State of New South Wales v De Vries (Preliminary)

By summons filed 12 November 2025, the plaintiff seeks orders that Mr Glen De Vries, who I will refer to as the defendant, be made subject to an extended supervision order (ESO) for a period of two years pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”).

In this preliminary hearing, the State seeks, firstly, that two qualified experts be appointed to conduct examinations and a direction that the defendant attend such examinations. Secondly, an interim supervision order (ISO), to commence upon the expiration of the defendant's current ESO and continue for a period of 28 days. The State further seeks orders that the defendant comply with the conditions which attach to that proposed ISO. I will return to the timing of that proposed ISO shortly.

The index offence that enlivens the Court's jurisdiction to make an ESO against the defendant is a conviction of intentionally sexually touching a child between the ages of 10 and 16 years contrary to s 66DB(a) of the Crimes Act 1900 (NSW). The index offence was committed on 27 October 2019. As I will come to address shortly, the defendant had previously been convicted of other offences of aggravated sexual assault, contrary to s 61J of the Crimes Act, which were committed on 11 March 2011.

The defendant is presently the subject of an ESO which was imposed by Wright J on 28 October 2021. His Honour’s reasons for imposing that order are set out in the State of New South Wales v De Vries (Final) [2022] NSWSC 247. The duration of that original ESO has been extended as a result of a number of periods during which its operation was suspended while the defendant was in custody, pursuant to s 10(2) of the Act.

The objects of the Act are set out in s 3, the primary object being to provide the extended supervision and continuing detention of high-risk sex offenders and high-risk violent offenders to ensure the safety and protection of the community. A further object is to encourage high risk sex offenders and high-risk violent offenders to undertake rehabilitation. I infer that the primacy given to the first of those objects means that ensuring the safety and protection of the community is to be a paramount consideration.

Section 5B of the Act identifies a number of threshold requirements which must exist before an ESO can be made; the first three of which are broadly procedural, namely:

I note that concessions have properly been made by the defendant in respect of each of those procedural matters, and, having considered the material before me, I too am satisfied that each of those thresholds have been met.

Section 5B(d) requires that the Court be 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.

As Ms Heath, who appeared for the State, submitted, the jurisprudence regarding the test in s 5B(d) has established the following settled principles:

At this stage, the matter need only be considered on a preliminary basis. Pursuant to s 7 of the Act:

As the plaintiff seeks not only an order for the appointment of qualified psychiatrists and/or psychologists to conduct an examination of the plaintiff, but also an ISO, regard must also be had to s 10A of the Act, pursuant to which:

The net effect of the exercise provided for in ss 7 and 10A is that, at this preliminary stage, I must proceed on the assumption that the facts in the material relied on by the State are proved, and must take those facts at their highest: State of New South Wales v Manners [2008] NSWSC 1242 at [8]-[9]. I must also to give appropriate weight to risk avoidance: Attorney General (NSW) v Winters [2007] NSWSC 611 at [7].

Approaching the State’s evidence in this way, I must consider whether I am satisfied to a high degree of probability that the defendant possesses an unacceptable risk of committing another serious offence if not kept under a supervision order, and, if so, whether that evidence would otherwise justify the making of an extended supervision order.

The defendant – save for making an appropriate observation about the somewhat historical nature of some of the material before me, and making clear that he makes no concession as to the appropriate findings to be made at a final hearing – has neither opposed nor consented to the making of orders sought by the State at this preliminary stage.

In considering this issue, I must have regard to the mandatory considerations identified in s 9(3) of the Act. In doing so, I will adopt the structure used by the State in its helpful submissions.

The first important matters that I must consider are the offender's criminal history and the views of the sentencing Court.

As I have already noted, the index offence was committed on 27 October 2019. At about 8pm that evening, the defendant – then aged 30 – was allowed into the home of a childhood friend so that he could use the bathroom. The victim – aged 13 years and 11 months – is the childhood friend’s daughter and was in her bedroom. The defendant entered the victim's bedroom. He placed his hand down his pants and began playing with his penis in front of the victim. He asked the victim if she wanted to "fuck” and touched the victim's thigh and groin over her pants with his left hand while touching his penis with his other hand. He left the room when told by the victim to "go away".

The defendant was convicted of the index offence and sentenced by the Local Court for to an aggregate term of imprisonment of 12 months, with a non-parole period of 8 months. In sentencing the defendant, the learned Magistrate noted the need for the defendant to undergo drug rehabilitation to reduce the risk of reoffending. This reflected a recognition that illicit drug use was and, for reasons I will come to, remains a significant criminogenic risk factor for the defendant. The views expressed by the learned Magistrate at that time are a relevant matter to which I must have regard in determining this application.

I will come back to other aspects of the offender's criminal history, but before doing so, I will touch on his personal circumstances, which I am also required to consider.

The defendant is a 36 year old Gamilaraay man, born in Brewarrina, who has lived most of his life off country in Sydney. He has experienced severely traumatic events throughout his life from early childhood. It is clear that these events have affected him in complex and enduring ways. He has previously been diagnosed with schizophrenia, an adjustment disorder, bipolar disorder, antisocial personality disorder, complex post-traumatic stress disorder, substance use disorder and cognitive impairment. In saying this, there is some conflict in the evidence regarding the defendant's mental health diagnoses.

In 2013, Dr Furst found "no convincing evidence of a major psychiatric illness, such as bipolar affective disorder or schizophrenia". In 2020, Dr Hearps made a diagnosis of "relapse schizoaffective disorder with auditory hallucinations, likely persecutory delusions". Following treatment with antipsychotic medication, Dr Hearps later diagnosed schizophrenia, "noting positive symptoms were controlled with prescribed medication".

When assessed at the time of the initial application for an extended supervision order in 2021, Dr Smith:

Dr Smith diagnosed Mr De Vries with complex post-traumatic stress disorder, antisocial personality disorder, substance use disorder and cognitive impairment.

Whatever the true position may be regarding the defendant's mental health, it is clear that he has a cognitive impairment and a range of mental health challenges which, historically, have been poorly managed and exacerbated by significant substance abuse throughout his life.

Returning to the defendant's criminal history, prior to committing the index offence, the defendant, then 21 years old, committed two offences of sexual assault in circumstances of aggravation – being the intentional infliction of actual bodily harm – contrary to s 61J of the Crimes Act.

In broad terms, that offence arose out of a situation in which the defendant attended a unit in Redfern where the victim was present and alone. When the victim tried to leave, the defendant hit her head from behind. The victim fell out into the hallway and began to crawl away. The defendant followed her, used his hand to cover her face and repeatedly punched her. He then dragged the victim to a nearby fire escape and engaged in penile-vaginal intercourse without her consent. He was convicted and sentenced for that offence by the District Court to an overall term of imprisonment of 8 years and 3 months, with a non-parole period of 5 years and 3 months.

The defendant otherwise has a lengthy juvenile and adult criminal record, which began in 2004. It includes a large array of convictions for affray, robbery in company, common assault, assault occasioning actual bodily harm, being armed with intent to commit an indictable offence, custody of a knife in a public place, intimidate police officers in execution of duty, assault police officer in execution of duty, cause actual bodily harm and damage or destroy property. He has breached bail conditions and good behaviour bonds on multiple occasions. It is said by the State that the defendant’s past convictions indicate a propensity for acting impulsively, opportunistically and violently. Up to a point, this inference is properly available. However, I place greater reliance on the considered views which have been expressed in the risk assessment report, to which I will return.

Since the imposition of the current ESO, the defendant has accrued a range of additional convictions. Of significance is a conviction of stalk/intimidate with intent and making threats to his partner during a gaol call on 22 February 2024 and 27 February 2024. The defendant has also been convicted of an offence of destroying or damaging property after he punched the AVL computer while appearing before Manly Local Court, which fell, causing the screen to crack.

The defendant has nine convictions for breaching the current ESO. Several of these convictions relate to non-compliance with important and substantive conditions attaching to the ESO; the majority relate to occasions on which the defendant returned a positive test for illicit drugs, which he had been required by the terms of the ESO to abstain from. There are challenges that arise in relation to these drug-based offences as has properly been pointed out by Ms Graham, who appeared for the defendant.

It is important that conditions of an ESO are not drafted in a way which cause the subject of those conditions to "be set up to fail". This is a particularly acute difficulty in circumstances where conditions require abstinence from substances to which the relevant person is addicted. However, it is not only the drug use which these conditions seek to prevent, but also the associated disinhibited behaviour that accompanies it. It is the latter which the existing ESO is primarily seeking to guard against, and it is for that reason that the defendant's inability to control his drug use in the manner required by the existing ESO is a relevant and important consideration.

Most recently, the defendant has been charged with a number of offences arising out of allegations that he became enraged with certain of his neighbours, calling them a range of unpleasant names in the belief that that they had reported him to police. He is alleged to have said to them "I am going to get an axe and with my brothers, we will smash your place up and kill you guys, you are gone". After police were informed and attended the defendant’s premises, it is said that he presented to his front door naked and armed with a pair of scissors. Following extensive negotiations, the accused surrendered himself, was apprehended, and appropriately conveyed to Bankstown Hospital where he received assistance for what would appear to have been a significant mental health episode.

As a consequence of the conduct, if established, the defendant will have committed the offences alleged and again failed to comply with an important condition of the existing ESO.

The next important consideration is the risk assessment report dated 3 March 2025 and prepared by senior psychologist Dr Sarah Wright. In that report Dr Wright identifies a range of relevant risk factors and concludes that any further sexual reoffending by the defendant would likely involve an opportunistic impulsive sexual offence against a female and likely involve forced penetrative sexual intercourse.

Dr Wright opines that the victim of this potential offence could be either a post-pubescent child or an adult, and that the defendant, in committing such an offence, may use physical coercion tactics, such as a weapon, threats of violence, or actual violence to overcome resistance and gain victim compliance.

Dr Wright has assessed the defendant's risk using a range of statistical tools, including:

The State notes that these results are broadly consistent with those reported in a risk assessment report dated 25 March 2021, prepared for the purposes of its application or the existing ESO.

Whilst statistical tools such as these are an imperfect way of assessing risk, Dr Wright has nevertheless provided detailed reasons by reference to the particular circumstances of the defendant and his history in reaching an equivalent conclusion as to the risk he presents. In many respects, her view has been reached independently of these statistical analyses.

On 11 December 2025, Dr Wright prepared an updated risk assessment report which considered further material provided to her at that time, including the recent charges and convictions, and progress which the defendant had shown after being rereleased from custody in May 2025. That material did not cause Dr Wright to alter her opinion as to risk presented by the defendant; in some respects, she found it to reinforce the views expressed in her earlier report.

The State also relies on reports prepared for the purposes of the previous ESO application, being an expert psychiatric report of Dr Callum Smith and the expert psychologist reports of Ms Thea Gumbert. Without, at this stage, needing to descend into the detail of those reports, I note that they reach conclusions broadly consistent with the existence of a moderate to high risk of sexual reoffending.

Having said this, and as has been properly submitted by Ms Graham, those earlier psychiatric reports are now quite old and would need to be updated to take into account more recent events and the progress made by the defendant throughout the course of the existing ESO in order to give a fair and up-to-date assessment of the risk that he might present.

I next must consider the matters raised in s 9(3)(d1), (e2), (f), and (g) of the Act. These matters are principally addressed through a risk management report prepared by Mihail Borisov, a community corrections officer dated 19 May 2025. The report alludes to the defendant's historically poor compliance with supervision and his earlier history of breaching good behaviour bonds and breaching bail and parole.

Whilst issues have arisen in relation to the defendant's compliance with the current ESO, a broad assessment of the material put forward for the purposes of this application demonstrates that genuine efforts have been made by the defendant to comply with the conditions imposed upon him. Significant challenges in that regard have included the challenges presented to the defendant by his illicit drug use. To the extent that there has been non-compliance with the existing ESO, it would seem that episodes of drug use and poor management of his mental health have likely been the catalyst for each of these events.

More positively, the report notes the defendant's engagement with the community sex offender program, and his willingness to comply with referrals to other sessions and services. The report also notes a reduction in anti-social and anti-authority views, albeit it is said that hostility, abuse and aggressiveness is still sometimes evident in his interactions with supervising officers.

Finally, I note, as contemplated by s 9(3)(e) and (e1) of the Act, the defendant has participated in a wide range of rehabilitation programs. His participation in those programs, and progress he is reported to have made through that participation, are both positive developments. Although, as has been noted by the State, the defendant committed the index offence following the completion of a program specifically targeted at sexual offending, which he participated in after his earlier sexual offending.

The defendant has also shown a genuine willingness and enthusiasm for participating in a range of programs aimed at addressing his historical trauma and other risk factors within a culturally appropriate setting; as I have noted, these are positive developments, and are matters which will, no doubt, be considered carefully in the reports which will be prepared in accordance with the orders I propose to make.

Taking the State’s evidence at its highest – and accepting that it remains untested at this preliminary stage – I am of the view that the matters alleged in that evidence are capable of satisfying a Court, to a high degree of probability, that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision. This is largely based on my view that the risk described by Dr Wright, viewed in the context that what is revealed in the evidence regarding:

As I have already observed, the defendant did not advance a positive argument against this conclusion at this preliminary stage. It follows that I am satisfied that the material in the State’s evidence would, if proved, justify the making of an ESO and orders for the appointment of the experts must, therefore, be made.

The imposition of an ISO is subject to discretion. There is, having regard to the risk referred to above, nothing that would cause me to exercise my discretion so as not to impose an ISO; subject to what follows, I will do so.

That brings me to the conditions of the ISO and its timing.

As to the timing of the ISO, s 10C(1) of the Act provides that an ISO commences on the day fixed in the order for its commencement (or if no such day is fixed, as soon as it is made). A difficulty in the present case lies in the fact that, by reason of the defendant currently being in custody, the existing ESO has been suspended.

In these circumstances and without knowing when the defendant might be released from custody, it is not possible to determine precisely when the existing ESO might expire. It would be undesirable, and likely beyond power, for me to make an ISO which operated simultaneously with the existing ESO, particularly if there are differences in the terms or conditions contemplated by those two different orders. In those circumstances, I propose to order that the ISO commence upon the expiration of the defendant's current ESO; that course having been suggested by the State and not opposed by the defendant.

Turning to the conditions of that ISO, discussion between the parties has, very helpfully, reduced the scope of any dispute between them in relation to those conditions. Their competing positions are set out in MFI 2.

MFI 2 also includes certain conditions of the existing ESO which the parties have agreed should be adjusted before they are included in any ISO that I might make. I have considered each of the changes which have been agreed upon between the parties and am independently satisfied that those changes are appropriate.

I will address, briefly, the conditions in relation to which there remains some conflict.

Pursuant to condition 8 of the existing ESO:

Neither party now presses for a requirement that the defendant inform a DSO within 24 hours of his becoming homeless. I consider this change appropriate in circumstances where it may be difficult for any person, including the defendant, to ascertain, with any sort of precision, the moment in time when one "becomes homeless". Requiring notice within 24 hours of an imprecise timepoint as a requirement for compliance with a condition of an ISO seems unfair and unreasonable.

Nevertheless, there remains some dispute between the parties about when defendant should be required to notify a DSO in the event that he becomes homeless. The State asserts that that should happen "immediately"; the defendant "as soon as he can". I am satisfied that the State's formulation of that order should be preferred.

The requirement that the defendant inform a DSO that he has become homeless "immediately" cannot contemplate anything more than that he do so as soon as is reasonably practical after it becomes clear to him that he has lost access to stable accommodation. The terms of the existing ESO were, appropriately, drafted in a manner which sought to convey, as clearly as possible to the applicant, what is required of him by those conditions. In my view, the requirement that the defendant inform a DSO "immediately" if he becomes homeless, conveys to him the urgency with which this notice must be given. As has been submitted by the plaintiff, homelessness is a dynamic factor which may cause the risks presented by the defendant to rapidly escalate. Accordingly, I would make condition 8A contained in MFI 2 and will not make 8B or 8C.

Condition 9 of the ESO currently provides that:

The defendant contends that this curfew provision should be deleted in its entirety; I disagree. In my view, a curfew is justified having regard to the risk presented by the defendant, at least on the basis of the material currently before me, taken at its highest.

In my view, there is significant benefit in seeking to maintain, as best as one can, some continuity between the existing ESO and any ISO so as to reduce the risk of uncertainty emerging by reason of subtle changes to the terms of conditions as between those two documents.

As a secondary position, the defendant contended that the condition should read:

This is the first of a significant number of conditions in which the defendant sought to introduce a requirement that a DSO, when acting as decision maker under a condition, act “reasonably”.

While the defendant’s position is understandable – and I hope and assume that any person acting in the position of DSO who is exercising discretions which have a significant and important impact on the liberty and freedom of the individual subject of the ESO would act reasonably when doing so – I do not think it is necessary or appropriate for that to be expressly set out in the conditions.

To the contrary, in my view, introducing an express requirement of reasonableness into this condition and others, runs the risk that the defendant might consider himself free to disregard the condition or act in a manner inconsistent with its terms if he forms the view that a DSO, in making a particular decision or exercising a discretion in a certain way, is acting "unreasonably".

I think that ambiguity would be undesirable in conditions attaching to an order of this type. I have not been provided with any evidence which suggests that, to date, any DSO has acted unreasonably in the exercise of their discretions involving the defendant, or in a way which might objectively be thought to have unreasonably imposed fetters on his life or freedom, having regard to the terms of the existing ESO and its objects.

In those circumstances, I will incorporate as conditions of the ISO what appears in MFI 2 at cl 9A, and not cl 9B. For similar reasons, I will incorporate cl 11A, 12A, 15A, 19A, 26A, 32A, and not the alternatives propounded by the plaintiff in respect of each of those conditions.

That brings me to condition 16. The condition in the original ESO provided that:

The State and defendant submitted competing proposals.

The State proposed the wording:

At 16B, the defendant proposed the wording:

The proposal advanced by the State contemplates a tightening of the existing ESO condition. On the basis of the evidence currently available to me, taken at its highest, I do not think that the tightening of this condition for the purposes of an ISO is justified. I recognise that there has been a deterioration in the relationship between the defendant and at least one of his children. However, I do not consider that justifies the removal of his ability to interact with his children in circumstances other than those in which a DSO tells him, on the basis of their properly informed view, that he cannot.

The defendant's proposed condition is somewhat looser than that contained in the existing ESO. On the basis of the material presently available to me, I am also not inclined to adopt the defendant's proposal in relation to this condition. I consider for reasons that I have already given that it is desirable as best as possible for the terms of any ISO to continue to reflect, at least in this case, those which are contained in the existing ESO.

In saying this, I do not want it to be thought that I am expressing any view about the appropriateness, or otherwise, of incorporating into any future ESO a different formulation of the condition which is currently condition 16. The appropriate conditions to be included in any ESO which might be made will be significantly informed by views expressed in the psychologist and psychiatrist's reports which are to be prepared and will inform the exercise of discretion at that time.

Accordingly, I make the following orders:

I have already made an order that access to the Supreme Court's file in respect of the documents shall not be granted to a non‑party without the leave of a judge of the Court. 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.