State of New South Wales v Davie (Final)

1. [1]

   By summons filed on 4 September 2025, the plaintiff seeks final orders pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the CHRO Act) that Jeffrey Davie, the defendant, be subject to an extended supervision order (ESO) for a period of two years.

2. [2]

   The defendant is currently subject to an interim supervision order (ISO), which was initially imposed by Dhanji J commencing on 15 December 2025 and expiring on 9 February 2026. The ISO was subsequently extended until 15 March 2026.

3. [3]

   The plaintiff submits that the requisite conditions for the making of an ISO in s 5B of the CHRO Act are met, and as such the Court would make the orders sought. The defendant does not consent to the making of an ESO but submits that there is evidence upon which the Court could be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence if not kept under supervision. The defendant’s submissions point to features which he submits tell against the making of an ESO and, in the alternative, that an ESO for a period shorter than 12 months ought to be made.

4. [4]

   On 27 November 2025, Dhanji J ordered the appointment of two experts to assess the defendant’s risk of reoffending and that they furnish their reports to the Court. In accordance with those orders, the following persons provided reports to the Court:

5. [5]

   The following documentary material was read without objection at the hearing on 19 February 2026:

   1. (1)

      On behalf of the plaintiff:

   2. (2)

      On behalf of the defendant:

6. [6]

   None of the deponents or experts were required for cross-examination.

7. [7]

   The principal issues for determination by the Court are whether an ESO should be made and, if so, the conditions which the Court considers appropriate as part of the ESO.

8. [8]

   For the reasons that follow, I am satisfied that an ESO of two years should be made, subject to conditions which are set out in an annexure at the conclusion of these reasons.

Background

1. [9]

   The defendant was born on 26 October 1968 and is currently 57 years old. He was raised in the Newcastle area and was the youngest of two children. The defendant experienced some learning difficulties at school and had difficulties forming friendships with other children of his age. Instead, he interacted with younger children. He left school part way through Year 11. He then joined the Army and later the Army Reserves. He was never formally discharged from the Army, but was suspended from duty when charged with sexual offences in 1992. He has never had a long-term adult intimate relationship.

2. [10]

   The defendant has an extensive history of serious sexual offending against male children between the ages of four and sixteen years. Those offences were committed between 1985 and 1992 and later in 2005. He has been diagnosed with paedophilia and has been assessed as falling in the well above average risk range for sexual reoffending.

3. [11]

   On 16 July 2015, the defendant was the subject of a 12-month continued detention order (CDO) ordered by Button J. That CDO was later extended by one month.

4. [12]

   On 22 August 2016, Rothman J ordered that the defendant be subject to an ESO for a period of three years and nine months. That ESO was suspended a number of times when the defendant went into custody for further offending. Ultimately, that ESO expired on 15 December 2025.

5. [13]

   Although the defendant commenced a high intensity sex offender program, he never completed the program, having been discharged prior to its completion in 1999. He has declined further referrals to another high intensity sex offender program, despite repeated attempts to re-engage him in treatment.

6. [14]

   At the time of the ESO application heard by Rothman J the defendant had commenced anti-libidinal treatment in custody on 28 July 2016. That pharmaceutical treatment continued upon his release to the community until he was rearrested on 7 June 2017 and re-entered custody. Subsequent attempts to recommence the anti-libidinal medication were unsuccessful because the defendant refused on the basis of reported negative side effects.

7. [15]

   In November 2018 the defendant was convicted of an offence of using a carriage service to access child pornography and an offence of failing to comply with the terms of his ESO. He was sentenced to a term of imprisonment of four years and six months with a non-parole period of two years and nine months. The child abuse material which formed the basis of that conviction was accessed shortly after his release from custody taking place between 25 October 2016 and 21 May 2017 and whilst he was taking anti-libidinal medication. The offending conduct also occurred at a time when the defendant was engaging in consultations with his treating psychologist, Dr Richard Parker. However the defendant did not make any admissions to Dr Parker concerning his access to child abuse material at the time.

8. [16]

   On 28 February 2020, the defendant was refused parole by the Commonwealth Parole Office. He was ultimately released to the community on 6 December 2021 when his sentence expired.

9. [17]

   The defendant was psychiatrically assessed by Dr Jeremy O’Dea in April 2022. Following that assessment anti-libidinal treatment was recommenced despite the defendant’s opposition.

10. [18]

    The defendant was charged on 16 December 2022 with two offences of failing to comply with the conditions of his ESO, which related to him failing to notify his departmental supervising officer of a purchase of a laptop computer and associating with a known sex offender. The defendant was convicted of those offences on 10 February 2023 and returned to custody pursuant to a sentence of 20 months imprisonment with a non-parole period of 10 months. He was later released on parole on 15 October 2023.

11. [19]

    The defendant was charged on 13 November 2024 with an offence of assault occasioning actual bodily harm. That offence occurred when the defendant was in residential rehabilitation at the Nunyara Community Offender Support Program Centre. The victim was another resident at that centre. On 22 January 2025 the defendant was sentenced in relation to that assault to a term of three months imprisonment. He was released to the community on 11 February 2025.

12. [20]

    The defendant has progressed through the stages of electronic monitoring reaching Stage 2 in July 2025 and Stage 3 in November 2025.

The index offences

1. [21]

   On 22 November 2018, the defendant was convicted and sentenced for the index offence, an offence of using a carriage service to access child pornography, contrary to s 474.19(1) of the Criminal Code (Cth). That offence carries a maximum penalty of 15 years imprisonment.

2. [22]

   The circumstances of the index offending appear in the remarks on sentence of King SC DCJ dated 22 November 2018 and can be summarised as follows.

3. [23]

   Officers from Corrective Services attended the defendant’s premises at Randwick on 1 June 2017 to visit the defendant. During that visit the defendant’s telephone was seized and searched for analysis.

4. [24]

   Analysis of the defendant’s telephone showed that between 25 October 2016 and 21 May 2017, the defendant had been searching the internet for and viewing pornographic images and videos on approximately 93 occasions. The analysis of the defendant’s telephone also indicated that the pornographic images and videos which he viewed on his telephone resulted from internet searches conducted on the phone using search terms which included “young boy sex”, “very hot young guy boys”, “young boy on boy sex” and “young boy men sex”. Amongst the images obtained from those searches was an image viewed on 25 October 2016 of a naked male toddler, about two years of age, standing on a beach with his penis exposed and showing another young child, between the ages of six and eight years, standing naked with their bottom visible. Two adults were also seen in that image lying naked on the beach but without their genitals exposed. An image viewed on 3 November 2016 depicted three naked young boys aged between eight and twelve years standing around a naked young female aged between eight and ten years. Two other images viewed on the defendant’s telephone are described as depicting young boys aged between 14 and 15 years engaged in acts of fellatio.

5. [25]

   As King SC DCJ noted in his remarks on sentence, this offending commenced whilst the defendant was subject to the terms of an extended supervision order and whilst he was taking anti-libidinal medication.

6. [26]

   At the time of his arrest in relation to the index offending, the defendant asserted that he was attempting to find legally acceptable pornography.

7. [27]

   Judge King commented that the defendant’s conduct demonstrated that his sexual interest in children was “unrelenting and persistent” and that whatever affect the anti-libidinal medication may have had on him, it clearly had not caused him to cease seeking out child abuse material for the purposes of his own sexual arousal.

8. [28]

   The defendant was sentenced in relation to the child abuse offence to a period of four years and six months imprisonment with a non-parole period of two years and nine months. In relation to the offence of failing to comply with the terms of his ESO the defendant was sentenced to a fixed term of two years imprisonment, with a second count being taken into account on a Form 1.

Prior offences

1. [29]

   Prior to committing the index offence, the defendant had been convicted of a number of other sexual offences. All of his prior sexual contact offences were committed against unrelated male children aged between four and sixteen years.

2. [30]

   The defendant was charged with an offence of indecently assaulting a male in November 1984. The defendant was sixteen years of age and was working as a volunteer guide at a military museum at the time.

3. [31]

   On the day in question, the defendant attended the museum to meet people. When those others did not turn up the defendant befriended the six and a half year old male victim who had attended the museum that day with his family. The defendant began playing games with the boy. The defendant then handcuffed the victim to a metal fence, asked to see his penis and then performed an act of fellatio on him. The defendant then took the victim to a different building where he again performed fellatio on him.

4. [32]

   When interviewed by the police the defendant admitted that he had asked the boy to show him his penis and that he had put the boy’s penis into his mouth on two separate occasions. The defendant also admitted that he knew that what he was doing was wrong.

5. [33]

   The defendant pleaded guilty to the offence. On 18 December 1984 he was admonished for committing the offence and discharged.

6. [34]

   On 19 August 1992 the defendant was convicted following him entering guilty pleas, to three counts of homosexual intercourse with a child under the age of 16 years, with a further 29 offences taken into account on a form. Those further offences included 27 counts relating to indecent conduct with young boys ranging in age from four to seventeen, including acts of sexual intercourse.

7. [35]

   The 1992 offences arose from conduct by the defendant including performing sexual acts on children he was babysitting and, on one occasion, while he was a dinner guest of the family of the victim. The defendant met the victims through his voluntary involvement in organisations including Scouts, Australian Air Force Cadets and church groups.

8. [36]

   On 19 August 1992, he was sentenced in the District Court to twelve years imprisonment with a non-parole period of eight years and a fixed sentence of six years, to be served concurrently. In the remarks on sentence the sentencing judge described the offences as inherently and extremely serious, noted the extreme youth of the child victims and commented that the defendant had cultivated the trust of the children and the parents who had willingly placed the children in his care. The judge also took into account that the offences did not arise as a result of momentary or unexpected temptation but that some degree of planning was involved. He described the defendant’s behaviour as involving “wickedness of a high order”.

9. [37]

   On 21 September 2006, following a trial by jury, the defendant was convicted and sentenced. Those offences were sexual intercourse with a person under the age of ten years, indecent assault of a person under the age of ten years and an act of indecency towards a child under the age of ten years.

10. [38]

    The offences arose from conduct which occurred on 25 May 2005. On that day the defendant attended a social function at the State Emergency Service Headquarters. The defendant was a member of the State Emergency Service at the time. During the course of the function, the defendant spoke briefly with the mother of the victim in the victim’s presence. The defendant and the victim had not previously met one another. During the course of the evening the defendant provided the victim with food and showed him attention. At some stage during the evening the victim went to the toilet and as he was leaving, he was met by the defendant at the door. The defendant said to the victim “come with me because I want to tell you a secret”, grabbed him by the arm and pulled him into a cubicle. The defendant then spoke to the victim about how to wash his penis, then pulled down the victim’s pants, used his fingers to push back the victim’s foreskin and performed an act of fellatio on him. This encounter ceased when the victim’s mother opened the anteroom door and called out to her son. Following that intervention, the defendant then exposed his own penis to the victim and told him that he had to keep what had just occurred a secret. When the victim and his mother left the function, she asked her son about what had occurred in the bathroom, which caused him to disclose what had occurred and then to vomit. The victim’s mother then reported the offending conduct to State Emergency Service Officers and to the police.

11. [39]

    On 21 September 2006, the defendant was sentenced in the District Court to nine and a half years imprisonment with a non-parole period of six years in relation to the offence of sexual intercourse with a person under the age of ten years. In relation to the remaining counts, he received fixed sentences of three years imprisonment for the indecent assault count and twelve months imprisonment for the indecent act count, which ran partially concurrently.

12. [40]

    The defendant has consistently admitted that he has an attraction to young boys. He has reported at various times that he has struggled to connect with males of his own age and, as a result, has gravitated towards younger children, claiming that he finds it easier to talk to them. He has admitted to befriending parents in order to gain access to their young sons and he has admitted to engaging in conversations and non-sexual interactions with boys before progressing to sexual contact. He has admitted to taking photographs of his victims in the past to arouse himself later when masturbating.

13. [41]

    The defendant has asserted that he was searching for gay adult pornography during the conduct which led to the 2018 child pornography offending. He has claimed that he was searching for a European website entitled “gay boy” and has explained at various times that he understood that that term meant gay males over the age of 18 years. He has variously attributed his mistake in searching for terms with reference to boys to not understanding the internet and has claimed that various people including the author Germaine Greer use the term “boy” when referring to adult males.

14. [42]

    The defendant has consistently denied committing the 2005 sexual offence. It should be noted that this is the only matter in relation to which he has pleaded not guilty and that he was convicted following a jury trial.

Legislative framework

1. [43]

   The primary object of the CHRO 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 of the CHRO Act is to “encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation”: s 3(2).

2. [44]

   ESOs are protective not punitive; their protective purpose has been described as “fundamental”: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [5]; Attorney General for the State of New South Wales v Gallagher [2006] NSWSC 340 at [21].

3. [45]

   The threshold requirements for the making of an ESO are set out in s 5B of the CHRO Act. The CHRO Act provides that the Court may make an order for the supervision of a person if the preconditions in s 5B are met. Section 5B provides as follows:

4. [46]

   It is the common position of the parties that the preconditions in s 5B(a), (b) and (c) have been satisfied. The defendant has served a sentence of imprisonment for a “serious sex offence” as defined in s 5(1) of the CHRO Act. At the time these proceedings were commenced, by the filing of the summons on 4 September 2025, he was subject to an ISO pursuant to orders made by Dhanji J on 15 December 2025 and subsequently extended until 15 March 2026. The timing of the plaintiff’s application therefore complies with the requirements in s 6 of the CHRO Act.

5. [47]

   The defendant, as a person subject to an ISO, is a “supervised offender” according to s 5I(2)(b) of the CHRO Act for the purposes of s 5I(1). In those circumstances, I am satisfied that these preconditions have been satisfied and that the concession on behalf of the defendant was correctly made.

6. [48]

   The fourth threshold requirement is that the Court must be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if they are not kept under supervision: s 5B(d). The plaintiff bears the onus of satisfying the Court of the test in s 5B(d).

7. [49]

   A “serious offence” is defined in s 4 as a “serious sex offence” or a “serious violence offence”. In this matter, the relevant type of serious offence is a serious sex offence.

8. [50]

   A “serious sex offence” is defined in s 5 of the CHRO Act as follows:

9. [51]

   Section 5D of the CHRO Act provides that “the Supreme Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence”.

10. [52]

    The meaning of “unacceptable risk” is not defined in the CHRO Act. Its meaning was considered by Beazley P in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [50]–[51]:

11. [53]

    The assessment of “unacceptable risk” is not an exercise of discretion. It instead involves an evaluative balancing exercise that is to be undertaken in the overall context of the primary object of the CHRO Act, that object being to ensure the safety and protection of the community: s 3(1).

12. [54]

    Unacceptability of risk involves consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate: State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71] per Wilson J; State of New South Wales v Chaplin [2019] NSWSC 471 at [15] per Rothman J.

13. [55]

    An offender may pose an unacceptable risk, even where the likelihood of committing another serious offence is low, if the likely consequences of such an offence are very grave: State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41]- [43] per Harrison J; State of New South Wales v Devaney (Final) [2022] NSWSC 60 at [73] per Dhanji J.

14. [56]

    For the purposes of assessing whether the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision, the impact which an ESO may have on the defendant’s liberty is not a relevant consideration. However, that factor may be relevant to the exercise of the Court’s discretion pursuant to s 9 of the CHRO Act: Lynn at [44], [56]–[58] per Beazley P, [126]–[128] per Basten JA, [148] per Gleeson JA.

15. [57]

    The expression “high degree of probability” was considered in Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]. There the Court of Appeal held:

16. [58]

    Harrison J, as his Honour then was, discussed the application of the concept of high degree of probability to a consideration of the likelihood of the commission of a serious violence offence in State of New South Wales v Pacey [2015] NSWSC 1983 at [43]. There his Honour held that the relevant question is whether the Court can be satisfied that there is an unacceptable risk that the defendant will commit a serious violence offence, not that he might commit some lesser act of violence not meeting or falling short of that definition. Consequently, the relevant test is a narrow one requiring an assessment of whether or not there is a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence. The required degree of probability is a standard higher than the civil standard of more probable than not or on the balance of probabilities.

17. [59]

    Section 9(2) of the CHRO Act provides that in determining whether or not to make an ESO, the safety of the community must be the paramount consideration.

18. [60]

    Section 9(3) sets out a list of factors which the Court “must also have regard to ... in addition to any other matter it considers relevant” in determining whether or not to make an ESO. These factors go to the evaluative determination required by s 5B(d), and also to the exercise of the discretion in s 9 of the CHRO Act.

Reports received from persons appointed under s 7(4) to conduct examinations of the offender, and the results of assessments – s 9(3)(b), (c) and (d)

1. [61]

   Dr Rodriguez assessed the defendant and provided a report in accordance with the orders made following the preliminary hearing.

2. [62]

   Dr Rodriguez found that the defendant met the diagnostic criteria for paedophilic disorder on the basis that he demonstrated, over many decades, an attraction to male children as young as five years of age. Although Dr Rodriguez noted that the paedophilic disorder appeared to be in remission based on the defendant’s self-reported reduced sex drive, he nonetheless formed the opinion that the diagnosis increased the defendant’s risk of committing further sexual offences. He formed that opinion because of the defendant’s deviant sexual attractions, noting it was one of the major risk factors for future sex offending.

3. [63]

   His report noted that paedophilic disorders are generally understood to be both chronic and prone to relapse and that whilst symptoms and behaviours may remain dormant, particularly in a highly structured and controlled environment or in the absence of opportunity, the underlying sexual interest is likely to persist. Dr Rodriguez was of the opinion that there remained an ongoing risk of reoffending, particularly if protective factors are reduced and opportunities are increased.

4. [64]

   Although expressing the view that the defendant posed a “residual risk” of committing a serious sexual offence, Dr Rodriguez formed the view that the risk could not be ruled out, particularly because of the offender’s chronic disorder, offending history and minimal engagement in structured programs. Dr Rodriguez was of the view that those factors indicated that a cautious approach to monitoring and ongoing protective measures was warranted. Because the defendant had spent a relatively short period in the community since his release, Dr Rodriguez felt that he was unable to make any definitive conclusions regarding the defendant’s ongoing commitment to remain offence-free.

5. [65]

   Several prior assessments using the Static-99R assessment tool rated the defendant in the well above average risk category. Dr Rodriguez identified that the defendant presented with dynamic risk factors which included atypical sexual interest, being paedophilic disorder, lack of emotional intimate relationships with adults, never having married, employment instability and previous resistance to rules and supervision, with breaches of prior conditional release orders.

6. [66]

   If the defendant were to reoffend, Dr Rodriguez was of the opinion that he is most likely to offend when unsupervised in the presence of a young male child. He is of the opinion that a cautious, closely monitored risk management approach was recommended with supervision and ongoing maintenance of sex offender treatment and protective factors. Dr Rodriguez recommended that such an approach was necessary to reduce the likelihood of a further serious sexual offence.

7. [67]

   His ultimate conclusion was that the defendant’s risks could not be appropriately managed at the present time without an order being imposed and was of the opinion that an ESO was appropriate in light of the risks which he outlined. He noted that the period since the defendant’s release to the community was relatively short and did not permit a confident determination that he no longer requires supervision and monitoring.

8. [68]

   Dr Rodriguez recommended an ESO of two years as appropriate to provide sufficient supervision and monitoring for a sufficient period.

Report of Dr Carollyne Youssef dated 13 January 2026

1. [69]

   Dr Youssef assessed the defendant and provided a report in accordance with the orders made following the preliminary hearing.

2. [70]

   Dr Youssef was of the opinion that the defendant met the diagnostic criteria for paedophilic disorder (non-exclusive, sexually attracted to males) and that he demonstrated features indicative of autism spectrum disorder. Dr Youssef noted that a formal diagnosis of autism spectrum disorder could not be confirmed.

3. [71]

   Dr Youssef used various risk assessment tools in assessing the defendant’s risk of sexual reoffending. On using the Static-99R tool, the defendant received a score which placed him in the well above average risk category. Use of the STABLE-2007 tool produced a score which placed him in a “high” level of stable dynamic needs.

4. [72]

   Dr Youssef was of the opinion that when reading the results from the Static-99R and STABLE-2007 tools together, the composite assessment of his risks and needs placed him in the well-above average category. Dr Youssef noted that clinically significant areas of risk arose due to concerns regarding the defendant’s capacity for relationship stability, his sexual preoccupation and his deviant sexual preference.

5. [73]

   The RSVP-V2 assessment tool was used by Dr Youssef to identify risk factors for sexual offending. As a result of that tool Dr Youssef was able to express opinions concerning the nature of his sexual violence, psychological adjustment, mental disorder, social adjustment and manageability. She was of the opinion that the defendant’s offending was chronic and persistent on the basis that there had been multiple incidents against multiple victims over multiple decades since his adolescence. She noted that the defendant engages in psychological coercion of young boys, often promising to teach children some knowledge or a skill and by paying them special attention before committing sexual offences against them. She noted that the defendant continued to deny the 2005 offence and that for the offending conduct he admits he minimised the seriousness of those offences.

6. [74]

   Dr Youssef noted that although the defendant appeared to understand that children were incapable of consent to sexual activity, he nonetheless continued to endorse elements of contradictory beliefs. In support of that opinion, Dr Youssef referred to the defendant stating that he would often explain his attention to the child victims before he sexually assaulted them and implicitly suggested that they may possess some capacity to consent. She noted that the defendant demonstrated limited insight and self-awareness and that he was “somewhat indifferent” in relation to his role in the offending behaviour. Dr Youssef noted that the defendant did not report that he had any appropriate coping strategies or mechanisms for managing his risks, noting that he commented that he did not have any risk factors and could cope simply by stopping “think[ing] sexual” about children.

7. [75]

   Noting that the defendant met the diagnostic criteria for paedophilic disorder, Dr Youssef was of the opinion that that condition was strongly linked to his sexual offending and considered that he had a sexual preoccupation. She was also of the view that his lack of meaningful connection with adults was likely to have contributed to and reinforced his preference for sexual contact with children. She noted that his long periods of unemployment and his history of seeking out roles in environments that involved children, typically in volunteer roles where children might be present, was a risk factor which required monitoring.

8. [76]

   Although noting a limited protective factor in that the defendant was at that time engaged in treatment with his treating psychologist and had indicated a desire to continue to do so, Dr Youssef was of the opinion that because he had been in that therapy for over a decade and because the defendant still demonstrated limited insight into his risk factors, an alternative therapeutic approach was necessary.

9. [77]

   As a result of using the RSVP-V2 tool Dr Youssef assessed the defendant as having a “high” likelihood of sexual recidivism in the absence of special management plans and having a “high” imminence of sexual offending and a “high” severity of sexual violence in the absence of an appropriate management plan. Dr Youssef added that, in light of those scores, the defendant required a high level of effort to implement special management plans to effectively reduce his risk of sexual recidivism.

10. [78]

    In considering the potential risk scenarios, Dr Youssef was of the opinion that future sexual offences committed by the defendant were likely to be committed against prepubescent or pubescent males, either unknown to the defendant or recent acquaintances, meeting through first befriending their parents or in circumstances where he is perceived as an authority figure. She considered that the defendant’s offending behaviour was likely to involve contact, involving fondling, exposure or fellatio possibly with an attempt at anal penetration. She was also of the opinion that the defendant was likely to use psychological coercion in order to engage in future sex offending.

11. [79]

    Dr Youssef noted, because of the defendant’s history of committing multiple “serious sex offences”, the current risk assessment and risk scenarios, she could not rule out the risk of him committing another “serious sex offence” as defined by the CHRO Act. In her opinion, the defendant’s risk could be managed in the community under another ESO and recommended an ESO of two years duration.

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 and the results of any statistical or other assessments as to the likelihood of persons with histories and characteristics similar to those of the defendant committing a further serious offence – s 9(3)(c) and (d)

1. [80]

   In a risk assessment report prepared for an earlier ESO application, Ms Donaldson assessed the defendant’s risk of sexual offending to be in the high range.

2. [81]

   When the defendant was previously assessed by Dr O’Dea as an appointed expert, he formed the opinion based on the defendant’s history of repeated sex offending against male children and his strong or predominant attraction to male children that it was reasonable to assume that he had a significant risk of engaging in further sex offending behaviour in the community including committing a further serious sex offence. In that report, Dr O’Dea noted that the defendant met the diagnostic criteria of paraphilic disorder (paedophilia) and that such a disorder usually persists long-term and was unlikely to reduce or be managed without specific and ongoing psychiatric treatment.

3. [82]

   Dr O’Dea recommended the use of anti-libidinal medication as the most effective therapeutic invention to assist the defendant in treating his homosexual paedophilia and managing and minimising his risk of engaging in further sex offending.

4. [83]

   Dr Ellis provided a report as an appointed expert regarding a previous ESO application. In that report, Dr Ellis assessed the defendant as falling into the high risk category based on use of the Static-99R tool. Dr Ellis concluded that the defendant fell into a group of persons who have a risk for serious sexual offending that is statistically high in frequency, of a type with serious consequences and greater than the theoretical average offender.

5. [84]

   Like Dr O’Dea, Dr Ellis also recommended the use of anti-libidinal medication.

6. [85]

   In a subsequent psychiatric report, Dr O’Dea repeated his previous opinion that there was a significantly high degree of probability that the defendant would be likely to commit a further serious sex offence as defined if a structured and supervised community support was not successfully implemented. He then recommended a risk management program of at least five years duration.

7. [86]

   In a subsequent report Dr Ellis stated that the defendant fell into a group of persons with a risk for serious sexual offending that is statistically high in frequency, of a type with serious consequences, and greater than a theoretical average offender. He noted that paraphilias are chronic, relapsing conditions which are resistant to treatment and rehabilitative efforts. Dr Ellis was of the opinion that the defendant’s paraphilia was severe and that his comorbid personality style impacted upon his response to treatment and supervision. Dr Ellis expressed the opinion that any risk management program should be of five years duration.

8. [87]

   Dr Guiffrida, forensic psychiatrist, confirmed the defendant’s diagnosis of paedophilia of the exclusive type to children in the age range of five to fifteen years. Dr Guiffrida also noted that the defendant had “essentially no insight” into his condition and that he was not motivated to receive treatment. He was of the opinion that the defendant is a high risk of eventual sexual reoffending. He was of the view that anti-libidinal medication was necessary and appropriate to reduce the risk of sexual reoffending against male children.

9. [88]

   In a risk assessment report dated 2 June 2025, Ms Holly Cieplucha, senior psychologist of the Serious Offender’s Assessment Unit, assessed the defendant using various risk tools. During the assessment interview the defendant denied having deviant sexual interest in children, claiming that he identified as bisexual with attraction towards both adult males and females.

10. [89]

    Ms Cieplucha noted that when the Static-99R tool was used by Dr Parker to assess the defendant, he was placed in the high risk category. Ms Cieplucha noted that because of the defendant’s further offending in 2018, his score was reassessed by her, resulting in him being assessed in the well above average risk category. She noted that the rate of recidivism for individuals with his score was at least 5.25 times higher than that of the “typical” sex offender.

11. [90]

    Using the RSVP-V2 tool Ms Cieplucha considered that the defendant reflected a moderate density of criminogenic needs. Using the Violence Risk Appraisal Guide – Revised, Ms Cieplucha assessed the defendant’s static risk factors as placing him on the fifth of 9 bins with the ninth being the highest.

12. [91]

    Ms Cieplucha identified numerous dynamic risk factors relevant to the defendant. Those risk factors included sexual deviance arising from his diagnosis of paedophilic disorder and his longstanding history of sexual attraction to young boys. In Ms Cieplucha’s opinion because of the 2018 conviction for accessing child abuse material and the 2005 offences involving the use of search terms specifically referring to young boys meant the defendant’s sexual deviance remained a key and current consideration in relation to risk assessment. The absence of any significant long-term intimate relationship was noted by Ms Cieplucha as a risk factor noting that his only friends were other convicted sex offenders. In her opinion, the absence of intimate and non-intimate relationships was likely to perpetuate his sense of isolation and may increase his risk of future offending.

13. [92]

    Ms Cieplucha also noted that the defendant had demonstrated an inability to manage risk factors, arising from his conviction for accessing child pornography whilst subject to the conditions of an ESO and his breaching of those conditions by communicating with known sex offenders and purchasing a laptop without approval. She also considered thatthe defendant presented with a risk factor arising from his consistent denials of responsibility for the 2005 offending, his minimising responsibility for the 2018 conviction, his lack of insight and his dismissiveness in relation to the importance of avoiding locations frequented by children.

14. [93]

    In relation to potential risk scenarios, Ms Cieplucha considered that any future offending is likely to be opportunistic, committed against a male child who has only become known to the defendant for a relatively short period of time and involve sexual contact behaviour including attempted or actual penetrative contact. Ms Cieplucha also noted that the defendant was likely to use psychological coercion, including showing interest in the child, their toys or hobbies in order to coerce the child into a position where sexual offending can be committed. As a result, Ms Cieplucha considered, in the absence of physical violence in committing the offence, that any future offences against male children may remain undetected for a period of time.

15. [94]

    In addition, Ms Cieplucha noted that the defendant continued to show minimising behaviour and attempts to convince others that his behaviour was acceptable, and gave the example that the defendant told her that when using the word “boy” in various search terms seeking pornography he thought that term referred to men up to the age of 23 years.

16. [95]

    Ultimately, Ms Cieplucha is of the opinion that the defendant fell in the well above average range for sexual offending relative to other adult male sex offenders. The defendant had a moderate density of criminogenic needs and because of his past convictions, his diagnosis of paedophilia, his chronic history of sexual offending and the serious nature of his sexual offending, she was of the opinion that it is quite possible he could commit a future “serious sexual offence” as defined in the CHRO Act.

17. [96]

    Although upon the expiration of any ESO the defendant will be the subject to the terms of the Child Protection (Offenders Registration) Act 2000 (NSW), Ms Cieplucha noted that as a registerable offender he would not receive any support from or any monitoring by Corrective Services NSW.

Any report prepared by Corrective Services NSW as to the extent to which the defendant can reasonably practicably be managed in the community – s 9(3)(d1)

1. [97]

   The risk management report by Mr Stephen Potter, Community Corrections Officer with Corrective Services NSW, noted that the defendant had been found to fall within the medium/high risk for general reoffending and within the well above average risk category for sexual offending. The report noted that, in custody, the defendant had been managed in special management area placement protective custody and protection limited association due to the nature of his offending. The defendant hads incurred only two institutional charges for misconduct in 2007 for failing to supply a urine sample. Corrective Services case notes suggested that his custodial conduct had generally been satisfactory and that he had previously completed training certificates in warehouse operations, workplace hygiene, barista, driver knowledge and first aid, and participated in custodial employment as a textile worker.

2. [98]

   In relation to his response to management in the community the report noted that the defendant had been convicted of offences of failing to comply with the conditions of previous ESOs. It also noted that he resisted attempts by Community Corrections to support him to commence anti-libidinal medication in the community. The report noted that the defendant has positively engaged with his treating psychologist Dr Richard Parker, and been generally compliant with the directions of his supervising officer. The defendant’s stated desire to continue to consult with Dr Parker was also noted.

3. [99]

   The report noted that the defendant was referred to a community sex offender program in November 2023 and noted that the referral was closed because of his ongoing management with Dr Parker in risk management intervention.

4. [100]

   The risk management report recommended strategies for the continued management of the defendant in the community under an ESO, recommending weekly supervision, scheduled and unannounced home visits and surveillance, a weekly schedule of movement and curfew, place restrictions, electronic monitoring, interactions with associates being monitored and monitoring of his online activities.

Treatment or rehabilitation programs in which the offender has had an opportunity to participate – s 9(3)(e)

1. [101]

   The defendant participated in the sex offender psychoeducation program at Cooma Correctional Centre in 1994 and 1996. However, the program was not at an intensity commensurate with a sex offender treatment program and was noted in the risk assessment report as not having addressed the defendant’s level of risk and treatment needs.

2. [102]

   He commenced the custody based intensive treatment program (CUBIT) in February 1999 but was discharged from that program in August 1999 prior to completing it due to unsatisfactory participation and progress. The unsatisfactory nature of his participation was set out in the risk assessment report which noted that he was detached and evasive and failed to take full responsibility for his offending behaviour. The defendant was noted as being unsure as to whether his abuse was wrong or harmful and that he was not ready to give up abusive thoughts and behaviours. The defendant was also noted as not recognising his offending as harmful and did not understand the impact of his offending on his victims.

3. [103]

   In 2012, the defendant participated in the preparatory program, a readiness program for offenders convicted of a sexual offence. He was noted as demonstrating a reasonable level of participation and good general understanding during that program. Despite that position, the defendant was noted as being unmotivated to engage in treatment programs.

4. [104]

   When the defendant was subject to a continuing detention order, he continued to refuse to engage with the CUBIT program, claiming that undertaking treatment would be tantamount to an admission of guilt.

5. [105]

   The defendant participated in numerous individual interviews with Dr Parker between October 2015 and March 2016. Dr Parker indicated that the defendant remained a high risk of further sexual offending, highlighting that his most important criminogenic needs were his sexual attraction to boys and “offence supportive cognitions”. Dr Parker noted that the defendant supported the notion that children could consent to sexual activity and that such sexual activity did not cause them any harm. Although Dr Parker reported that the defendant had commenced the process of developing new thinking, he noted that it remained a work in progress.

6. [106]

   In November 2023, the defendant was referred to community sex offender programs, but that referral was closed because of his ongoing engagement at the time with Dr Parker.

The likelihood that the defendant will comply with the obligations of an ESO and the level of the offender’s compliance with any obligations while subject to parole or earlier ESOs – s 9(3)(e2) and (f)

1. [107]

   The defendant’s level of compliance with prior supervision has been mixed. He has been issued with warnings arising from his ongoing contact with known child sex offenders and his deleting of data from his mobile telephone. He has been previously convicted of breaching his ESO on two occasions.

2. [108]

   The defendant was arrested in December 2022 for failing to notify his departmental supervising officer of his intention to purchase a laptop 24 hours prior to the purchase. Although the material refers to the laptop purchased as a “minecraft” branded laptop, there is no evidence in relation to the relevance of that branding. He was also arrested in December 2022 for knowingly associating with a sex offender by telephone. Those two charges resulted in him being convicted and sentenced to an aggregate sentence of 20 months imprisonment with a non-parole period of 10 months.

3. [109]

   It is possible the defendant may continue to experience challenges in complying with the terms of any conditional liberty. However, the evidence establishes that he had resided with his mother from February 2025 and that, since her relatively recent death, he has stability of accommodation and will have some future financial prospects once her estate has been administered.

The defendant’s criminal history and any pattern of offending behaviour disclosed by that history – s 9(3)(h)

1. [110]

   The defendant’s criminal history and pattern of offending have already been canvassed and need not be repeated.

2. [111]

   The nature of his prior offending, together with his recent use of search terms indicating positive and intentional steps to obtain and view child pornography, accepting that the online offences did not involve personal contact sexual offending, establishes that the defendant has a continued pattern of offending motivated by his chronic paedophilic disorder.

The views of the sentencing court at the time of the sentence of imprisonment imposed on the defendant – s 9(3)(h1)

1. [112]

   When sentencing the defendant, King SC DCJ noted that the defendant had a very chequered history in relation to taking advantage of treatment in custody or in the community and that his chronic paedophilia was difficult to treat or ameliorate. His Honour noted that consistent views and assessments over the years established that the defendant was in a high risk category of reoffending and that in all the circumstances, it was not possible to find that he had good prospects of rehabilitation, although it could not be said that he had no prospects. His Honour also noted that the defendant was unlikely to be rehabilitated and that it may well be that his age and the risk of further imprisonment may be the only bases upon which the risk of his reoffending in the future might be diminished.

The plaintiff’s submissions as to whether an ESO should be made

1. [113]

   Counsel for the plaintiff submitted that the experts were unanimous in concluding that the defendant poses an unacceptable risk, even though expressed by one expert as a residual risk, of committing a serious sex offence if not kept under supervision. It was submitted that the fact that they have reached similar conclusions would give the Court confidence that their opinions should be accepted.

2. [114]

   The plaintiff submitted that the Court would be satisfied to a high degree of probability, on the basis of the material tendered, that the defendant poses an unacceptable risk of committing a further serious sex offence if he is not kept under continued supervision. Further, the plaintiff submitted that, in the event the Court determines that it has the power to make the ESO, it would not be satisfied that there are any discretionary reasons to decline making such an order. In that regard, the plaintiff submitted that the prior breaches of previous ESO’s were relevant in the exercise of a discretion to decline making an order, in particular to the Court being satisfied that the management of the defendant under an ESO was necessary in order to continue to monitor and supervise his integration into the community.

3. [115]

   In addition, the plaintiff submitted that the risk that the defendant poses was unacceptable in light of the potential gravity if there were to be a manifestation of his risks. In support of that submission the plaintiff referred to the medical opinion concerning the chronic nature of his paedophilic disorder and the risk scenarios referred to in the various expert reports that his future risk could include personal sex offending conduct involving penetrative sexual activity with young boys. The plaintiff submitted that the potential for serious future sexual reoffending was of a significant potential gravity. The plaintiff submitted that those matters militate strongly against the Court declining to exercise its discretion to make an ESO.

4. [116]

   The plaintiff contended for an ESO of two years duration and referred to the unanimous expert opinions that such a period would provide the optimum means of reducing the ongoing risk opposed by the defendant and of ensuring community safety.

The defendant’s submissions as to whether an ESO should be made

1. [117]

   The primary submission on behalf of the defendant was that he did not consent to the making of an ESO. In the alternative, the defendant submitted that he accepted that there was evidence upon which the Court could be satisfied to a high degree of probability that he poses an unacceptable risk in committing a serious offence if not kept under supervision and that, if an ESO was to be made the Court should consider a period of lesser duration, in the order of 12 months, as appropriate.

2. [118]

   In support of its primary submission, the defendant submitted that the last time the defendant “unambiguously” committed a sexual offence was when he accessed child pornography in June 2017 some eight to nine years ago. Further, the defendant submitted that the last time he committed a known child contact sexual offence was in May 2005, more than 20 years ago. It was submitted that the Court should take those periods into account in considering whether he still poses an unacceptable risk of committing a serious offence.

3. [119]

   In addition, the defendant submitted that he was enjoying a relatively long period of stability at the later stages of his previous ESO and that he progressed to stage 2 monitoring in June 2025 and stage 3 monitoring in November 2025.

4. [120]

   In relation to the breaches of prior ESO’s, the defendant submitted that the agreed facts do not disclose any behaviours of concern regarding the laptop computer or any relevance to its “minecraft” branding other than the unauthorised purchase itself and submitted that the defendant’s continued association with known sex offenders must be understood in context. That context was that because of his prior incarcerations and periods in rehabilitation, the defendant’s circle of friends, associates and peers was limited and comprised largely of other sex offenders. It was submitted that Dr Parker had formed the view, as referred to in a case note dated 30 March 2022, that the defendant’s association with two known sex offenders was productive and that Dr Parker was supportive of continued contact. Dr Parker did not oppose the defendant keeping in company with those he had met in custody.

5. [121]

   Counsel for the defendant also noted a number of protective factors weighing in the defendant’s favour. Those factors included that Dr Rodriguez was of the opinion that the defendant’s paedophilic disorder was apparently in current remission, that Dr Parker formed the view that there was no evidence of renewed sexual interest in children and no observable sexual conduct directed towards children (despite confirming the diagnosis of paedophilic disorder), that Dr Parker had hoped to continued treatment with the defendant in the absence of a further ESO, and that Dr Rodriguez characterised the defendant’s risk as “residual”. Counsel for the defendant also indicated, consistent with the defendant reporting non-exclusive paedophilic disorder and attraction to adult males and adult females, he was instructed that the defendant had developed a way of meeting adult males for sexual encounters as a means of sexual outlet.

Consideration

1. [122]

   I have already found that the matters in s 5B(a) to (c) of the CHRO Act are satisfied.

2. [123]

   As to s 5B(d), I acknowledge that the issue is not whether there is a risk that the defendant will commit a further offence or offences. The CHRO Act is not concerned with general reoffending that is not within the definition of serious sex offence.

3. [124]

   Taking into account all of the evidence and the submissions of the parties, I am satisfied in all of the circumstances to a high degree of probability, that the defendant poses an unacceptable risk of committing another serious offence if he is not kept under supervision. I have reached that conclusion for a number of reasons.

4. [125]

   First, the nature and seriousness of the defendant’s past offending indicate the chronic nature of his sexual attraction to male children aged between five to fifteen years. His diagnosis by various experts as suffering from paedophilic disorder is further supported by the experts opining that the disorder is chronic and treatment-resistant. That diagnosis and treatment resistance increases the risk of him committing further serious sex offences.

5. [126]

   Secondly, I take into account that the defendant has been assessed as well above average risk of sexual offending by Court appointed experts and the author of the risk assessment report. As the author of the assessment report notes, “sexual deviance remains a key consideration in relation to risk management”. That view is mirrored in each of the reports by the Court appointed experts.

6. [127]

   Thirdly, Ms Cieplucha expressed the opinion that the potential risk scenarios involve opportunistic and momentary contact with young boys for sexual contact including attempted or actual penetrative sex. She expressed the opinion that such a risk scenarios, initially identified in previous risk assessment reports, remains relevant and plausible. Both Dr Youssef and Dr Rodriguez have expressed similar opinions in relation to the risk scenarios for likely future offending directed at unsupervised contact with young male children.

7. [128]

   Fourthly, the defendant, although enjoying a period of not engaging in serious sexual offending for some time, is yet to have been in the community for any prolonged period without reoffending. Periods in custody, including when in custody for breaching terms of his conditional liberty, do not count towards prolonged periods in the community and do not establish a pattern of being able to manage without reoffending. The absence of prosocial supports in the community, the absence of any established friendships outside similar minded offenders and the absence of any history of long-term intimate partners increase this concern. As Dr Rodriguez stated because of the shortness of the period since the defendant’s release into the community, he was unable to confidently determine that the defendant no longer required supervision or monitoring. The protective factors operating in the defendant’s behaviour have not yet been demonstrated to have the desired effect over a prolonged period in the community.

8. [129]

   Fifthly, although the defendant has stated a willingness to continue to consult with Dr Parker and to continue treatment outside any ESO regime, it is difficult to have any confidence that such a treatment program would have any beneficial effect. That is so because, whilst under the care and treatment of Dr Parker the defendant has committed other offences. In addition, he has refused to recommence anti-libidinal medication and did not complete a high intensity sex offender program. I also take into account that the Court appointed experts have offered the opinion that a change in therapeutic treatment, namely to a clinician other than Dr Parker, is appropriate in light of that history. In addition, the evidence tendered on this application establishes that Dr Parker is unable to continue to maintain a therapeutic relationship with the defendant because of Dr Parker’s employment within the custodial system.

9. [130]

   Sixthly, the defendant presents with continuing risk factors arising from his denial of the offending in 2005 and his minimisation of the 2018 offence. Those issues together with his continued limited insight and awareness, are a concern. The defendant’s suggestion that he simply needs to stop “think[ing] sexual” about children does not give the Court any comfort about his ability to self-regulate.

10. [131]

    Finally, I am satisfied on the basis that both Court appointed experts have expressed the opinion that the defendant poses a risk of committing serious sexual offences as defined in the Act. Dr Rodriguez said the defendant’s risks cannot be managed without an ESO being imposed and that cautious monitoring and ongoing protective measures are warranted. Dr Youssef recommended development of a “robust” self-management plan moving forward. Both experts expressed the view that a two year ESO is appropriate.

11. [132]

    In light of that uncontradicted evidence, I am of the view that a period of two years is the appropriate length for the ESO.

12. [133]

    The threshold provision in s 5B is satisfied. Further, on the basis of the matters identified above, I am of the view pursuant to s 9 of the CHRO Act that I should make an ESO subject to conditions.

13. [134]

    I am also satisfied for the reasons I have already expressed, that there are not any discretionary reasons to decline making an ESO.

Consideration of the appropriate conditions

1. [135]

   Section 11(1) of the CHRO Act provides that an ESO may direct a defendant to comply with such conditions as the Court considers appropriate and sets out a non-exhaustive list of potential conditions. Section 11(2) mandates the inclusion of a condition requiring the defendant not to leave New South Wales without the approval of the Commissioner of Corrective Services.

2. [136]

   In determining what is “appropriate” it is accepted that the discretion is broad but must be exercised having regard to the scope and purpose of the CHRO Act and its objects: Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 at [47]. In Wilde, the Court further stated at [53]:

3. [137]

   The determination of appropriate conditions is a balancing exercise. The court should seek to impose the least intrusive conditions, consistent with its assessment of risk and a further assessment as to what kind of conditions are likely to be effective: Lynn at [129]. This step engages a balancing exercise involving possible intrusions on the defendant’s liberty and privacy: Lynn at [130]. It must also be borne in mind that a failure by a defendant to comply with the requirements of an ESO is an offence pursuant to s 12 of the CHRO Act and is punishable by a fine, imprisonment or both.

Proposed conditions

1. [138]

   The plaintiff and the defendant have worked collaboratively in resolving any disputes concerning appropriate conditions and the appropriate wording of conditions. They are to be commended for reaching agreement in relation to all proposed conditions. I note that the defendant’s primary submission was that an ESO should not be made at all and his secondary position was that some of the conditions proposed ought not be made. After indicating its opposition to certain of the conditions and the wording of certain conditions the defendant and the plaintiff have conferred and have reached agreement in relation to proposed conditions and their wording.

2. [139]

   In light of the agreed position between the parties there were only limited submissions made during the hearing of the application about the wording of certain conditions. A schedule of the proposed and disputed conditions and the agreed position was prepared and became Ex 2.

3. [140]

   Based on the material I have considered, and taking into account the principles set out above and the consent agreement of the parties, I am satisfied that each of the proposed conditions are reasonable and appropriate.

Orders

1. [141]

   I make the following orders:

   1. (1)

      Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), I order that the defendant be subject to an extended supervision order for a period of two years commencing on 13 March 2026; and

   2. (2)

      Pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), I direct that the defendant comply with the conditions set out in the schedule annexed to this judgment for the period of the extended supervision order.