State of New South Wales v BG (final)

1. [1]

   The plaintiff seeks an extended supervision order (ESO) in respect of the defendant under the Crimes (High Risk Offenders) Act 2006 (NSW). The plaintiff’s summons was filed on 7 August 2025 and a preliminary hearing took place before McGuire J on 10 October 2025. On 24 October 2025 his Honour ordered the appointment of experts in psychiatry and/or psychology to assess the defendant and made an interim supervision order (ISO) with effect from 9 November 2025: State of New South Wales v BG (Preliminary) [2025] NSWSC 1412.

2. [2]

   Reports of Dr Jeremy O’Dea, psychiatrist, and Dr Michael R Davis, forensic clinical psychologist, dated 25 and 26 November 2025 respectively, have been furnished to the Court pursuant to McGuire J’s order. Ports, particularly that of Dr Davis, have change the complexion of the apparent risk of the defendant re-offending, relative to how the case appeared at the stage when a preliminary assessment had to be made by McGuire J.

3. [3]

   The defendant was born in December 1960. He married in 1980 and he and his wife had a son and two daughters. They were divorced in 1994. After the divorce the defendant had the care of the children. His relevant past offending is summarised in McGuire J’s judgment, to which reference may be had for greater detail than I find necessary to repeat here.

Relevant offending

1. [4]

   In 1998 and 1999 the defendant committed four sexual assaults upon a girl of 10 to 11 years who was a school friend of his daughter. He was aged 37 to 38 when the offences were committed. The young complainant was entrusted to stay with the defendant from time to time, for sleepovers as a friend of the daughter. McGuire J noted that the particulars of the offending were as follows (at [17]):

2. [5]

   In 2001 the defendant indecently assaulted his daughter, then aged 15. He arrived home intoxicated, got into bed with a girl and touched her on the upper thigh, stomach and breasts. The conduct stopped when her 21 year old boyfriend entered the room.

3. [6]

   In February 2004 the defendant befriended the father of a family that lived near his own residence. During the early hours of one morning, after an evening drinking with the father in the home of that family, the defendant entered the bedroom of a nine year old female child and digitally penetrated her vagina.

4. [7]

   The defendant denied all charges and was convicted on each of them in three separate trials by jury. He still denies his guilt. The offending against the defendant’s daughter in 2001 was the first matter to be reported and prosecuted. For that he was sentenced on 25 September 2002 to 12 months imprisonment, suspended upon his entering into a good behaviour bond.

5. [8]

   The offending of 2004 was reported soon after it occurred and the defendant was arrested and remanded in custody from 24 June 2004. On 24 November 2005 he was sentenced to 5 years and 4 months imprisonment, commencing from the date of his arrest. A non-parole period of four years was fixed but the defendant was not released until 23 June 2009, by which date he had served five years. He completed the last four months of his sentence in the community on parole, without breach.

6. [9]

   The young girl who had been serially abused by the defendant in 1998 and 1999 brought her complaint to the attention of police in mid 2013. The defendant was arrested and charged for that conduct on 14 August 2013 and was remanded in custody until his conviction in November of that year. He was sentenced to a series of terms of imprisonment for the four counts, amounting to a total effective sentence of 9 years with a non-parole period of 6 years and 9 months. That sentence dated from his arrest. The defendant was not released to parole and he served out his full term until 12 August 2022.

2022 ESO

1. [10]

   Prior to the defendant’s release at the conclusion of that sentence the State made its first application for an ESO. An ISO was made in the first instance and extended as necessary until McNaughton J was able to determine the application on a final basis: State of New South Wales v BG [2022] NSWSC 1531. Her Honour ordered that the defendant be subject to an ESO for 3 years, commencing 10 November 2022. Pursuant to s 11 of the Act her Honour imposed 54 conditions of the ESO, including the following:

2. [11]

   Of the 18 years of his life between the ages of 43 and 61, the defendant has spent 14 years in prison and 4 months on parole. Since his release at the age of 61 he has spent the next three years living under the very tight conditions of the 2022 ESO. The conditions have been rigorously enforced with frequent unannounced home visits and no relaxation of the electronic monitoring condition, the scheduling condition or the nighttime curfew. There has been no “step down” or tapering off of those restrictions until some modest changes were made in October of this year.

The issue in these proceedings

1. [12]

   There is no issue between the parties regarding satisfaction of the procedural requirements in s 5B(a)-(c) and s 5I of the Act and I find that those requirements are met. The issue to be determined arises under s 5B(d), namely, whether:

2. [13]

   On the evidence before the Court, the type of serious offence to which the risk of reoffending relates is a serious sex offence, as defined in s 5 of the Act. Specifically, it is the risk of the defendant committing an offence punishable by imprisonment for 7 years or more, against a child, contrary to one of the provisions of Div 10 of Pt 3 of the Crimes Act 1900 (NSW). Based on the defendant’s past record and upon risk assessment reports that have been submitted to the Court, the present application for an ESO is concerned with a risk that the defendant might have, or attempt to have, sexual intercourse with a child under 10 years, or a child between 10 and 16 years, or a child between 14 and 16 years (ss 66A, 66B and 66C of the Crimes Act). Other potential offences of which he may be at risk of committing would be against s 66D (assault of a child between 10 and 16 years with intent to have sexual intercourse) or ss 66DA or 66DB (sexual touching of a child under 10 years or between 10 and 16 years).

Opinions of court-appointed experts

1. [14]

   Dr O’Dea’s opinion at [87]-[88] of his report dated 25 November 2025 is that the defendant does not suffer from a major psychiatric illness. However, he has Alcohol Use Disorder that is in remission in a controlled environment. The controlled environment is constituted by the prohibition on consuming alcohol under condition 24 of McNaughton J’s ESO made on 10 November 2022 and a similar condition under McGuire J’s ISO of 24 October 2025. Compliance with alcohol abstention has been verified by breathalyser tests administered by Community Corrections officers at frequent intervals for more than three years.

2. [15]

   At [89] of Dr O’Dea’s report, as explained in his oral evidence, he concluded that the defendant’s sexual offending during the 6 years from 1998 to 2004, against three different children, one of whom was a prepubescent child previously unknown to him:

3. [16]

   Dr O’Dea explained that a criterion of diagnosis of paedophilia is predominant sexual interest in prepubescent children. The doctor’s clear opinion is that that has not to date been demonstrated in relation to the defendant and is regarded by the fact that he has “predominantly had adult heterosexual activity, as far as we know, and […] only intermittent brief paedophilic activity”. Dr O’Dea gave evidence that hebephilia, constituted by a strong, specific and sometimes predominant sexual interest in post-pubescent children, is not a psychiatric illness but is recognised as a clinical condition. He is of the view that the defendant may have a specific and significant hebephilic “component to his over sexuality”, but not a predominant interest.

4. [17]

   Similarly, Dr Davis does not consider that the diagnostic criteria for either paedophilia or hebephilia are fully satisfied. He said this at [127] of his report of 26 November 2025:

5. [18]

   Dr Davis referred to paedophilia and hebephilia, where those psychiatric disorders are able to be diagnosed, by the collective term “sexual deviance”. In a footnote to [127], he said this:

6. [19]

   Dr O’Dea listed a wider group of the most significant predictors at [99], as follows:

7. [20]

   Dr O’Dea has assessed the defendant as having a personality disorder, rather than a major psychiatric disorder. His report contains the following opinions:

8. [21]

   Dr Davis, also, has diagnosed the defendant with a personality disorder, although he formulates it slightly differently, in the following terms:

9. [22]

   Dr Davis assessed the defendant’s paranoid recollections and interpretations of events as not delusional but constituting an over valuing of “some actual difficulties that he has experienced within the prison and wider correctional environment”. Dr Davis has been able to assess the defendant over time because he prepared one of the two court-ordered reports upon which McNaughton J relied in November 2022. As at November 2025 he made the following findings:

10. [23]

    A decline in the defendant’s mental well-being over the three years of the 2022 ESO is entirely understandable. Review of the contemporaneous notes made by Community Corrections officers of the ESO team show that he has been carefully compliant with restrictive aspects of the order, frequently expressing anxiety at the prospect that he might be found in breach, prosecuted and returned to prison. That is a rational approach on his part. It must be well known amongst released inmates, as it is amongst anyone who has anything to do with the High Risk Offenders legislation, that frequent sentences of imprisonment for breach of conditions, for terms of several months at a time, are common place. As I have observed in a number of decisions under this legislation, prosecutions for breach of condition are often brought for very minor contraventions and the suspension of the order during terms of imprisonment for breach often results in significant extensions of the overall duration of the order.

11. [24]

    Further, the unwillingness of those administering the defendant’s 2022 ESO to relax the monitoring, scheduling and curfew conditions, combined with his resentful attitude and belligerent interactions with his DSOs, are factors that have subjected him to very severe social isolation for the past three years. From my reading of the Offender Integrated Management System (OIMS) notes, he has made nil progress towards constructive reintegration into the community while the ESO has been in force. The operation of the order has been a substantial impediment. The OIMS notes clearly show that the dominant feature of the defendant’s life since his release from prison in August 2022 has been endless conflict with his DSOs. In my view the conflicts have often arisen from directions and decisions by the DSO’s that would not have contributed to reducing his risk of reoffending but have caused friction and a perception on the defendant’s part of persecution.

12. [25]

    In at least one significant respect, I am satisfied that the defendant’s mental state has been worsened by three years under the ESO regime. I accept the following evidence from Dr Davis:

13. [26]

    At [95] of his report, Dr O’Dea suggested a form of treatment by “judicious use of testosterone lowering (or anti-libidinal) medication”, which he considers would be appropriate “if specific and significant heterosexual paedophilic or heterosexual hebephilic orientation were to be identified”. However, such orientation has not been identified. In those circumstances, on the facts and diagnoses of which the experts are presently confident, the doctor’s only suggestion for treatment is the following:

14. [27]

    On the basis that the defendant’s primary diagnosis is a personality disorder, as has quoted above from [92]-[93] of Dr O’Dea’s report, the defendant’s personality disorder has “limited amenability to treatment and fundamental change”.

15. [28]

    In Dr Davis’ report of 26 November 2025, he identifies what I regard as negligible prospect of useful treatment for the defendant’s personality disorder has diagnosed by Dr Davis. The relevant paragraphs are as follows:

16. [29]

    Thus, the two experts describe the nature of the defendant’s personality disorder as embedded in his make-up rather than constituting an illness that could be directly treated by medication. For practical purposes there appears to me to be no form of treatment that he could be required to undertake that would have significant prospects of materially modifying his problematic personality traits so as to reduce the likelihood of him committing a further serious sexual offence. Dr O’Dea’s proposed medication of the mood component in the defendant’s presentation would only be directed to making him more amenable to behavioural treatment of his personality disorder. However, such behavioural treatment appears to hold little promise, according to the combined views of both experts.

17. [30]

    Dr O’Dea’s assessment of the degree of risk of the defendant committing another serious sex offence is summed up in the following passages of his report:

18. [31]

    The difficulty I have in accepting and acting upon that opinion is that the “specific psychiatric treatment as detailed above” and the “structured, supervised and assertive community treatment program” are references to Dr O’Dea’s proposal that the defendant might appropriately receive anti-libidinal medication if an affirmative diagnosis of a paraphilic disorder could be made. Thus, I understand Dr O’Dea’s risk assessment as expressed in the above paragraphs, like the treatment he proposes, as contingent upon the possibility of such an affirmative diagnosis.

19. [32]

    Dating from the first prosecution of the defendant in 2002, countless psychiatric and psychological examinations and assessments of him have been made. At the present date, after 23 years, the two principal experts in the present case do not consider that there is established one of the essential criteria of a paraphilic disorder. I am able to place only limited reliance on Dr O’Dea’s evaluation of the level of risk of re-offending, in circumstances where his conclusion appears to rest upon such a diagnosis and its associated amenability to treatment by medication.

20. [33]

    Dr Davis’ assessment of current risk is as follows, from his report of 26 November 2025:

21. [34]

    That assessment has been made taking into account results from Dr Davis’ application of a number of standardised rating scales and risk classification instruments. One of them, the Risk Matrix 2000/S, is based on static risk factors that have been found to be related to recidivism. On that instrument, the defendant’s factors would place him in the “average” risk category, except for the fact that an age of over 60 years is regarded as a protective factor that should reduce the subject’s category by one level. As the defendant is now 65, his final risk level under this classification system is “below average”, which is the lowest recognised by the instrument. In that category, the observed recidivism rate over five years is 6.5%. Dr Davis refers to opinions to the effect that for this category the five year rate may more accurately be 4.4%.

22. [35]

    Dr Davis also applied the Risk for Sexual Violence Protocol-Version 2, which considers both static and dynamic risk factors across five domains. He reported the outcome for the defendant as follows:

23. [36]

    I find Dr Davis’ articulation of how he has arrived at a specific level of risk compelling. Notably, it concerns risk of sexual recidivism generally. Risk of commission of a serious sexual offence, being a subset of potential crimes, must be statistically somewhat lower

24. [37]

    Dr O’Dea states, as is well understood, that Alcohol Use Disorder is often a chronic and relapsing condition even after significant periods of abstinence. In his opinion, which I readily accept, long-term and assertive commitment on the part of the individual is required in order to abstain from alcohol use and to avoid ultimate relapse. According to the oral evidence of both Court appointed experts, the risk of relapse is highest early in the attempt to achieve abstinence, which is a stage that the defendant has successfully passed. There are differing views about whether, in the long-term, controlled moderate return to the use of alcohol is more sustainable and achievable than complete abstinence. The defendant did not consume alcohol for nine years during his last term of imprisonment and he has maintained abstinence since. If not under an ESO, the evidence strongly suggests that he would be likely to resume social use of alcohol. Whether he could manage control and moderation is unknown.

25. [38]

    The significance of this is that both experts regard resumed use of alcohol, at least if it reaches the level of significantly intoxicating consumption, as a risk factor for the commission of further serious sexual offending. That is an important consideration with respect to what conditions might be attached to an ESO if one should be made. At the point of applying the test in s 5B(d) of the Act, I do not consider that the possibility of relapse is a likelihood of such an order that it increases the risk of reoffending to an unacceptable level, where all other factors combined are insufficient to show that the risk is unacceptable.

Postulated risk scenarios

1. [39]

   In a risk assessment report dated 28 April 2025, Ms H Cieplucha, a senior psychologist in the High Risk Offender Team of Corrective Services, adopted as still “plausible” the following “most likely risk scenario” that was originally provided by her colleague in 2021 for the purposes of the 2022 ESO application:

2. [40]

   That projection of a risk situation is based upon the defendant’s conduct more than 20 years ago, when he was aged between 37 years and 43 years (1998 to February 2004). At the time of his most serious offending, in 1998-1999, he had a young daughter in his care, through whose friendship with a girlfriend of similar age he came in contact with the victim. The daughter herself was a victim in 2001. The sole instance of the defendant having sexual contact with a victim through socialising with an adult who was a relative stranger was in February 2004.

3. [41]

   To the extent that the defendant’s past offences exhibit common elements, the ageing of the defendant, the change in his generational stage of life and the cessation of all family contacts are circumstances that in my view make it unlikely that any of those elements would occur in a way that might lead to realisation of the perceived risk of reoffending. The defendant no longer has a young daughter, nor is he living with or in contact with any member of his family or with any young children to whom he has, or might be expected to forge, any connection. Having aged from 43 to now 65, and having moved into vastly different social circumstances, it seems very unlikely that the defendant would have unrestricted access to a young girl in a scenario that would present opportunities for sexual offending, such as the opportunities that were taken more than two decades ago.

4. [42]

   Dr Davis’ report of 26 November 2025 contains the following observations about the possible risk scenario, which he, likewise, regards as improbable:

5. [43]

   On my assessment of the defendant’s current appearance, age, social awkwardness and lack of social or family connections, I consider it highly unlikely that he would ever be in a position of “unrestricted access” to a pre-pubescent, pubescent, or adolescent female. I regard the risk of this occurring as very low.

Counter-productive effects of the 2022 ESO

1. [44]

   The defendant volunteered to Dr O’Dea his own assessment that the 2022 ESO has been detrimental to his rehabilitation, as follows:

2. [45]

   Having reviewed the OIMS notes extensively, I do not regard the defendant’s view of the effect that the 2022 ESO has had upon him as unreasonable. The administration and enforcement of the order has not only degraded the defendant’s mental state: see [22] and [25] above. It has impeded his rehabilitation and integration into the community and has thereby exacerbated his risk of reoffending. Dr Davis gave this opinion in his report of 26 November 2025:

3. [46]

   I have referred above to directions and decisions of the DSOs under the defendant’s 2022 ESO that have caused irritation without contribution to risk reduction. One example is that the defendant has been directed not to ride his motorcycle through the Blacktown Local Government Area and, if he takes public transport through that area, not to alight. That direction has been given on the basis that the victim of his 1998-1999 offences resides there. It is understandable that that victim would be distressed by any encounter with the defendant. However, it is not a legitimate purpose of directions given by Community Corrections officers under an ESO to forbid movements for the purpose of protecting victims of past offending.

4. [47]

   The direction referred to is legally and practically unjustifiable constraint on the defendant’s liberty of movement. Even if it fell within the lawful discretion of a DSO, that direction could have no practical purpose. The chances of the defendant and the victim encountering and recognising one another seem remote. Blacktown LGA is a large area with a large population. If there is any justification for a restraint upon the defendant approaching the victim, the proper legal process would be an application for an Apprehended Violence Order, for which there would presently appear to be no ground. The Local Court would be highly unlikely to make such an order excluding the defendant from an entire municipal area, as opposed to prohibiting him from knowingly approaching within some given radius of the home or some other location of the Person In Need Of Protection. This DSO direction is an example of significant overreach by Community Corrections, symptomatic of a loss of focus on realistic restraints to avert reoffending by this defendant. The required focus has given way to absorption of the responsible officers in reactive conflict with him.

5. [48]

   Undoubtedly to a significant extent the defendant’s isolation and lack of meaningful activity has been caused by his own cussedness and unwillingness to follow any positive suggestion from his DSO. However, the ESO has created obstacles, as rationally perceived. The defendant’s residence for some time has been a ground floor unit in a two level building with 11 other units. There is a substantial curtilage in front of the building that is accessible and usable as common property. Unannounced visits by the DSOs at intervals of less than a week inevitably have brought upon him the attention and suspicion of near neighbours. The consequent inhibition upon socialising with those near neighbours would inevitably be significant.

6. [49]

   The 9:00 pm curfew and the prohibition upon attending licensed premises without permission would likewise curtail normal adult social interaction. In the past year the defendant has sought to avoid shopping centres from a perceived fear that interaction with any young person in a public place, however fleeting or unavoidable, may lead to an allegation of breach of his conditions and prosecution.

7. [50]

   The defendant has expressly stated that his reason for not seeking work is “fear of the Police telling his employers [of his criminal record] and the danger this might put him in”. The defendant does not have high-level skills for employment but he could no doubt find work, solely with other adults. It is credible and rational that he should fear hostility and possible violence if police or the DSO should inform the employer of his convictions for child sex offending, leading to fellow workers becoming aware of that record. No doubt his experiences in prison would cause him to fear violent hostility. The prospect of unannounced DSO visits to his workplace would be quite sufficient to deter the defendant, reasonably, from seeking employment.

8. [51]

   One of the main supposedly constructive activities repeatedly pressed upon the defendant by the DSOs is attendance at psychological counselling sessions. It is very understandable that the defendant has been highly resistant to this. For decades he has been endlessly interviewed and probed from a psychological and psychiatric point of view. He evidently does not consider that psychological counselling is beneficial. In this he appears to be supported by the opinions of the Court-appointed experts, to the effect that psychological counselling is unlikely to have any significant impact on the long-standing, resistant personality traits that are part of his essentially untreatable personality disorder. Opinions given by experts in this case, and received by the Court on many other occasions, have endorsed that personality disorders are intractable to behavioural treatment.

The risk of reoffending in the absence of an ESO is not unacceptable

1. [52]

   Noting that Dr Davis now assesses the defendant’s risk of sexual recidivism as low-to-moderate (with respect to any form of sexual offending), I attach importance to his observation, as follows, concerning the possible exacerbation of risk if an ESO be made with strict conditions:

2. [53]

   At the low-moderate risk level that I accept on the basis of Dr Davis’ evidence, and taking into account Dr Davis’ view that that risk “could likely be managed in the community without a further Order being imposed”, I am far from being “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”. The relatively low level of risk currently identified, in a man who is not known or even alleged to have committed any type of sexual offence in over 21 years, must properly be regarded as acceptable. Further, I am encouraged to the view that the risk is at an acceptable level having regard to the circumstance that there remains the possibility of further mitigation of risk through socialisation and reintegration of the defendant into the community. That is a possibility that simply has not been tried and has not been given any chance of taking effect under the tight administration of the 2022 ESO.

3. [54]

   The paramount consideration to which the Court must give effect under the Act is the safety of the community. A secondary consideration, prescribed in s 3, is rehabilitation of the defendant. The two objectives are not in tension with respect to this defendant. His risk is at an acceptable low-to-moderate level and, in the absence of any viable treatment or other useful intervention, the best prospect for safety of the community is to enhance his rehabilitation.

Orders

1. [55]

   The following orders will be entered: