State of New South Wales v Simon Springfield (a pseudonym) (Preliminary)

1. [1]

   The plaintiff seeks preliminary orders against the defendant pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). The defendant has been on parole since 20 January 2024 in respect of four sexual offences, three of which occurred between 1995 and 1996, and one which occurred in 2017. These are not the only sexual offences he has committed. Since the defendant’s release, however, he has demonstrated significant stability in the community, including through an ongoing commitment to abstention from alcohol and drugs, engagement with programs and services, maintaining pro-social relationships and obtaining employment. At the centre of the application is an assessment of the defendant’s risk of committing another serious offence in the light of his progress.

2. [2]

   By summons filed on 29 August 2025, the plaintiff seeks, by way of final relief, an order pursuant to ss 5B and 9(1)(a) of the Act that the defendant be subject to an extended supervision order (ESO) for a period of 12 months from the date of order. Various conditions are sought as part of that order.

3. [3]

   Before moving on the application for final relief, the plaintiff seeks preliminary orders pursuant to s 7(4) of the Act, appointing two qualified psychiatrists and/or registered psychologists (or any combination of these) to conduct separate examinations of the defendant; to furnish reports to the Court on the results of those examinations; and directing the defendant to attend those examinations. Those orders are sought together with an order that the defendant be subject to an interim supervision order (ISO) pursuant to s 10A of the Act and that he comply with the conditions as sought. That order is sought for a period of 28 days commencing 28 November 2025.

4. [4]

   An ancillary order sought by the plaintiff restricting access to the court file has previously been made.

5. [5]

   The defendant opposes the orders sought.

The Legislative Scheme

1. [6]

   The Act is designed to address the almost “intractable problem” of how the criminal justice system should respond to the case of the prisoner who represents a serious danger to the community on release: State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280.

2. [7]

   The objects are set out in s 3 of the Act:

3. [8]

   Section 9(1) of the Act provides that this Court may determine an application for an ESO by making an ESO or by dismissing the application. Section 9(2) provides that in determining whether or not to make an ESO, “the safety of the community must be the paramount consideration”. It follows that ESOs are in their nature protective and not punitive: Attorney General for New South Wales v Tillman [2007] NSWCA 119. Section 7(3) of the Act requires a preliminary hearing into the application be conducted within 28 days of the filing of the application. Section 7(4) provides that if, following the preliminary hearing, the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, the Court must make orders appointing relevant experts to conduct examinations and furnish reports to the Supreme Court and directing the defendant to attend those examinations. If, on the other hand, I am not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an order, I must dismiss the application: s 7(5).

4. [9]

   Section 10A provides:

5. [10]

   Section 10A(a) is in this case satisfied. That is, it appears to me that the defendant’s current supervision on parole will expire before the proceedings are determined. That appears clear given the expiry of the defendant’s sentence on 28 November 2025 and the time that can be expected to be required to obtain relevant reports and set a hearing date.

6. [11]

   Section 7(4), as I have indicated, mandates the making of certain orders if the relevant test is satisfied. Section 10A by contrast provides the additional requirement in s 10A(a) and, by the use of the word “may”, a discretion as to whether an order should be made: see Attorney General for New South Wales v Tillman at [32]. Otherwise, both provisions provide the same threshold test, that is, “that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order”.

7. [12]

   That test draws attention to the central provision with respect to ESOs, s 5B, which provides:

8. [13]

   Section 5D further clarifies the test in providing that the Court “is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence”.

9. [14]

   The expression “supporting documentation” in ss 7 and 10A is defined in s 4 to mean the documentation referred to in s 6(3). That subsection provides that an application for an ESO must be supported by documentation that addresses each of the matters referred to in s 9(3) of the Act and a report prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner that assesses the likelihood of the offender committing a serious offence. The test ultimately requires satisfaction that “the matters alleged in the supporting documentation would, if proved”, justify a positive finding with respect to each of the matters in s 5B. There is no issue that the requirements of s 5B(a)-(c) are satisfied. The determination is, therefore, focussed on s 5B(d) and, in particular, whether the matters alleged in the supporting documentation would, if proved, justify a finding that s 5B(d) has been satisfied.

The evidence

1. [15]

   The plaintiff relied on three affidavits of the solicitor with carriage affirmed 28 August 2025, 15 October 2025 and 17 October 2025. The first exhibited a bundle of documents relied on by the plaintiff in support of its application. The second annexed the Crown Case statement in respect of the defendant’s criminal proceedings. The third annexed an email sent from a Community Corrections Officer at Corrective Services NSW (CSNSW) on 19 June 2024 alleging inappropriate sexual conduct on the part of the defendant toward the daughter of his current partner. That allegation is discussed in further detail below.

2. [16]

   The plaintiff also relied on the affidavit of Kelli Grabham, an employee of the CSNSW ESO team, affirmed 15 October 2025. In her affidavit, Ms Grabham described the supervision offered by the ESO team; compared the level of supervision available under an ESO with that available while subject to parole; described the effect of a Child Protection Prohibition Order on the defendant’s management in the community; and made comments with respect to the utility and operation of various conditions sought with the ESO.

3. [17]

   The defendant relied on two affidavits of his solicitor. The first annexed the defendant’s current conditions of parole. The second annexed references from persons familiar with him through his involvement in Alcoholics Anonymous (AA). The references speak very highly of his commitment to AA. The defendant accepted that the evidence tendered on his behalf is relevant only to the conditions that should be imposed in the event that I make an ISO: see State of New South Wales v BP (Preliminary) [2019] NSWSC 699 at [69]. I pause to note that it may also be considered with respect to the exercise of the discretion. That said, within the material tendered by the plaintiff, there is, in any event, reference to the defendant’s involvement with AA, that being a matter alleged in the supporting documentation which is to be considered in determining whether the test for making an order is satisfied.

The factual background

1. [18]

   The defendant is a 44-year-old man serving a sentence for five offences, four of which are serious sex offences, and, subject to other pre-conditions being met, enliven the Court’s power to make an order: ss 4A and 5 of the Act.

2. [19]

   In the Christmas holiday period between 1995 and 1996, when he was 14 years old, the defendant committed three offences of aggravated indecent assault contrary to then s 61M(1) of the Crimes Act 1900 (NSW), which is a serious sex offence under the Act. The aggravating circumstance was that the victim was under the defendant’s authority, she having been left in his charge. The defendant also committed an offence of aggravated act of indecency, contrary to then s 61O(1) of the Crimes Act. The offences were committed against the defendant’s ten-year-old maternal half-sister during the Christmas holiday period, when he had travelled from New Zealand to Australia to visit family. He was not charged with these offences at the time of their commission; they are part of the offences leading to his current sentence. The agreed facts summarised the facts on sentence as follows:

3. [20]

   Between March and June 2017, when he was 36 years old, the defendant committed one offence of sexual intercourse with a child above the age of ten years and under the age of 14, in circumstances of aggravation, contrary to s 66C(2) of the Crimes Act, this also being a serious sex offence. The aggravating circumstance was that the victim was under the defendant’s authority. The offence was committed against the 12 year old daughter of the defendant’s partner, with whom he lived. In summary, the victim was asleep in her bed and awoke to see the defendant looking at her vagina using a flashlight. He turned off the flashlight and touched the victim’s vagina on the inside of her clothing. The conduct the subject of the offence was the defendant inserting his finger inside the victim’s vagina and moving it around for a period of two to three minutes. The victim asked the defendant what he was doing, and he replied, “you told me to play with you”. The victim said, “no, I did not. Please get out of my room.” The defendant then left.

4. [21]

   On 29 November 2018, the defendant was charged with the five offences from 1995 to 1996 and 2017, together with further offences which were later withdrawn. On 26 June 2020, in the course of the trial, the defendant pleaded guilty to the five offences. Three further charges were not proceeded with as a result of the charge bargain, two of which related to a third complainant and are discussed below.

5. [22]

   On 3 December 2023, the defendant was sentenced by Bright DCJ to a term of imprisonment of 7 years with a non-parole period of 4 years and 8 months. The sentence was backdated to commence on 29 November 2018. The defendant’s non-parole period expired on 28 July 2023. He was released to parole on 20 January 2024, about six months after his non-parole period expired. His full term will expire on 28 November 2025.

6. [23]

   Bright DCJ’s sentencing remarks are summarised in the plaintiff’s case statement as follows:

7. [24]

   In December 1998, when the defendant was 17 years old, he was convicted in New Zealand of 11 sexual offences against three female children. The offending occurred in New Zealand when the defendant was aged 15 and 16 years old.

8. [25]

   The offences against the first complainant commenced in November 1996 when the defendant was 15 years old and the complainant was 5 years old. The complainant was the defendant’s paternal half-sister and the abuse occurred on a regular basis over a period of approximately 18 months when the defendant was entrusted with the task of looking after his half-brother and the complainant. The defendant used lollies to bribe the complainant and entice her into his bedroom where most of the offending took place. The offending included touching and rubbing the complainant’s genitalia; applying a medicated cream to her genitalia; performing oral sex on her; rubbing his penis on her genitalia until he ejaculated on her; attempting to insert his penis into her anus; masturbating and ejaculating on her semi-naked body; forcing her to suck and lick his penis; and placing her on top of his penis and then rocking her backwards and forwards on his penis for several minutes.

9. [26]

   The offences against the second complainant occurred when the complainant was between 7 and 10 years old and the defendant was 15. The abuse occurred on at least three or four occasions per week over a period of nine months during which the defendant was employed to babysit the complainant and her two younger brothers in their home. The defendant offered the complainant lollies as a bribe and told her not to tell anyone what had occurred. The offending included touching and fondling the complainant’s genitalia, performing oral sex on her, and inserting and moving his penis back and forth between her legs until he ejaculated.

10. [27]

    The offence against the third complainant occurred when the complainant was four years old and the defendant was 16. The abuse occurred on one occasion when the defendant babysat the complainant and her brother in their home. The defendant fondled the complainant’s vagina and inserted his fingers into the lips of her vagina, before then putting his penis between her legs and rubbing it on the outside of her vagina until he ejaculated.

11. [28]

    The defendant was spoken to by police on 20 October 1998 in relation to the offences. He admitted to sexually abusing the three complainants. He stated that there were very few occasions when he was babysitting his half-sister that he did not abuse her. He also claimed that he could not have a sexual relationship with his girlfriend as he was only aroused by younger girls and had sexual fantasies about girls aged between eight and 14.

12. [29]

    On 21 December 1998, the defendant was convicted of four counts of unlawful sexual connection female under 12; one count of raping a female under 12; four counts of indecently assaulting a female under 12; one count of permitting an indecent act with a female under 12; and one count of attempted unlawful sexual connection with a female under 12. The defendant was sentenced to an effective sentence of 4 years imprisonment commencing on 21 December 1998.

13. [30]

    As outlined in the agreed facts, the defendant’s history of non-sexual offending dates back to 2003 and largely comprises traffic and drink driving offences. Of some relevance to his risk of violence is one conviction for assault occasioning actual bodily harm, which was committed in October 2015 while the defendant was intoxicated. On 23 November 2015, the defendant was charged with intentionally or recklessly destroying/damaging property, with his mother being the victim. On 3 December 2015, he was served with an Apprehended Domestic Violence Order in protection of his mother, which he was charged with breaching on 20 December 2015.

14. [31]

    The material tendered on the application includes unresolved charges and allegations of further sexual offending and sexually inappropriate behaviour. There was no suggestion that the charges could not be considered as matters alleged in the supporting documentation.

15. [32]

    The agreed facts for sentence in relation to the defendant’s present convictions against his ten-year-old maternal half-sister record conduct alleged to have occurred against her in 1992 when she was seven years old (some years before the first of the charges). The agreed facts record that the defendant began sexually abusing the complainant in the 1992 Christmas holidays when he was 11 years old. When the defendant was left to babysit his half-sister and her brother he allegedly instructed the complainant to enter the bedroom and asked the complainant’s brother to play elsewhere. When the complainant protested he said, “you heard mum, I am in charge”. He instructed the complainant to massage his back and then his chest. He then pulled down his pants and asked the complainant to touch his erect penis, before the complainant exited the bedroom. The complainant indicated to police that the defendant repeated this type of offending on five to six occasions during that holiday period. I note that, given the age of the defendant at the time, a presumption of doli incapax applied to these matters, possibly explaining the decision not to proceed with the charges.

16. [33]

    Two of the charges that were not proceeded with in 2020 following the defendant’s pleas of guilty with respect to his present convictions arose out of conduct alleged to have occurred in February 2004 when the defendant was 22 years old. The discontinued charges comprised two counts of sexual intercourse with person under the age of ten years. It was alleged that the complainant, who was the defendant’s then-partner’s seven year old niece, was sitting on the defendant’s lap during a car trip. The defendant allegedly placed his hand under the complainant’s clothing and underwear and inserted two fingers inside her vagina before taking his fingers out and flicking them on the window. The defendant allegedly repeated this about ten times during the car trip and whispered “it’s a secret” to the complainant. It was further alleged that that night, the defendant woke the complainant and told her to bend over in front of him, before pulling the complainant’s shorts and underwear to the side, inserting two fingers inside her vagina and moving them back and forth for about five minutes. The defendant stopped for about 30 seconds, then continued for a further five minutes, again stopped for 30 seconds and then resumed for a final five minutes. The defendant told the complainant, “[i]f you tell anybody about this I’m going to kill you”.

17. [34]

    Further allegations of sexually inappropriate behaviour are contained in the report of Dr Katie Seidler, which was prepared in 2016. The report refers to a complaint made by the defendant’s then partner’s 17 year old daughter leading to a Department of Family and Community Services (FaCS) investigation. The complaint included that the defendant got into bed with the daughter and gave her a “cuddle”; asked her about her sexual activities; made sexually suggestive comments towards her; and was observed to grab the breasts of her 11 year old sister. The timing of this event is unclear, other than that it was described in the 2016 report as having occurred “more recently”.

18. [35]

    Further allegations of inappropriate behaviour were contained in the email referred to above from the Community Corrections Officer dated 19 June 2024 and a case note dated 29 April 2025, each of which are discussed in detail below.

Risk Assessment

1. [36]

   I turn to the assessment of risk. In determining whether the matters in the supporting documentation would, if proved, justify the making of an ESO, I am required to have regard to the factors set out in s 9(3) of the Act:

2. [37]

   As this is a preliminary hearing, and the defendant has never been subject to an order under the Act, no such reports have yet been prepared.

3. [38]

   A risk assessment report (RAR) was prepared by Holly Cieplucha, a senior psychologist working within the High Risk Offender Team at CSNSW, on 14 March 2025. Ms Cieplucha interviewed the defendant for the purposes of the report on 10 March 2025. Key aspects of Ms Cieplucha’s report are discussed below.

4. [39]

   I have had regard to the results of statistical and other assessments. These matters were taken into account in the RAR of Ms Cieplucha. I have additionally had regard to the submissions of the defendant with respect to the limitations in relation to the use of such tools. A particular consideration in this case is the focus of the tests on historical or static factors with the result that the defendant’s participation in intervention and progress on parole is not considered.

5. [40]

   I have had regard to the risk management report (RMR) prepared by David Ford, a Community Corrections Officer/Departmental Supervising Officer in the ESO team at CSNSW, on 1 May 2025. Mr Ford described the defendant’s compliance with supervision and positive progress in the community as follows:

6. [41]

   Mr Ford described the defendant’s contact with Community Corrections reducing from weekly to fortnightly in February 2025 as a result of a reduction in his score on the Sex Offender Risk Assessment. When the defendant initially commenced parole, he received a “Moderate” risk score for static risk factors, and a “High” risk for dynamic risk factors. In February 2025, he was assessed as having “Moderate” dynamic risk factors. Mr Ford noted that the defendant subsequently received those same results in the RAR authored by Ms Cieplucha.

7. [42]

   Mr Ford reported that the defendant had claimed to be abstinent from drugs and alcohol since 9 July 2023, at which time he was in custody. Mr Ford said that the defendant had been subject to preliminary drug swipe tests, all of which returned negative results, albeit a drug swipe in September 2024 produced a positive result possibly triggered by the defendant’s varying medication regime. Despite none of the defendant’s parole conditions pertaining to alcohol use, Mr Ford reported that the defendant had complied with alcohol breathalyser tests which had consistently produced a zero Blood Alcohol Concentrate reading. Mr Ford further described the defendant attending AA and Narcotics Anonymous (NA) meetings, a matter discussed further below.

8. [43]

   The RMR indicated that the defendant had been diagnosed with bipolar disorder and Post Traumatic Stress Disorder (PTSD), and had been compliant with his psychotropic medications since his release to parole. While the defendant apparently demonstrated brief periods of manic symptoms in March 2024 and again in August 2024 after a medication change, his behaviour was said to stabilise after his medications were reviewed in September 2024.

9. [44]

   Additionally, Mr Ford described the defendant’s current accommodation with his partner as appearing “suitable” and noted that the defendant appeared to have created a pro-social support network through AA, NA and the Salvation Army.

10. [45]

    The defendant reported that, prior to his incarceration in New Zealand, he completed three months of the “STOP” program, a multimodal treatment program for young people who have sexually abused. He has also reported completing the “Kia Marama” sexual offender treatment program over a period of a year while he was in custody in New Zealand.

11. [46]

    The agreed facts outline the further programs the defendant has participated in and completed during his most recent period of custody:

12. [47]

    Since his release to parole, the defendant has continued to engage in treatment and rehabilitation programs. Since March 2024, the defendant has attended monthly sessions with a private psychologist to address his childhood trauma and mental health. He reported that for a period this was increased to fortnightly due to grief the result of the death of a family member. Further, the defendant has regularly attended AA and NA sessions through Wesley Mission and online. In October 2024, the defendant was granted the role of Secretary of the AA meetings due to his regular attendance. The defendant has reported attending as many as two to three sessions per day to manage his cravings. He has also engaged with a sponsor through AA.

13. [48]

    The options available to the defendant are canvassed in both the RAR of Ms Cieplucha and the RMR of Mr Ford. The agreed facts summarise the supervision plan set out in the RMR in the event an ESO is made:

14. [49]

    In addition, the affidavit of Ms Grabham outlines the available supervision under an ESO compared to options available under a Child Protection Prohibition Order or listing on the Child Protection Register.

15. [50]

    Having regard to the level of the defendant’s compliance while subject to parole, in my view, it is likely that he will comply with the conditions of an ISO or ESO, if imposed.

16. [51]

    As discussed above, the RMR of Mr Ford reported that the defendant appeared to engage positively during supervision, incurred no breaches of his parole, and that Community Corrections had not identified any significant concerns. Mr Ford described the conditions of the defendant’s parole as including electronic monitoring; submitting a weekly schedule of proposed activities; a prohibition on illicit substance use; attending Forensic Psychology Services; a prohibition on contacting any victims; complying with the Child Protection Register; and not being in the company of any person under the age of 16 unless accompanied by a responsible adult as determined by his parole officer.

17. [52]

    The defendant is a registrable person under the Child Protection (Offenders Registration) Act 2000 (NSW). According to the RMR, routine checks with the Child Protection Register indicate the defendant has been complying with his reporting obligations, and there have been “nil adverse findings” arising from the defendant’s annual device inspections.

18. [53]

    I have had regard to the defendant’s history. That history has been set out above and considered in the relevant reports assessing the defendant’s risk.

19. [54]

    I have had regard to the views of Bright DCJ in passing sentence on the defendant for the index offence. Of particular relevance is her Honour’s assessment that the defendant’s prospects of rehabilitation were guarded, noting his long-standing issues with alcohol and the evidence of a paedophilic disorder that, in the opinion of the author of the psychiatric report for the purposes of sentencing, remained untreated.

20. [55]

    I am also entitled to have regard to any “other information” as available, as to the likelihood that the defendant will commit a further serious offence. In that respect, the plaintiff points to charges relating to the third complainant in the 2020 proceedings which were withdrawn, as discussed above. The plaintiff also relies on the uncharged conduct referred to in the agreed facts tendered on sentence in the 2020 proceedings (the earlier conduct against the first complainant). I have had regard to the conduct as matters alleged in the supporting documentation.

Would the matters alleged in the supporting documentation, if proved, justify the making of an order?

1. [56]

   There is no issue, based on the matters alleged in the supporting documentation, that the defendant satisfies the requirements of s 5B(a) of the Act, that is, he is an offender as defined in s 4A of the Act who has served a sentence of imprisonment for a “serious offence” as defined in ss 4 and 5A.

2. [57]

   I am also satisfied that the defendant is a “supervised offender” for the purposes of s 5B(b), and that the application for the order has been made within s 5I. The issue which remains is whether the matters alleged in the supporting documentation would, if proved, justify the Court’s satisfaction to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under an ESO.

3. [58]

   In Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [19], the Court of Appeal observed that in passing the Act, then called the Crimes (Serious Sex Offenders) Act 2006 (NSW), the “legislature has determined that, for the protection of the public, there should in specific cases be restrictions of liberty” which are “outside the ordinary principle that interference with liberty is generally restricted to interference that is deserved by reason of actual criminal conduct”. Their Honours then referred to the second reading speech in which the Honourable Tony Kelly, Minister for Justice, said:

4. [59]

   The Act has been amended multiple times since it was enacted, both by broadening its scope beyond sex offenders and clarifying the test to be applied, including by removing the requirement that the Court be satisfied to a high degree of probability that the offender is “likely to commit” a serious sex offence, now framed as whether an offender “poses an unacceptable risk of committing” a serious offence (emphasis added). The objects of the Act, which were originally expressed so as to equally apply to the purposes of “the safety and protection of the community” and “rehabilitation” have likewise since been amended, to the effect that the primary object of the Act is the safety and protection of the community, with another object being rehabilitation.

5. [60]

   The relevance of the passages in the second reading speech referred to above is, in the light of the various amendments, very significantly attenuated. Nonetheless, it might be observed that, if the Act does in fact apply to the defendant in the present case so as to enable the making of an order, even an order of an interim nature, it will have moved a very long way from the purpose for which it was originally enacted. Whether the Act does in fact cover the present case requires faithful application of the Act in its current form. I have received considerable assistance from the parties, including the written submissions of both counsel, supplemented by their oral submissions, directed to this question.

6. [61]

   While the defendant’s offending has been set out above, it is helpful to revisit the chronology. The defendant committed the offences against the first complainant, his maternal half-sister, in 1992 and between 1995 and 1996. The material establishes that the abuse, detailed above, first occurred in the 1992 holidays when the defendant was aged 11 and the complainant was aged seven. The abuse occurred on multiple occasions during this period. The defendant again abused the complainant on multiple occasions between 1995 and 1996 when he was 14 and the complainant was ten.

7. [62]

   The above matters did not come to light until many years later. Meanwhile, the defendant’s offences in New Zealand commenced in November 1996. The first complainant, the defendant’s paternal half-sister, was five years old and the defendant 15 when the abuse commenced. The offences continued “on a regular basis” over approximately 18 months. The second complainant was said to be between seven and ten when the offences occurred, while the third complainant was aged four at the relevant time. The New Zealand facts are silent as to when the babysitting offences occurred, however the remarks on sentence of Bright DCJ indicate the defendant was 15 and 16 years old when he committed the offences against the second and third complainants, respectively. The defendant was prosecuted and, at age 17, was sentenced. According to the report of Dr Seidler prepared in 2016, the defendant was housed in an adult gaol and repeatedly sexually and physically assaulted.

8. [63]

   The next offending was alleged to have occurred in February 2004 when the defendant allegedly digitally penetrated the seven year old complainant multiple times during a car trip. It was further alleged that the defendant woke the complainant that night and digitally penetrated her. The defendant at the time was 22 years old. The defendant went to trial on these matters but they were discontinued as part of the charge bargain entered into in 2020.

9. [64]

   There follows a significant gap in the defendant’s offending. His next offence was committed 13 years later, in 2017, by which time he was 36 years old. This offence was committed against the 12 year old daughter of the defendant’s partner. Complaint was first made in November 2018 at which time the defendant was arrested. He has been in custody or on parole since that time.

10. [65]

    If not for the single offence in 2017, the defendant’s most recent offence would have been in 2004, with the vast majority of the offending taking place between 1992 and 1998 when the defendant was between 11 and 16 years old. It should however be acknowledged that there is evidence of the defendant exhibiting sexually inappropriate behaviour in around 2016, including by getting into bed with his then-partner’s daughter and giving her a “cuddle” when she was upset, leading to a FaCS investigation, the defendant’s temporary removal from the house and an acknowledgement by the defendant that his conduct had been “wrong and inappropriate”.

11. [66]

    Nonetheless, the offence in 2017, while it could hardly be described as a “one off”, is significant in that it came some 13 years after the previous offence in 2004, which itself came at least six years after the offending before it. That first gap, it must be said, was largely attributable to the defendant’s custody from 1998 to December 2002. It is helpful given this chronology to consider the particular circumstances that prevailed at the time of the 2017 offence, a matter discussed below in the context of the defendant’s risk.

12. [67]

    In the RAR, Ms Cieplucha, quoting from the 2024 HISOP Treatment Report of Mr Andrew Fordyce, said with respect to the circumstances leading to the 2017 offending (at [52]):

13. [68]

    The defendant’s “broad” sexual interests, as euphemistically described above, are better described as including deviant sexual interests. Given his interests, viewed in the context of his history, there must be a concern that if circumstances converge as they did in 2017, there is a real risk of the defendant reoffending by the commission of a serious offence. This, according to the RAR is, however, not the only scenario in which the defendant may re-offend. Ms Cieplucha said, quoting from the HISOP treatment report (at [77]):

14. [69]

    Ms Cieplucha went on to report (at [78]):

15. [70]

    Ms Cieplucha further reported (at [84]):

16. [71]

    What is meant by the “Above Average risk range” is not stated. That the defendant is above average suggests that no more than half of all sexual offenders are less likely to re-offend than him. In the body of Ms Cieplucha’s report, however, the test result of the STATIC-99 is described as revealing a “perceptibly higher risk [of reoffending] than the typical offender”. Other scores, as discussed above, suggest a significant potential risk.

17. [72]

    The plaintiff submitted that the RAR should be read having regard to fact that the June 2024 note in relation to the defendant’s purported attempt to have sex with his partner’s daughter was not provided to Ms Cieplucha. While it was submitted that Ms Cieplucha did have knowledge of a similar incident, it may have been a separate incident, and even if it was not, it did not present the matter as seriously. For the reasons given below, this is not a matter that should have a significant bearing on the determination of the defendant’s risk. It might also be noted that the RAR was prepared without knowledge of the defendant’s successful completion of a 20 session EQUIPS Foundations program in November 2024. This was a positive factor in reducing risk which was, apparently, not taken into account.

18. [73]

    Of some significance is the reduction in the defendant’s score on the STABLE-2007 test between testing in January 2024 immediately following the completion of the HISOP program (prior to the defendant’s release from custody) and March 2025 when Ms Cieplucha administered the test. The defendant’s score reduced from 14 to 7 out of 26 which Ms Cieplucha thought “may be attributable to [the defendant]’s period under supervision which has provided a greater opportunity to evaluate his ‘live’ risk than was available during his time in HISOP”.

19. [74]

    The above observation reflects what appears to be real progress towards rehabilitation. That is to be seen in the context of the broader chronology. The result of the delay in the prosecution of the 1995 to 1996 offences is that the defendant has received two distinct gaol terms for the totality of the offending. The first was in New Zealand commencing in December 1998 when he was a child. The second period commenced in 2018. The defendant’s involvement in programs and his current circumstances have been described above. He appears to have responded positively to his recent incarceration in this regard.

20. [75]

    Further, the defendant’s circumstances leading up to the 2017 offence, where he described himself as having been on a three-day bender, are very different to his present circumstances. When the defendant’s circumstances at that time, and the broader chronology are considered, I am of the view that so long as the defendant maintains his current pathway, he could not be considered an unacceptable risk. It is necessary then to consider the evidence relevant to the prospect of the defendant deviating from his current path.

21. [76]

    The defendant has been in the community since his release to parole on 20 January 2024. This is a period now approaching two years. In that time, the defendant has, as discussed above, maintained a stable relationship, demonstrated a commitment to AA, NA and other services, engaged in study and more recently, obtained employment. His present stability is such that he does not raise any immediate concerns with respect to re-offending.

22. [77]

    Obviously the matters referred to above contributing to the defendant’s stability could change. There is the possibility the defendant’s relationship, for reasons not presently apparent, could break down. But to guard against that possibility would require a lifelong, or at the least, very lengthy order, something that is not suggested to be appropriate in this case.

23. [78]

    It should be observed that the defendant has, since his release, had periods of instability in his mental health. These have, however, been quickly attended to. Notably, the defendant has taken responsibility for the management of his bipolar disorder, successfully dealing with the fluctuations in his condition with his general practitioner. This, if anything, tends to suggest the defendant’s bipolar disorder is well managed. It is also relevant to note that the defendant’s diagnoses of bipolar disorder and PTSD were made while the defendant was in custody in 2019, with the result that the period since his release is the first time the defendant has been in the community with these conditions appropriately diagnosed and managed.

24. [79]

    There is one piece of evidence which, if accepted, would cast some doubt on the defendant’s otherwise steady progress. A case note dated 29 April 2025 refers to “intel that [the defendant] was drinking in the home and flirting with [his partner]’s adult daughter” leading to her leaving the home. The note continues, stating that this information was not verified. The report was of an event six months prior.

25. [80]

    There is, additionally, a report from a Community Corrections officer dated 19 June 2024 indicating that she had received a call from a third party relaying information from the defendant’s partner’s 21 year old daughter. The report indicated the defendant had, while intoxicated, attempted to enter her bedroom and asked for sex “multiple times”. This apparently occurred at night while the defendant’s partner was working. While the 29 April 2025 case note refers to the event being “6 months prior” (which would place it in late October 2024) it is, in my view, reasonably likely that the two notes relate to the same report. The events described in each note are broadly similar. More significantly, both entries refer to the event as the catalyst for the defendant’s partner’s daughter moving out of the home. That said, I accept that it is at least possible that the reports are independent of one another.

26. [81]

    The RAR notes that no action was taken in response to the above information and records that, according to another case note, the allegation “may be rebellion from […] re: house rules”. The RMR repeated the concern raised in the RAR, and the qualification that there may be an alternative explanation for the complaint.

27. [82]

    The plaintiff accepts that any allegation of the defendant drinking and importuning his partner’s daughter for sex, or flirting with her, is unproven. The allegation is (or allegations are) at least third-hand hearsay (noting that any supporting documentation is, at best, first-hand hearsay which must be accepted). The parties made submissions bearing on the proper approach to this evidence on a preliminary hearing.

28. [83]

    I am required to apply the test based on acceptance of the “matters alleged” in the supporting documentation. The defendant referred to authority which suggests that I could accept a matter alleged but not necessarily give it weight: State of New South Wales v Heness (Preliminary) [2019] NSWSC 1710 (Heness) per Fullerton J at [29]. That can be readily accepted if it is a question of the significance of the matter alleged to the test to be applied. It is a more difficult question if it is submitted that less weight might be given to a matter alleged because of the quality of the evidence. The plaintiff pointed to various authorities in which the proper approach on a preliminary hearing was discussed. None of those authorities, however, directly deal with the issue addressed by Fullerton J in Heness.

29. [84]

    The question it seems to me exposes an underlying controversy as to what is alleged. Is it alleged that the defendant did become intoxicated and asked his partner’s daughter for sex? Or is it alleged that a third person reported to a relevant authority that the partner’s daughter had told them this? The plaintiff submitted that it was the latter but maintained that the evidence nonetheless has relevance. The plaintiff submitted that, based on this concession, while I could not find as a fact that the defendant became intoxicated and sought out sex as reported, I could (indeed must, given the test) find that the evidence established raised a concern with respect to the defendant’s behaviour and the stability he is said to have obtained.

30. [85]

    The defendant did not disagree with the plaintiff’s approach. Given this, I am prepared to proceed on this basis. However, accepting that there is some evidence which raises a concern as to the defendant’s conduct, it is of marginal utility. It is, as I have said, likely a single allegation from June 2024. If not a single allegation, the events are dated. There has been consistent and steadfast engagement with AA since that time which suggests that the defendant has moved on. Given this and the plaintiff’s acceptance that the evidence rises no higher than a concern around the particular time or times, this evidence does not weigh heavily in the assessment of the defendant’s risk.

31. [86]

    The result of the above analysis is that I find (accepting the matters alleged in the supporting documentation) that the defendant has been stable in the community over a significant period of time. Further, the commitment of the defendant to the various pro-social and therapeutic activities in which he is engaged, when viewed in the context of the chronology, are such that I am, subject to one matter, not of the view that the matters in the supporting documentation would, if proved, justify the making of an order. The qualification relates to the plaintiff’s submission that the defendant’s risk is informed by the absence of expert reports which would be ordered were I to be satisfied of the test.

32. [87]

    In effect acknowledging the progress of the defendant, the plaintiff’s submission was that the defendant’s risk is, “[i]n the absence of an up-to-date psychiatric assessment”, unacceptable. I would accept that, in some circumstances, the absence of up to date information as to the current risk posed by a defendant will render the risk posed unacceptable for the purposes of the Act. That is, the matters alleged in the supporting documentation may justify the making of an order, in part, on the basis of uncertainty as a result of the absence of up to date expert opinions. Of course, in any case, it is preferable to know more. While the safety of the community must be the paramount consideration, the preference to know more will not, of itself, mean the risk, in the absence of further information, is necessarily unacceptable. The plaintiff relies on the matters alleged in the supporting material as informing the need for further expert reports and makes a number of submissions based on that material.

33. [88]

    The plaintiff relies on the defendant’s history of serious sexual offences against children, notably against children in his care. The plaintiff additionally relies on the assessment in the RAR that the defendant has an “Above Average” risk of re-offending and the risk factors to which the report refers. These matters are obviously related, the risk being in large part based on the defendant’s criminal history which is plainly relevant to risk. They have been addressed above. They do not inform the need for further expert reports, at least beyond the natural desire to know more in the presence of some risk.

34. [89]

    The plaintiff submits that substance abuse is a relevant risk. So much can be accepted. Again, however, there is nothing in the supporting documentation to suggest that more needs to be known about this risk factor. There will always be a risk of the defendant returning to substance abuse. His risk in this regard is well understood. There is nothing to suggest that further reports will assist with assessing or managing that risk. That is particularly so in the context of the evidence that the defendant is actively engaged in managing this risk, it appears successfully. While, as discussed above, there is a suggestion of alcohol use leading to inappropriate behaviour, even if this did occur (as to which no finding can be made) the defendant’s commitment to abstinence, at least since then, has been exemplary.

35. [90]

    The plaintiff points to an outstanding issue as to whether the proper diagnosis of the defendant should include a paedophilia disorder or hebephilia based on different reported opinions. The RAR did not, however, suggest that any conflict in past opinions was a matter requiring resolution in order to understand the defendant’s risk. Rather, understandably, the defendant was assessed on the basis of his sexual deviance resulting in the particular criminal behaviours in which he has engaged.

36. [91]

    The plaintiff additionally pointed to evidence that the defendant appeared to engage in a “degree of impression management” towards the author of the RAR as well as in the course of the ComSOP program. It was not, however, suggested by the author of the RAR that any “impression management” engaged in by the defendant impacted her assessment. It is correspondingly not clear why any element of impression management requires resolution by obtaining more up-to-date reports. It might further be observed that it is not clear what was involved in any “impression management”. I have previously observed that it is not surprising that offenders, like all of us, will commonly attempt to convey a favourable impression: Attorney-General of the Commonwealth of Australia v Amin (Final) [2023] NSWSC 1586 at [115]. To the extent that the defendant has engaged in impression management, it is plain that it has not been to create an altogether false picture. In this regard, the defendant’s institution and maintenance of his pro-social activities is not suggested to be anything other than genuine.

37. [92]

    The plaintiff finally submits that expert reports would provide recommendations in relation to treatment and rehabilitation which will assist the defendant and reduce his risk. The defendant has already, though his parole conditions, been connected with presumably appropriate services. He has engaged positively with Forensic Psychology Services. A decision was made in July 2025 to close the defendant’s referral, noting his difficulty in attending group sessions (presumably due to his commitments including employment). It was further noted that “there are no acute risk issues to warrant additional individual sessions to a client who is strictly out of area”. The report noted the defendant was engaged (impliedly appropriately) with his own psychologist. It is difficult to see in this context any need for recommendations as to treatment.

38. [93]

    There is not, in this case, uncertainty of a type that would justify a finding that the defendant presents an unacceptable risk in the absence of further reports.

Conclusion

1. [94]

   Having regard to the above, while giving paramountcy to the protection of the community, and accepting the matters alleged in the supporting documentation, I am not satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence if not kept under an ESO. It follows that the plaintiff’s summons must be dismissed.

2. [95]

   No submission was made as to costs. I will grant leave to the parties to approach my Associate with respect to their respective positions.

Orders

1. [96]

   I make the following orders:

   1. (1)

      The plaintiff’s summons filed 29 August 2025 is dismissed.

   2. (2)

      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 for access.

   3. (3)

      Leave is granted to the parties to advise my Associate by email within 7 days of these orders of their respective positions in relation to costs.