State of New South Wales v Daiman Nixon (also known as Damien Nixon)

1. [1]

   By summons filed on 11 December 2024, the State of New South Wales seeks several orders under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) in relation to the defendant, Daiman (or Damien) Nixon. Mr Nixon is a 40-year-old Wiradjuri and Wonnarua man who has been subject to an extended supervision order (“ESO”) for the last two years. That order was made by Dhanji J on 20 February 2023 after Mr Nixon served a lengthy gaol sentence for serious offences committed when he was 24 years old. Ultimately, the summons seeks a further ESO for a period of 18 months, but at the preliminary hearing on 28 February 2025 the State sought orders under ss 7, 10A and 10C(1) for the appointment of experts to prepare reports for a final hearing and an interim supervision order for a period of 28 days. The current ESO will expire on 20 April 2025.

2. [2]

   I am not satisfied that the supporting documentation, if proved, would justify the making of a further ESO. Accordingly, the summons must be dismissed. These are my reasons for that conclusion.

3. [3]

   There is no dispute that the formal pre-requisites in s 5B(a), (b) and (c) of the Act are satisfied. That is:

4. [4]

   The only issue that would have been litigated at a final hearing is whether the “Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order”: s 5B(d). The nature of that test has been considered by the Court of Appeal in many cases and applied by single Judges of this Court regularly: see, for example only, (in the Court of Appeal) Attorney General for New South Wales v Tillman [2007] NSWCA 119 (“Attorney General v Tillman”), Cornwall v Attorney General for New South Wales [2007] NSWCA 374, State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280 (“NSW v Donovan”), Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (“Lynn v NSW”), Kamm v State of New South Wales (No 4) (2017) 95 NSWLR 179; [2017] NSWCA 189 (“Kamm (No 4)”), Tannous v State of New South Wales (2020) 103 NSWLR 183; [2020] NSWCA 261 and (in the Common Law Division) State of New South Wales v Kamm (Final) [2016] NSWSC 1 (“NSW v Kamm (Final)”) and State of New South Wales v Keech [2024] NSWSC 408. My approach to the application is consistent with those authorities and I have taken the application at its highest.

A quick review of the guiding principles

1. [5]

   In considering an application of this kind, the objects of the Act, which are stated in s 3, must be borne firmly in mind. The primary object is “to ensure the safety and protection of the community.” The secondary object is to ensure that offenders undertake rehabilitation. In Attorney General v Tillman, it was said at [5] that the “stated objects reveal that the legislation is protective rather than punitive in its intent.” In NSW v Donovan, the Court of Appeal confirmed the importance of the objects of the Act:

2. [6]

   In Attorney General v Tillman, the Court of Appeal made the following observations as to the approach that must be taken at the preliminary hearing and in determining whether an interim order is to be made:

3. [7]

   In considering whether there is an “unacceptable risk” the Court must consider both the probability of the risk manifesting itself and the gravity of the consequences if it does. “A determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made”: Lynn v NSW at [51]. It may be that the probability that the offender will offend again is very small, but that the consequences of them doing so will be potentially devastating, such that the risk is unacceptable. As Harrison J said in NSW v Kamm (Final):

4. [8]

   This approach is sometimes referred to as the “calculus of risk” and was explained (in a different context) by the Court of Criminal Appeal (Hoeben CJ at CL, Price and Adamson JJ) [2] in AB (A Pseudonym) v R (No 3) (2019) 97 NSWLR 1046; [2019] NSWCCA 46 at [56]-[57].

The evidence (“supporting documentation”)

1. [9]

   The parties prepared a three volume “Judges working folder” which was mostly comprised of material tendered by the State, although there were also some documents prepared by both parties and an affidavit of Mr Nixon’s solicitor, Ms Moussaoui. The bulk of the material was exhibited to an affidavit of Ms Henen, a solicitor with the Crown Solicitor’s Office who has carriage of the case.

2. [10]

   I have considered that material which, without attempting to be exhaustive, includes:

Criminal history

1. [11]

   The police bail report is a 23-page document but, leaving to one side for a moment the 2009 offences, it is not the most serious criminal record. However, it does include convictions for offences of actual and threatened violence, including domestic violence, some of which resulted in imprisonment or suspended gaol sentences. The defendant has also committed a lot of relatively minor offences of dishonesty but I will only summarise the violent offences.

2. [12]

   In 1998, while he was still a juvenile, Mr Nixon was sentenced to a 12-month good behaviour bond and fined $400 for an offence of common assault. On 7 December 1999, he was dealt with by the Kempsey Children’s Court for three offences, including an offence of stalking/intimidation with intention to cause fear of personal injury and custody of a knife in a public place. The Court dismissed the charges and administered a caution.

3. [13]

   In mid-2001, he was charged with an offence of common assault and was sentenced to a control order for 1 month. Later that year he was charged with common assault and stalking/intimidation with intention to cause fear of physical/mental harm, for which he received a 12-month good behaviour bond.

4. [14]

   In 2002, the Children’s Court sentenced Mr Nixon to probation for 12 months for one count of common assault.

5. [15]

   In 2005, the defendant was sentenced to 10 months imprisonment which was suspended for several offences including one count of common assault and one count of possessing a knife in public.

6. [16]

   On 13 February 2009, Mr Nixon was sentenced in the Maitland Local Court to an aggregate sentence of 6 months imprisonment for two counts of common assault (DV), one count of stalk/intimidate with intention to cause fear of physical/mental harm and one count of contravene an apprehended violence order (“AVO”). He was also placed on a good behaviour bond for a second offence of contravene AVO.

7. [17]

   In 2010, Mr Nixon was sentenced for two sets of serious offences committed in 2009. The second set of offences are those that brought him within the scope of the Act.

8. [18]

   On 29 April 2009, Mr Nixon committed an offence of sexual intercourse without consent. That offence related to a sexual assault on Mr Nixon’s then partner (although, from the victim’s point of view, they broke up a day or so before the incident). Mr Nixon entered the shower where the victim was naked and forced sexual intercourse on her. This was over her protests and despite the intervention of a third person. Mr Nixon pleaded guilty and admitted that he was reckless as to whether the complainant was consenting. The matter was dealt with on 3 March 2010 in the District Court sitting at East Maitland. Mr Nixon was sentenced to an 18-month prison term which was suspended.

9. [19]

   The second set of offences was committed on 1 September 2009 while Mr Nixon was on bail for the offence of sexual intercourse without consent. The facts are set out in the remarks on sentence of Judge Ellis delivered on 24 August 2010 and in the agreed facts prepared for the sentencing proceedings. The matter involved a planned armed robbery in company, an aggravated sexual assault, and an aggravated indecent assault.

10. [20]

    Mr Nixon and a 17-year-old juvenile offender (“X”) attacked a vulnerable young woman at around 2:00am on a train traveling between Gosford and Wyong. Mr Nixon was armed with two large kitchen knives. X approached the victim and sprayed her eyes and face with a can of aerosol and tried to take her handbag. The victim resisted, saying she had no money, and Mr Nixon repeatedly punched her in the face. He also slammed her head against the window or wall of the train carriage. This caused a wound to her eyebrow requiring four stitches. He then kicked the victim’s legs but she refused to let go of her bag. Mr Nixon yelled at X, who by then had the knives, to stab the victim but the strap of the bag broke and X took possession of it.

11. [21]

    The sexual offending occurred after the victim’s handbag was taken. Mr Nixon continued to punch the victim to the head. He tried to force open the victim’s legs but she resisted. He then undid her belt and pulled the victim’s jeans down low enough to be able to insert his fingers into her vagina. Mr Nixon told X to hold the victim’s arms down and kept his fingers inside the victim’s vagina for several minutes. Mr Nixon also bit the victim’s breast through her clothes so hard that it caused bruising.

12. [22]

    Mr Nixon pleaded guilty in the Local Court to one count of robbery in company causing wounding, one count of aggravated sexual assault in company and inflict actual bodily harm, and one count of aggravated indecent assault in company.

13. [23]

    Judge Ellis assessed the objective seriousness of the offences as being just below the mid-range, and imposed an aggregate sentence of 13 years and 3 months imprisonment, commencing on 1 September 2009, with a non-parole period of 9 years. The non-parole period expired on 31 August 2018 and the defendant was released to parole on 6 September 2021.

14. [24]

    Mr Nixon’s parole was revoked on 18 March 2022 and this order was rescinded on 29 June 2022.

15. [25]

    Since his release, and while he was on parole or subject to the ESO, there are only three offences recorded against the defendant. The first was a shoplifting offence in 2023 which attracted a $50 fine. The other offences involved failing to comply with the conditions of the ESO and these attracted concurrent fixed term sentences of 2 months from 29 November 2023 to 28 January 2024.

A dysfunctional personal history, drug abuse, cognitive impairment and mental health issues

1. [26]

   The expert reports of Dr Sathish Dayalan, forensic psychiatrist, dated 16 January 2023 and Dr Michael R Davis, forensic and clinical psychologist, dated 16 January 2023 set out Mr Nixon’s personal and family history. Those reports were prepared for the hearing before Dhanji J. There are inconsistencies in the histories and Dr Dayalan said that Mr Nixon “was not a reliable historian. He contradicted himself on occasions and repeatedly refuted information in the documents if they portrayed him in a negative light.” What follows is a distillation of the information in the reports presented as a cohesive and consistent narrative.

2. [27]

   Mr Nixon was born in Dubbo and grew up in Kempsey. He was raised by his father and stepmother and has not seen his biological mother since he was two years old. His childhood was characterised by parental neglect, behavioural problems and early exposure to illicit substances. His father used to hit him, and he has not spoken to his father for 15 years. He was sexually abused by an adult male when he was around six or nine years old.

3. [28]

   The defendant attended four different primary schools. He had learning difficulties and was at times placed in special classes. He routinely got into fights and there were incidents of violence including one occasion where he stabbed a teacher with a lead pencil. In year 8, he threw a table at the school principal’s head and, unsurprisingly, was expelled from school.

4. [29]

   Mr Nixon did not complete year 8 but has attended TAFE on and off. His employment history is patchy. He says he has worked in various roles including in sales, marketing, carpeting, trolley pushing, cleaning and grape picking. However, he has struggled to maintain consistent employment and tends to “get bored” and “walk away”. A pre-release report prepared by Corrective Services in 2019 suggested that his longest period of employment within the community was three days and that he had jobs in custody for a total of 18 months during his time in gaol.

5. [30]

   Mr Nixon has a history of mental health issues and cognitive impairment. From an early age he engaged in fighting, demonstrated aggressive tendencies, was cruel to animals, stole and damaged property, engaged in substance abuse and frequently ran away from home. Dr Dayalan said his behaviour was indicative of a conduct disorder. Mr Nixon was diagnosed with ADHD at the age of nine. He was treated with dexamphetamine, a stimulant, which according to Mr Nixon made his behaviour worse.

6. [31]

   He began using cannabis when he was 12 years old. He said this was provided by family members to help calm him down. He reported heavy cannabis use from the age of 12 to 24 and was using stimulants from the age of 17 to 22. Dr Dayalan believed Mr Nixon’s history of substance use was “consistent with a diagnosis of cannabis and stimulant use disorder that are currently in remission”.

7. [32]

   When he was 16 years old Mr Nixon attempted suicide by stabbing himself in the gut after a romantic partner admitted to infidelity.

8. [33]

   He has been diagnosed with a “mild intellectual disability which is characterised by difficulties in communication, memory, understanding, problem-solving, executive functions, social interaction and communication skills”. This disability is “permanent and lifelong”.

9. [34]

   Dr Dayalan and Dr Davis both expressed the opinion that Mr Nixon meets the diagnostic criteria for antisocial personality disorder. Dr Davis referred to “Mr Nixon’s repeated offending, impulsivity, deceitfulness, reduced guilt, and irritability” and was of the opinion that his disordered personality “has been complicated by poor childhood attachments, abusive experiences, and previously chronic substance misuse”. Dr Davis was of the view that the defendant’s personality disorder “is at a severe level of impairment” but acknowledged that “it is certainly possible that he has been experiencing a degree of personality maturation in recent years”.

Risk assessment reports and the defendant’s response to supervision on parole and under the ESO

1. [35]

   The defendant was released to parole on 6 September 2021. As noted by Dhanji J in State of New South Wales v Nixon (Final) [2023] NSWSC 106 (“NSW v Nixon”) at [15]-[16]:

2. [36]

   Mr Nixon’s parole order was revoked on 18 March 2022 on the basis that the defendant posed “a serious and immediate risk to the safety of the community” because, according to the breach report dated 18 March 2022, Mr Nixon “[failed] to adapt to normal lawful community life”. This conclusion was reached on several bases including that Mr Nixon left his approved accommodation to live with a “vulnerable person” at a local caravan park in a tent, said that he wished to commence a sexual and romantic relationship with that person despite their misgivings, and deviated from his schedule of movements on several occasions.

3. [37]

   The revocation order was rescinded on 29 June 2022 and the defendant returned to the community.

4. [38]

   On 20 February 2023, Mr Nixon was placed on the two-year ESO. An ESO completion report prepared by Glenn Perry indicated that the defendant’s response to the order has been “superficial and resistant”, that he “associate[d] with antisocial influences” and engaged in “verbal conflict and minor physical conflict when he [was] stressed and/or angry”. Against that, Mr Perry noted that Mr Nixon has “engaged in discussions aimed at addressing his attitudes and behaviour along with his ability to manage his stress and anger more appropriately” and has returned negative drug tests on each occasion of oral testing.

5. [39]

   There have been some breaches, and warnings concerning alleged breaches, of the ESO. For example:

6. [40]

   A risk assessment report was prepared by Sam Ardasinski, senior psychologist, in May of 2022 and a risk management report was prepared by Community Corrections in June of that year. Dr Dayalan’s report dated 16 January 2023 and Dr Davis’ report dated 16 January 2023 were also tendered by the plaintiff at the hearing before Dhanji J.

7. [41]

   Dhanji J summarised the findings of those reports in NSW v Nixon at [25]-[38] and I will not repeat those findings here. However, the contrast in the findings in 2022 and those in late 2024 are not without significance.

8. [42]

   In preparing his most recent risk assessment report, Mr Ardasinski readministered some of the tests using the same actuarial tools, focusing on those which measure dynamic risk and protective factors.

9. [43]

   On the Violence Risk Scale (“VRS”), which assesses an individual’s risk for violence based on both static and dynamic risk factors, the defendant’s results demonstrated a reduction in his dynamic risk score in comparison to the previous assessment. Mr Nixon’s overall level of risk remained within the “high” risk range according to the old classification system, “but only just”. Using the RSVP tool, which contains a checklist of risk factors specifically related to sexual violence, Mr Nixon was assessed as requiring “a Moderate/Elevated level of effort to prevent [him] from committing acts of sexual violence”. Mr Nixon’s score on the STABLE-2007, a tool used to identify stable dynamic risk factors, indicated that he had “a Moderate density of criminogenic needs relative to other male sexual offenders”. Using the SAPROF-SO, which evaluates the protective factors that may reduce an individual’s risk of sexually abusive behaviour, Mr Nixon was “determined to have a moderate loading of protective factors that would inoculate against risk”.

10. [44]

    Despite the statistical outcomes just described, Mr Ardasinski’s report was a reasonably positive one and there have been improvements in the defendant’s self-regulation, coping skills and his capacity to access services that reduce his risk profile. Overall, Mr Ardasinski said that Mr Nixon “would fall into a group of persons with a risk for serious sexual offending that is statistically moderate in frequency, [but] of a type with potentially serious consequences”. While he thought it was “still quite possible” that Mr Nixon could commit some form of sexual offending, the author was of the opinion that the chances of “a contact offence against a stranger adult female… no longer appears likely, since Mr Nixon is not associating with criminal peers and his substance abuse issues appear in full remission.”

Submissions

1. [45]

   I had the benefit of thorough and helpful written and oral submissions by counsel for the State and the defendant. While there was some dispute about the conditions of an interim supervision order, the real dispute between the parties is whether an order should be made at all.

2. [46]

   While fairly acknowledging the improvements and positive signs, Mr Hunter identified a number of ongoing risk factors and submitted that I would be satisfied that the supporting documentation, if proved, would justify the making of a further ESO. That is, the Court would be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under the supervision of an ESO. He pointed to the probability of the risk eventuating and emphasised the gravity of the potential consequences.

3. [47]

   In relation to the gravity of the risk, Mr Hunter referred to the defendant’s apparent tendency to target vulnerable women as part of his so-called “hero complex”, an expression used in one of the reports. When pressed, counsel conceded that there was very little within the material that could assist in divining the meaning of that term. In his most recent risk assessment report, Mr Ardasinski hypothesised that the most likely risk scenario for sexual reoffending by the defendant would involve a contact offence against a current or former partner, which was intended to punish or gain control over the victim.

4. [48]

   In oral submissions, Mr Hunter submitted that if the defendant were to commit such a contact offence against his current partner, who has an intellectual disability, this would constitute an offence under s 61J of the Crimes Act 1900 (NSW), thereby meeting the test of a serious sexual offence for the purposes of the Act. It was also submitted that if the defendant were to cause actual bodily harm through physical violence, this would also meet the statutory test.

5. [49]

   While the State acknowledged that Mr Ardasinski’s most recent report did not assess the likelihood of such a risk eventuating as a “higher or moderate likelihood”, it emphasised that Mr Ardasinski did not conclude that there was no such risk. The plaintiff referred to paragraphs [30] and [32] of that report where Mr Ardasinski described the risk as “quite possible” and that it “may still be quite active” in the context of relationships with vulnerable women. The plaintiff referred to evidence which may support the likelihood of such a risk. This included that the defendant had been secretive about having contact with a vulnerable woman, had engaged in sexual banter and sent photographs of his penis to a former partner and unknown females online. He pointed to evidence that Mr Nixon downplayed sexualised behaviour and sexual contact with his partner, and was found to have a nude photograph of his partner on his telephone. It was suggested that the last of those matters indicated an “under-developed understanding of informed consent” as the defendant’s partner appeared to be asleep at the time the photograph was taken.

6. [50]

   Mr Kerkyasharian argued that the Court would not be satisfied to a high degree of probability that there is an unacceptable risk of Mr Nixon committing a further serious sex offence within the meaning of the Act, and that the application should be dismissed with costs.

7. [51]

   The defendant accepted that Mr Ardasinski’s most recent report included the opinion that the risk of further sexual offending “may still be quite active” and that it is “still quite possible”. However, Mr Kerkyasharian submitted that the words “may” and “quite possible” were far from positive assertions of an actual existing risk, but were more in the nature of a theoretical possibility that could not be excluded. He highlighted evidence that supports the proposition that the risk has decreased substantially and submitted that the defendant no longer represented an “unacceptable” risk. This included evidence that the defendant now has employment, that his current relationship “appears to be supportive and caring” and that no sexual content has been found on his ‘phone in the past four months. These are significant protective factors.

8. [52]

   Mr Kerkyasharian pointed to examples of occasions where Mr Nixon has displayed greater insight into his “triggers” and managed to control his emotions and refrain from resorting to violence. One example was in July 2023 during an incident involving his mother’s ex-boyfriend who refused to leave her home. Mr Nixon did not use or threaten violence but instead told the man to leave or he would contact the police. In May 2023 the defendant was stopped by police. Although agitated by the incident which he believed was racially motivated, he nonetheless was able to control and de-escalate his emotions and did not resort to violence. In September 2023, the defendant discovered that his partner had sent a nude photograph of herself to an ex-boyfriend. Mr Kerkyasharian submitted that this was:

9. [53]

   In October 2024, the defendant’s partner ended the relationship with him via text. The defendant’s response to this was indifferent, and the pair subsequently reconciled.

10. [54]

    Counsel for the defendant also pointed to the fact that the defendant’s treating psychologist has expressed the view that Mr Nixon has a “higher risk of general offending rather than sex offending”. This opinion was expressed with knowledge of occasions where Mr Nixon has viewed pornography and has been found to have such material on his telephone. The defendant submitted that this “is consistent with the fact that sexual preoccupation has not been identified as a risk factor for the defendant”.

11. [55]

    The defendant is now 40 years old. This is said to be a factor which reduces the likelihood of the defendant reoffending. In this regard, counsel referred to psychological literature which shows that “antisocial individuals tend to remit by their fourth decade”.

12. [56]

    Finally, it was submitted that Mr Nixon has sufficient supports and accommodation in place without the need for a further ESO. The defendant has become settled in NDIS-funded accommodation and receives six hours of one-on-one support a day, including assistance with participating in the community and social and recreational activities. In response to a suggestion that the defendant may choose to “opt out” of such services if a further ESO is not made, the defendant submitted that Mr Nixon:

13. [57]

    Counsel for the defendant also made a number of submissions in relation to the proposed conditions in the event that the Court was minded to make an ISO. Mr Nixon opposed the electronic monitoring and schedule of movement conditions (conditions 5-8), and the limitations on communication, internet access and other measures condition (condition 34). Counsel for the defendant also submitted that the wording of the non-association condition (condition 26) was ambiguous and proposed an alternative. I note in passing that it has been these conditions which have resulted in breaches of the current ESO.

14. [58]

    In reply, the State did not press condition 34 (limitations on communication, internet access etc) and the proposed amendment to condition 26 (non-association) was accepted. However, the electronic monitoring and schedule of movement conditions were pressed and remained in dispute.

15. [59]

    In both written and oral submissions, Mr Kerkyasharian stressed that Mr Nixon has not had an opportunity to demonstrate his stability in the community without the strictures of electronic monitoring and schedule of movement conditions. Counsel observed that this was contrary to the recommendations of the court appointed experts. Dr Davis recommended at paragraph [202] of his report that “the conditions become progressively more relaxed in the second year, if possible, to enable Mr Nixon to prove that any observed behavioural stability is not simply due to the restrictive nature of the ESO itself”. Similarly, Dr Dayalan recommended at paragraph [148] of his report that the “restrictions are lifted as soon as practicable as they are restrictive in nature and he would need to demonstrate a period of stability without these restrictions prior to expiry of any ESO made”. The restrictions have not been lifted, despite Mr Nixon displaying considerable stability in the community over the past 10 months.

16. [60]

    Furthermore, counsel for the defendant submitted that such conditions have been “harmful” to Mr Nixon’s rehabilitation, and referred to the incident on 3 May 2023 when he was stopped by police simply because of his ankle monitor. Given this, and the fact that Mr Nixon was released from custody after his breaches more than a year ago, the defendant submits that “there is no obvious need for these conditions”.

17. [61]

    While counsel for the State acknowledged that the incident with police was “regrettable”, it was submitted that there is no suggestion that such monitoring presents “an ongoing or more immediate impediment to the defendant’s rehabilitation”. The State maintains that electronic monitoring and schedule of movement conditions have facilitated Mr Nixon’s ongoing rehabilitation by allowing his managers to proactively assess risks in his environments and behaviours, and by providing early warnings if he fails to attend scheduled programs or appears to be engaging with vulnerable women. The latter, it was submitted, was particularly important in light of Mr Nixon’s previous lack of candour with his managers which constituted one of the two breaches that resulted in his incarceration for 2 months. Moreover, in oral argument counsel for the State noted that there had been instances where Mr Nixon had attended scheduled activities on the incorrect date and had been alerted to his mistake as a consequence of his electronic monitoring. This was cited as an example of such conditions promoting Mr Nixon’s rehabilitation.

Consideration and conclusion

1. [62]

   I have applied the principles set out earlier in this judgment to the particular facts and circumstances of this application. The protection of the community, and potential victims of sexual offences, must remain a preoccupying concern. The offences committed in 2009 give rise to obvious concerns about the defendant’s capacity to engage in serious sexual violence against vulnerable women.

2. [63]

   Insofar as they are available and relevant, I have considered the list of matters in s 9(3) to which the Court must regard at the final hearing.

3. [64]

   I accept Mr Ardasinski’s opinion in relation to the likelihood of Mr Nixon committing a grave offence of the kind perpetrated on the train in 2009. The risk of a recurrence of that kind of behaviour appears to be very low. Even so, taking Mr Ardasinski’s opinion at its highest from the perspective of the State, there remains a risk of other forms of violence or sexual offending. The defendant’s submissions tended to understate the language expressed by Mr Ardasinski. He did not say simply that “it is a possibility” or “it may be active”. Rather, he said it is “still quite possible” and “it may be quite active”. Without parsing the language, the use of the word “quite” suggests a level of risk greater than a mere possibility. Even so, the level of risk does not rise above a “moderate” degree of risk.

4. [65]

   While I do not accept that Mr Nixon’s age (he is now 40) diminishes the risk to any great extent, the fact is that the offences he committed in 2009 occurred when he was a much younger and much less mature man. Since that time, he has received condign punishment, been admitted to parole and spent the last two years under the strict supervision of the ESO. He has not been charged with a sexual offence, let alone a serious sex offence within the meaning of the Act, in over 15 years. As Dr Davis observed “the passage of time offence-free in the community can be a powerful protective factor in terms of risk.” Moreover, as Mr Ardasinski points out in his most recent risk assessment report, Mr Nixon’s lifestyle is substantially different to his circumstances at the time of the index offending. Because of this, it could be said that he “no longer poses a significant risk of repeating serious sexual offending such as that he committed on the train in 2009”.

5. [66]

   I accept that Mr Nixon has made good progress and this is reflected in the reports which indicate he has now become settled in supported accommodation, has employment, is better able to manage his emotions, and is assessed (statistically) as a moderate, rather than a high, risk of serious sexual reoffending.

6. [67]

   Putting to one side the irrelevant shoplifting offence with its $50 penalty, the only offences committed since his release concerned breaches of the conditions of the ESO. He received other formal warnings about potential breaches and was ultimately convicted and sent to gaol. His conduct was not, of itself, an offence or otherwise unlawful. The offence was the failure to comply with directions and conditions. Even so, Mr Ardasinski considered that “there has been a notably honest attempt overall by Mr Nixon to comply”.

7. [68]

   Mr Nixon has significant protective supports in place without a further order. There is a risk that the imposition of, or continuation of, stringent and invasive conditions may be counterproductive in terms of the defendant’s progress towards rehabilitation.

8. [69]

   On the face of it, and without levelling any criticism at the officers involved, some of the defendant’s difficulties over the last couple of years have arisen because of the strictures of the ESO. For example, the confrontation with the police arose because he was wearing the ankle monitor. Given his history, it was not surprising that Mr Nixon took the incident as being racially motivated. Even so, despite past difficulties in managing his emotions, he managed to “de-escalate” the situation.

9. [70]

   Similarly, the way he dealt with his partner breaking up with him was admirable and philosophical, and may be contrasted with the offence committed in the shower in similar circumstances in 2009 and his suicide attempt when he discovered his partner’s infidelity. The same observation applies to his calm response to finding out that his current partner sent naked photographs to another man. These are positive signs of growth and maturity.

10. [71]

    I accept the reports describing Mr Nixon’s relationship with his current partner as loving and supportive. I do not accept the suggestion that possession of a single nude photograph of his partner is indicative of a lack of understanding of informed consent. While I accept that Mr Nixon may have attempted to downplay his sexualised contact, and been unwilling or reluctant to discuss his sexual relations with DSO managers, I believe this was due to the awkward nature of such personal conversations rather than for devious or nefarious reasons. Similarly, his dishonesty about breaching his non-association condition is more likely to have been driven by a fear of getting into trouble.

11. [72]

    While he is still a fairly young man, Mr Nixon’s advancing years appear to be associated with greater maturity and emotional control, accompanied by a substantial reduction in antisocial behaviours. This is reflected in the lack of serious offending over the past 15 years but in particular since his release to parole. In this regard Dr Davis offered the following opinion:

12. [73]

    In considering the matter through the prism of the “calculus of risk”, I understand the potential gravity of the consequences if the defendant were to offend again as he did in 2009. However, the evidence points strongly against such an outcome. Since his release, there is little (if any) evidence to suggest that Mr Nixon deliberately targets vulnerable women. I accept Mr Kerkyasharian’s submission that the fact that Mr Nixon’s current partner has some form of intellectual disability is the result of him sharing a similar impairment, rather than suggestive of him deliberately targeting a vulnerable partner. Even so, I have considered the potential devastating impact on such a person if a sexual offence was committed against them. Obviously, I have considered the fact that offending against such a person would be (in some instances) an aggravating circumstance that would elevate the offence into the category of “serious sex offence” caught by the provisions of the Act.

13. [74]

    I have taken into account the “mixed reports on his level of engagement” with sex offender programmes. It is not easy to reconcile the reports. For example, his High Intensity Sex Offender Program Treatment Report noted that although the defendant “appeared to be motivated and [made] attempts to change his aggressive behaviour, he demonstrated ongoing difficulties with developing insight generally, regulating his emotions, and planning for the future. He was reluctant to discuss his sexual self-regulation in the program”. In Dr Dayalan’s report, it was noted that Mr Nixon’s “attitude towards his offending had been one of denial and minimisation” including denying that any sexual offending had occurred in relation to the index offences, which is troubling.

14. [75]

    Mr Nixon has not had the opportunity to demonstrate his stability within the community while on less restricted conditions prior to the expiry of his current ESO. This is contrary to the recommendations of both Dr Dayalan and Dr Davis in the reports considered by Dhanji J. It must be acknowledged that Mr Nixon has not been charged with any violent offences since the index offence in 2009 which was more than 15 years ago. He does not have a serious criminal history of violent offences, at least not recently. Most of his offences have been dishonesty offences. I have set out the violent offences earlier in this judgment. They occurred more than a decade ago and, for the most part, were dealt with in the Children’s Court.

Conclusion and orders

1. [76]

   I am not satisfied that the supporting material, if proved and taken at its highest, would justify the making of an extended supervision order. I have reached that conclusion based on all of the evidence presented at the preliminary hearing and cognisant of the fact that the State would need to establish to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under the supervision of an order under the Act.

2. [77]

   For those reasons, I make the following orders:

   1. (1)

      The summons is dismissed.

   2. (2)

      The application that the defendant be subject to an interim supervision order is refused.

   3. (3)

      The plaintiff is to pay the defendant’s costs of and incidental to the application.