendant’s few friendships are, with one exception, unsuitable, and he has limited support. Childhood trauma has had an adverse impact on his capacity to form and maintain positive relationships with others.

6. He has little or no capacity to regulate his own conduct and is impulse driven. A history of substance abuse may further compromise impulse control. In the past, the defendant has resorted to violence and aggression to achieve his ends, and he seems to have given little attention to the need for other, lawful, problem solving mechanisms.

7. The defendant continues to display anti-social attitudes, and his self identity rests in being “an old school crim”, an identity he sees no need to alter. He regards other criminals as the only appropriate friends and associates and is not interested in friendships with those not involved in the criminal milieu. He has asserted, however, that he will choose not to engage in criminal activity in future.

8. Despite the length of time over which the defendant has been exposed to treatment and rehabilitation he appears to have made no meaningful gains. He has consistently failed to comply with supervision. He has, however, co-operated with the Corrective Services officer who is assisting him with preparations for release from custody.

16. Ms Wright considers that any risk scenario for the defendant is most likely to involve a penetrative sexual attack upon a young woman previously unknown to him. Any offence would probably be impulsive, opportunistic, and target a vulnerable woman. Physical coercion and threats would likely be employed. The risk of such a scenario eventuating is well above average. The risk of violent re-offending is even higher. Ms Wright is doubtful as to the defendant’s capacity to manage his risk by his stated intention of living a life free of crime, and views a high level of supervision as essential to support that intention.

17. What is necessary to manage the risk posed by the defendant has been considered by Jason Saad, an officer with the Extended Supervision Order Team. His risk management report (“RMR”) of 6 December 2023 is part of Ex. PS-1. Mr Saad noted the defendant’s conduct history in custody, which can be summarised as very poor, involving as it does institutional and serious criminal offences committed in the institutional environment, and apparently unmitigated by the numerous programmes he has been required to attend.

18. The plan devised to manage the risk he poses in the community will involve considerable supervision and support from relevant agencies. It is intended that he be accommodated upon release in a supervised environment and be required to engage on a weekly basis with supervising staff. Supervision will be at a high level, with the defendant required to adhere to a schedule of movements, observe a curfew, and wear an electronic monitoring device. Place and travel restrictions will be put in place as necessary, as will non-association conditions. Access to the internet, alcohol and drugs will be the subject of restrictions, and the defendant will be obliged to submit to a search and seizure regime to monitor compliance. He will be required to accept appropriate treatment and therapy, and his use of his finances will be monitored.

19. The defendant will be encouraged to pursue suitable accommodation in the longer term, and opportunities for employment.

20. The affidavits of Ms Slattery-McDonald are directed to practical matters connected with arrangements for the defendant’s release into the community. It is clear that considerable planning and effort has gone into facilitating the defendant’s safe return to community life, and his supervision and treatment when at liberty.

Conclusion

21. As observed at the outset, the evidence readily supports the State’s application. The orders sought are essential to protect the community and to manage the significant risk that the defendant poses to others, particularly the risk that he will commit a serious sexual offence, and they should be made. The conditions are appropriate and necessary and will also be imposed.

orders

22. The relief sought by prayers 1, 2 & 5 of the Summons filed on 5 March 2024 is granted. The orders of the Court are:

Interim and interlocutory relief

1. An order pursuant to s. 7(4) of the Act:

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

2. directing the defendant to attend those examinations.

2. An order:

1. pursuant to s. 10A of the Act, that the defendant be subject to an interim supervision order from [redacted] upon [redacted];

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

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

Ancillary relief

3. An order that access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application of access.

4. The parties are to provide an electronic copy of short minutes of order for endorsement by close of business on 5 April 2024.

5. Reasons reserved until 5 April 2024.

6. The matter is listed before the High Risk Offender List Judge for Directions on Thursday, 11 April 2024 at 9:30am.

SCHEDULE OF CONDITIONS OF SUPERVISION

WAYNE WILMOT

In these conditions:

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

“CSNSW” means Corrective Services NSW.

“Commissioner” means Commissioner for Corrective Services.

“Defendant” means WAYNE WILMOT, the defendant in these proceedings and the subject of the order.

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

“Electronic Identity” means each of the following:

1. an email address;

2. a user name or other identity allowing access to an instant messaging service;

3. a user name or other identity allowing access to a chat room or social media on the internet; and

4. any other user name or other identity allowing access to the internet or an electronic communication service.

“Material” includes:

any written or printed material;

5. any picture, painting or drawing;

6. any carving, sculpture, statue or figure;

7. any photograph, film, video recording or other object or thing from which an image may be reproduced;

8. any computer data or the computer record or system containing the data; and

9. any other material or object on which an image or representation is recorded or from which an image or representation may be reproduced.

“NSWPF” means NSW Police Force.

“Search” includes:

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

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

“Schedule of movements” refers to a weekly plan (referred to in Conditions 7-9), to be submitted to a DSO each Wednesday and which commences on the following Saturday if approved by a DSO.

Part A: Reporting and Monitoring Obligations

Monitoring and Reporting

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

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

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

1. where you are or have been;

2. where you are going;

3. who you are with or have been with;

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

5. the nature of your associations.

4. You must not engage in any threatening, intimidating or abusive behaviour towards CSNSW or electronic monitoring staff involved in your supervision that would cause the staff member to fear for their safety and/or interfere with or impede supervision.

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

Electronic Monitoring

6. You must wear electronic monitoring equipment as directed by a DSO and must not tamper with or remove the equipment.

Schedule of Movements

7. If directed, you must provide a schedule of movements.

8. If you want to change anything in your schedule of movements once it is approved by a DSO, you must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period.

9. You must not deviate from your schedule of movements except in an emergency.

Part B: Accommodation

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

11. You must be at your approved address between [9PM] and [6AM] unless other arrangements are approved by a DSO.

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

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

14. You must promptly notify a DSO of any visitor entering and remaining at your approved address.

15. You must not permit any person to stay overnight at your approved address (other than persons who ordinarily reside there) without the prior approval of a DSO.

16.  The defendant must comply with rules or by-laws (or both) of any approved accommodation for the defendant. 

Part C: Place and travel restrictions

17. You must surrender any passports held by you to the Commissioner, must not be in possession of any passports, and must not attempt to apply for any passports.

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

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

20. Without limiting condition 19, you must not go to any of the following places without the prior approval of a DSO:

1. Parks.

21. You must not attend any place used solely or mainly for the sale or display of sexually explicit material, or for providing sexual services or sexually explicit entertainment, without the prior approval of a DSO. 

Part D: Employment, finance and education

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

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

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

Part E: Drugs and alcohol

25. You must not:

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

2. Possess or use prohibited drugs; or

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

26. You must submit to drug and alcohol testing.

27. You must not enter any licensed premises (including hotels, bars, racecourses and licenced clubs, but excluding cafes and restaurants) without the prior approval of a DSO.

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

Part F: Non-association

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

30. Without limiting condition 29, you must not associate with any person:

1. who you know is consuming or under the influence of alcohol without the prior approval of a DSO;

2. who you know is consuming or under the influence of illegal drugs; or

3. held in custody without prior approval of a DSO.

31. You must not engage the services of sex workers without the prior approval of a DSO.

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

33. You must obtain written approval from a DSO prior to joining or affiliating with any club or organisation.

33A     You must not have custody of a companion animal or pet without the prior approval of a DSO.

Part G: Weapons

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

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

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

35. Without limiting or altering condition 34, you must not possess or use any of the following, without a DSO’s prior approval:

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

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

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

NOTE: Condition 35 does not apply to knives for ordinary domestic use.

Part H: Access to the internet and other electronic communication

36. You must obey any reasonable direction by a DSO about the use of electronic devices and access to the internet.

37. You must disclose the following information to a DSO if directed:

1. Aliases, electronic identities and log-in names;

2. Email addresses;

3. Telephone numbers;

4. SIM cards;

5. Applications used (including any social networking service);

6. Online gaming services;

7. Instant messaging services;

8. Service provider account numbers; and

9. All passwords and log-in details.

38. You must not use any of the following unless approved by a DSO:

1. Social networking applications or services (including dating services or applications);

2. Encrypted messaging applications or services;

3. Online gaming applications or services;

4. Instant messaging applications or services.

39. You must give a DSO a list of the electronic devices you use to communicate with or access the internet. This includes computers, phones, tablet devices, data storage devices and gaming devices. You must advise a DSO of any change to the list immediately.

40. You must only use an electronic device to access the internet after the device has been disclosed to a DSO and the device has been seen and approved for use by a DSO.

41. You must provide consent for a DSO (or any other person requested by a DSO) to remotely inspect any internet account used by you, including any internet service provider account, email accounts and social media accounts, in monitoring compliance with this Order.

42. You must not delete or alter any of the following from your electronic devices without prior approval of a DSO:

1. Applications;

2. Emails;

3. Text messages;

4. Electronic messages;

5. Call history;

6. Files or documents;

7. Photographs, images and videos; or

8. Internet or application usage and search history.

43. You must provide consent for your telephone provider and internet service provider to share information about your accounts with a DSO.

Part I: Search and seizure

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

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

Part J: Access to pornographic, violent and classified material

46. Unless approved by a DSO, you must not purchase, possess, access, obtain, view, participate in or listen to material classified as Refused Classification, X18+ Restricted, Category 1 Restricted and Category 2 Restricted as defined under the Classification (Publications, Films and Computer Games) Act 1995 (Cth), or any other material as directed by a DSO with respect to concerns related to risk of committing a serious offence.

Part K: Personal details and appearance

47. You must not change your name from “Wayne Wilmot” or use any other name without notifying a DSO.

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

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

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

Part L: Medical intervention and treatment

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

52. If directed, you must undergo an assessment for the purposes of a Mental Health Care Plan or Community Treatment Order.

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

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

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

56. You must agree to your treatment and service providers and healthcare practitioners sharing information, including reports on your progress and attendance, and information you have told them, with each other and with a DSO.

57. You must agree to any information obtained under condition 56 being shared between those persons and agencies that are involved in your supervision including, but not limited to, a DSO, NSWPF and CSNSW.

58. You must agree to the disclosure of your criminal history to any healthcare professionals that are treating you.

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Amendments

05 April 2024 - Redaction made to coversheet, [3] and [22].

23 April 2024 - Redaction made to coversheet, [3] and [22a].

Decision last updated: 23 April 2024