State of New South Wales v Azar (Final)

1. [1]

   By summons filed 15 July 2025 the plaintiff seeks final orders pursuant to ss 5H and 5I of the Crimes (High Risk Offenders) Act 2006 (NSW) (the CHRO Act) that Daniel Azar, the defendant, be subject to an extended supervision order (ESO) for a period of three years. The defendant participates in these proceedings through his tutor, Ms Barbara Ramjan.

2. [2]

   The defendant is currently subject to an interim supervision order (ISO) which was imposed by Ierace J on 4 September 2025 and is due to expire on 28 November 2025.

3. [3]

   The plaintiff submits that the requisite conditions for the making of an ESO in s 5B of the CHRO Act are met, and as such the Court would make the orders sought. The defendant opposes the making of the orders, submitting that the Court would not be satisfied that the defendant poses an unacceptable risk of committing another serious violence offence as required by s 5B(d) and having regard to the matters in s 9 of the CHRO Act. In the event that the orders are made, the defendant opposes the imposition of some of the conditions.

4. [4]

   On 4 September 2025, Ierace J ordered the appointment of two experts to assess the defendant’s risk of reoffending and that they furnish their reports to the Court. In accordance with those orders, the following persons provided reports to the Court:

5. [5]

   The following documentary material was read without objection at the hearing on 14 November 2025:

   1. (1)

      On behalf of the plaintiff:

   2. (2)

      On behalf of the defendant:

6. [6]

   Drs O’Dea and Youssef were both called to give evidence. They gave their evidence jointly and were cross-examined.

7. [7]

   The principal issues for determination by the Court are whether an ESO should be made and, if so, the conditions which the Court considers appropriate as part of the ESO.

8. [8]

   For the reasons that follow, I am satisfied that an ESO of three years should be made, subject to conditions which are set out in an annexure at the conclusion of these reasons.

Background

1. [9]

   The defendant was born on 18 February 1995 and is currently 30 years old. He grew up in Sydney and was the youngest of five children. He reported that he experienced a traumatic event at school at the age of 14 years, following which he commenced using cannabis and began associating with anti-social peers. The defendant experienced some learning difficulties at school. He left school in year 9 and completed year 10 at a special assistance school. He used methamphetamine and benzodiazepines since he was a teenager and commenced using heroin while on parole in 2018.

2. [10]

   After completing year 10, the defendant commenced an apprenticeship as a spray painter and worked for short periods at a smash repair business, a butcher’s shop and on demolition sites. He reports that he regularly attended work whilst under the influence of illicit drugs and that he was unable to maintain stable employment due to drug use.

3. [11]

   The defendant has been diagnosed with schizophrenia and substance abuse disorder. He was found to meet the criteria for mild intellectual disability. He relies on the Disability Support Pension and receives support through the National Disability Insurance Scheme.

4. [12]

   Prior to committing the index offence he had a relatively minor criminal history dating back to 2013.

5. [13]

   In April 2013 he was convicted of an offence of possessing a prohibited weapon without a permit and fined $1,000. That conviction relates to his conduct shortly after midnight on 24 February 2013 when he was found in possession of silver knuckle dusters whilst standing under a footbridge outside a Sydney night club.

6. [14]

   In July 2014 he was convicted of an offence of possessing a prohibited drug and was sentenced to a term of imprisonment for 2 months. That conviction arose from a police search of a motor vehicle in which the defendant had been travelling and during which the defendant was observed to throw a small resealable bag onto the footpath. Two other resealable bags were located inside the vehicle. The defendant admitted knowledge and possession of the drugs, which were described as green vegetable matter weighing a total of 2.22 grams, and told the police that he had bought them from a stranger.

The index offence

1. [15]

   On 16 May 2017 the defendant was convicted and sentenced for the index offence, an offence of manslaughter contrary to s 18(1)(b) of the Crimes Act 1900 (NSW). That offence arose out of the defendant’s conduct during the evening of 13 August 2013 and in the early hours of the morning on 14 August 2013 and concerns the killing of Mr Basem Salameh by the defendant and a co-accused, Mr Ahmed Kaddour and the concealment of that offence by Mr Mohamed El-Chami.

2. [16]

   The circumstances of the index offending appear in the judgment of Mathews AJ in R v Kaddour; R v Azar [2017] NSWSC 586 and in the Court of Criminal Appeal’s decision in Kaddour v R [2019] NSWCCA 90 and can be summarised as follows.

3. [17]

   The defendant and Mr El-Chami both knew the victim and were regular visitors at his unit in Granville. On 13 August 2013 both the defendant and Mr El-Chami were asleep inside the Granville unit. During the evening, whilst the defendant was asleep, the victim apparently pinched the defendant on the bottom. That pinch was described as neither hard nor painful, and was assumed by the sentencing judge to have been a mere gesture of friendship, or possibly to wake the defendant up. The defendant, however, took the pinch to be something of a homosexual advance, and was extremely angered by it. Mr El-Chami was woken by the defendant’s angry response and the two of them then left the unit. At about 8:00 pm they met with Mr Kaddour and told him what had happened.

4. [18]

   Between 1:30 am and 2:00 am on 14 August 2013 the defendant and the two co-accused then returned to the victim’s unit. There the three men began to attack the victim. Mr El-Chami left the unit shortly after the attack commenced. The defendant and Mr Kaddour used various objects and pieces of furniture from the apartment to inflict fatal injuries on the victim.

5. [19]

   Mr El-Chami, who ultimately pleaded guilty to concealing a serious offence contrary to s 316(1) of the Crimes Act, gave an account to the police which was accepted by the sentencing judge as essentially accurate. In that account he said that he left the unit when the defendant and Mr Kaddour were hitting the victim and went down to the street. He stated that after about 20 minutes he returned to the unit and observed the victim lying mortally wounded on the ground and observed the defendant holding an object which he believed was a hacksaw near the victim’s throat. Mr El-Chami said that he kicked the object out of the defendant’s hands. He described observing Mr Kaddour throwing clothes on top of the victim’s body. Mr El-Chami then left the unit again.

6. [20]

   Housing Commission contractors, who were carrying out maintenance duties on the building, found the victim’s body in his unit at around 10:00 am on 14 August 2025. Inside the unit they found what at first appeared to be a large pile of laundry and linen on the floor. The deceased’s foot was protruding from that pile. A table top was also lying on top of the body. The unit was in extreme disarray, and there was blood staining throughout.

7. [21]

   Forensic police and a forensic pathologist attended the unit that day. The forensic pathologist certified that the primary cause of death was blunt force injuries to the head causing brain haemorrhages. There were multiple blunt force injuries to the head and body of the deceased, as well as a number of sharp force injuries, multiple lacerations and fractures to the head, neck, trunk, limbs, base of the skull and nasal bones. A number of the deceased’s ribs were broken and his right eye was ruptured. An unspent bullet was located at the back of the deceased’s throat.

8. [22]

   Palm prints matching the defendant and Mr Kaddour were found on a number of the weapons used to cause the fatal injuries. The defendant also made some admissions to his relatives about his involvement in the killing.

9. [23]

   On 20 August 2013, the defendant was charged with an offence of murder. On 9 October 2015 Wilson J found the defendant unfit to be tried for that offence and the matter was referred to the Mental Health Review Tribunal (MHRT). On 10 December 2015 the MHRT found that the defendant was unfit to be tried and determined that he was likely to become fit within 12 months of the Court’s finding. On 24 March 2016 when the matter was again reviewed by the MHRT the defendant was determined fit to be tried for murder. Following a fitness hearing on 18 April 2016 Mathews AJ found that the defendant was fit to be tried for murder.

10. [24]

    The defendant pleaded not guilty to the offence of murder and guilty to an offence of manslaughter on the basis of substantial impairment by abnormality of mind. The Crown accepted the plea to manslaughter on the basis that the defendant was suffering from chronic schizophrenia at the time of the offence and that his capacity to control himself was substantially impaired.

11. [25]

    On 16 May 2017 the defendant was sentenced by Mathews AJ to 7 years imprisonment with a non-parole period of 4 years. The non-parole period expired on 18 December 2017 and the balance of the head sentence expired on 18 December 2020. That sentence took into account a discount of approximately 15% due to the defendant entering a guilty plea at a relatively early stage. Mathews AJ found that the defendant was suffering a psychotic illness at the time of the conduct and that his over-reaction to being pinched was “almost certainly, at least in part” attributable to that illness.

12. [26]

    The sentencing judge was unable to determine the precise roles played by the defendant and Mr Kaddour or which of them was the principal assailant, finding instead that it was the combined actions of each which led to the death. The offence was found to be spontaneous as opposed to pre-meditated. Given the large number of injuries inflicted and the extremely serious nature of some of them, the offenders were found to have intended, at the very least, to inflict grievous bodily harm. The sentencing judge commented that it was likely that the offenders also intended to kill the victim, but was unable to find that matter proved beyond reasonable doubt. The case was found to fall within the mid- range of objective seriousness.

13. [27]

    The defendant was 18 years old at the time of the offending. His youth was taken into account in mitigation, increasing the significance of rehabilitation and reducing the significance of general deterrence and denunciation in the sentencing process. His record of prior offending was taken into account as an aggravating factor. The sentencing judge found that the defendant had good prospects of rehabilitation and was unlikely to re-offend, provided he engaged with psychiatric treatment and abstained from use of illicit substances.

Subsequent offences

1. [28]

   The defendant has been convicted of further offences since his release to parole for the index offending on 18 December 2017.

2. [29]

   On 13 December 2018 the defendant was convicted and sentenced for offences of assaulting an officer in the execution of his duty, destroying or damaging property (domestic violence) and being armed with intent to commit an indictable offence. Those offences arose from conduct late in the evening of 13 June 2018. On that night the defendant attended his uncle’s residence, hit the front screen door with a closed fist, paced up and down on the porch whilst holding a knife, and repeatedly stabbed the door with a knife while knocking on the door. The defendant’s uncle saw that the defendant had a knife, became fearful and called the police.

3. [30]

   When police attended, the defendant resisted arrest and attempted to assault five officers. In broad terms his assaults on the police involved pushing them with his hands, swinging his arms at them and struggling with them to prevent being handcuffed. The only injury to the police described in the facts sheet was a graze which bled.

4. [31]

   On 13 December 2018 he was sentenced to imprisonment for 1 year with a 6 month non-parole period for the offence of assaulting an officer in the execution of their duty, imprisonment for 3 months for the offence of resisting an officer in the execution of their duty, imprisonment for 3 months for the offence of destroying or damaging property and imprisonment for 12 months with a non-parole period of 6 months for the offence of armed with intent to commit an indictable offence. The earliest commencement date for those terms of imprisonment was 11 June 2018 and the latest expiry date was 23 June 2019. The earliest date on which he became eligible for period was 24 June 2018. In addition, the defendant’s parole was revoked from 14 June 2018.

5. [32]

   On 16 December 2020 Hoeben CJ at CL made an order that the defendant be subject to an ISO commencing on 18 December 2020 for a period of 28 days. In December 2020 he was issued with a written direction after he had been identified as intimidating and threatening Community Corrections electronic monitoring staff. On 21 January 2021 he was given a verbal warning again in relation to his threatening and abusive behaviour directed at electronic monitoring staff.

6. [33]

   Following those directions the defendant contacted Community Corrections on 23 January 2021 requesting to visit his sister, which was a pre-approved location. The defendant became irritated because the request was not forwarded to the rest of the Community Corrections team and he then contacted his supervising officer and used derogatory and abusive language. When Community Corrections officers contacted and later visited the defendant, he again used abusive and aggressive language toward them. The defendant’s failure to comply with the written and oral directions were breaches of a condition of the ISO.

7. [34]

   On 1 July 2022 he was convicted of two offences of failing to comply with the ISO and was sentenced to a community correction order for 15 months for the two offences. The community correction order commenced on 1 July 2022 and concluded on 30 September 2023.

8. [35]

   The defendant was subject to the terms of an ESO for a period of three years commencing on 17 March 2021 which, due to time spent in custody referable to other offending, expired on 4 September 2025. The conditions of that ESO included not associating with a person held in custody without prior approval and not deleting mobile telephone data without prior consent.

9. [36]

   In breach of those conditions a review of the Offender Telephone System revealed that up until 24 April 2021 the defendant was in regular contact with an inmate who was then housed in a correctional centre and a search of the defendant’s mobile telephone on 15 May 2021 revealed that call log data of his telephone contact with the inmate had been deleted from his telephone.

10. [37]

    Arising from that conduct the defendant was convicted on 10 August 2021 of two counts of failing to comply with an ESO. He was originally sentenced in the Local Court to an aggregate term of imprisonment of 10 months. The defendant successfully appealed to the District Court, and on 29 September 2021 the sentence was varied to a 6 month community correction order.

11. [38]

    On 12 July 2021 the defendant participated in a riot in Parklea Correctional Centre. That riot, which involved 41 inmates, occurred at a time when Sydney was in lockdown due to the COVID-19 pandemic, visits to Parklea had been suspended and Corrective Services Officers had noticed an increase in tension amongst the inmates. During the riot other inmates climbed onto the roof, lit fires and attempted to assault corrective officers by throwing projectiles at them. The defendant’s conduct during the riot was limited to assisting other inmates to climb onto the roof and assisting in making a makeshift rope.

12. [39]

    The defendant was convicted of an offence of rioting contrary to s 93B of the Crimes Act and sentenced to 2 months imprisonment commencing on 12 July 2021 and concluding on 11 September 2021.

13. [40]

    In June 2023 the defendant asked his brother to lend him money. After the brother refused the defendant sent him a series of intimidating messages. Those messages included threatening to “get [him]” and “fuck [him] with blades” and warning that he was “gonna die”. On 22 June 2023 he was convicted of an offence of stalking/intimidating with intent to cause fear of physical or mental harm. He received a community correction order for 12 months, which was called up on 22 March 2024, at which time a 9 month aggregate sentence was imposed for this offending and the March 2024 offending.

14. [41]

    In March 2024 the defendant attended an address in Blacktown without approval and in breach of the conditions of supervision of the ESO. On 22 March 2024 he was convicted of an offence of failing to comply with the terms of the ESO.

15. [42]

    On 22 March 2024 the defendant was sentenced for the breach of ESO offence and the stalk/intimidate offence to an aggregate sentence of 9 months imprisonment commencing on 15 March 2024 and concluding on 14 June 2024, which was confirmed on appeal to the District Court.

16. [43]

    On 26 March 2024 the defendant was convicted of three further offences of failing to comply with the ESO. The defendant had attended the Auburn Hotel on 14 March 2024 and remained there until 8:50 pm. He was contacted by a Community Corrections officer and asked to return home. He refused, remained at the hotel, and then travelled to Sydney and remained in the Darling Harbour area. Community Corrections officers again called the defendant and asked him to return home. The defendant declined and disconnected the call. He returned home at 11:40 pm. That conduct was in breach of the conditions of the ESO that he obey all directions of a Departmental Supervising Officer (“DSO”), abide by a curfew and not enter any licensed premises without approval. He was sentenced to an aggregate term of imprisonment of 15 months in relation to the three offences.

17. [44]

    On 13 December 2024 the defendant entered the care of Australian National Disability Care and began residing at a residence under the care of staff. On 28 December 2024 the defendant asked the victim, who was one of the staff members, for $50. That staff member asked his manager, who did not authorise the request. Later the same evening the defendant stood in front of the victim, grabbed him by the collar of his shirt and yelled at him demanding that he call his manager.

18. [45]

    The defendant was convicted of an offence of common assault on 30 May 2025. He received a conviction with no further penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) for that offence.

19. [46]

    On 17 June 2025 the defendant was convicted of an offence of common assault (domestic violence). That conviction arose from events on 12 March 2025 when the defendant opened the door of a motor vehicle his uncle had been driving, stood over him and slapped him twice to the face. The defendant was sentenced to a term of imprisonment of 4 months.

20. [47]

    The defendant remains unsentenced in relation to an offence of assault occasioning actual bodily harm, to which he pleaded guilty on 4 September 2025.

21. [48]

    That offending relates to the defendant’s conduct assaulting a correctional officer whilst in custody at the Shortland Correctional Centre on 29 June 2024. He was in custody at that time serving the 15 month aggregate sentence for the three offences of failing to comply with the ESO for which he was sentenced in March 2024.

22. [49]

    On 29 June 2024 the defendant made requests to correctional officers that he be allowed to leave his pod, which were denied. The defendant became agitated and upset. When a correctional officer opened the door to the pod to let another inmate back in the defendant, who was standing on the other side of the door, tried to grab hold of the officer’s jumper and then punched him with closed fists at least eight times to the face and the back of his head. The officer fell to the floor and the defendant then tried to kick the officer’s head whilst he was on the floor. The defendant’s foot brushed the top of the officer’s head. The officer retreated and then lost consciousness.

23. [50]

    After receiving treatment at the scene, the officer was admitted to Maitland Hospital for head injuries. He sustained a concussion, memory loss, bruising and swelling and abrasions to the eye.

24. [51]

    The defendant is due to be sentenced for the offence of assault occasioning actual bodily harm at the Cessnock Local Court on 28 November 2025.

Treatment and programs

1. [52]

   Whilst in custody the defendant has completed the EQUIPS Aggression program, the EQUIPS Addiction program, the EQUIPS Foundation program and a second EQUIPS Addiction program. He briefly participated in the Violent Offenders Therapeutic Program but requested to be removed in September 2018. The defendant again commenced the program in July 2019 but was suspended and then removed in 2020 due to an increase in use of derogatory language, threats towards staff and aggressive behaviour.

Legislative framework

1. [53]

   The primary object of the CHRO Act is to “provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community”: s 3 (1). Another object of the Act is to “encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation”: s 3 (2).

2. [54]

   ESOs are protective not punitive; their protective purpose has been described as “fundamental”: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [5]; Attorney General for the State of New South Wales v Gallagher [2006] NSWSC 340 at [21].

3. [55]

   The threshold requirements for the making of an ESO are set out in s 5B of the CHRO Act. The CHRO Act provides that the Court may make an order for the supervision of a person if the preconditions in s 5B are met. Section 5B provides as follows:

4. [56]

   It is the common position of the parties that the preconditions in s 5B(a), (b) and (c) have been satisfied. The defendant has served a sentence of imprisonment for an offence of manslaughter, which is a “serious violence offence” as defined in s 5A(1)(a) of the CHRO Act. At the time these proceedings were commenced the defendant was subject to an ESO pursuant to orders made by Davies J on 17 March 2021. Due to time the defendant has spent in custody referable to other offending, the ESO expired on 4 September 2025. The timing of the plaintiff’s application therefore complies with the requirements in s 6 of the CHRO Act.

5. [57]

   The defendant is subject to an ISO ordered by Ierace J and is therefore a “supervised offender” according to s 5I(2)(b) of the CHRO Act for the purpose of s 5I(1).

6. [58]

   In those circumstances I am satisfied that these preconditions have been satisfied and that the concession on behalf of the defendant was correctly made.

7. [59]

   The fourth threshold requirement is that the Court must be satisfied, to a high degree of probability, that the defendant poses an unacceptable risk of committing another serious offence if they are not kept under supervision: s 5B(d). The plaintiff bears the onus of satisfying the Court of the test in s 5B(d).

8. [60]

   A “serious offence” is defined in s 4 as a “serious sex offence” or a “serious violence offence”. In this matter, the relevant type of serious offence is a serious violence offence.

9. [61]

   A “serious violence offence” is defined in s 5A of the CHRO Act as follows:

10. [62]

    Section 5D of the CHRO Act provides that “the Supreme Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence.”

11. [63]

    The meaning of “unacceptable risk” is not defined in the CHRO Act. Its meaning was considered by Beazley P in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [50]–[51]:

12. [64]

    The assessment of “unacceptable risk” is not an exercise of discretion. It instead involves an evaluative balancing exercise to be undertaken in the overall context of the primary object of the Act, that being to ensure the safety and protection of the community: s 3(1).

13. [65]

    Unacceptability of risk involves consideration of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate: State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71] per Wilson J; State of New South Wales v Chaplin [2019] NSWSC 471 at [15] per Rothman J.

14. [66]

    An offender may pose an unacceptable risk, even where the likelihood of committing another serious offence is low, if the likely consequences of such an offence are very grave: State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41]- [43] per Harrison J; State of New South Wales v Devaney (Final) [2022] NSWSC 60 at [73] per Dhanji J.

15. [67]

    For the purposes of assessing whether the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision the impact which an ESO may have on the defendant’s liberty is not a relevant consideration. However, that factor may be relevant to the exercise of the Court’s discretion pursuant to s 9 of the CHRO Act: Lynn at [44], [56]–[58] per Beazley P, [126]–[128] per Basten JA, [148] per Gleeson JA.

16. [68]

    The expression “high degree of probability” was considered in Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]. There the Court of Appeal held:

17. [69]

    Harrison J, as his Honour then was, discussed the application of the concept of high degree of probability to a consideration of the likelihood of the commission of a serious violence offence in State of New South Wales v Pacey [2015] NSWSC 1983 at [43]. There his Honour held that the relevant question is whether the Court can be satisfied that there is an unacceptable risk that the defendant will commit a serious violence offence, not that he might commit some lesser act of violence not meeting or falling short of that definition. Consequently, the relevant test is a narrow one requiring an assessment of whether or not there is a high degree of probability that the defendant poses an unacceptable risk of committing a serious violence offence. The required degree of probability is a standard higher than the civil standard of more probable than not or on the balance of probabilities.

18. [70]

    Section 9(2) of the CHRO Act provides that in determining whether or not to make an ESO, the safety of the community must be the paramount consideration.

19. [71]

    Section 9(3) sets out a list of factors which the Court “must also have regard to ... in addition to any other matter it considers relevant” in determining whether or not to make an ESO. These factors go to the evaluative determination required by s 5B(d), and also to the exercise of the discretion in s 9 of the Act.

Reports received from the persons appointed under s 7(4) to conduct examinations of the offender, and the results of assessments (ss 9(3) (b), (c) & (d))

1. [72]

   Dr Youssef assessed the defendant and provided a report in accordance with the orders made following the preliminary hearing.

2. [73]

   Dr Youssef found that the defendant meets the diagnostic criteria for post-traumatic stress disorder, stimulant (amphetamine–type substance) and cannabis use disorders and severe personality disorder with negative affectivity, dissociality and disinhibition traits. She considered the defendant’s presentation was consistent with post-traumatic stress disorder rather than complex post-traumatic stress disorder. Dr Youssef considered that the intensity of the defendant’s symptoms is likely to be further influenced by the environment and circumstances in which he finds himself and noted that research has found an increased risk of violence in people with post-traumatic stress disorder which is especially heightened for those, like the defendant, with a history of violent behaviour and substance use disorders.

3. [74]

   Dr Youssef did not find that the defendant meets the full diagnostic criteria for antisocial personality disorder due to the absence of a conduct disorder prior to the age of 15. She noted that the defendant’s severe personality disorder was characterised by prominent dissocial traits, including a persistent disregard for the rights and feelings of others, limited empathy and lack of remorse. She noted that features of disinhibition were evident including impulsivity, recklessness and difficulty delaying gratification. She considered that the risk of negative aggression, particularly in situations where he perceived injustice or threat, arose from the interaction between the defendant’s severe personality disorder and his trauma related symptoms.

4. [75]

   In relation to stimulant and cannabis use disorders, Dr Youssef noted that the substance use disorders do not have to be a chronic or enduring condition however they do require concerted efforts on the part of the individual, as relapse for those who have been chronic users can be high.

5. [76]

   Dr Youssef identified a large number of dynamic risk factors including offence and violence supportive attitudes, anti-social affiliates, negative attribution bias, anti-authority attitudes and anti-social personality traits. She identified the defendant has very few, if any, protective factors aside from those directly associated with being under an ESO.

6. [77]

   Dr Youssef accepted that his capacity to control himself at the time he committed the index offending was substantially impaired by his psychiatric illness, noting that the Crown accepted a plea of guilty to manslaughter on the basis that he was suffering from chronic schizophrenia at the time.

7. [78]

   Dr Youssef assessed the defendant’s risk using statistical tools; the Violence Risk Appraisal Guide – Revised (VRAG-R), Historical Clinical Risk Management – 20 (HCR-20) and the Structured Assessment of Protective Factors for Violence Risk (SAPROF).

8. [79]

   On the topic of risk Dr Youssef stated that, although it was not scientifically possible to accurately predict whether a specific offender will or will not reoffend and although risk assessment tools were not specifically tailored to predict the likelihood of committing a “serious violent offence”, but rather were designed to address a broader question of “violent offending”, the use of risk assessment tools nonetheless provided assistance in assessing risk and reaching clinical conclusions.

9. [80]

   Dr Youssef detailed the defendant’s subjective circumstances and describes the index offending and other offending. She concluded that the defendant poses a risk of committing a further serious violent offence according to the risk assessments which she used to assist her in reaching that conclusion and concluded that he had a high degree of outstanding dynamic risk needs with no protective factors, and that static variables placed him in the second highest risk category for violent recidivism. Dr Youssef stated that the defendant continued to present a risk of committing another serious violent offence if he does not receive appropriate support through a period of supervision in the community. In her opinion the defendant’s risk can be adequately managed in the community under the structure, support and oversight of a further ESO.

10. [81]

    In Dr Youssef’s opinion, the defendant’s risk is likely to be unmanageable without the making of a further ESO. She stated that with an extended period of supervision the defendant would be left without any external supervision, requiring him to independently manage his mental health, maintain his prosocial network, establish and adhere to a structured routine, avoid antisocial influences, maintain abstinences from substances and regulate emotional reactions. In the context of his history, risk factors, prior difficulties with treatment and ongoing difficulties in the community, Dr Youssef considers that the likelihood of the defendant independently achieving these goals, without intensive support and supervision, is low.

11. [82]

    In her opinion, continued supervision through an ESO is essential to reduce his risk of reoffending.

12. [83]

    Dr Youssef opined on each of the conditions of supervision proposed by the plaintiff. Generally, she considered that the proposed conditions are reasonable and stated that it is crucial in light of the defendant’s history of reactivity with supervisory staff to explain the conditions carefully and to respond to his queries about conditions simply and clearly.

13. [84]

    In relation to the duration of any ESO, Dr Youssef recommended based on the defendant’s risk of re-offending, outstanding dynamic and treatment needs, current supports and response to supervision to date, that a period of three years would be appropriate.

14. [85]

    In relation to diagnosis, Dr O’Dea is of the opinion that the defendant suffered severe chronic treatment resistant schizophrenic illness from his teenage years and that it is likely from prior to committing the index offence that his schizophrenic illness was characterised by at least auditory hallucinations, disorder in the form and content of his thinking with delusions and loosening of associations between thoughts, significant affective dysregulation and disturbance, including problems with low frustration tolerance, impulsivity, disinhibition, and anger, aggression and violence and ongoing problems with judgment, behavioural control, insight and compliance.

15. [86]

    Dr O’Dea was of the opinion that the defendant’s history of at least cannabis, amphetamine and opioid abuse would meet the criteria for the psychiatric diagnosis of a substance use disorder and considered that that likely precipitated and perpetuated his schizophrenic illness.

16. [87]

    He considered that the defendant’s history of antisocial behaviour, extensive criminal history, impulsivity and effective instability and low frustration tolerance, together with ongoing problems of anger, aggression and violence, including in custody and whilst under community supervision were better understood in the context of his severe chronic treatment resistant schizophrenic illness, complicated by substance abuse, rather than as an independent personality disorder.

17. [88]

    He was of the opinion that the defendant’s severe chronic treatment resistant schizophrenic illness was not currently under adequate control and that the defendant had ongoing acute and chronic symptoms and signs of the condition. He considered that the defendant’s associated ongoing psychiatric treatment needs and psychiatric risk management issues are long-term, complex and significant and require specialised long-term psychiatric treatment and supervision. Dr O’Dea specified a recommended psychiatric and supervision treatment plan in the body of his report.

18. [89]

    On the topic of risk, Dr O’Dea was of the opinion from a full clinical psychiatric risk management perspective and as judged by various risk instruments, the defendant’s risk of engaging in further violent offending behaviours in the community in the long term would be considered as significantly high. That assessment was particularly so in circumstances where his severe chronic treatment resistant schizophrenic illness was not under adequate control and/or he was to resume consuming illicit substances.

19. [90]

    Dr O’Dea considered that there would be a significantly high degree of probability that the defendant would be likely to commit a further “serious violent offence” as defined in s 5A of the CHRO Act, in the community in the long term if his severe chronic treatment resistant schizophrenic illness were not to come under adequate control and/or if he were to resume consuming illicit substances. He was of the opinion that the risk was most likely to be appropriately managed by the defendant engaging in a structured, supervised and assertive community psychiatric treatment and risk management program. Dr O’Dea was of the opinion, however, that a community psychiatric treatment and risk management program under a community treatment order was, alone, likely to be insufficient in prescribing and proscribing an adequate risk management framework to cater for the defendant’s treatment and needs.

20. [91]

    Conversely, he considered the defendant’s risk of engaging in further violent offending behaviours in the community in the long-term, including of committing a further “serious violent offence” as defined in the CHRO Act could be adequately and appropriately managed in the community with successful implementation of a recommended treatment plan together with a structured and supervised community management program as set out in the schedule of conditions proposed by the plaintiff.

21. [92]

    On the topic of the term of any ESO, Dr O’Dea considered that the defendant’s risk of engaging in further violent offending behaviours in the community and of committing a further “serious violent offence” was likely to be long-term and potentially of at least five years duration. Consequently he recommended that any ESO implemented should be long-term and at least three years in duration. He recommended that the defendant’s compliance with his ESO be monitored and reviewed every 6 to 12 months depending on his progress.

The results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the defendant committing a further serious offence, the willingness of the defendant to participate in any such assessment, and the level of the defendant’s participation in any such assessment (s 9(3)(c))

1. [93]

   In a risk assessment report dated 17 January 2024 Ms Holly Cieplucha, Senior Psychologist of the Serious Offenders Assessment Unit, assessed the defendant using various risk assessment tools. Using the VRAG – R the defendant was assessed as high risk compared with other violent offenders. Ms Cieplucha noted that the defendant had previously been assessed using the Level of Service Inventory – Revised (LSI – R) assessment tool in May 2023 and was assessed in the medium/high range of risks/needs for general and violent offending.

2. [94]

   Ms Cieplucha identified numerous dynamic risk factors relevant to the defendant. Those risk factors include emotional control and interpersonal aggression, compliance with supervision, cognitive distortion/insight into violence and criminal attitudes, impulsivity, released to high risk situations/violence cycle/antisocial peers, mental disorder, substance abuse and violence during institutionalisation. Ms Cieplucha was of the opinion that the defendant remains unable to self regulate effectively and noted that interpersonal conflict remained a key factor to be addressed in risk management intervention. She noted the defendant engages in aggressive and abusive communication and has made numerous threats of harm to others including close family members. He has been abusive, threatening and intimidating towards NDIS workers, ESO and electronic monitoring staff and appears driven by attempts to have his perceived needs met or to express frustration.

3. [95]

   Ms Cieplucha considers the defendant’s prognosis remains guarded due to his unresolved mental health issues and cognitive functions despite not engaging in acts of serious physical violence since the commencement of the ESO.

4. [96]

   Ms Cieplucha is of the opinion that the defendant’s cognitive defects, attitudes that condone use of violence, difficulties with emotional regulation and diminished behavioural control due to intoxication contributed to his perpetrating of his index violent offence. She is also of the opinion that those factors continue, with the exception of substance abuse, to perpetuate the defendant’s ongoing use of violent aggression and rule violations.

5. [97]

   Overall Ms Cieplucha considered that the defendant had shown little progress in respect to risk management intervention over the course of the previous ESO. She was of the opinion that the defendant continues to present with a high density of criminogenic needs despite being subject to an ESO since 2021 and that his response to supervision has been poor. She observed that the defendant continues to use threats of violence to have his perceived needs met and to force compliance from others and was of the opinion that it is possible the defendant could commit a future “serious violence offence” as defined in the CHRO Act based on his criminal history and outstanding needs.

6. [98]

   In relation to potential risk scenarios for future violent offending, Ms Cieplucha was of the opinion that there were two plausible scenarios, originally set out in the risk assessment report of March 2020, which remain valid and plausible. Those scenarios are if the defendant were to fail to adhere to the ongoing management of his mental illness which would cause him to struggle to cope with daily stressors, lapse into the illicit drug use and make him less likely to recognise that he was becoming aggressive. The other scenario involved the removal of conditions and restrictions associated with his supervision which are likely to lead to the defendant returning to gambling behaviour, alcohol use, abusing prescription medication, associating with antisocial peers and reinforce his criminal attitudes about violence. It is considered likely that such activities may place the defendant under financial stress and motivate him to make threats for money, noting that he has done so a number of times in the past. The risk scenario for future conduct includes the defendant being more likely to misinterpret situations, have his underlying attitude about violence triggered and respond accordingly in a violent manner.

7. [99]

   Ms Cieplucha also considered appropriate risk management strategies in the event that the defendant was found suitable for a further ESO.

8. [100]

   In a supplementary risk assessment report dated 9 August 2024 Ms Cieplucha noted that the defendant’s mental health had fluctuated significantly and that there had been concerns raised regarding his medication compliance since the initial risk assessment report was prepared in January 2024.

9. [101]

   Mis Cieplucha updated her opinion and expressed that there was not any reduction in the defendant’s overall risk rating since the previous assessment using the risk assessment tools. She considered that the dynamic risk factors identified in the initial risk assessment report remain relevant when considering the defendant’s current risk of violent reoffending and expressed the opinion that he continues to fall in the high risk range and continues to present with a high density of criminogenic needs.

10. [102]

    A report dated 27 January 2021 was prepared by Dr Susan Pulman, Forensic Psychologist, for the purposes of the application for the ESO in 2021. In that report Dr Pulman referred to the results of her assessments of the defendant’s risk in which she used the HCR – 20 tool. The results of those assessments were that the defendant was assessed with a high risk of future violent offending and within the high risk range of committing a further serious offence without appropriate monitoring and supervision.

11. [103]

    Dr Pulman also administered the Wechsler Adult Intelligence Scale – fourth edition (WAIS – IV) tool and found that the defendant’s general cognitive ability fell within the extremely low range and in the 2nd percentile consistent with a mild intellectual disability.

12. [104]

    Dr Pulman commented that although the defendant had impaired understanding of verbal concepts, his reaction time is within the normal range. Consequently, he is likely to misunderstand information yet react quickly. Dr Pulman was of the opinion that because of his impaired attention and concentration abilities there was a greater risk of the defendant overreacting and misunderstanding information presented to him.

13. [105]

    In addition Dr Pulman considered the defendant continued to have limited insight into his mental illness and need for ongoing treatment. She observed that the defendant had symptoms which persisted in the absence of illicit substance use and considered that relapse into substance abuse and deterioration of his mental health were risk factors for the commission of further serious offences in the future. Dr Pulman concluded that the defendant posed a high risk of committing a serious offence without close monitoring and supervision under an ESO and recommended an ESO with a minimum duration of three years.

14. [106]

    A report by Dr Richard Furst, forensic psychiatrist, was prepared for the application for the ESO in 2021.

15. [107]

    In the report, which is dated 27 January 2021, Dr Furst found that the defendant met the criteria for schizophrenia and substance use disorder and expressed the opinion that the defendant posed a risk of committing a further serious offence, noting his prior criminal history, serious mental illness and substance use disorders.

16. [108]

    On the topic of risk factors, Dr Furst commented that although previous clinicians had consistently identified the defendant’s lack of insight into his mental illness and treatment needs, Dr Furst was of the opinion that lack of insight as a clinical construct failed to adequately convey the deficits evident in the defendant. Dr Furst was of the opinion that the defendant was not just insightless, but rather he is actively resistant with respect to treatment prescribed to him to the point of threatening his treating psychiatrist in 2018 and threatening mental health staff, including nurses and psychiatrists whilst in custody. Dr Furst was of the opinion that the defendant’s deficits in relation to insight were so severe that they constitute an additional risk factor specific to his treating team.

17. [109]

    In Dr Furst’s opinion the defendant was at a substantially elevated risk of committing a serious violent offence in the future and would benefit from the more intensive level of supervision and treatment that an ESO offers. He concluded that an ESO was warranted because of the defendant’s low level of intellectual functioning, cognitive deficits, impulsivity, difficulty with emotional regulation and breaches of previous supervision/reporting requirements while on bail and parole.

18. [110]

    In his supplementary report dated 21 February 2021, Dr Furst maintained his view that the defendant lacked insight into his illness and was resistant to psychiatric treatment and supervision generally. Dr Furst continued to opine that without an ESO of the defendant would likely disengage from all psychiatric services, refuse medication and use illicit drugs again.

Any report prepared by Corrective Services NSW as to the extent to which the defendant can reasonably and practicably be managed in the community (s 9(3)(d1))

1. [111]

   In her risk management report Ms Krishna Iyer stated that the defendant had consistently demonstrated a history of poor compliance with Community Corrections’ supervision. She noted that the defendant’s mental health had been unstable at times, he has limited social supports outside of his family and regularly requests to have contact with antisocial associates. Ms Iyer also notes that the defendant has reported difficulties in coping with his conditions, has been combative with ESO staff in relation to his conditions of supervision and struggles with isolation and problematic gambling.

2. [112]

   In her report Ms Iyer commented that the defendant had been extremely resistant to engage with Corrective Services psychologists and that as a result minimal progress had been achieved in respect of his risk management over the course of the previous ESO. Although the defendant has reported engaging in sessions with a private psychologist, Ms Iyer notes that the ESO team has been unable to verify what topics or issues were explored during the sessions and whether any therapeutic intervention related to risk was undertaken.

3. [113]

   Ms Iyer recommended that the defendant remain under supervision with at least weekly face-to-face contact and commented on conditions of supervision which she considers appropriate in order to supervise and manage the defendant in the community subject to an ESO.

4. [114]

   In a supplementary risk management report dated 9 September 2024 Ms Vanessa Gregg stated that the defendant’s response to his previous ESO supervision was overall regarded as poor and noted that his behaviour had become increasingly unstable, erratic and hostile. Although periods of compliance and politeness were noted, Ms Gregg observed that the defendant’s behaviour escalated in tandem with increasing instability, including changing of his NDIS providers, allegations of verbally abusing and striking a case worker to the face, breaching his ESO multiple times and other examples of escalating violent behaviour.

5. [115]

   The report also noted that the defendant was required to engage with a Corrective Services psychologist for risk management intervention sessions but that the defendant had refused to engage.

6. [116]

   Ms Gregg considered that the supervision plan and recommendation conditions outlined in the risk management report remain appropriate.

7. [117]

   On 11 August 2023 Mr Tim Wu, Acting Senior Psychologist for the Serious Offenders Assessment Unit completed an ESO completion risk assessment report.

8. [118]

   In that report Mr Wu noted that the defendant was previously assessed against the Violence Risk Scale (VRS) in 2019 as being within the high risk range. Mr Wu reassessed the defendant on 8 August 2023 resulting in an overall assessment of the defendant being within the high risk range of being convicted of further violent offences.

9. [119]

   The report notes that although there was no change in the defendant’s risk range on the VRS, his total score had decreased to the next recidivism category.

10. [120]

    Mr Wu set out in his report dynamic factors relevant to considering the defendant’s risk of violent reoffending. Those factors include emotional control/interpersonal aggression, compliance with supervision, cognitive distortion/insight into violence/criminal attitudes, impulsivity, released to high risk situation/violence cycle/antisocial peers, work ethic, mental disorder, substance abuse and violence during institutionalisation.

11. [121]

    Mr Wu considered the defendant’s response to supervision has been poor, noting that he reoffended while subject to the 2021 ESO. Multiple instances of the defendant engaging in abusive and threatening behaviour towards Corrective Services staff were noted in the report. The report also noted that the defendant had not engaged in any meaningful employment or routine and that his prosocial support network had not progressed beyond his family and professional staff.

12. [122]

    Mr Wu observed that the previous ESO appears to only have contained the risk of the defendant committing a further serious violent offence and noted that the risk assessment indicated that the defendant had not made behavioural changes regarding his risk factors beyond substance-abuse whilst in a controlled environment and that he remains unable to self regulate or self manage the majority of his risk factors.

13. [123]

    Mr Wu opined that if an ESO was not granted the combination of the defendant’s risk factors may reinforce his criminal attitudes about violence. He considered that a further ESO would allow the defendant to continue receiving appropriate supervision and monitoring and provide oversight of his mental health treatment compliance, to address his risk factors and to assist developing self regulation strategies.

Any treatment or rehabilitation programs in which the defendant has had an opportunity to participate, the willingness of the defendant to participate in any such programs, and the level of the defendant’s participation in any such programs (s 9(3)(e)); and options (if any) available if the defendant is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the defendant re-offending over time (s 9(3)(e1))

1. [124]

   As noted above the defendant completed whilst in custody the EQUIPS Aggression program, the EQUIPS Addiction program, the EQUIPS Foundation program and a second EQUIPS Addiction program.

2. [125]

   Although he commenced participating in the Violent Offenders Therapeutic Program he requested to be removed from the program in September 2018. He commenced the program again in July 2019 but was suspended and then removed in 2020 because of his use of derogatory language and aggressive behaviour directed towards staff.

3. [126]

   The defendant has refused to engage with Corrective Services’ psychological services and has refused to engage with many of the authors of the risk management reports. The defendant has shown limited insight and a resistance to engage with medication and treatment.

4. [127]

   The plaintiff submits that this shows little insight into the risk that the defendant poses of future aggression, including a serious violence offence.

5. [128]

   It is clear that each expert who opined on the issue was of the view that the defendant would require continual treatment in the future in relation to aggression and to substance abuse in order to mitigate his risk of further serious violent offending. That treatment would be by way of psychological and/or psychiatric treatment together with medication. Regular interventions may mean ultimately that the defendant’s risk of committing a further serious violence offence would decrease and, conversely, a lack of cooperation on the part of the defendant would increase that risk.

The level of the defendant’s compliance with parole conditions and the likelihood that the defendant will comply with the obligations of an extended supervision order (ss 9(3)(e2), (f))

1. [129]

   In order to determine the likelihood of the defendant complying with an ESO, the whole of his circumstances must be considered, including his compliance with conditions of previous supervision orders.

2. [130]

   The defendant’s prior breaches of ESOs and the offences with which he was convicted as a result of those breaches have already been canvassed above.

3. [131]

   The breaches of the ISO in January 2021 appear to have arisen from a breakdown of communication when the defendant requested permission to visit his sister. No doubt that breakdown of communication and the lack of approval resulted in the defendant feeling upset and irritated. He was convicted of the offences because he then reacted in an abusive and aggressive manner.

4. [132]

   The breaches of the ESO in April and May 2021 arose from the defendant’s ESO conditions about not contacting persons held in custody and not deleting data from his phone. No evidence has been tendered to establish the identity of the inmate or the nature of the relationship between the defendant and the inmate. There has also been no evidence to establish the nature or content of the communication between the defendant and the inmate. Notwithstanding that lack of evidence the mere fact of contact and the defendant’s subsequent deletion of his call charge records were in breach of the terms of his ESO.

5. [133]

   The further March 2024 offences of failing to comply with the ESO arose from a single course of conduct on 14 March 2024 when the defendant breached his curfew, entered licensed premises without approval and refused requests by Community Corrections officers to return home.

6. [134]

   Despite those prior breaches of his conditions of supervision, I consider that the defendant has generally shown an ability to comply with conditions of his supervision. Certain of the prior occasions of breach, consistently with the defendant’s vulnerabilities and tendency to violence generally, have been triggered by something which the defendant regards as adverse resulting in him overreacting with violence and abuse. For others of his breaches the context and surrounding circumstances of those breaches is relatively unknown. However, apart from those instances it would appear that the defendant has generally been compliant with the terms of his supervision orders and generally has been able to engage with DSOs under the previous orders. The defendant’s history of general engagement with the DSOs and compliance with the terms of his supervision orders, although imperfect, give some indication that he is able and prepared to engage, to an extent, with supervision for any ESO made.

The defendant’s criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history (s 9(3)(h))

1. [135]

   The defendant’s criminal history and pattern of offending behaviour has been canvassed and need not be repeated.

2. [136]

   His conduct relevant the offence committed on 29 June 2024, when the defendant assaulted a correctional officer at the Shortland Correctional Centre, is particularly significant. I note that the defendant has pleaded guilty to the offence of assault occasioning actual bodily harm and is due to be sentenced on 28 November 2025. The circumstances of that offending, in my opinion, are significant because of the degree of violence which the defendant displayed assaulting the correctional officer despite being in the controlled and heavily supervised environment of a Correctional Centre. The facts described what can only be regarded as a serious, surprise and unprovoked assault on an officer which included closed fist punches to the face and back of the head and an attempt to kick the officer in the head whilst he was on the floor. The seriousness of the assault can be properly understood in the description of the officer losing consciousness after the assault.

3. [137]

   The nature of that attack and the degree of violence shown, although no doubt significantly less violent with significantly less consequences than the index offence, still carry some parallels in relation to the degree of violence shown and the tendency to overreact with unnecessary violence.

The views of the sentencing court at the time the sentence of imprisonment was imposed on the defendant (s 9(3)(h1))

1. [138]

   At the time of sentencing the defendant for the index offence in May 2017 Mathews AJ found that the defendant was suffering from psychotic illness at the time of the conduct and that his overreaction was attributable in part to that illness. The offence was found to be spontaneous, not premeditated. However, given the nature and extent of the injuries the defendant was found to have intended, at the very least, to inflict grievous bodily harm. Her Honour commented that it was likely that the defendant also intended to kill the victim (but was unable to find that matter proved beyond reasonable doubt).

2. [139]

   The sentencing judge found that the defendant had good prospects of rehabilitation and was unlikely to reoffend, provided he engage with psychiatric treatment and abstained from using illicit substances.

Any other matter considered relevant and any other information that is available as to the likelihood that the offender will commit a further serious offence (s 9(3) and s 9(3)(i))

1. [140]

   During the hearing of the application Dr Youssef and Dr O’Dea gave joint evidence and were jointly cross-examined.

2. [141]

   In their evidence Drs Youssef and O’Dea confirmed that they had read one another’s reports. Dr O’Dea confirmed that there was nothing contained in Dr Youssef report with which he disagreed. Dr Youssef pointed out that there was a difference between the two of them concerning the diagnosis but otherwise she agreed with the content of Dr O’Dea’s report. Dr Youssef explained that the difference in diagnosis was that in her report she diagnosed post-traumatic stress disorder, severe personality disorder and in relation to the possibility of psychosis had said that it was potentially schizoaffective if substance induced psychosis could be ruled out. On the other hand, Dr O’Dea had diagnosed a severe chronic treatment resistance schizophrenia illness.

3. [142]

   On that topic Dr O’Dea maintained his diagnosis of severe chronic treatment resistant schizophrenic illness but stated that Dr Youssef’s diagnosis, from a practical clinical and risk management perspective, was not at variance with his diagnosis. He explained that from the point of view of treatment and risk management there was no real difference between the two of them or their diagnoses.

4. [143]

   Counsel for the defendant cross-examined the experts on any difference of opinion from that expressed in a psychiatric report by Dr Kerri Eagle dated 23 June 2016 which had been prepared for the purposes of the sentence proceedings. In that report, which is an attachment to Joseph Harding’s affidavit of 13 November 2025, Dr Eagle expressed the opinion that at the time of the index offence the defendant had an abnormality of mind due to an underlying condition and that he was experiencing an episode of psychosis secondary to the mental illness of schizophrenia. Dr Eagle also expressed that the episode of psychosis gave rise to significantly impaired judgement and reasoning at the time of the index offence characterised by thought disorder, auditory hallucinations and persecutory delusions. Dr Eagle was of the opinion that as a result of the defendant’s psychotic symptoms, his judgement and overall ability to understand whether his actions were right or wrong was substantially impaired, that he was prone to misinterpret the actions of others and was likely acting on his delusions. Once Drs O’Dea and Youssef were provided an opportunity to read Dr Eagle’s report, Dr O’Dea gave evidence that the evidence that he had given in relation to the defendant’s condition was consistent with Dr Eagle’s opinion.

5. [144]

   Dr O’Dea gave evidence that any medication prescribed to the defendant would be the same no matter whether the diagnosis or wording of the diagnosis in his report or in Dr Youssef’s report was the operative one, describing that essentially the medical treatment would be the same between schizoaffective disorder and schizophrenia.

6. [145]

   When the experts were cross-examined about the use of risk assessment tools Dr Youssef confirmed that she had used such tools to assist in reaching her diagnosis and Dr O’Dea confirmed that he had not used tools but instead relied on his clinical assessment. Dr Youssef accepted that there were some limitations on predictability and the predictive effect of certain of the assessment tools which she used but explained, supported by literature, that to overcome those limitations, several measures were used to mitigate the limitations to address static variables which then complemented the tools and provide more balance.

7. [146]

   Dr Youssef accepted that the definition of “violent offending” for the purpose of the HCR – 20 assessment tool was not the same as the definition of “serious violence offence” contained in the CHRO Act. Dr O’Dea gave evidence that the use of HCR – 20 was controversial in psychiatry and that many different views were expressed about its use and efficacy. He added that the HCR – 20 tool lists 20 items associated with violence but that the exact nature and extent of the correlation between each of those items and violence was not stated and was difficult to quantify. Dr O’Dea stated that in any event all of the items listed in the HCR – 20 were incorporated in a full psychiatric clinical assessment. Dr O’Dea considered, and believes a significant group of his colleagues agree, that the HCR – 20 tool has questionable validity and predictability and in any event is unnecessary if a patient is given a full psychiatric clinical assessment. However, Dr O’Dea stated that that did not mean that the results of an HCR–20 tool assessment were valueless, describing that the result remains relevant and associated with violence but depended upon each individual situation and that the assessment results need to be tailored for that.

8. [147]

   Dr O’Dea was of the opinion that the conclusions contained in Dr Youssef’s report, largely based on the application of assessment tools, gave some confidence to him because the application of those tools supported his conclusions, which were not based on the use of such tools, but rather were based on his expert clinical assessment. He commented that the fact that the two reports reached the same conclusion provided him with confidence in support of his opinions.

9. [148]

   Both experts agreed that the defendant’s mental health was a significant contributing factor to the index offending and that the defendant is referred to in reports prepared at the time as suffering acute symptoms of mental illness. Both experts agreed that the prior reports refer to the defendant experienced acute symptoms of a schizophrenic illness in the lead up to the index offending.

10. [149]

    Dr O’Dea added that he considered that the defendant’s schizophrenic illness was yet to come under adequate control and that he is continuing to suffer continual symptoms and signs of schizophrenia. Dr O’Dea was of the opinion that the defendant still has components of psychosis, albeit nowhere near to the nature and extent that had been present in the past. Dr O’Dea considered that the residual symptoms of schizophrenia continue to cause the defendant problems with disability and impairment.

11. [150]

    On the topic of cognitive impairment, Dr Youssef gave evidence that such an impairment, if there is an intellectual disability, can cause difficulties in interacting with other people, managing day-to-day life and daily living skills but added that although impulsivity can be a factor associated with cognitive impairment, violent reactions were not necessarily associated with such impairments.

12. [151]

    On the topic of substance use disorder, Dr O’Dea was of the understanding that the defendant would have qualified for a diagnosis of substance use disorder at the time of the index offending. He was of the opinion that such a disorder was a significant contributory component to the commission of the index offending. He was particularly of the opinion that substance abuse disorder was a significant component of his underlying psychotic illness of schizophrenia, the two conditions operating in combination. Dr Youssef agreed that the defendant’s underlying mental illness was exacerbated by his substance abuse.

13. [152]

    Both experts agreed that a substance abuse disorder can come into remission and they accepted the defendant had told them that he had not used drugs in recent years. Dr O’Dea accepted that the defendant has been abstinent since his release from custody and that, on the basis that he had been abstinent for six years, his substance use disorder could appropriately be described as being in remission. Dr Youssef agreed but added that consideration needed to be given to his abuse disorder being in remission whilst in a controlled environment. Dr Youssef considered that being in a controlled environment may well include being the subject of strict conditions of supervision under a ESO. Dr O’Dea considered that the conditions of an ESO including mandatory drug testing and screening and mandatory supervision were a controlled environment and were appropriately to be taken into account in considering whether the defendant’s substance use disorder was in full remission or in remission because he was in a controlled environment. In that context both experts agreed that he was on the path to remission as he was currently in a controlled environment.

14. [153]

    Dr O’Dea commented that substance use disorder, in full or partial remission, still requires long-term commitment and management in the general community because of the high incidence of relapse.

15. [154]

    Both experts agreed that the acute symptoms of the defendant’s schizophrenia and his substance use at the time of the commission of the index offence were both things that directly related to his commission of that offence and the degree of extreme violence used.

16. [155]

    On the topic of medication, Dr O’Dea commented that the present medication Abilify was partially effective and had resulted in the defendant experiencing only residual symptoms of his schizophrenic illness and that with the potential addition or substitution of Clozapine he may be able to cease experiencing those residual symptoms altogether. Dr O’Dea described that that would be the therapeutic aim but that one would have to be therapeutically optimistic to accept that he may become free of all signs, symptoms, impairment and disability.

17. [156]

    Notwithstanding the cross examination, neither Dr Youssef nor Dr O’Dea resiled from the opinions expressed in their reports about the defendant’s continued risk of committing a serious violence offence if not the subject of an ESO. Additionally, neither of the experts resiled from their opinions concerning the duration of any ESO. Dr Youssef did not resile from her opinion about the appropriate conditions for an ESO.

The plaintiff’s submissions as to whether an ESO should be made

1. [157]

   Counsel for the plaintiff submitted that although the process used by each expert reaching their conclusions has been different, they ultimately were unanimous in concluding that the defendant poses an unacceptable risk of committing a serious violence offence if not kept under continued supervision. It was submitted that the difference of approach reflected the differences in expertise between Dr Youssef, a psychologist and Dr O’Dea, a psychiatrist and the fact that they reached the same conclusion through different means would give the Court confidence that their opinions should be accepted.

2. [158]

   It was submitted that the Court would be satisfied to a high degree of probability, on the basis of the material tendered and the oral evidence, that the defendant poses an unacceptable risk of committing a further serious violent offence should not be kept under supervision.

3. [159]

   The plaintiff submitted that, in the event the Court determines that it has the power to make the ESO, it would not be satisfied that there are any discretionary reasons to decline making such an order for three reasons. First, although the ESO had been suspended for 537 days due to the defendant’s detention arising from his further offending, which included breaches of his previous ESO, the Court would be satisfied that the management of the defendant under the previous and current supervision orders had been attended to with discretion and appropriate decision-making by supervisors. In particular, the plaintiff pointed to a number of occasions where the defendant had been warned formally or informally before formal breach action was considered and submitted that that supported the proposition that his supervision has been fair and balanced.

4. [160]

   Second, although the defendant’s past supervision has provided challenges and some conflict, the plaintiff relied on Dr Youssef’s opinion that an ESO would have a positive rehabilitative effect in assisting the defendant to transition away from the risk of institutionalisation and was “essential” in assisting the defendant to reintegrate into the community.

5. [161]

   Third, the plaintiff submitted that the risk that the defendant poses was unacceptable in light of the potential gravity if there were to be a manifestation of his risks. The plaintiff supported that submission by reference to the extreme violence manifest in the index offending and the violence, although to a lesser extent, manifest in the outstanding offending committed against a corrective services officer. That outstanding offending, the plaintiff submitted, was a powerful illustration of how the defendant’s risk manifests and the potential for serious violence. The plaintiff submitted that those matters militate strongly against the Court declining to exercise its discretion to make an ESO.

6. [162]

   The plaintiff contended for an ESO of three years in duration. In support of that submission the plaintiff pointed to the expert opinions that the appropriate length of the order was at least three years.

The defendant’s submissions as to whether an ESO should be made

1. [163]

   It was submitted on behalf the defendant that the Court would not be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence if not kept under supervision.

2. [164]

   The defendant submitted that Dr Youssef’s opinion should be read in light of the oral evidence concerning the reliability of the use of risk assessment tools. Further the defendant submitted that Dr Youssef provided an opinion that the defendant presents “a risk” but did not provide any more specificity about the degree or intensity of that risk. In relation to the opinions of both Dr Youssef and Dr O’Dea the defendant submitted that both of their opinions should be considered in light of their concessions that the defendant is experiencing less acute symptoms of his mental illness presently than he was at the time of the commission of the index offences and that he is now suffering only what were described as residual symptoms of schizophrenia. The defendant submitted that the Court should take into account that his substance use disorder was now largely in remission, albeit in circumstances where he continues to be in a controlled environment. As a consequence, many of the factors which were operative in combination at the time he committed the index offences were of reduced significance presently because of his partial remission and treatment.

3. [165]

   In relation to the risk management reports, the defendant submitted that the defendant has since been placed on a guardianship order which alleviates many of the risk management issues relevant in the past which were associated with accommodation, NDIS providers and community mental health. The defendant also pointed to the evidence from the defendant’s family to establish that he continues to have a supportive relationship with family members.

4. [166]

   Reliance was also placed on the completion by the defendant of various programs whilst in custody directed towards his substance abuse and his history of offending. The defendant’s counsel highlighted that his engagement with the EQUIPS Addiction program in 2007 was described as quiet, polite and engaging well in group sessions.

5. [167]

   Although it was conceded by the defendant that the index offending was extremely serious, the defendant submitted that the background and the defendant’s criminal history did not support a finding that there was an unacceptable risk of committing another serious violence offence. Reliance was placed on the fact that the index offence occurred when he was 18 years old in the context of suffering from chronic untreated schizophrenia and heavy drug use which substantially impaired his capacity to control his actions.

6. [168]

   Although it was conceded on behalf of the defendant that more recently there has been an escalation in his violent offending behaviour, it was submitted that nonetheless that conduct did not rise to the level of being a “serious offence”. The offence committed in custody in June 2024, although accepted to be violent, did not fall within the definition of a serious violence offence. The defendant submitted that the Court should exercise caution not to impose an order to protect the community from “any” risk of the commission of “any” future offence.

7. [169]

   The defendant also relied on family support evidenced by an affidavit from his sister Amagene Azar in relation to continued support of the defendant and assistance which they provide. The defendant also relied on support provided by the private psychologist with whom the defendant had been engaging in therapy sessions since 2020.

8. [170]

   A psychological assessment report was prepared by Ms Rebecca Mallia-Blanco, registered psychologist, dated 16 July 2025. Ms Mallia-Blanco is the private psychologist who has been engaging with the defendant since 2020. In that report the defendant’s psychologist stated the defendant meets the diagnostic criteria for schizophrenia, attention deficit hyperactivity disorder, complex post-traumatic stress disorder, major depressive disorder, recurrent generalised anxiety disorder, mild intellectual disability and antisocial personality disorder.

9. [171]

   In her report Ms Mallia-Blanco stated that the defendant struggled significantly with the rigid oversight imposed by his ESO. She noted the defendant is resistant to authority, believes that he has previously been traumatised by past institutionalisation and treatment by police and corrective services and is highly emotionally reactive when he perceived injustice or disrespect. Ms Mallia-Blanco was of the opinion that the defendant suffers from severe and chronic mental illness but that he was not dangerous to the public provided he was adequately supported and medicated.

10. [172]

    These protective factors, it was submitted, were not given full weight by the report writers engaged on behalf of the plaintiff and that when taken into account reduced the risk of violence because of the additional support systems provided.

11. [173]

    The defendant submitted that the oral evidence from the plaintiff’s experts established the efficacy of the current medication and that there may be future reduction in symptoms and risk with a change of or an addition to the current medication regime.

12. [174]

    The defendant submitted that the evidence established that the defendant had not used illicit drugs in six years. In relation to alcohol use it was submitted that there was no direct connection between alcohol consumption and his violent offending.

13. [175]

    On the topic of employment the defendant submitted that the evidence referred to the defendant’s attempts to obtain employment throughout the previous ESO in a variety of industries, including smash repairs and tattooing but submitted that on many occasions the employment offers had been rejected by Community Corrections staff as being inappropriate or unsuitable for unspecified reasons.

14. [176]

    The defendant also submitted that his housing instability, referred to in some of the reports is a dynamic risk factor, was no longer relevant because he is now in stable accommodation.

Consideration

1. [177]

   I have already found that the matters in a 5B(a) – (c) of the CHRO Act are satisfied.

2. [178]

   As to s 5B(d), I acknowledge that the issue is not whether there is a risk that the defendant will commit a further offence or offences. The CHRO act is not concerned with general reoffending or even violent offending that is not within the definition of a serious violence offence. I also acknowledge, as did Drs O’Dea and Youssef, that there are limitations with risk assessments.

3. [179]

   Taking into account all of the evidence and the submissions of the parties, I am satisfied in all the circumstances to a high degree of probability that the defendant poses an unacceptable risk of committing another serious violence offence if not kept under supervision.

4. [180]

   The evidence shows that the defendant has minimal insight into his past offending and his associated risk factors. He has limited ability to manage his risk factors independently in the community. Although he has engaged in some psychological treatment and is presently taking prescribed medication, that appears to have had only limited protective value. He continues to display residual symptoms of his psychotic illness.

5. [181]

   Even though there are some positive signs of improvement in the defendant’s behaviour since the commission of the index offence, there are also indications of his volatile outbursts and maladaptive behaviours which continue to undermine his ability to successfully navigate life in the community. His violent offending against a correctional officer and his violent and abusive dealings with DSOs, although each falling short of the definition of a serious violence offence, are strong indicators that he continues to pose an unacceptable risk of committing such an offence if not kept under supervision.

6. [182]

   The defendant’s residual symptoms of his treatment resistant schizophrenic illness, his lack of insight and his past resort to substance abuse and violence satisfy me to a high degree of probability that unless supervised the defendant poses an unacceptable risk of committing another serious violence offence if not kept under supervision.

7. [183]

   The threshold provision in s 5B is satisfied. Further, on the basis of the matters identified above, I am of the view that pursuant to s 9 of the CHRO Act I should make an ESO subject to conditions.

8. [184]

   Both experts were of the opinion that three years was an appropriate term for the duration of such an order, noting that Dr O’Dea was of the opinion that the duration should be for “at least three years”. In light of that uncontradicted evidence I am of the view that a period of three years is the appropriate length for the ESO.

Consideration of the appropriate conditions

1. [185]

   Section 11(1) of the CHRO Act provides that an ESO may direct a defendant to comply with such conditions as the Court considers appropriate and sets out a non-exhaustive list of potential conditions. Section 11(2) mandates the inclusion of a condition requiring the defendant not to leave New South Wales except with the approval of the Commissioner of Corrective Services.

2. [186]

   In determining what is “appropriate” it is accepted that the discretion is broad but must be exercised having regard to the scope and purpose of the CHRO Act and its objects: Wilde v State of New South Wales [2015] NSWCA 28; (2015) 249 A Crim R 65 at [47]. In Wilde the Court further stated at [53]:

3. [187]

   The determination of appropriate conditions is a balancing exercise. The court should seek to impose the least intrusive conditions consistent with its assessment of risk and a further assessment as to what kind of conditions are likely to be effective: Lynn at [129]. This step engages a balancing exercise involving possible intrusions on the defendant’s liberty and privacy: Lynn at [130]. It must also be borne in mind that a failure by a defendant to comply with the requirements of an ESO is an offence pursuant to s 12 of the CHRO Act and is punishable by a fine, imprisonment, or both.

Uncontentious proposed conditions

1. [188]

   The conditions contended for by the plaintiff as appropriate for the ESO were the same as those imposed by Ierace J on 4 September 2025.

2. [189]

   The primary position of the defendant was that an ESO should not be imposed. The defendant’s secondary position was that it did not oppose the making of many of the proposed conditions. Conditions 1, 2, 3, 5, 10, 12, 13, 15, 16, 17, 18, 19, 20, 25, 28, 29, 31, 32, 33, 43, 44, 46, 47, 48, 49, 50, 51, 52, 53, 54, and 55 were not opposed.

3. [190]

   Based on the material I have considered, and in accordance with the principles set out above, I am satisfied that those uncontested conditions are appropriate.

Contentious proposed conditions

1. [191]

   Some of the remaining proposed conditions are opposed entirely, and some in part, and for others alternative wording is suggested.

2. [192]

   In relation to the contentious conditions the defendant submitted generally that, although conditions do not have to have a demonstrated link to past offending, they should address the risk of future offending based on the scope, purpose and objects of the Act and should not be designed towards future general criminal conduct but instead be focused on mitigating the risk of a serious offence: State of New South Wales v Green (Final) [2013] NSWSC 1003 at [36] - [38]. The defendant submitted that conditions must not be unjustifiably onerous or punitive, must be understood as having substantial work to do rather than a mere speculative possibility and must ensure a balance between the community interest and personal liberty.

3. [193]

   Proposed condition 4 seeks to prevent the defendant from engaging in threatening, intimidating or abusive behaviour towards Corrective Services New South Wales or electronic monitoring staff that would cause fear for their safety, interference with supervision or impede supervision.

4. [194]

   The plaintiff submitted that the proposed condition was necessary and appropriate because of the defendant’s past threatening and intimidating and abusive conduct directed towards supervisory staff. The plaintiff also relied on Dr Youssef’s view that it was a reasonable expectation that the defendant should not engage in such conduct towards supervisors. Additionally the plaintiff submitted that the condition was appropriate because it will have an educative effect on the defendant and enhance enforcement: State of New South Wales v Keir [2022] NSWSC 627 at [30].

5. [195]

   The defendant contended that the condition was unnecessary because of the operation of s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) which prohibited such conduct.

6. [196]

   In reply the plaintiff submitted that s 13 did not make condition 4 unnecessary because s 13 required a specific intention to intimidate whereas condition 4 did not.

7. [197]

   In my view condition 4 should be imposed for the reasons submitted by the plaintiff. In light of the defendant’s past conduct of abusive, derogatory and threatening behaviour directed at supervisory staff, it is clearly an appropriate and necessary condition.

8. [198]

   Condition 6 requires the defendant to wear electronic monitoring equipment as directed by a DSO and prevents the defendant from tampering with such equipment.

9. [199]

   The plaintiff submitted that electronic monitoring was appropriate to enable a DSO to monitor the defendant’s risk-related behaviours and to ensure compliance with the other conditions together with any exclusion zones. The plaintiff also submitted that electronic monitoring would enable regular audits to be conducted to identify any concerning patterns of behaviour or movement. It was submitted that electronic monitoring worked together with and assisted compliance with conditions requiring schedules of movements. The plaintiff referred to the defendant’s breach of the ISO, which was detected via electronic monitoring, when on 9 September 2025 he was detected remaining at a specified address without approval and again on 20 September 2025 when he was detected at an address without approval and in circumstances when he had been untruthful with his DSO when asked about the topic.

10. [200]

    The defendant submitted that electronic monitoring was not required in circumstances where the defendant’s previous offending was not tied to any specific location or type of location. It was also submitted that such condition was overly punitive.

11. [201]

    In response the plaintiff pressed the condition on the basis that it was protective for the reasons referred to in Dr Youssef’s report including that it allowed appropriate oversight and accountability to ensure the defendant adheres to supervision restrictions and avoids high risk environments.

12. [202]

    In my view, condition 6 is necessary and appropriate for the reasons set out by the plaintiff. In addition, such a condition does not need to be directly linked to prior offending, rather it is appropriate in order to allow authorities to monitor the defendant’s whereabouts to ensure his compliance with the current conditions, in particular in relation to his schedule of movements and curfew.

13. [203]

    Condition 7 requires the defendant, if directed, to provide a schedule of movements.

14. [204]

    The plaintiff submitted that this condition was necessary to encourage structure and routine in order to mitigate the risks of acting impulsively which is a recognised risk factor for the defendant. In addition the plaintiff submitted that a schedule of movements acted to assess and monitor the defendant’s proposed activities so that exposure to high risk environments can be limited. In addition a schedule of movements encourages routine and structure in the defendant’s daily activities. The plaintiff also pointed to Dr Youssef’s consideration of that condition in which she opines that the schedule of movements condition appeared to be reasonable but suggested a cautious approach against rigid enforcement of the condition.

15. [205]

    The defendant opposed the condition on the basis that there was not a sufficient connection between that condition and the defendant’s risk profile. In the alternative the defendant proposed alternative wording that required a schedule to be provided limited to “anticipated movements each day”.

16. [206]

    In reply the plaintiff submitted that the condition was pressed as being appropriate and that the requirement to provide a schedule of movements worked together with a condition requiring electronic monitoring for the reasons previously expressed in submissions and articulated by Dr Youssef.

17. [207]

    In my view this condition should be imposed for the reasons contended for by the plaintiff. Providing a schedule of movements will, in my view, assist the defendant in encouraging structure and routine and limit his exposure to high risk environments. I am not persuaded that the proposed rewording of the condition suggested by the defendant is appropriate. Providing a schedule of “anticipated” movements would be meaningless and difficult to enforce because at any given time the defendant may change his anticipated movements without providing an amended schedule.

18. [208]

    Proposed conditions 8 and 9 also relate to the schedule of movements.

19. [209]

    For the reasons I have already expressed in relation to condition 7 I am satisfied that conditions 8 and 9, which also relate to the schedule of movements, are appropriate conditions.

20. [210]

    Condition 11, a curfew condition, requires the defendant to be at an approved address between the hours of 10:00 pm and 6:00 am unless other arrangements are approved.

21. [211]

    The plaintiff submits that the curfew condition is appropriate in order to reduce the risk of the defendant associating with antisocial individuals and by limiting his movement at night in circumstances where such movements are likely to result in increased risk scenarios. The plaintiff also submitted that the condition was consistent with Dr Youssef’s opinion that a curfew condition relating to an approved address was necessary as a component of the defendant’s risk management and rehabilitation. Dr Youssef considered that such a curfew would ensure that the defendant would remain within a controlled and structured environment during vulnerable hours to help prevent impulsive or violent behaviour that might occur in unstructured settings late at night.

22. [212]

    The defendant opposed the condition on the basis that it was not associated with his risk, represented state paternalism and was not appropriate. The defendant submitted that he has never committed a serious offence within these curfew hours and that he does not have a significant history of offending within those hours. The plaintiff submitted in reply that the condition was protective and managed against the risk of the defendant being in uncontrolled and unstructured environments late at night during vulnerable hours which would increase his risk of committing a serious violence offence.

23. [213]

    I consider that the curfew condition is appropriate. I note that his conviction in April 2013, when he was found after midnight outside a nightclub in possession of knuckle dusters, occurred during the proposed curfew hours. Although not charged with an offence of serious violence, he was charged with an offence in relation to possession of a weapon which, if used, could facilitate the commission of a serious violence offence. In conjunction with the defendant’s impulsivity, history of violence and chronic treatment resistant schizophrenic illness this condition is clearly appropriate.

24. [214]

    Condition 14 requires the defendant to promptly notify DSO of any visitor entering and remaining at his approved address.

25. [215]

    The plaintiff submitted that that condition was appropriate so that the DSO can monitor potential visitors. In support of that submission the plaintiff drew attention to evidence that the defendant has in the past made requests to associate with antisocial peers, communicated with inmates, threatened his family members and committed violence in domestic settings. It was submitted that the condition was appropriate to allow for this risk to be managed.

26. [216]

    The defendant opposed the making of this condition on the basis that it was extremely broad and that compliance with it was difficult. The defendant submitted that because the defendant resided at a room in a boarding house, which had shared facilities it was difficult for the defendant to comply with any notice requirement because visitors generally entered the boarding house or the shared facilities. It was submitted that if this condition was to be imposed alternative wording should be added to restrict the condition to visitors who had been invited onto the premises by the defendant.

27. [217]

    In response the plaintiff submitted that the proposed condition 14 has been in place for some time and was not being enforced in a way that resulted in the defendant being in breach by virtue of other occupants or visitors entering into other parts of the boarding house or shared facilities. Rather it was being enforced reasonably and pragmatically. The plaintiff submitted that there was no evidence of any breach suggested arising from the hypothetical situation suggested by the defendant.

28. [218]

    In my view the condition should be imposed for the reasons set out by the plaintiff and on the basis that the condition has not been enforced in the past, and one would expect will not be enforced in the future, to find the defendant in breach because other residents of the boarding house or visitors to the shared facilities in that boarding house entered into the building. Rather the condition relates to people visiting the defendant and entering into and remaining in his room of the boarding house or any other approved address at which the defendant may reside in the future.

29. [219]

    Condition 21 requires that the defendant provide information relating to his financial affairs, including income and expenditure, if directed by DSO.

30. [220]

    The plaintiff submitted this condition was appropriate to monitor financial behaviour which could be of concern to indicate an escalation of risk, such as substance abuse or mental health decompensation. It was submitted the condition would permit a DSO to pre-empt and reduce risks elevated by the defendant’s financial situation.

31. [221]

    The defendant submitted that condition 21 does not have any relationship with the defendant’s risk profile and submitted that monitoring financial information would not provide a DSO with any evidence relevant to substance abuse or mental health.

32. [222]

    In response the plaintiff pressed the condition on the basis that it permitted monitoring of his financial behaviour which in the past has been a source of stress and resulted in an elevation of risk.

33. [223]

    I am not satisfied that condition 21 is appropriate or necessary. The defendant’s risk of engaging in serious violence offending is not sufficiently linked to information relating to his financial affairs. In any event, even if DSO were able to review bank statements, credit card statements or other financial affairs one would expect that that information would reveal little about whether it was being used to purchase drugs or engage in any other illegal activity. In those circumstances I do not propose to impose condition 21.

34. [224]

    Conditions 22 to 24 relate to drugs and alcohol. The parties dealt with those conditions together. I will do likewise.

35. [225]

    Those conditions prevent the defendant from purchasing or consuming alcohol, prohibited drugs or prescription drugs which had not been prescribed to him, require him to submit to drug and alcohol testing and prevent him from entering any licensed premises without prior approval.

36. [226]

    The plaintiff submitted that the conditions were appropriate because substance use was a key risk factor for the defendant, was connected with his commission of the index offending and connected with his risk of committing a serious violence offence in the future if he were to relapse into substance abuse. The plaintiff also referred to Dr Youssef’s report in which she considered that these conditions were relevant to the defendant because there was a direct link between substance misuse in the past, his mental health and the risk of committing a serious violence offence.

37. [227]

    The defendant opposed the making of these conditions in relation to the reference to alcohol consumption and in relation to the prevention of entering into a licensed premises on the basis that they were overly restrictive and that the defendant does not have a history of offending while intoxicated by alcohol. The defendant’s counsel did not submit that the conditions, to the extent they restricted consumption of illicit drugs or prescription drugs that have not been prescribed, were anything other than appropriate in the circumstances.

38. [228]

    In my view conditions 22 to 24 as proposed by the plaintiff are reasonable and appropriate. I have reached that view notwithstanding the fact that the current conditions prevent consumption of alcohol without prior approval and notwithstanding that the defendant’s prior offending occurred in the context of illicit drug intoxication, not alcohol intoxication. I have reached that view because of the expert opinion concerning his risk assessment being associated with substance abuse generally. Although the defendant is presently abstinent from illicit substance abuse, that abstinence is in the context where he remains in a controlled environment under the present conditions of an ISO. If those conditions were removed or relaxed in order to allow consumption of alcohol, there is, based on the expert opinion, an elevated risk that the defendant will engage in serious violent offending. For those reasons the proposed conditions 22, 23 and 24 are appropriate.

39. [229]

    Condition 26 prevents the defendant from associating with any person specified by a DSO.

40. [230]

    The plaintiff submits that the condition is necessary and appropriate because it permits a DSO to monitor and restrict, if necessary, the defendant’s contact with persons who may elevate his risk of committing a serious violence offence. It was submitted that the evidence established that the defendant in the past has repeatedly requested to have contact with antisocial influences, as referred to in the risk assessment reports. In addition the plaintiff pointed to Dr Youssef’s opinion that the condition was appropriate by directly addressing the influence of antisocial peers which were identified as a significant risk factor for the defendant.

41. [231]

    The defendant submitted as an alternative proposed wording that a note be included to excise the defendant’s father and sister from the condition. The defendant submitted that the affidavit from his sister establishes that she is supportive and an appropriate person for him to have regular contact with. It was submitted that the sister is also his guardian and that there was in those circumstances and important need for him to have unrestricted access to her. In addition the defendant’s sister assists in managing his NDIS access. The defendant referred to a formal direction given during the ISO which restricted the defendant’s contact with his immediate family members, including his sister and father, to contact that occurred in public places unless other arrangements were approved by a DSO.

42. [232]

    The plaintiff submitted in reply that the risk as a result of contact with any particular person was dynamic in nature and referred to Dr Youssef’s opinion that victims of future serious violence offending were likely to be male persons known to the defendant, family members, service providers or friends.

43. [233]

    Taking into account the submissions of the parties, I am satisfied that an amendment is appropriate to condition 26 by adding an additional note which reads “Note: It would not be considered to be a breach of this condition for the defendant to associate with his father Joseph Azar or his sister Amagene Azar.”

44. [234]

    Condition 27 was only opposed to the extent that it restricted the defendant associating with any person who he knew was consuming or under the influence of alcohol without prior approval. The defendant submitted that that part of condition 27 should be deleted consistent with the defendant’s submission about alcohol consumption not being a relevant risk factor.

45. [235]

    For the reasons which I have already expressed in relation to conditions 22 to 24 I am satisfied that the defendant’s risk factors are likely to be elevated in circumstances where he is consuming alcohol or in the presence of any other person known to be consuming or under the influence of alcohol. For those reasons I propose to allow condition 27 in the form proposed by the plaintiff as being an appropriate condition.

46. [236]

    Condition 30 prevents the defendant from gambling.

47. [237]

    The plaintiff submitted that the condition was necessary given the defendant’s past difficulties with problematic gambling which has led to financial strain, resulted in requests for money and resulted in threats being made to his family when they refused those requests. The plaintiff pointed to formal warnings in relation to numerous gambling transactions made on websites and the defendant, in breach of prior supervision conditions, being observed gambling at poker machines in a public hotel with his father. A case note in relation to that event referred to the defendant smashing his telephone in anger shortly after the poker machine outing. The plaintiff also pointed to Dr Youssef’s view that the condition was reasonable and appropriate to manage the defendant’s gambling and noted that future financial stress arising from gambling is a risk factor which could trigger future aggressive behaviour.

48. [238]

    The defendant submitted that gambling was not sufficiently related to the defendant’s risk profile and that there was no evidence of previous violent offences arising because of gambling activities.

49. [239]

    In response the plaintiff submitted that financial stress was a risk factor for the defendant and that gambling had a capacity to increase that stress and therefore the risk.

50. [240]

    For the same reasons which I expressed in rejecting condition 21, I reject condition 30. In my view proposed condition 30, restricting the defendant from gambling is not necessary or appropriate in the circumstances.

51. [241]

    Conditions 34 to 41 inclusive relate to restricting the defendant’s access to internet and other electronic communication.

52. [242]

    The plaintiff submitted that those conditions were appropriate because of the defendant’s history of contacting antisocial associates without approval. The plaintiff also relied on the defendant’s history of sending threatening text messages to family members. It submitted the conditions facilitate oversight of compliance and will assist in regulating the plaintiff’s gambling. The plaintiff also submitted that the conditions would assist with detecting drug transactions or drug seeking behaviour noting that substance use was a risk factor for the defendant.

53. [243]

    The defendant opposed each of the conditions on the basis that they were not sufficiently related to the defendant’s risk of committing a future serious violent offence.

54. [244]

    For the same reasons I have expressed in relation to rejecting proposed conditions 21 and 30, I am not satisfied the conditions restricting the defendant’s access to the internet or other electronic communication are appropriate. None of the defendant’s prior offending relate to his use of internet or electronic equipment. There is no sufficient relationship between those conditions and the defendant’s risk of serious violent offending. For those reasons I disallow proposed conditions 34 to 41 inclusive.

55. [245]

    Condition 42 requires the defendant to submit to searches by a DSO of his personal residence, any vehicle in which he is travelling or any item including computer, electronic or communication device.

56. [246]

    The plaintiff submitted that the condition was necessary to monitor the defendant’s access to illicit and nonprescribed substances. The plaintiff also submitted that the condition was a standard condition of an ESO and assisted the supervision of the defendant by officers.

57. [247]

    The defendant submitted that alternative wording was appropriate to restrict the ability to search vehicles by excising any requirement the defendant submit to a search of public transport in which he is travelling.

58. [248]

    In my view condition 42 should be reworded so that the reference to “any vehicle in which you are travelling or which is under your control” is amended to “any vehicle in which you are travelling (with the exclusion of public transport vehicles) or which is under your control”. With that amendment I am of the view that the condition should be imposed as it is appropriate in all the circumstances.

59. [249]

    Condition 45 prevents the defendant from significantly changing his appearance without the approval of a DSO.

60. [250]

    The plaintiff submitted that that condition was necessary to ensure the defendant could be easily identified, observed, and monitored in the community. The plaintiff also asked the Court to note that compliance with this condition was not onerous or difficult.

61. [251]

    The defendant opposed the present wording of the condition and proposed alternative wording which required the defendant to notify a DSO within seven days after significantly changing his appearance.

62. [252]

    In my view the proposed alternative wording is not appropriate. The requirement under condition 45 as proposed by the plaintiff requires the defendant to notify in advance of any change in his appearance. The defendant’s alternative wording would result in the defendant being able to significantly change his appearance and not be required to notify supervisors for up to 7 days afterwards. Such an amendment would not facilitate monitoring, identification and observation of that defendant.

63. [253]

    For those reasons I am of the opinion that the wording of condition 45 as proposed by the plaintiff is reasonable and appropriate.

Orders

1. [254]

   The orders I make are as follows:

   1. (1)

      pursuant to ss 5B and 9 (1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), I order that the defendant be subject to an extended supervision order for a period of three years commencing on 27 November 2025; and

   2. (2)

      pursuant to s 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), I direct that the defendant comply with the conditions set out in the schedule annexed to this judgement for the period of the extended supervision order.