State of New South Wales v Galvin (Final)

By summons dated 4 September 2024, the State of New South Wales seeks orders pursuant to the Crimes (High Risk Offenders) Act 2006 (“the Act”). The orders sought are that Mr Galvin, the defendant, be subject to an extended supervision order (“ESO”) for a period of three years and that whilst subject to the ESO, he comply with certain conditions.

The matter came before Dhanji J on 8 November 2024. At that time, his Honour made orders pursuant to ss.10A, 10C (1) and 11 of the Act that the defendant be subject to an interim supervision order (“ISO”) for a period of 28 days and that for the period of the ISO, the defendant comply with certain conditions. His Honour also ordered, pursuant to s.7(4) of the Act, two qualified psychologists or psychiatrists (or any combination of such persons) examine the defendant and provide a report to the court of the results of those examinations and that the defendant attend such examinations.

In accordance with those orders, the defendant was assessed by two experts: Patrick Sheehan (forensic psychologist) and Dr Sally McSwiggan (clinical neurologist) and reports have been duly prepared by those experts which will be referred to below.

On 12 December 2024, Yehia J ordered that the defendant be subject to an ISO for a period of 28 days commencing on 1 January 2025, upon the expiry of the ISO made by Dhanji J on 8 November 2024 and that he comply with certain conditions.

On 17 January 2025, Dhanji J ordered that the defendant be subject to an ISO commencing on 29 January 2025 upon the expiry of the ISO made by Yehia J on 12 December 2024 and that he be comply with certain conditions.

Affidavit of Ellen Southwood affirmed 10/10/24

Affidavit of Jessie Slattery‑McDonald affirmed 10/10/24

Affidavit of Luke Sampson affirmed 01/11/24

Affidavit of Luke Sampson affirmed 24/01/25

Affidavit of Elizabeth Tsistos affirmed 07/02/25

Report of Mr Patrick Sheehan dated 24/12/24

Report of Dr Sally McSwiggan dated 17/01/25

Affidavit of Zenah Amal Moussaoui affirmed 28/10/24

I must have regard to the objects of the Act. They are, relevantly, to provide for the extended supervision of high risk violent offenders so as to ensure the safety and protection of the community (s.3(1)). I also note that another object of the Act is to encourage high risk violent offenders to undertake rehabilitation (s.3(2)).

The test to be applied for the Court to make an ESO is found in s 5B of the Act. That section provides:

In this matter, the parties agree, and I am independently satisfied, that the relevant pre-conditions for the making of an ESO have been satisfied, save for one matter to which I will return. That is, the parties agree that:

A matter not conceded is whether the defendant poses an “unacceptable risk” of committing a serious offence if he is not supervised. The defendant also submits there are discretionary reasons why the Court would not make an ESP. Further, the defendant opposes any of the proposed conditions if an ESO is made.

Thus, in this matter, the issues to be determined are;

What must be determined as the first issue is whether the Court is satisfied to a high degree of probability that the defendant poses an “unacceptable risk” of committing another “serious offence” if not kept under supervision. Here, relevantly the “serious offence” is a “serious violence offence”.

The Court is not required to determine that the risk of the defendant 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 (s.5D).

The term to a “high degree of probability” indicates:

What is an “unacceptable risk” is not defined in the Act. In State of New South Wales v Cole [Final] [2024] NSWSC 1640 Yehia J said:

The parties have helpfully provided a Joint Memorandum of Facts and Issues. I am able, therefore, to make relevant findings based on this Joint Memorandum which I am satisfied are all supported by the evidence before me.

The defendant was born in November 1975 in Goulburn NSW and is presently 48 years old.

The defendant’s formative years were characterised by instability and neglect. The defendant’s parents separated when he was around 10 years of age. He remained in the care of his mother until he was sent to live with his father at 14 years of age. He stayed with his father for approximately 8 months, reporting his father was a violent alcoholic.

The defendant was reportedly expelled from school without completing Year 8 and did not return to school. Upon moving out of home at approximately 15 years old, he lived in a youth refuge and then became homeless. While he has had brief periods of stable accommodation, he has not been able to maintain this due to his drug addiction and has otherwise been homeless and living on the streets of inner-city Sydney.

He began intravenous heroin use from 15 to 16 years of age and has continued since that time. He reports using other drugs, including methamphetamine, to “top up”, even while on methadone.

He reports never having a relationship for longer than a few weeks, has no children and no contact with his mother or younger brother. He has performed little paid work and has been on the Disability Support Pension since 2008 for liver disease, back pain and opiate dependence.

On 5 August 2021, the defendant was charged with one count of recklessly inflicting grievous bodily harm contrary to s 35(2) of the Crimes Act 1900 (the index offence).

On 7 September 2022, following a plea of guilty, the defendant was sentenced to a term of imprisonment for 3 years and 4 months to commence on 5 August 2021 and expire on 4 December 2024, with a non-parole period of 2 years concluding on 4 December 2024.

The offence occurred on 5 August 2021 when the defendant was homeless. The defendant had set up his belongings on Oxford Street, Surry Hills, and was a short distance from them, asking passers-by for money. The victim, a 57 year old male, walked past and said some words to the defendant. The victim told police that he said words to the effect of “you should be back there with all your crap”. The defendant told police that he had called him a “bitch”.

The defendant followed the victim, who started to turn back towards the defendant. The defendant then punched him once to the side of the head. Whilst the victim was on the ground, the defendant then tugged at a bag around his shoulder and punched the victim again. The defendant walked away, and short time later approached the victim who was lying on the ground. The defendant kicked the victim’s body and walked away again. The victim required surgery for his injuries.

At the time of committing the index offence, the defendant was subject to a Community Corrections Order.

The defendant was released to parole for the index offence on 4 August 2024, and the balance of his sentence expired on 4 December 2024.

On 17 January 1999, the defendant was charged with manslaughter. The charge arose from the death of a man on or about 2 April 1997 from an apparent overdose of heroin administered by the defendant.

The matter was committed for trial on 12 November 1999, but the Director of Public Prosecutions decided not to proceed further.

Whilst I have included this in the defendant’s chronology of dealings with the criminal law, there was no trial of the matter as the prosecution withdrew the charges. I draw no inferences against the defendant from the charges having been brought against him and I do not think this incident has any relevance to assessing the risk of whether he will commit a serious violence offence without supervision.

On 27 February 2010, the defendant was charged with murder, which was subsequently amended to manslaughter contrary to s 18(1)(b) of the Crimes Act 1900. On 17 June 2021 following a plea of guilty, the defendant was sentenced to a term of imprisonment for 5 years and 3 months commencing on 27 February 2010, with a non-parole period of 4 years and 2 months.

The offence occurred on 21 February 2010. The defendant was standing under a tree in Taylor Square, Darlinghurst, near a number of people drinking. A physical altercation occurred between the victim and another person whom the defendant considered to be a ‘mate’. The defendant approached them and punched the victim on the nose with full force. The victim fell backwards, struck his head on the pavement and lost consciousness immediately. The defendant ran from the scene and was apprehended by police a week later. The victim was pronounced brain dead day following the incident, and life support systems were switched off.

The defendant has an extensive general criminal history, including convictions for:

Possess prohibited drug (60+ occasions), possess prescribed restricted substance (20+ occasions), self-administer prohibited drug (3 occasions) possess equipment to administer drug (2 occasions), supply prohibited drug (3 occasions).

Larceny (8 occasions), shoplifting (4 occasions), goods in custody/possess stolen goods (10+ occasions), possess house breaking implements, possess car breaking implements (5 occasions), steal from the person, break enter and steal, enter enclosed lands (7 occasions), damage destroy property (4 occasions).

Custody of a knife (13 occasions), custody of an offensive implement (3 occasions).

Contravene place restrictions (6 occasions), refuse to comply, resist officer in execution of duty (3 occasions).

The defendant also has three previous violence convictions: assault officer in execution of duty (2005), common assault (2016) and common assault (2017). These offences do not constitute serious offences under the Act.

Treatment and Programs in Custody

The defendant completed the following programs in custody:

The defendant has refused to complete the Violent Offenders Therapeutic Program (“VOTP”) High Intensity Program Unit (“HIPU”). The defendant has also refused to complete EQUIPS Addiction and EQUIPS Aggression.

Whilst in custody, the defendant incurred eight institutional misconduct charges for intimidating, fighting and disobeying direction.

The defendant’s non-parole period for the Index Offending expired on 4 August 2023. He did not seek parole, and parole was refused on 28 July 2023 for failing to undertake the requisite programs to address his offending behavior.

The defendant was released to parole on 4 August 2024 to enable him to have a short period of supervision before the expiry of his sentence on 4 December 2024. He is currently residing at Foster House, which offers a residential program run by the Salvation Army.

In determining whether to make an ESO, the Court is required to have regard to the matters identified in s 9(3) of the Act in addition to any other matters the Court considers relevant. I will deal with those maters as relevant.

Mr Patrick Sheehan, Forensic Psychologist, prepared a report for the proceedings dated 21 December 2024. The defendant initially failed to attend the interview and then discontinued the make-up interview after one hour. Mr Sheehan felt it unsafe to challenge him or seek to continue the interview.

Mr Sheehan opined that the defendant is in the high risk category of committing a violence offence relative to other men who have offended violently. It is more difficult to predict to what extent that any violence would approach the threshold of a “serious violence offence”, however the defendant is currently at heightened risk of engaging in violent behaviour as his identified risk factors are at play and he is following a trajectory of worsening adjustment.

Mr Sheehan assessed the defendant to meet the criteria for severe ongoing polysubstance use disorder. He has a long history of affective dysregulation which is consistent with Antisocial Personality Disorder.

Mr Sheehan observed that the defendant has a history of chronic dysfunction with severe personality pathology, anger/arousal dysregulation and polysubstance abuse, which contribute to pervasive community maladjustment since childhood. The defendant is not oriented to rehabilitation and has shown a strong aversion to supervision but cannot manage himself and requires external intervention to attenuate his risk of a serious violence offence.

Mr Sheehan opined that if administered effectively, an ESO could reduce risk of a serious violence offence by interrupting the correlates of his violence such as substance use, unstable lifestyle, association with destabilising social influences. The chronicity of the related issues favours an ESO towards the upper end of the available five-year range; an ESO of three years is realistic in meeting rehabilitation targets.

Noting the limitations of risk assessments in accurately predicting whether an individual will offend, Mr Sheehan assessed the defendant’s dynamic risk factors using the Violent Risk Scale (VRS) actuarial tool as follows:

Mr Sheehan identified a “violence cycle” that pertains to the defendant’s life:

Mr Sheehan opined that the defendant’s pathway to violence is influenced by several key risk factors:

Mr Sheehan found that the defendant is vulnerable to expressive violence and acting in anger in response to provocation. This would most likely occur in the context of peer conflict or against police or workers assisting in his management, and would likely involve verbal intimidation and threat but could also be a punch or kick. It cannot be excluded that it would involve a bladed weapon.

The defendant has very few identifiable protective factors. His age may be a protective factor over time, however Mr Sheehan noted that there is no evidence that this process of maturation is unfolding at this time.

Mr Sheehan was of the view that the supervision conditions are reasonable and necessary in the main in order to limit the defendant’s risk of a serious violence offence, noting the following qualifications:

Dr Sally McSwiggan, Neuropsychologist, prepared a report for the proceedings dated 17 January 2025. She noted that the evaluation was limited by the defendant’s lack of cooperation; he was highly reactive and ended the interview after 15 minutes (after missing the interview that was first scheduled). He was emotionally dysregulated and hostile to the point where it would not have been safe to be in the room with him.

Dr McSwiggan opined that the defendant poses a risk of committing a further “serious violence offence” as defined by the Act. She noted that his history of serious violence towards strangers has been infrequent and unpredictable, but that the risk of future serious violence will increase should he return to homelessness.

Dr McSwiggan found that Mr Galvin meets the diagnostic criteria for severe substance use disorder (for heroin and methamphetamine). She opined that his unstable early childhood gave rise to the risk of developing psychological vulnerabilities and maladaptive coping behaviours and that he is likely to continue on the path of unremitting substance use and offending until age or sickness replacing his lifestyle or he changes his substance use.

Noting the inherent limitations in any process of risk assessment for the prediction of violent offending, Dr McSwiggan assessed the defendant using the Violent Risk Appraisal Guide - Revised (VRAG-R) as falling within the High Risk Category (level 8 of 9). This is twice as high as the risk posed by the typical mid-range violent offender.

Using the Historical Clinic Risk (HCR-20 V3), Dr McSwiggan identified that the defendant’s potential risk management factors are his lack of personal support in the community; his likely resistance to engage with a structured positive behavioural management plan and substance use treatment and his capacity to cope with future stressful life events and community interactions. His clinical factors include his limited insight into his violence related functioning and his substance use management/treatment. His dynamic risk factors relate to his stability, such as accommodation and substance use, and Dr McSwiggan noted in particular that should he become homeless again his interactions with the public will increase.

Using the Structured Assessment of Protective Factors for Violence Risk (SAPROF), the defendant’s protective factors included his intact intellect and his flatmate, however he lacked any motivational protective factors, and his external protective factors were limited as he is isolated from relationships and the community due to institutionalisation.

Dr McSwiggan opined that the defendant primarily seeks and would benefit from secure accommodation that may tie him to a community, and that while an ESO would not assist him to obtain or maintain accommodation, it may provide a record of agency involvement and oversight. She observed that the defendant would be more likely to comply with conditions that do not require significant input from him or severely deters his substance use. She also noted that for the ESO to be implementable, the defendant requires the practical help of an experienced male case manager, a plan for suitable accommodation and an opioid replacement treatment. Alcohol and other drug intervention also requires the defendant’s compliance.

Dr McSwiggan expressed the following opinions as to conditions:

Dr McSwiggan suggested that a three-year period would be reasonable to monitor his time in the community, noting that it would be his longest period in the community since early adulthood and the period of greatest risk for serious violence.

On 15 June 2011, psychiatrist Dr Olav Nielssen prepared a report for the Defendant in advance of his sentencing for manslaughter. In relation to that offending, the Defendant told Dr Nielssen that he had already had a shot of heroin and was waiting for someone to come with the next one. He saw himself as stepping in to protect his friend from being punched and did not intend to cause any permanent harm, remarking ‘this guy reared up for another crack … I got up and hit him one and that’s it’. He did not see himself as having a short temper or someone who overreacted in situations of conflict.

The Defendant reported often feeling depressed because of his circumstances of drug dependency and homelessness, and “when my anger gets too much I go around the streets shouting and the cops pick you up.” He had previously experienced paranoia when taking amphetamines but had recovered without treatment and had not taken amphetamines around the time of the offending.

Following his assessment, Dr Nielssen opined the following:

On 5 April 2024, Gillian Tulloh, Senior Psychologist, Violent Offender Therapeutic Program prepared a Risk Assessment Report (RAR) pursuant to s. 6(3)(b) of the Act. Ms Tulloh also prepared a Supplementary Risk Assessment Report on 28 July 2024 (Supplementary RAR).

In the RAR, Ms Tulloh:

In the Supplementary RAR, Ms Tulloh considered additional and updated information about the defendant, and concluded:

On 1 May 2024, Jason Saad prepared a Risk Management Report (“RMR”). In the RMR, Mr Saad found that the primary purpose of the defendant’s community supervision will be to ensure he is engaged in offence-specific intervention and intensive Alcohol and Other Drug intervention. The supervision plan will focus on ensuring the defendant is engaged with services which may assist him in obtaining accommodation and community-based support networks aimed at assisting reintegration.

The evidence indicates that until relatively recently the defendant steadfastly refused to engage in any type of rehabilitation program whilst in custody. He said he was not interested in attending the High Intensity Program Unit (HIPU) and would not give a reason why.

He refused to participate in the Violent Offenders Therapeutic Program (VOTP).

The defendant did complete an EQUIPS Foundation, Addiction and Aggression program but this was considered to be an insufficient level of intervention given his history and criminogenic needs. He has refused other suitable programs.

I accept the plaintiff’s submissions that this history indicates a refusal by the defendant to engage in programs fundamental to addressing his needs and assisting in his rehabilitation. He remains untreated with respect to directly addressing his violence and addictions. I accept these refusals are powerful reason in support of the application in that an ESO would assist in monitoring his behaviour and requiring his attendance at appropriate programs in the community to reduce his risk of reoffending over time.

I accept that on the evidence there are no other known options available in the community given the expiry of the defendant’s parole which might reduce the likelihood of him re-offending.

The defendant’s counsel submitted that the evidence indicates that the defendant has said he is not willing to comply with any conditions of an ESO (defendant’s written submissions at [29])

The plaintiff points to some recent events which indicate that there has been some benefit to him whilst being supervised under the ISO (the affidavit of Ellen Southwood affirmed 10 October 2024, OIMS notes and entry for 5 September, the affidavit of Luke Sampson affirmed on 1 November 2024, OIMS notes and entry for 10 October 2024, the affidavit of Luke Sampson affirmed 24 January 2025 and OIMS notes and entry 31 October 2024) . It is submitted this shows an improvement in the defendant’s attitude and circumstances.

I accept there is evidence to the effect that the defendant has said he is unwilling to comply with any conditions imposed if an ESO is made. The likelihood of compliance with obligations under an ESO is a relevant matter the Court must take into account in determining whether to make the order (s.9(3)(e2)). However, it is but one of the matters the Court must consider. The paramount consideration in determining whether to make an extended supervision order, as mandated by s.9(2) of the Act, is the safety of the community.

There may be cases where it is unlikely that an offender would comply with the obligations of an ESO by reason of circumstances other than an unwillingness to do so. In such cases, that matter may have more weight in the Court’s determination whether to make an ESO. Again, it would be but one matter for the Court to consider and would not be determinative. In cases such as this one, however, the likelihood of the offender complying with the obligations would be determined by the offender’s willingness to comply. If all other factors, including the paramount factor of protection of the community weigh in favour of making an ESO, I consider it would be an extremely rare case (if ever) that such a factor would outweigh all others such that an ESO would not be made. Indeed, the unwillingness to comply with obligations imposed by an ESO, being an order of the Court, could be seen to further enliven the need for community protection by way of close supervision of the offender.

I will return to discuss this issue in more detail below in dealing with the Court’s residual discretion as to whether to make an ESO if it is otherwise appropriate.

I will summarise the parties’ submissions on this issue. I have had regard to their helpful comprehensive written submissions.

The plaintiff submitted that, taking into account the matters set out in s 9(3) of the Act and the evidence in support of the application, as well as the legislative requirement that the safety of the community as the paramount consideration, the Court would be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious violence offence if not kept under supervision. The plaintiff referred to the gravity of the risk posed, including the gravity of the consequences if the risk of further violence eventuated. The plaintiff submitted that the risk is that a further offence of violence would occur in a public place. It was submitted that as a consequence of this, the violence may be unpredictable, without any “lead up” to allow the victim to take evasive or preventative action, and may be instigated against the vulnerable person.

The plaintiff referred to and relied upon the assessment of the experts who consider there is a significant risk that the defendant will commit an offence of violence. The plaintiff accepted that the expert evidence is not clear-cut as to whether there is an unacceptable risk of the defendant committing a serious violence offence. The plaintiff submitted, however, that an offence of violence may escalate and become a serious violence offence by reason of the consequences on the victim of an offence of violence. As the risk includes a risk of offending in a public place, especially with the defendant’s repeated homelessness, the unpredictable nature of the risk and the potential vulnerability of the victims would necessarily mean that there is a substantial risk of significant consequences such that the risk would be one of a serious violence offence.

The plaintiff referred to the fact there seems to be agreement amongst the experts of a high risk of future violence. It is submitted, however, whilst expert opinions are a central consideration, they are not determinative.

The defendant submitted that the expert reports were limited by the defendant’s nature as a challenging interviewee and that he left both interviews early. I do not accept that this diminishes the value of those reports to any significant degree. Indeed, rather, his recalcitrance to attend and engage in those interviews in an appropriate manner which left each interviewee holding concerns for their safety if the interviews continued, is reflective of his general inability to engage with respect to his behaviour without resorting to threatening conduct.

The defendant also emphasised that the experts are not clear-cut on whether the risk posed by the defendant of committing an offence of violence would approach the threshold of serious violence as opposed to more general types of violence. It was submitted that there is a range of violent offending which is possible and a risk of violence at any level cannot be enough to satisfy the statutory test. It was submitted that when the court takes the expert opinions into account and looks at the evidence as to the defendant’s background, there are some striking features which may suggest that his level of violence may not be unacceptable.

First, it was pointed out that at age 50 with a very extensive criminal history, there are limited offences of violence in his overall criminality. It is accepted there were two serious violence offences, but other than that there were only three other offences involving non-serious violence.

Additionally, whilst the experts point to a weapon risk, it was submitted that the evidence does not support a conclusion on this basis of an unacceptable risk of serious violence. Whilst true that the defendant has a large number of of knife offences that is because, it was submitted, he is a person who primarily lives on the streets and requires one to cut up his food. There were no offences with the use of weapons.

It was also submitted that having regard to his relatively advanced age, it is less likely he will commit, and be able to commit, serious violence offences. It was accepted this was an unusual case of an antisocial defendant who very rarely acted violently, who more often than not does not act in a seriously violent way and never appears to have used weapons. Further, the evidence indicates there is some stability in his accommodation at the moment which also would decrease the risk of commissions of serious violence offences.

It was submitted the court could not conclude to the relevant level of satisfaction that the defendant posed an unacceptable risk of the commission of a serious violence offence.

I have formed the view that the plaintiff’s submissions should be accepted. I consider that on the whole of the evidence and taking into account the experts’ material, the RAR and Risk Management Report, and having regard to the matters in s 9(3) of the Act, that there is an unacceptable risk that the defendant will commit a serious offence, being a serious violence offence, if not supervised. I have reached this conclusion to the relevant high degree of probability.

I have reached that conclusion having evaluated and balanced considerations of both the likelihood of the risk and the gravity of the risk that may eventuate (see New South Wales v Simcock [2016] NSWSC 1805 at [71]). As is accepted by the defendant’s counsel, the experts are unambiguous in their opinions that the defendant is a high risk of future violence.

Whilst it is true, as the plaintiff concedes, it is not clear cut in the opinion of the experts that such violence would rise to the level of serious violence, I consider the risk that it will do so is unacceptable. That is because, as the plaintiff says, there is a real risk that such violence may occur in public, in an unpredictable way against a vulnerable person. I accept the plaintiff’s submissions that the consequences of such violence may be significant such that there is a serious violence offence. The definition of “serious violence offence” includes a serious indictable offence constituted by a person engaging in conduct that causes the death of another person or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person. I accept the plaintiff’s submission that potentially, the consequences of the defendant engaging in violence could escalate the offence to a serious violence offence. I note that it has been said that the unacceptable risk may exist where there is a low likelihood of risk, but the consequences are serious: see for example State of New South Wales v Devaney (Final) [2022] NSWSC 60 at [73], State of NSW v Davis (preliminary) [2020] NSWSC at [28], State of New South Wales v Loto [2018] NSWSC 1522 at [16-17] and State of NSW v Kamm (final) [2016] NSWSC 1 at [43].

The evidence indicates that the defendant has little to no insight into his offending behaviour. He responds with violence and aggression to perceived unfairness. This is illustrated by his recent eviction from Matt Talbot Hostel where he claims to have been attacked for no reason by a staff member.

I have not disregarded the factors said by the defendant to be protective which it was submitted mitigated the risk. In so far as the defendant’s present accommodation in Wollongong is concerned, whilst it is stable accommodation the evidence indicates is unsuitable in that it contains drug paraphernalia indicating drug use. Indeed, the defendant accepted he has engaged in drug use whilst at the premises.

In so far as the defendant’s age is concerned, I accept he is, at 50 years of age, not a young man. However, having regard to all of the other factors identified in the evidence, I do not consider this of itself is sufficient to mitigate the accepted risk of him committing acts of violence. I also accept that there is no evidence the defendant has used weapons in the relatively few acts of violence he has on his criminal record. However, that does not mitigate the risk of him committing violence and, indeed, the two acts of serious violence committed by him were committed without weapons.

In my opinion, none of the so-called protective factors persuade me to conclude that there is not an unacceptable risk of serious violence.

I also take into account that another, albeit secondary, purpose of an ESO is to aid in the rehabilitation of the defendant. Despite his posturing that he would not comply with any obligations under an ESO and some breaches of the conditions of the ISO to which he has been subject, as the plaintiff points out, there have been some signs of a positive benefit to the defendant of the supervision under the ISO. For example, he is now on a priority list for housing. Stable (and drug free) accommodation would be a significant benefit to the defendant. It would keep him from living on the streets and remove him from the unsuitable accommodation in which he presently resides. Additionally, the OIMS notes indicate that the supervisor of the defendant has started to get some rapport and is making headway with the defendant. It should not be thought, therefore, that being subject to an ESO with conditions will result only in disadvantage to the defendant.

In my opinion, the plaintiff has established to a high degree of probability that there is an unacceptable risk that the defendant will commit a serious offence if not supervised.

As I have touched upon above, the defendant submits that even if the Court reached the conclusion that the unacceptable risk test was satisfied, in the exercise of its residual discretion, it would refuse to make the ESO. That is because the defendant has said that he will not comply with an ESO and the order would thus be futile.

Counsel for the defendant concedes it would be a very rare case where an unacceptable risk test is made out, but the summons is dismissed in the Court’s discretion. That is a concession well made (see for example State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [43] per Harrison J, as the Chief Judge then was who said it would be an “unusual case” where the Court was satisfied to the relevant standard that an offender was a high risk offender, but would decide in its discretion not to make an ESO). I consider it would be an even rarer case, if ever, where the unacceptable risk test is satisfied but the Court refused in its discretion to make an order merely because the defendant said he would not comply with it. I find it difficult to envisage a situation where it would be a proper exercise of the Court’s residual discretion to refuse such an order, noting the paramountcy of community protection, because the defendant says he would breach it. Such a flagrant disregard to Court orders bespeaks the need for the defendant to be supervised.

Counsel for the defendant submits that as well as making the order futile, if the defendant follows through with his stated intention not to comply with it, it would quickly become punitive. It is submitted the consequences for non-compliance may include imprisonment with a risk that the defendant will spend years in prison not because he has committed a crime, but because he has beached an ESO.

I do not accept imprisonment is a probable result of non-compliance by the defendant. As the plaintiff notes, the evidence is that there has been non-compliance by the defendant with some of the conditions of the ISO. This includes his admissions to taking illicit substances on several occasions, each a breach of the conditions of the ISO.

Whilst he has prima facie been in breach of the conditions of the ISO, the defendant was frank and honest with those supervising him and the police about his taking illicit substances. That honesty can also be considered a positive development in that he did not attempt to lie to his supervisors or the police. Further, as counsel for the plaintiff pointed out, the evidence indicates that there has been a nuanced approach by those supervising the defendant under the ISO, and the police, to his breaches of the ISO. There is no one required outcome. There are several ways a breach can be dealt with, including pro-active and facultative responses which will not necessarily result in action being taken against the defendant. What action is taken is also not prescribed as imprisonment only, but other steps to try to have, and assist, the defendant comply with his obligations in the future.

Even if, ultimately or after a time, action for breach is taken against the defendant which may result in punishment, including potential imprisonment, this would be as a result of the defendant contumaciously breaching his obligations under the ESO. It cannot be the correct approach to deal with this possibility by failing to make the order in the first place.

I do not accept there are any discretionary reasons not to make the ESO.

Counsel for the defendant indicated that all conditions proposed were objected to. He also took the Court to some specific conditions to which he had objection; particularly conditions 5 and 21 (see T21). I am satisfied that the conditions proposed by the plaintiff in this regard are appropriate.

There also appeared to be a concern that some of the conditions proposed extended beyond those made for the ISO. That concern, however, was misplaced as the plaintiff’s counsel confirmed that no conditions beyond those made at the ISO stage were sought.

I have reviewed all of the conditions proposed by the plaintiff in the documents at Tab 4 of the Court Book (MFI-1). I have had regard to the submissions of the parties and the expert reports. I am satisfied that each of thee conditions proposed by the plaintiff are appropriate and should be made.

Finally, I am satisfied that the ESO should be for a term of 3 years. This was the view of the experts and will best suit the risk-related issues and need of the defendant by supervision in the community.

Therefore I make the following orders: